Tarrant & Buttler - [2022] FedCFamC2F 413

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tarrant & Buttler [2022] FedCFamC2F 413

File number(s): PAC 2843 of 2019

Judgment of: JUDGE STREET

Date of judgment: 1 April 2022

Catchwords:
FAMILY LAW – PARENTING – relocation – best interests of the child – where the father applies to move Children to Queensland – where the mother lives in Melbourne, Victoria – where one of the Children has special needs – where there is no unacceptable risk posed by either parent – reasonably practicable for father to relocate to Melbourne.

PROPERTY – de-facto relationship – property division – superannuation splitting – what is just and equitable.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d),60CC(3)(e), 60CC(3)(f), 60CC(3)(i),60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 60CG, 65AA(5)(a), 65AA(5)(b), 65AA(5)(c), 65AA(5)(e), 65DAA, 65DAA(1)(a), 65DAA(1)(b), 65DAA(5), 65DD(1)(c), 65DD(5), 79, 90SF(3), 90SF(3)(r), 90SL, 90SM, 90SM(4), 90XS, 90XT, 90XT(1)(a), 90XE.

Cases cited:
A & A Relocation Approach [2000] FamCA 751

Beaton & Beaton [2020] FamCAFC 297

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode [2006] FamCA 1346

Hickey & Hickey [2003] FamCA 395

Morgan & Miles [2007] FamCA 1230

MRR & GR [2010] HCA 4

Taylor & Barker [2007] FamCA 1246

Division: Division 2 Family Law

Number of paragraphs: 161

Date of hearing: 28 March 2022 - 1 April 2022

Place: Parramatta

Counsel for the Applicant: Ms J Friedlander

Solicitor for the Applicant: Swifte Law

Counsel for the Respondent: Mr J Lo Schiavo

Solicitor for the Respondent: Voice Lawyers

Counsel for the Independent Children’s Lawyer: Mr S Bourne

Solicitor for the Independent Children’s Lawyer: Medcalf Grant Lawyers
ORDERS

PAC 2843 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TARRANT
Applicant

AND:

MS BUTTLER
Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

1 APRIL 2022

PARENTING
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The Applicant Father (Mr Tarrant) and Respondent Mother (Ms Buttler) have equal shared parental responsibility for the children, X born 2015 and Y born 2017 (“the Children”).
3.The Children are to live with the Respondent Mother in Melbourne.
4.The Respondent Mother has authority to enrol the Children at B School commencing Term 2, 2022.
5.The Respondent Mother is to pick up the Children from school on Friday 8 April 2022 at 3:25pm.
6.An injunction is hereby issued restraining the Applicant Father by himself, his servants and agents from retrieving the Children from School or attempting to prevent or interfere with the Respondent Mother’s retrieval of the Children from School on 8 April 2022.
7.The Applicant Father is to provide the school with any of the Children’s medications so that the Respondent Mother may retrieve them when she retrieves the Children on 8 April 2022.

Audio/Video Contact
8.The Children shall be encouraged and supported by both parents to have Facetime, Zoom or other online communication with the parent who they are not with such communication to occur at least three times each week at…

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 Tarrant & Buttler

Details

AGLC: Tarrant & Buttler [2022] FedCFamC2F 413
Case: [2022] FedCFamC2F 413
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) was asked to decide parenting and property issues between Mr Tarrant, the father, and Ms Buttler, the mother, of two children. The parents were in a de facto relationship from 2011 until mid-2019, and have two children together. The mother sought orders for the children to live with her in Melbourne, while the father sought orders for the children to live with him in Queensland. The father also sought orders for a split in his superannuation. The court was required to consider the statutory pathway for making parenting orders, particularly the need to consider the best interests of the children as the paramount consideration and the need to protect the children from physical, emotional, or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. The court found that it was reasonably practicable for the father to relocate to Melbourne, where the mother was residing, and that it would be in the best interests of the children to live with the mother in Melbourne and spend equal time with the father. The court also found that it was just and equitable to make a splitting order in the father's superannuation, with 60% to be transferred to the mother. The court made orders for the children to live with the mother and spend equal time with the father, and for a splitting order in the father's superannuation.

Orders