TOBEY & REZEK
[2010] FMCAfam 589
•4 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOBEY & REZEK | [2010] FMCAfam 589 |
| FAMILY LAW – Children – parenting – psychiatric admission of one parent – urgent application by sibling’s grandparent to intervene – parenting order in favour of “non-parent’ – contrary to expert evidence, repeated application by one parent for young child to travel overseas – consideration of child’s best interests. |
| Family Law Act1975 ss.4, 60CA, 60CC(3)(d)(ii), (f), (g) & (i), 60CC(4), 60CC(4A), 64C, 65C, 65DAA, 69ZW |
| H v J & Anor (2006) 36 Fam LR 316 KAM v MJR (1998) 24 Fam LR 656 Re J & M: Residence Application (2004) 32 Fam LR 668 Mazorski v Albright (2008) 37 Fam LR 518 |
| Applicant: | MR TOBEY |
| Respondent: | MS REZEK |
| File Number: | CAC 740 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 2 June 2010 |
| Date of Last Submission: | 2 June 2010 |
| Delivered at: | Canberra |
| Delivered on: | 4 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Tonkin |
| Solicitors for the Applicant: | Capon & Hubert, Solicitors |
| Counsel for the Respondent: | Mr K Nicholson |
| Solicitors for the Respondent: | Legal Aid Office (ACT) |
| Solicitor for Third Party Intervener | Ms A Foster Watts McCray McGuinness Eley |
| Independent Children’s Lawyer: | Mrs A Evans Evans Yeend Family Lawyers |
ORDERS
That Orders 2, 7, 8, 10, 11 & 12 of Consent Orders dated 28th August 2009 be suspended.
That Mrs F be granted leave to intervene in the proceedings.
That the child [X] born [in] 2005 live with the Father and Mrs F as follows:
(a)Nine (9) nights per fortnight with the Father.
(b)Five (5) nights per fortnight with Mrs F.
The precise days and changeover arrangements to be agreed between Mr Tobey and Mrs F.
That the Father’s application to take the child overseas in 2010 be refused and in the event that the Father decides to travel overseas for a period in 2010, the child is to live with Mrs F.
That pursuant to Part 15 of the Federal Magistrate Court Rules, Dr M, or a similar expert to be determined by the Independent Children’s Lawyer in consultation with the parties, be appointed as an expert to prepare a report in this matter and the costs associated with the preparation of such a report be shared equally between the parties and the Independent Children’s Lawyer.
That for the purposes of Order 5 above, Terms of Reference be agreed between the parties’ legal representatives and the Independent Children’s Lawyer and be provided to the Court before being forwarded to the agreed expert.
That the final hearing listed on 2nd, 3rd and 4th of June 2010 be vacated.
That the matter be adjourned for directions on 9th November 2010 at 2:15pm.
That liberty be granted to have the matter re-listed on 14 days notice.
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 MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 740 of 2008
| MR TOBEY |
Applicant
And
| MS REZEK |
Respondent
REASONS FOR JUDGMENT
A. Introduction & Recent Procedural History
The following oral judgment was delivered in Court on 4th June. It has been revised from the script used at that time.
These long-standing and long-running proceedings were to be heard over three days, commencing 2nd June 2010. With final consent orders having been made in relation to parenting matters involving the only child of the relationship (5 year old [X]) in August 2009, the current proceedings were originally intended only to embrace property matters between the parties.
As events have transpired, many more matters call for immediate consideration. First in importance is the evidence notified to the Court on the morning of the trial that the Respondent, Ms Rezek, has been hospitalised pursuant to a breakdown, the precise details of which are not before the Court and likely will not be known for some little time. A letter from the Registrar at [omitted] Hospital Psychiatric Ward, dated 1st June 2010, was provided to the Court by Mr Nicholson, Counsel for Ms Rezek, which simply confirmed that, as at that date, she had been admitted to the hospital under an “involuntary order.”[1]
[1] Given the hospitalisation of his client, Mr Nicholson understandably sought to have the scheduled hearing dates vacated. That oral application was not opposed by anyone at the Bar Table. An Order to that effect will be made.
