FAMILY COURT OF AUSTRALIA
Tanberg & Remmy [2021] FamCAFC 49
Appeal from: Tanberg & Remmy [2020] FCCA 3175 Appeal number(s): EAA 157 of 2020 File number(s): CAC 2420 of 2019 Judgment of: ALDRIDGE J Date of judgment: 14 April 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the orders appealed are interim – Where those interim orders provided for earlier consent orders regarding an equal time arrangement to remain in place – Where the primary judge declined to make either orders sought by the parties – No evidence to suggest that either of the proposed orders would improve the position of the child – No error by the primary judge – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 65DAA, 94AAA(3) Cases cited: Bar-Mordecai v Rotman [2000] NSWCA 123
Bondelmonte v Bondelmonte (201) 259 CLR 662; [2017] HCA 8
Bromley v Bromley [1965] P111
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
House v The King (1936) 55 CLR 499; [1936] HCA 40
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Division: Appeal Division Number of paragraphs: 59 Date of hearing: 11 March 2021 Place: Sydney Counsel for the Appellant: Ms Behrens with Ms Davis Solicitor for the Appellant: Alliance Family Law Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
EAA 157 of 2020
CAC 2420 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS TANBERG
Appellant
AND: MR REMMY
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
14 APRIL 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The mother pay the father’s costs of the appeal fixed in the sum of $12,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tanberg & Remmy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
BACKGROUND
Ms Tanberg, (“the mother”), and Mr Remmy (“the father”) have a child, X (“the child”) born in 2017, who is the subject of continuing parenting proceedings. This appeal concerns interim orders made on 12 October 2020.
On 12 December 2019, consent orders were made for the child to spend equal time with each parent. Prior to that day, the child had been spending alternate days with each parent. The consent orders provided that the child would spend three days with one parent and then three days with the other. It was not disputed that these…
Continue reading Tanberg & Remmy
Sign in free to access the full text
- AGLC
- Tanberg & Remmy [2021] FamCAFC 49
- Case
- [2021] FamCAFC 49
- Decision Date
CaseChat Overview and Summary
The court further held that the primary judge had not erred in the manner in which his Honour took account of the interim consent orders made on 19 December 2019. The mother submitted that the interim consent orders should not have been given any weight as they were intended to be orders to operate only until the single expert’s report was received. The court held that it was not disputed between the parties that this was the case. The court held that there was no doubt that the primary judge referred to the “original consent position of the parties” and that “for better or worse, the parents agreed to this regular changeover time”. The court held that the primary judge had not erred in this respect. The appeal was dismissed. The mother was ordered to pay the father’s costs of the appeal fixed in the sum of $12,500.
Orders
Orders of the court
EAA 157 of 2020
CAC 2420 of 2019
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS TANBERG
Appellant
AND:
MR REMMY
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
14 APRIL 2021
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The mother pay the father’s costs of the appeal fixed in the sum of $12,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
This ground has not been established. Did the primary judge err by taking into account “a risk of prejudicing one or either party” as a relevant consideration? (Ground 3) The mother submits that the prejudice that could be suffered by either party should not have been taken into account. His Honour said:[10] For the reasons given here, (a) because of the original consent position of the parties, (b) there being no specific and firm recommendation from the expert, [Mr B], to change the current arrangements, and (c) because of the “she said – he said” nature of the evidence, in my view, it is inapposite to alter the current arrangement. In such circumstances, and where there can be no formal testing of the evidence, in doing so there is a risk of prejudicing one or either party, and none of it necessarily points to a change now being in [the child’s] best interests.The phrase “a risk of prejudicing one or either party” is somewhat infelicitous, but here his Honour is summarising the reasons which follow. The phrase is used to explain the previous statement that there can be no formal testing of evidence. His Honour was doing no more than saying that, in such a case to prefer one set of evidence over the other would unfairly prejudice one of the parties. His Honour was not intending to refer to a forensic advantage/disadvantage to be gained by either of the parties by having the child live with them for a longer period, because nowhere else in the reasons does his Honour refer to such a consideration. This ground has not been established. Did the primary judge err in the manner in which his Honour took account of the interim consent orders made 19 December 2019? (Ground 4) The mother submits that the interim consent orders should not have been given any weight as they were intended to be orders to operate only until the single expert’s report was received. I have already recorded that it was not disputed between the parties that this was the case. It can easily be inferred that the parties were hoping to obtain some assistance from the single expert as to what future parenting orders would, at least in general terms, have been in the child’s best interest. However, as events transpired, nothing can be gleamed from the report that would assist the parties in that regard, so unfortunately they were no further advanced. There is no doubt that the primary judge referred to the “original consent position of the parties” (at [10]) and that “for better or worse, the parents agreed to this regular changeover time” (at [21]). His Honour continued, “at the end of the day, the parties agreed to this, somewhat questionably beneficial relationship” (at [23]). His Honour also said:[26] For example, perhaps, on one view, the current matter may simply be a circumstance that is guided or conditioned by basic pragmatism, where the parents said ‘well, this is the best that we have been able to come up with’ for [the child] and ourselves. If that be so, so be it. I could certainly not authorise any longer period of time of three nights of [the child] away from her Mother as [Mr B] plainly states.