ZACKARY & RABASSA (No.3) - [2020] FCCA 402

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZACKARY & RABASSA (No.3)

[2020] FCCA 402

Catchwords:
FAMILY LAW – Competing residence applications – mother has made repeated allegations that X is unsafe in his father’s care – parenting capacity – risk of psychological harm – who can best facilitate X’s relationship with the other parent.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC,
60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1),
65DAA(2), 65DAA(3), 102NA

Cases cited:

Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] HCA 4
Waterford & Waterford [2013] FamCA 33
Zackary & Rabassa [2019] FCCA 2901
Zackary & Rabassa (No.2) [2019] FCCA 2902

Applicant:

MR ZACKARY

Respondent:

MS RABASSA

File Number:

MLC 6269 of 2016

Judgment of:

Judge Harland

Hearing dates:

9, 10 & 11 December 2019

Date of Last Submission:

11 December 2019

Delivered at:

Melbourne

Delivered on:

28 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Rothschild

Solicitors for the Applicant:

Brendan Rothschild Legal Group

Counsel for the Respondent:

Mr Duffy

Solicitors for the Respondent:

Peter Baker & Associates

Counsel for the Independent Children's Lawyer:

Ms Brennan

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

That all previous parenting orders be discharged.
That the father have sole parental responsibility for the child, X born in 2016, provided that the father consult with the mother about any proposed decisions by:
(a)notifying the mother in writing of any proposed decision;
(b)giving the mother fourteen (14) days to respond before a final decision is made, except in the case of an emergency;
(c)taking into consideration any views expressed by the mother in respect of such proposed decisions; and
(d)informing the mother in writing of the decision made.
That X live with the father.
That X spend time with the mother as follows:
(a)For four consecutive Saturdays from 10:00am for up to 4 hours, such time to be supervised by G Family Services or Family Contact Services or such other supervisor as agreed between the parties;
(b)Thereafter, for two consecutive weekends from 10:00am Saturday until 5:00pm Sunday with Ms H to be in substantial attendance;
(c)Thereafter, each alternate weekend for a period of three months:
(i)In week 1 from 10:00am Friday or from the conclusion of kindergarten until 5:00pm Sunday; and
(ii)In week 2 from 10:00am Thursday or from the conclusion of kindergarten until 5:00pm Friday or until the commencement of kindergarten.
(d)Thereafter each alternate weekend:
(i)In week 1 from 10:00am or from the conclusion of kindergarten/school on Friday until 10:00am Monday or the commencement of kindergarten/school; and
(ii)In week 2 from 10:00am Wednesday or from the conclusion of kindergarten/school until 5:00pm Friday or until the commencement of kindergarten/school.
(e)Commencing the first term 2020 school holidays for one half of the term 1, 2 and 3 school holidays as agreed but failing agreement:
(i)In even numbered years the first half of each school term holidays with time to commence at the conclusion of school on the last…

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 & RABASSA (No.3)

Details

AGLC: Zackary and Rabassa (No.3) [2020] FCCA 402
Case: [2020] FCCA 402
Decision Date: 28 February 2020

CaseChat Overview and Summary

In ZACKARY & RABASSA (No.3), Judge Harland of the Family Court of Australia considered competing applications for the residence of a child, X, born in 2016. The dispute arose from the mother's repeated allegations that X was unsafe in his father's care, raising issues concerning the parents' respective parenting capacities and the risk of psychological harm to the child. A central consideration for the court was determining which parent could best facilitate X's relationship with the other parent.

The court was required to determine the primary residence of X and the nature and extent of the time X would spend with each parent. This involved assessing the allegations made by the mother regarding the father's parenting and the potential psychological harm to X, as well as considering the capacity of each parent to promote X's relationship with the other. The court also had to address the practical arrangements for X's time with each parent, including supervision and geographical considerations, and make orders for therapeutic intervention to address parenting issues and co-parenting.

Judge Harland discharged all previous parenting orders. The court ordered that the father have sole parental responsibility for X, subject to specific consultation requirements with the mother regarding significant decisions. X was ordered to live with the father, with detailed provisions for X to spend time with the mother, commencing with supervised contact and progressively increasing to unsupervised time, including alternate weekends and significant portions of school holidays. The orders also stipulated conditions regarding the mother's proximity to X's school for certain time arrangements and specified locations for changeovers. Furthermore, the court mandated that both parents attend therapy to address parenting and co-parenting issues, with the mother also to attend counselling to support X's relationship with his father. The Independent Children's Lawyer was discharged, and the father's contravention applications were withdrawn and dismissed with a right of reinstatement.

