Zackary and Rabassa - [2019] FCCA 2901

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZACKARY & RABASSA

[2019] FCCA 2901

Catchwords:
FAMILY LAW – Parenting – interim – mother withholding child from the father – allegations of abuse of the child by the father – application for change of residence by the father on an interim basis.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 62G(2), 67Z, 69ZW, 102NA(1)(c)(i), 102NA(1)(c)(ii)

Family Law (Fees) Regulations 2012

Federal Circuit Court Rules 2001, r.15.28

Applicant:

MR ZACKARY

Respondent:

MS RABASSA

File Number:

MLC 6269 of 2016

Judgment of:

Judge Harland

Hearing date:

19 September 2019

Date of Last Submission:

19 September 2019

Delivered at:

Melbourne

Delivered on:

19 September 2019

REPRESENTATION

The Applicant appearing in person.

The Respondent appearing in person.

Counsel for the Independent Children’s Lawyer:

Ms Sdraulig

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

The mother produce X born in 2016 to the childcare facility at the 5^th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria at 9.00am on 23 September 2019.
Pursuant to s.11F of the Family Law Act 1975, the mother and the child X born in 2016 attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services on 23 September 2019 at 9:00am with the father to attend at 9:30am on 23 September 2019 at the Melbourne Registry of the Federal Circuit Court of Australia for the purposes of the preparation of an oral report, which is to be given to the court at 10:00am on 23 September 2019.
The proceeding is adjourned for part heard Interim Defended Hearing on 23 September 2019 at 10:00am.
All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >
The matter be adjourned to 9 December 2019 at 10:00am for final hearing (with an estimated hearing time of three days).
The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 28 days before the final hearing.
Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.
At least 72 hours prior to the trial each party provide to the other parties and to the Associate to the Judge a Case Outline document as follows:

Parenting

(a)a list of the documents to be relied upon;
(b)a brief chronology;
(c)an outline of contentions with respect to:
(i)whether the presumption of equal shared parental responsibility applies (s.61DA),
(ii)the considerations…

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 Zackary and Rabassa

Details

AGLC: Zackary and Rabassa [2019] FCCA 2901
Case: [2019] FCCA 2901
Decision Date: 19 September 2019

CaseChat Overview and Summary

The parties to this proceeding before Judge Harland of the Federal Circuit Court of Australia were Mr Zackary and Ms Rabassa, concerning their child X, born in 2016. The dispute involved parenting arrangements and the child's welfare, with specific orders made regarding the child's production for a family consultant assessment and a final hearing. The court also issued an order restraining the child from leaving the Commonwealth of Australia.

The court was required to determine the interim parenting arrangements for the child X, including the production of the child for assessment by a family consultant and attendance at court. Further, the court needed to establish a timetable for the filing of evidence, the preparation of a family report, and the conduct of the final hearing. The court also addressed the potential for family violence and the implications for cross-examination of parties under section 102NA of the Family Law Act 1975.

Judge Harland applied principles of the Family Law Act 1975, including sections relating to parental responsibility, the best interests of the child, and the process for obtaining a family report. The court directed the mother to produce the child for a family consultant assessment and for an oral report to the court. A final hearing was scheduled, with detailed orders for the filing and service of affidavits, case outlines, and the provision of documents to expert witnesses. The court also made orders preventing the child from leaving Australia and requested the Australian Federal Police to place the child on a watchlist. Furthermore, the parties were directed to apply for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme.

Orders

Orders of the court

The mother produce X born in 2016 to the childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria at 9.00am on 23 September 2019.

Pursuant to s.11F of the Family Law Act 1975, the mother and the child X born in 2016 attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services on 23 September 2019 at 9:00am with the father to attend at 9:30am on 23 September 2019 at the Melbourne Registry of the Federal Circuit Court of Australia for the purposes of the preparation of an oral report, which is to be given to the court at 10:00am on 23 September 2019.

The proceeding is adjourned for part heard Interim Defended Hearing on 23 September 2019 at 10:00am.

All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2017/022017.

The matter be adjourned to 9 December 2019 at 10:00am for final hearing (with an estimated hearing time of three days).

The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 28 days before the final hearing.

Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.

The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

At least 72 hours prior to the trial each party provide to the other parties and to the Associate to the Judge a Case Outline document as follows:

Parenting

(a) a list of the documents to be relied upon;

(b) a brief chronology;

(i) whether the presumption of equal shared parental responsibility applies (s.61DA),

(ii) the considerations relevant to equal time and substantial and significant time (s.65DAA);

(iii) each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

(iv) other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

(v) any other matters relevant to the decision; and

(d) a statement of the precise orders sought

10.

Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.

11.

Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

12.

Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.

13.

Pursuant to s.62G(2) of the Family Law Act 1975, the mother and the father and the child X born in 2016 attend upon a family consultant nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia for the preparation of a family report to be given to the court on or before 15 November 2019.

14.

The family report deal with the following matters:

(a) any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;

(b) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

15.

The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

16.

Within seven days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

(a) all relevant applications, responses and affidavits filed by that parent in these proceedings; and

(b) any intervention or restraining orders currently in force.

17.

The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.

18.

If either parent or the independent children’s lawyer requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven (7) days notice in writing.

19.

Upon the family report being provided to the court, the court will provide a copy to each party (or if represented the party’s lawyer) and to any independent children’s lawyer in the proceedings.

20.

Unless a party objects, in writing, within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

(a) a children’s court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference.

21.

Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.

22.

Each party MR ZACKARY born in 1975 and MS RABASSA born in 1985 their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child X born in 2016 from the Commonwealth of Australia pending further order.

23.

That X born in 2016 be and is hereby restrained from leaving the Commonwealth of Australia.

24.

It is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.

25.

This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 13 of the Family Law Regulations 1984).

26.

As section 102NA(1) of the Family Law Act 1975 (Cth) applies, the applicant and respondent are to do all things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable their being represented at the final hearing and both parties apply to said scheme on or before 26 September 2019.

AND THE COURT DIRECTS THAT:

27.

Chambers send a copy of these Orders to the respondent via email.

AND THE COURT NOTES THAT:

(A) If the mother fails to bring X to Court on 23 September 2019 to the Child Dispute Centre as directed, then a recovery order may issue removing X from her care.

(B) In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a) the filing of documents; or

(b) any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

(C) If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(D) Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(E) Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(F) If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

(G) At the date on which a copy of the family report is provided to any of those identified above, it may not have been admitted into evidence and may be untested and if admitted would only form one part of the evidence in the proceedings.

(H) Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

In the event a party to these proceedings objects to the release of the family report pursuant to order 18 herein, he or she shall write to the chambers of Judge Harland seeking that the matter be listed on short notice for his or her objection to be heard.

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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