TOBEY & REZEK - [2010] FMCAfam 589

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 28^th 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 2^nd, 3^rd and 4^th of June 2010 be vacated.
That the matter be adjourned for directions on 9^th 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…

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 & REZEK [2010] FMCAfam 589
Case: [2010] FMCAfam 589
Decision Date: 4 June 2010

CaseChat Overview and Summary

The matter involved the parties TOBEY and REZEK, with a dispute regarding the care and custody of their child, [X], born in 2005. The Federal Circuit and Family Court of Australia (FCFCOA) was tasked with determining the living arrangements for the child, in addition to several other related issues. The court was called upon to decide on the suspension of certain consent orders, the intervention of Mrs F in the proceedings, the allocation of nights for the child to live with each parent, the father's application to take the child overseas, the appointment of an expert to prepare a report, and the adjustment of the final hearing dates.

The legal issues before the court included whether to suspend specific consent orders, grant leave for Mrs F to intervene, establish the living arrangements for the child, and consider the father's application to take the child overseas. Additionally, the court had to decide on the appointment of an expert to prepare a report, agree on terms of reference for the expert, and reschedule the final hearing. The court's role was to balance the best interests of the child with the rights and wishes of the parents.

The FCFCOA concluded that the orders previously made should be suspended and that Mrs F be granted leave to intervene in the proceedings. The court determined that the child should live with the father for nine nights per fortnight and with Mrs F for five nights per fortnight, with the exact days and changeover arrangements to be agreed upon by the parents. The court refused the father's application to take the child overseas, stipulating that if he travels, the child would live with Mrs F. An expert was appointed to prepare a report, with costs shared between the parties and the Independent Children's Lawyer. The final hearing was vacated, and the matter was adjourned for directions.

The final orders included the suspension of specific consent orders, the intervention of Mrs F, a schedule for the child's living arrangements, a refusal of the father's overseas travel application, the appointment of an expert, and the rescheduling of the final hearing. The court also granted liberty to re-list the matter on fourteen days' notice.

Orders

Orders of the court

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.

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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