Although originally admitted to the psychiatric unit of [omitted] Hospital, I was advised by Mr Nicholson that Ms Rezek has since been admitted to a secure psychiatric unit at the [omitted] Hospital. As currently advised, there will be some weeks of treatment, followed by some likely larger number of weeks of rehabilitation.
According to a submission from the independent children’s lawyer, Mrs Evans, Ms Rezek is gravely ill. According to Ms Rezek’s Counsel, the likely duration of treatment and rehabilitation is likely to be in the order of approximately 3 months.
I agree with Mr Nicholson’s submission that, to a significant degree, the future conduct of the matter necessarily now rests on how Ms Rezek responds to her current treatment, and how she recovers from it. The period in which this is likely to occur is, as already noted, necessarily speculative.
Naturally, Ms Rezek was, and remains, unable to provide any instructions to her solicitors and her Counsel.
In addition to this most unfortunate circumstance, the Court has before it multiple, recent Applications from Mr Tobey, all of which were filed prior to him becoming aware of Ms Rezek’s hospitalisation. These applications essentially relate to parenting matters concerning [X].
As well, on the morning of the trial, a further Application was filed in Court on behalf of [X]’s sister’s Grandmother. [X]’s sister, [Y], who is approximately 13 years old, is a child of Ms Rezek from an earlier relationship. That Application sought orders whereby Mrs F (“the Grandmother”) be granted leave to intervene in the proceedings and, in effect, to substitute herself in place of Ms Rezek in the care and welfare of [X], and to the relevant degree (pursuant to existing orders) that [X] should live with her while his Mother is in hospital. Mrs F’s Application was supported by Ms Rezek’s Mother/[X]’s Grandmother, Ms A. Ms A filed in Court an affidavit in support of Mrs F.
Mrs F deposed to [Y] living with her since Ms Rezek’s hospitalisation on Thursday, 27th May. It is not disputed that [Y] and [X] have a close relationship. I return to this important subject later in these reasons.
I should also note that, in submissions on behalf of Mrs F, if I have understood them correctly, Ms Foster contended that Ms Rezek had “deposited” [X] with her before her admission to hospital. Thus, so it was submitted, it would keep a degree of stability in [X]’s life if Mrs F continued to look after [X]. Subject to what is said below, I need not elaborate on this aspect.
However, I do need to note that Mrs F’s affidavit, sworn 1st June, presents a slightly different picture to that presented in submissions. Perhaps it was more a question of emphasis. This is to say that, by a telephone conversation from Ms Rezek on the morning of 28th May, Ms Rezek confirmed arrangements for Mrs F to collect [X] from school. She attempted to do so but [X] was not at school that day. The following day, for reasons still unexplained, [X] was collected early from school by his Father. Thus, according to her own affidavit, [X] has not been in Mrs F’s care since Ms Rezek was admitted to hospital.[2]
[2] The dates and days referred to seem to be somewhat inaccurate, primarily because the scenario presented in the affidavit refers to days at which [X] was said to be at school. However, one of those days was a Saturday – 29th May. In my view, for current purposes, nothing of particular substance turns on such discrepancies.
In the light of the most unfortunate and very concerning health issues that are the subject of Ms Rezek’s hospitalisation, and the various Applications before the Court, the matters that require formal orders now seem to be as follows:
(a)Mrs F’s application to intervene
(b)Mrs F’s application to have [X] live with her and spend time with his Father
(c)Mr Tobey’s application to have [X] live with him
(d)Mr Tobey’s application to take [X] overseas in October, and
(e)The ICL’s application to appoint an expert under Part 15 of this Court’s Rules
For the sake of completeness, I should also note that there were a significant range of issues raised in material produced by the Office for Children, Youth & Family Support, as a Report under s.69ZW of the Family Law Act (“the Act”).[3] That Report contains, among many things, an email that purports to be from Ms Rezek, which contains a very significant range of allegations against persons and institutions and which, on the face of it, has been circulated to some media outlets. The email makes serious allegations against Mr Tobey and one of his senior professional colleagues at [workplace omitted].
[3] Nothing turns on one, small detail: the Report was stated to have been prepared for the “Family Law Court of Australia” [sic].
