Zackary and Rabassa (No.2) - [2019] FCCA 2902

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZACKARY & RABASSA (No.2)

[2019] FCCA 2902

Catchwords:
FAMILY LAW – Parenting – interim – mother withholding child from father – observations of child with mother and father – child not at an unacceptable risk in father’s care.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2)(b), 67Z, 69ZW

Goode & Goode [2006] FamCA 1346
Stott & Holgar and Anor [2017] FamCAFC 152

Applicant:

MR ZACKARY

Respondent:

MS RABASSA

File Number:

MLC 6269 of 2016

Judgment of:

Judge Harland

Hearing date:

23 September 2019

Date of Last Submission:

23 September 2019

Delivered at:

Melbourne

Delivered on:

23 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

Order 10(b) of the final Orders dated 27 June 2018 be discharged, and the remainder of the final Orders made on 27 June 2018 remain in full force and effect.
The father spend time with the child, X born in 2016 (“the child”), from 10:00am Wednesday 25 September 2019 to 4:00pm Thursday 26 September 2019.
The father spend time with the child from 10:00am Wednesday 2 October 2019 to 4:00pm Friday 4 October 2019, and each alternate week thereafter.
The father spend time with the child from 10:00am Friday 11 October 2019 to 10:00am Monday 14 October 2019, and each alternate weekend thereafter.
The Independent Children’s Lawyer be granted leave to relist the matter on short notice.
The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the documents produced by the Department of Health and Human Services in response to the s.69ZW order made 19 September 2019 in these proceedings.
The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

AND THE COURT NOTES THAT:

(A)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.
(B)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.
(C)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(D)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
(E)The information produced in order 6 is confidential and cannot be disclosed to any other person without an order of this Court.
(F)Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

IT IS NOTED…

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 (No.2)

Details

AGLC: Zackary and Rabassa (No.2) [2019] FCCA 2902
Case: [2019] FCCA 2902
Decision Date: 23 September 2019

CaseChat Overview and Summary

This matter concerned an application before Judge Harland in the Federal Circuit Court of Australia, involving the parties, Zackary and Rabassa, and their child. The dispute centred on parenting arrangements and the disclosure of documents.

The court was required to determine the specific parenting orders for the child, including the father's time with the child, and to consider the confidentiality and disclosure of documents produced by the Department of Health and Human Services. Additionally, the court provided important information regarding the implications of family violence allegations under section 102NA of the *Family Law Act 1975* and the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

Judge Harland discharged Order 10(b) of the final orders dated 27 June 2018, while the remaining final orders were to remain in full force. New orders were made detailing the father's time with the child, including specific dates and alternating weeks and weekends. The Independent Children’s Lawyer was granted leave to relist the matter. Crucially, the court ordered that documents produced by the Department of Health and Human Services were for inspection only by the parties and their legal representatives, and could not be disclosed to any other person without a court order, with penalties applying for breaches of confidentiality under sections 112AD and 121 of the *Family Law Act 1975*. The court also provided detailed notes regarding the application of section 102NA of the *Family Law Act 1975* in cases involving allegations of family violence, particularly concerning unrepresented parties and cross-examination.

Orders

Orders of the court

Order 10(b) of the final Orders dated 27 June 2018 be discharged, and the remainder of the final Orders made on 27 June 2018 remain in full force and effect.

The father spend time with the child, X born in 2016 (“the child”), from 10:00am Wednesday 25 September 2019 to 4:00pm Thursday 26 September 2019.

The father spend time with the child from 10:00am Wednesday 2 October 2019 to 4:00pm Friday 4 October 2019, and each alternate week thereafter.

The father spend time with the child from 10:00am Friday 11 October 2019 to 10:00am Monday 14 October 2019, and each alternate weekend thereafter.

The Independent Children’s Lawyer be granted leave to relist the matter on short notice.

The parties may inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) may inspect and photocopy the documents produced by the Department of Health and Human Services in response to the s.69ZW order made 19 September 2019 in these proceedings.

The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

AND THE COURT NOTES THAT:

(A) 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.

(B) 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.

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

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

(E) The information produced in order 6 is confidential and cannot be disclosed to any other person without an order of this Court.

(F) Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.

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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