Orders

Orders of the court

That all previous parenting orders be discharged.

That the father have sole parental responsibility for the child, X born in 2016, provided that the father consult with the mother about any proposed decisions by:

(a) notifying the mother in writing of any proposed decision;

(b) giving the mother fourteen (14) days to respond before a final decision is made, except in the case of an emergency;

(d) informing the mother in writing of the decision made.

That X live with the father.

That X spend time with the mother as follows:

(a) For four consecutive Saturdays from 10:00am for up to 4 hours, such time to be supervised by G Family Services or Family Contact Services or such other supervisor as agreed between the parties;

(b) Thereafter, for two consecutive weekends from 10:00am Saturday until 5:00pm Sunday with Ms H to be in substantial attendance;

(i) In week 1 from 10:00am Friday or from the conclusion of kindergarten until 5:00pm Sunday; and

(ii) In week 2 from 10:00am Thursday or from the conclusion of kindergarten until 5:00pm Friday or until the commencement of kindergarten.

(d) Thereafter each alternate weekend:

(i) In week 1 from 10:00am or from the conclusion of kindergarten/school on Friday until 10:00am Monday or the commencement of kindergarten/school; and

(ii) In week 2 from 10:00am Wednesday or from the conclusion of kindergarten/school until 5:00pm Friday or until the commencement of kindergarten/school.

(e) Commencing the first term 2020 school holidays for one half of the term 1, 2 and 3 school holidays as agreed but failing agreement:

(i) In even numbered years the first half of each school term holidays with time to commence at the conclusion of school on the last day of term and conclude at 5:00pm on the day representing the mid-point of the holidays;

(ii) In odd numbered years the second half of each school term holidays with time to commence at 5:00pm on the day representing the mid-point of the school holidays and conclude at the commencement of school on the first day of the school term.

(f) Over 2020 - 2021 long summer school vacation on a week about basis;

(g) Commencing 2022 / 2023 and thereafter for one half of all long summer school holidays as agreed but failing agreement:

(i) In even numbered years the second half of the long summer school holidays with time to commence at 5:00pm on the day representing the mid-point of the school holidays and conclude at the commencement of school on the first day of the school term;

(ii) In odd numbered years the first half of the long summer school holidays with time to commence at the conclusion of school on the last day of term and conclude at 5:00pm on the day representing the mid-point of the holidays.

(h) Mother’s Day from 5:00pm Saturday until 5:00pm Sunday 2020, and thereafter from 5:00pm Saturday until the commencement of school Monday;

(i) From 10:00am Christmas Day until 6:00pm Boxing Day each year;

(j) For two hours each of the child’s birthday and the Mother’s birthday as agreed;

(k) As otherwise agreed.

That X spend time with the father from the conclusion of kinder/school, or 3:00pm in the event of a non kinder/school day on the day prior to Passover and Jewish New Year, until the conclusion of kinder/school, or 3:00pm in the event of a non kinder/school day on the day subsequent to Passover and Jewish New Year.

That time in paragraph 3(d) and (e) occur provided the mother moves within a 30km radius of the child’s school but should the mother fail to do so then X spend such time with the mother each alternate weekend from the conclusion of school Friday until 5.00pm Sunday.

That changeover that cannot occur at kindergarten or school occur outside of the J Police Station.

That each party be restrained from recording at changeovers.

That the mother and father attend upon a therapist at K Therapy Centre to address parenting issues and co-parenting in relation to X.

10.

That the mother attend upon Ms L, or Ms M for ongoing counselling in particular counselling to assist her to make changes in relation to her behaviours to support X’s relationship with his father.

11.

That the parties be permitted to provide to any therapist they or X attend upon a copy of any expert reports produced in these proceedings and the reasons for these orders.

12.

That the Independent Children’s Lawyer be discharged in 30 days from the date of these orders.

13.

That the father’s contravention applications filed on 15 March 2019 and 12 April 2019 are withdrawn and dismissed with the right of reinstatement.

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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