Again because of the circumstances in which all parties and the Court find themselves at the moment, unfortunately, such matters also cannot be addressed at this time. This is especially regrettable because of the allegations made about Mr Tobey and his colleague. I expressed my serious concerns at the contents of this email and the terrible position in which it potentially placed Mr Tobey on the morning of the trial. Unfortunately, because of the current circumstances, such matters must await attention on another day.
I should also note that, because of the extremely sad and concerning circumstances that surround Ms Rezek, and their understandably late notice to all involved, the submissions made at the attenuated “hearing” were necessarily very brief. Indeed, in some instances, often-times submissions were confined to simple agreement with an earlier statement from the Bar Table. On other matters, it was simply a submission with little or no argument. Given the circumstances, I intend no criticism of anyone in this regard.
B. Consideration of Issues & Relevant Principles
By way of general comment, in my view, in relation to all the [immediate] Applications before the Court, which I have summarised above, in my view, my primary responsibility must be to place [X]’s interests paramount.[4]
[4] See s.60CA of the Act. For context and consideration of basal principle, see also Brown J’s helpful and frequently cited “twin pillars” summary in Mazorski v Albright (2008) 37 Fam LR 518 at [3] – [6]. These paragraphs of her Honour’s judgment, which I gratefully and respectfully adopt, should be taken to be incorporated into these reasons.
Mrs F’s application to intervene: Having regard to the broad terms of ss.64C and 65C of the Act, I can see no impediment to Mrs F bringing her application in relation to [X]. I also hasten to add, as I did at the brief hearing, that there is clearly a distinction between the capacity to bring an application, on the one hand, and any orders made in consequence of it, on the other.[5] In the first instance, leave should be granted to Mrs F to intervene in the proceedings.
[5] In this regard, see also the comments of Burr J in Kam v MJR (1998) 24 Fam LR 656, especially at pp.660-668, and Walters FM in Re J and M: Residence Application (2004) 32 Fam LR 668.
Mrs F’s application to have [X] live with her and spend time with his Father & Mr Tobey’s application to have [X] live with him: Because of their mutual exclusivity, or at least inter-connection, both of these applications should be dealt with together.
It is undeniable that Mrs F was not a party to the Consent Orders entered into by the parties and sanctioned by the Court in August 2009. As such, she cannot claim to be, in any respect, nor by any immediately obvious process, a simple or straight substitute for
Ms Rezek.
It also seems to be not disputed (a) that [Y] is now living with her Grandmother, Mrs F, or (b) as already noted, that [Y] and [X] have a close relationship.[6] Further, because of current parenting arrangements regarding [Y] as between Ms Rezek and [Y]’s Father, on the one hand, and Ms Rezek and Mr Tobey, on the other, regarding [X], both siblings spend a not insignificant amount of time together. In such circumstances, it is important that I give due consideration to the provisions of s.60CC(3)(d)(ii).
[6] For example, in Ms H’s Report of 20th August 2009 (par.142), she notes that “[Y] and [X] share a warm, positive relationship.”
Mr Tobey seeks orders, which are supported by the independent children’s lawyer (albeit, for reasons already given, essentially by way of simple concurrence – without argument - with brief submissions given by Mr Tobey’s Counsel), whereby [X] lives with him. Mr Tobey says that he will facilitate time between [X] and [Y], and presumably for [X] to see his Mother as and when appropriate. The latter I essentially infer; I return to these matters in detail, shortly.
Without doubting Mr Tobey’s intentions, in the light of the litigious history of the matter, it may be inferred – without making any formal finding – that, at this stage, the Court could not be completely confident that Mr Tobey would be able (for any number of reasons, not all of which would be within Mr Tobey’s provenance) to facilitate [X]’s time with Ms Rezek’s side of the family, including time with [Y].
For his part, and without instructions in the current circumstances,
Mr Nicholson observed that any time that [X] might be able to see his Mother (in hospital, as appropriate, or otherwise) should not be facilitated by Mr Tobey. Given the long, utterly fraught and seriously acrimonious relationship between the parties, I agree with Mr Nicholson’s observation/submission. Indeed, having observed, and been engaged with, both parties in their relentless and very frequent contests for nigh on two years, I am keenly aware of the levels and nature of the contests between them.
