TOBEY & REZEK - [2015] FCCA 1504

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOBEY & REZEK

[2015] FCCA 1504

Catchwords:
FAMILY LAW – Parenting – what orders to be made in the event that primary carer falls ill.

FAMILY LAW – Property Adjustment – assessment of contributions.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 90SM(4)

NHC & RCH (2004) FLC 93-204
In the marriage of Robb (1994) 18 FamLR 489
AJO & GRO (2005) FLC 93-218

Applicant:

MR TOBEY

Respondent:

MS REZEK

File Number:

CAC 740 of 2008

Judgment of:

Judge Jarrett

Hearing dates:

19 and 20 May 2014

Date of Last Submission:

20 May 2014

Delivered at:

Brisbane

Delivered on:

5 June 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms Godtschalk

Solicitors for the Respondent:

Legal Aid Commission ACT

ORDERS

That in addition to the orders made on 14 December 2011:
(a)the respondent continue to remain under the care of her present treating psychiatrist, Dr B, or such other treating psychiatrist as recommended from time to time by Dr B and be reviewed by that doctor at a frequency determined by the treating psychiatrist;
(b)in the event that the respondent’s treating psychiatrist determines that the respondent is temporarily too ill to care for the child, the child will live with Ms C until the respondent’s treating professional determines she is sufficiently well to resume care of the child;
(c)during any such time the orders in respect of the child's time with the applicant will continue;
(d)the respondent be forthwith entitled to any sum standing to the credit of the parties or either of them in an account held by the Legal Aid Commission ACT, and this order shall be sufficient authority for the Legal Aid Commission ACT to disburse those funds, or any part of them, to the respondent; and
(e)within 60 days of the date of these orders, the applicant pay the respondent the sum of $30,374.00.

IT IS NOTED that publication of this judgment under the pseudonym Tobey & Rezek is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT CANBERRA

CAC 740 of 2008

MR TOBEY

Applicant

And

MS REZEK

Respondent

REASONS FOR JUDGMENT

Mr Tobey and Ms Rezek formed an intimate personal relationship in about 2002. They started living together in 2003. They have one child of their relationship, X, who was born in 2005. The parties’ intimate relationship has come to an end, although they continue to have a relationship as the parents of X.
The parties physically separated in November 2007 when Mr Tobey went to Country D temporarily. At that stage, he did not intend that the parties’ personal relationship would come to an end but, according to her evidence, Ms Rezek had different ideas. Whatever the case, the parties’ intimate personal relationship ended either in late 2007 or early in 2008. The precise date upon which it ended is of no consequence to the outcome in these proceedings.
On 14 December 2011 orders dealing with both parenting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TOBEY & REZEK

Details

AGLC: Tobey and Rezek [2015] FCCA 1504
Case: [2015] FCCA 1504
Decision Date: 5 June 2015

CaseChat Overview and Summary

The case of *Tobey & Rezek* concerned parenting and property adjustment matters heard by Judge Jarrett. The dispute involved the arrangements for a child's care in the event of the primary carer's illness, and the assessment of contributions to the parties' property pool.

The court was required to determine what parenting orders should be made to address the situation where the primary carer, the respondent, might become temporarily too ill to care for the child. Additionally, the court needed to assess the parties' contributions for the purposes of property adjustment.

Judge Jarrett made orders that, in addition to existing orders, the respondent was to continue under the care of her treating psychiatrist. Crucially, if the treating psychiatrist determined the respondent was temporarily too ill to care for the child, the child was to live with Ms C until the respondent was deemed well enough to resume care. During any such period, the child's time with the applicant was to continue as per existing orders. The court also ordered that the respondent was entitled to any funds held by the Legal Aid Commission ACT in their joint or individual accounts, and that the applicant pay the respondent a sum of $30,374.00 within 60 days.

Orders

Orders of the court

That in addition to the orders made on 14 December 2011:

(a) the respondent continue to remain under the care of her present treating psychiatrist, Dr B, or such other treating psychiatrist as recommended from time to time by Dr B and be reviewed by that doctor at a frequency determined by the treating psychiatrist;

(b) in the event that the respondent’s treating psychiatrist determines that the respondent is temporarily too ill to care for the child, the child will live with Ms C until the respondent’s treating professional determines she is sufficiently well to resume care of the child;

(d) the respondent be forthwith entitled to any sum standing to the credit of the parties or either of them in an account held by the Legal Aid Commission ACT, and this order shall be sufficient authority for the Legal Aid Commission ACT to disburse those funds, or any part of them, to the respondent; and

(e) within 60 days of the date of these orders, the applicant pay the respondent the sum of $30,374.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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