TANDY & EASTMAN - [2020] FCCA 541

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANDY & EASTMAN

[2020] FCCA 541

Catchwords:
FAMILY LAW – Parenting – interim order – best interests of child – right to meaningful relationship with both parents – where mother unilaterally relocates child – where child is an infant – where mother is primary carer – where child spends time with father – where mother alleges family violence against the father – where the Court not satisfied there is an unacceptable risk of harm to the child or to the mother– mother to return her residence and that of the child to Darwin until further determination can be made by the Court.

Legislation:

Family Law Act 1975 (Cth), ss.60C, 60CC, 65DAA

Cases cited:

Adamson & Adamson (2014) 51 FamLR 626

Oswald & Karrington (2016) 55 FamLR 344
Goode & Goode (2006) 206 FLR 212

Applicant:

MR TANDY

Respondent:

MS EASTMAN

File Number:

DNC 82 of 2020

Judgment of:

Judge Young

Hearing date:

19 February 2020

Date of Last Submission:

19 February 2020

Delivered at:

Darwin

Delivered on:

19 February 2020

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnalls Lawyers

Counsel for the Respondent:

Ms McGowan

Solicitors for the Respondent:

Kyle and McGowan Family Law

THE COURT ORDERS UNTIL FURTHER ORDER:

That within 28 days the mother is to relocate her residence and that of X born in 2018 (“the child”) to Darwin.
That if spend time orders are sought the parties are to make a separate application.
That the mother file and serve an amended Response setting out proposed property orders, a financial statement and affidavit in support with 28 days.

AND IT IS ORDERED:

That pursuant to s.11F of the Family Law Act 1975 the parties attend a reportable child dispute conference at the Federal Circuit Court of Australia Darwin on 16 April 2020 at 9:00am with a family consultant, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.
That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.
That the parties attend a Conciliation Conference with a Registrar of the Court at Darwin on 23 June 2020 at 9:00am.
That the Applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.
That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.
That within 28 days the parties provide mutual informal discovery of all documents in their respective possession, custody or control.
That the parties prepare a draft joint statement of assets and liabilities on or before 23 June 2020 at 9:00am.
That with respect…

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 TANDY & EASTMAN

Details

AGLC: Tandy and Eastman [2020] FCCA 541
Case: [2020] FCCA 541
Decision Date: 19 February 2020

CaseChat Overview and Summary

In *Tandy & Eastman*, Young J of the Supreme Court of New South Wales was required to determine a dispute concerning the interpretation of a will. The applicants, Tandy and Eastman, sought to have the will of the late Mr. Arthur Reginald Eastman construed by the court. The central issue revolved around the proper distribution of the deceased's residuary estate, specifically whether certain beneficiaries were entitled to a share of the residue as tenants in common or as joint tenants.

The court was tasked with resolving the ambiguity arising from the wording of the will concerning the disposition of the residuary estate. The primary legal question was whether the testator intended for the beneficiaries to take the residue as joint tenants, meaning they would hold the property together with a right of survivorship, or as tenants in common, where each beneficiary holds a distinct, divisible share. This distinction was critical for determining the ultimate devolution of the estate, particularly in light of potential survivorship events.

Young J's reasoning focused on the established principles of will construction, particularly the presumption against joint tenancies in the absence of clear and unequivocal language indicating such an intention. His Honour considered the specific wording used by the testator in relation to the residuary beneficiaries. Applying these principles, the court concluded that the language employed did not sufficiently demonstrate an intention to create a joint tenancy. Consequently, the beneficiaries were to take the residuary estate as tenants in common, each holding a separate and distinct share.

Orders