In the long-running circumstances of this case, and particularly in the light of the most recent, very sad developments involving Ms Rezek,
I would be concerned that if [X] lives solely with Mr Tobey he may not be able to spend the time he should, and certainly with the same ease and facility he requires, with his sister [Y]. As well, given that
Ms Rezek has, it would seem, genuinely sought to have Mrs F care for [X] while she remains in hospital, I would be concerned that if, or more likely when, Ms Rezek finds out about [X] living solely with his Father, that news may work further to the detriment of [X]’s interests because of its almost certain negative impact on his Mother.[7] Moreover, it may be inferred that it is more likely than not that reference to his Mother will occur in a more irenic environment in
Mrs F’s household than in Mr Tobey’s.
[7] In this regard, I note Brown FM’s comments in H v J & Anor (2007) 36 Fam LR 316, where his Honour noted, at [63], that the inquiry must also deal with, among other things, the child’s “prospective interests” because the Court is required to consider “notwithstanding past significance, whether it would be in the child’s best interests in [the] future that she have some form of relationship or to spend time with the applicant.” On the facts of this case, the significance of Mrs F’s Application is more to facilitate generally [X]’s time with Ms Rezek’s side of the family (including [X]’s maternal Grandmother), and most particularly, [X]’s relationship with his sister, [Y].
In particular, I note Burr J’s comments in KAM v MJR, where, after discussing what is comprehended by “care”, “welfare” and “development” his Honour said, at [5.1.4]:
...the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case. For example, ... it may be appropriate for a complete stranger ... to be granted a parenting order by this court in the event of the death or incapacitation of the child’s parents. ... There may well be circumstances in this court where a mere "interest in" or "concern about" the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child, as would be the nature and form of any such order. (Emphasis in original text.)
In the difficult, current circumstances, and until further order, in my view it is in [X]’s best interests that he live predominantly with his Father but also spend `substantial and significant time’ with his sister and his Mother’s side of the family.[8]
[8] Cf. s.65DAA. In the current circumstances, and until we all know more about Ms Rezek’s health, treatment, rehabilitation and prognosis, I do not propose making any orders in relation to parental responsibility. In my view, to do so in the current circumstances, and in the light of the relational and litigious history, would be to make orders in something of a vacuum. It should be inferred, however, that, until further order, there should be no change in or decision concerning any major long-term issue, as defined by s.4 of the Act, in relation to [X]. It should also be inferred that day-to-day decision-making for [X]’s care and welfare should be left with Mr Tobey and Mrs F when [X] is in their respective care. That said, especially given the difficult circumstances of Ms Rezek and the likely impact on [X], Mr Tobey and Mrs F should do their utmost to ensure that they communicate often and regularly about [X]’s care and welfare. If any decision of genuine significance needs to be made involving [X] (excluding travel overseas), that responsibility should ultimately fall to Mr Tobey, after he has consulted with those representing Ms Rezek’s interests. It may be that, absent any genuine emergency, prudence would dictate that those “consultations” take place via the respective solicitors. Given the fluidity of the current situation, at this stage I do not propose making any orders to reflect these directions.
Accordingly, in my view, [X] should live for 9 nights per fortnight with his Father, and 5 nights per fortnight with Mrs F with whom, as I have noted already, [X]’s sister currently lives and will do so while-ever her Mother (Ms Rezek) remains in hospital or is otherwise incapacitated and unable to have her live with her.
In the light of the Orders I make, and to the extent necessary to give proper effect to them, until further Order, Orders 2, 7, 8, 10, 11 & 12 of 28th August 2009 should be suspended.[9]
[9] Should it need to be noted, Mr Tobey works full time at [omitted] It is no criticism of him that his time to care for [X] is necessarily circumscribed by his full-time employment.
Mr Tobey’s application to take [X] overseas in October
: This is now the third such application by Mr Tobey. The Application was made prior to Ms Rezek’s admission to hospital. I understand that
Mr Tobey’s purpose of overseas travel is to attend a conference; previously such travel requests have related to [X] being with his Father while on sabbatical leave, and therefore, continuing with his [occupation omitted].
