Tanberg & Remmy (No 2) - [2021] FedCFamC2F 530

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tanberg & Remmy (No 2) [2021] FedCFamC2F 530

File number(s): CAC 2420 of 2019

Judgment of: JUDGE W J NEVILLE

Date of judgment: 5 November 2021

Catchwords: FAMILY LAW – parenting – final hearing – limited issues – previous agreement between parents for shared care arrangement for young child – how and when to transition child to week-about – consideration of child’s best interests.

Legislation: Family Law Act 1975 (Cth), s 60CA

Cases cited:
CDJ v VAJ (1998) 197 CLR 172

Tanberg & Remmy [2021] FamCAFC 49

Division: Division 2 Family Law

Number of paragraphs: 38

Date of hearing: 22 October 2021

Place: Canberra

Counsel for the Applicant: Ms M. Davis

Solicitor for the Applicant: Alliance Legal Services

Counsel for the Respondent: Mr C. Othen

Solicitor for the Respondent: Farrar Gesini Dunn
ORDERS

CAC 2420 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TANBERG

Applicant

AND:
MR REMMY

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

5 NOVEMBER 2021

THE COURT NOTES THAT:
A.On 22 October 2021 Final Orders were made by consent, and judgment in relation to three outstanding issues in dispute was reserved; accordingly,

THE COURT ORDERS THAT:
Issue I: Transition time-with arrangements
1.Absent any other agreement in writing between the parties,
(a)From 11^th July 2022 until 31^st December 2022, X shall live with her Mother for 9 nights per fortnight and with her Father for 5 nights per fortnight, configured as proposed by the Mother of 3/2, and perhaps then 2/3, but whichever is the least disruptive and most practical;
(b)From 1^st January 2023 until 31^st December 2023, X live with her Mother for 8 nights per fortnight and with her Father for 6 nights, configures on a 4/4/2 (or as otherwise agreed);
(c)From 1^st January 2024 until 10^th July 2023, X shall spend equal time with each parent on a ‘week about’ basis, save that the child shall spend one overnight with the other parents in the off-week; and
(d)From 11^th July 2024, X shall spend equal time with each parent on a ‘week about’ basis.

Issue II: “Pick up agent”
2.Any family member of either parent may pick up the child in any circumstances where the scheduled parent is unable to do so.
3.Neither parent shall attend day care or the child’s school when the other parent is scheduled to pick up the child.

Issue III: First option to care
4.In the event either parent is unable to care for X for a period of 3 days or longer, then the other parent shall have the first option to care for the child during the period that the first parent is unavailable.

THE COURT FURTHER NOTES THAT:
B.Regarding any other issues that may arise in the future, before attempting to bring the matter back before the Court, the parties are to attend mediation.

Note: The form of the order is subject…

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 Tanberg & Remmy (No 2)

Details

AGLC: Tanberg & Remmy (No 2) [2021] FedCFamC2F 530
Case: [2021] FedCFamC2F 530
Decision Date

CaseChat Overview and Summary

The final hearing of this matter was held on 22 October 2021. The Court was asked to decide three discrete issues between the parties, Ms Tanberg and Mr Remmy, relating to their daughter X, who was almost 4½ years old at the time of the hearing. The first issue was how best to transition the child into living in a week about arrangement between the parties. The second issue was whether the nominated agent, for the purposes of changeover, needs to be agreed in writing between (and thereby notified to) the parties prior to changeover. The third issue was whether the Court should make a “first option to care” Order. The Court found that a transition in the time-with arrangements was in the best interests of the child. The Court found that any family member of either parent may pick up the child in any circumstance where the scheduled parent is unable to do so. The Court found that neither parent shall attend day care or the child’s school when the other parent is scheduled to pick up the child. The Court found that in the event either parent is unable to care for X for a period of 3 days or longer, then the other parent shall have the first option to care for the child during the period that the first parent is unavailable. The Court ordered that X shall live with her Mother for 9 nights per fortnight and with her Father for 5 nights per fortnight until 31 December 2022. From 1 January 2023 until 31 December 2023, X shall live with her Mother for 8 nights per fortnight and with her Father for 6 nights. From 1 January 2024 until 10 July 2023, X shall spend equal time with each parent on a ‘week about’ basis. From 11 July 2024, X shall spend equal time with each parent on a ‘week about’ basis. Any family member of either parent may pick up the child in any circumstance where the scheduled parent is unable to do so. Neither parent shall attend day care or the child’s school when the other parent is scheduled to pick up the child. In the event either parent is unable to care for X for a period of 3 days or longer, then the other parent shall have the first option to care for the child during the period that the first parent is unavailable.

Orders