TOBEY & REZEK - [2013] FamCAFC 71

FAMILY COURT OF AUSTRALIA

TOBEY & REZEK

[2013] FamCAFC 71

FAMILY LAW – APPEAL – CHILDREN – where the Federal Magistrate made orders providing for the child to live with the mother and spend time with the father and for the mother to have sole parental responsibility in relation to the child’s education and psychological testing, with the parties to consult each other in relation to other issues of parental responsibility – where no merit was found in the father’s various complaints as to the Federal Magistrate’s use, acceptance and weighing of evidence in relation to both parties’ credit, the mother’s mental health, both parties’ insight as to the needs of the child, and specific incidents involving the mother’s behaviour and the child’s welfare – where the Federal Magistrate failed to give any reasons at all for making order 16, which provided for the mother’s treating psychiatrist or psychologist to determine when the mother was temporarily too ill to care for the child, and that at such times the child stay with his maternal grandmother or his half-sister’s paternal grandmother until the mother’s treating professional determined she was sufficiently well to resume care of the child – appeal allowed in part and the issue of what parenting orders should be put in place for the child’s care in the event the mother’s treating psychiatrist determines she is too ill to care for the child be remitted to the Federal Magistrates Court (now known as the Federal Circuit Court).

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the Federal Magistrate made orders providing, inter alia, for the father to pay the mother the sum of $124,493 (order 21) – where the Federal Magistrate failed to make findings of fact, and failed to provide reasons for his conclusions in relation to the respective contributions of the parties, the s 90SF(3) factors, the justice and equitable requirement in s 90SM(3) and, to some extent, the net asset pool – appeal allowed in part and proceedings for property settlement remitted to the Federal Magistrates Court (now known as the Federal Circuit Court).

FAMILY LAW – APPEAL – EXPERT WITNESS’ COSTS – where the Federal Magistrate dismissed the father’s application to have the expert witness’ costs shared equally between the parties and the Independent Children’s Lawyer (order 24) – where the father’s counsel at trial conceded the father should bear the costs of the expert’s cancellation fee and subsequent attendance, and the Federal Magistrate dealt comprehensively in his reasons with the issue of those costs before dismissing the father’s application – no merit found in these grounds of appeal.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – application dismissed.

FAMILY LAW – APPEAL – COSTS – where instead of seeking written submissions on costs, the parties be at liberty to make any application that they wish to in relation to costs in accordance with r 22.53 of the Family Law Rules 2004 (Cth).

Family Law Act 1975 (Cth) ss 90SF(3), 90SM

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.

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Details

AGLC: TOBEY & REZEK [2013] FamCAFC 71
Case: [2013] FamCAFC 71
Decision Date

CaseChat Overview and Summary

Mr Tobey ("the father") appeals against parenting and property settlement orders made by Neville FM on 14 December 2011. The appeal was heard by Coleman, May and Strickland JJ of the Full Court of the Family Court of Australia. The respondent, Ms Rezek ("the mother") opposes the appeal. In summary, the parenting orders appealed against provided for the child to live with the mother and for the mother to have sole parental responsibility in relation to the child's education and psychological testing. The parties were to consult each other in relation to other issues of parental responsibility, but in the event they could not agree, the mother was to make the final decision. The orders provided for the child to spend time with the father from after school Friday to before school Monday in one week and from after school Monday to before school Tuesday in the alternate week, for half of school holidays, on special days, and for telephone communication twice weekly. Various orders were also made in relation to changeover, information sharing, the child's medical treatment, and the parties' conduct. In relation to property settlement, the father appeals against the order providing for him to pay to the mother the sum of $124,493. He also appeals against the dismissal by the Federal Magistrate of his application to have the costs of Dr M, the expert psychiatric witness, shared equally between the parties and the Independent Children's Lawyer ("the ICL"). The appeal was allowed in part. Order 16 made by Federal Magistrate Neville, as he then was, on 14 December 2011 be set aside. The issue of what parenting orders should be put in place for the care of the child in the event that the mother's treating psychiatrist determines she is too ill to care for the child be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Neville. The proceedings for property settlement be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Neville, upon the basis that Orders 21 and 22 made by Federal Magistrate Neville, as he then was, on 14 December 2011 providing for a superannuation split remain in place.

Orders