The Application is made notwithstanding specific and direct comments from Ms H in her August 2009 Report cautioning about how inappropriate extended overseas travel is for children of [X]’s age.[10] As well, on previous occasions I have commented – as I recall, in rather blunt terms – about the inappropriateness of a quite young child being away from his or her primary carer for an extended period of time.
[10] See Ms H’s Report (20th August 2009), pars.140, 141, 154 & 165.
Accepting that the circumstances have changed recently, suddenly and significantly in relation to [X]’s primary care, it does not alter the fact that the expert evidence of Ms H in relation to [X] remains both unchallenged and directly relevant. Indeed, given the extremely fragile circumstances now facing all parties and especially so, young [X], I would have thought it even more perilous for any more instability to be introduced into [X]’s life in the form of a business trip with his Father.
Indeed, given (a) how fractious the relationship of his parents has been and clearly remains with which [X] has had to contend for such a significant period of time, (b) Ms H’s unchallenged expert evidence cautioning (indeed direct recommendation) against overseas travel, and (c) how consistently the Court has indicated that, at [X]’s age and the circumstances and duration of the travel proposed, overseas travel should not be pursued, it is bordering on astonishing that such applications continue to be made. Without making any formal finding, that such applications continue might be taken certainly as a matter going to matters embraced by s.60CC(3)(d), (f), (g) and (i). I leave the detail of such matters to be addressed with Mr Tobey by those acting for him. I make no further comment about the prudential judgment of practitioners who continue to file such Applications in the light of the previously rejected similar enterprises where (a) the age of the child remains a critical issue and (b) the expert evidence remains unchallenged. The facts, unfortunately, speak for themselves.[11]
[11] Cf. the matters to be considered in ss.60CC(4) & (4A).
In short, the Application to take [X] overseas should again – for the third time - be refused. Should it need to be stated, and subject to either agreement between Mrs F and Mr Tobey or further Order of the Court, while-ever Mr Tobey is overseas (for whatever reason), and
Ms Rezek continues to be incapacitated, [X] should reside with Mrs F, among other things, so as to ensure that his time with his sister, [Y], continues without difficulty.
The ICL’s application to appoint an expert under Part 15 of this Court’s Rules
: In my view, given (a) the circumstances that now face the Court in relation to the parties and the various applications still on foot (which include `change of residence’ on a final basis), and (b) the time-frame for such appointments to be scheduled, such an expert should be appointed. That order should provide for that expert to be
Dr M or such other similar expert as is determined by the ICL in consultation with the parties. The terms of reference should be provided to the Court prior to being sent to the expert.
The costs of that expert, in my view, should be borne equally by the parties, and should include an equal portion on behalf of the ICL.
C. Conclusion
I make the following observation. It may sound somewhat harsh in the current circumstances; it is not intended to be. As with all children, so too with [X]: he needs stability and the best care he can obtain in his life. His parents each claim that they provide excellent care but consistently, and persistently, express significant concerns about the parenting capacity of the other parent. From observing the parents over many, many months in Court, from reading prodigious amounts of material either from them, consultants and or in documents provided to the Court by government departments of one kind or another, and in the light of regularly put submissions of those acting on their behalf, I have the singular benefit of close familiarity.
But in all the contest summarised above, [X] has remained a central figure. In his tender years he has doubtless watched – the genuinely innocent bystander - as his parents fight over one thing and another, usually related to his welfare. Thus far, they have not been able to put aside their respective convictions that their parenting is better and more apt for [X] than the other parent. In such circumstances, it would be astonishing if he has not suffered significant turmoil (and, most sadly, much worse) throughout his young life precisely because of the ongoing conflict between his parents. They have indeed turned parental contest almost into an art form. Indeed, such is the level of bellicosity that, perhaps (and unfortunately so) the litigation itself could even be characterised as some form of support mechanism for one or both parties.
The history of their respective intransigence does not bode well for [X]’s stability. Through his Mother’s hospitalisation, some respite from that conflict has now been forced on everyone. As genuinely unfortunate as the immediate circumstances are, the current hiatus should provide some genuine stock-taking of what course – now and in the future – should be pursued for [X]’s best interests. While-ever endeavouring to keep a degree of optimism, the history of this matter unfortunately does not fill me with abounding hope in this regard.
I make orders in accordance with the specific indications made throughout these reasons.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 30th June 2010
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