Tassell & Bannister - [2023] FedCFamC2F 688

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tassell & Bannister [2023] FedCFamC2F 688

File number(s): DGC 2010 of 2022

Judgment of: JUDGE JENKINS

Date of judgment: 9 June 2023

Catchwords: FAMILY LAW Relocation – mother lives in City B, Victoria – father lives in City C, Western Australia – father a transport worker with the Armed Forces – father is likely to move again in next twelve months – risk to children – children with special needs – ability to meet needs – neglect – lack of supervision – exposure to drug affected persons – splitting siblings – children permitted to relocate to live with the father

Legislation:
Evidence Act 1995 (Cth) s 140

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

Cases cited:
AMS v AIF [1999] HCA 26

A & A: Relocation Approach [2000] FamCA 751

Godfrey & Sanders [2007] FamCA 102

Grella & Jamieson [2017] FamCAFC 21

Heath & Hemming (No 2) [2011] FamCA 749

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Morgan & Miles [2007] FamCA 1230

MRR v GR [2010] HCA 4

Starr & Duggan [2009] FamCAFC 115

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36

Wendland & Wendland [2017] FamCAFC 244

Division: Division 2 Family Law

Number of paragraphs: 146

Date of last submission/s: 3 March 2023

Date of hearing: 27 February - 3 March 2023

Place: Melbourne

Counsel for the Applicant: Ms Bastick

Solicitor for the Applicant: Johnstone and Reimer Lawyers

Counsel for the Respondent: Mr Wiener

Solicitor for the Respondent: Van Beveren Lawyers

Counsel for the Independent Children's Lawyer: Mr Goddard

Solicitor for the Independent Children's Lawyer: Taft Lawyers
ORDERS

DGC 2010 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TASSELL

Applicant

AND:
MS BANNISTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE JENKINS

DATE OF ORDER:

9 JUNE 2023

THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The mother and the father have equal shared parental responsibility with respect to the children, X ("X") born in 2011, and Y ("Y") born in 2013 (collectively "the children").
3.The children live with the father commencing 30 June 2023 or such other date as agreed between the parties in writing.
4.The children be permitted to relocate to wherever the father is posted by the Armed Forces provided the location is in the Commonwealth of Australia.
5.The children spend time and communicate with the mother as follows:
(a)by FaceTime/video call as agreed between the parties, or failing agreement, each Thursday and Sunday for a period of up to 30 minutes with the mother to call the father at 7.30pm and for such purpose the father ensure:
(i)his mobile's/ electronic device's battery is adequately charged to receive the calls;
(ii)the children are available to receive the call; and
(iii)the children are afforded privacy during their communication with the mother.

(b)notwithstanding any period the children are living with the father:
(i)at 2.00pm on Christmas Day and at 7.30pm…

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 Tassell & Bannister

Details

AGLC: Tassell & Bannister [2023] FedCFamC2F 688
Case: [2023] FedCFamC2F 688
Decision Date

CaseChat Overview and Summary

This case involved an application by the father, Mr Tassell, for the children, X and Y, to live with him and his wife Ms H in City C, Western Australia and any other location to which he may be posted by the Armed Forces. The children currently reside with the mother, Ms Bannister, in City B, Victoria. The mother opposed the application and also sought orders for contact with the children. The court had to determine the best interests of the children in the context of relocation and the competing parenting proposals of the parties. The court found that equal shared parental responsibility was in the children’s best interests and that it was not reasonably practicable for the children to spend equal or substantial and significant time with each parent other than in the school holidays. The court found that the father and Ms H were better able to meet the children’s needs than the mother and that it was in the children’s best interests to live with the father and his wife, notwithstanding the fact that the children would likely be frequently cared for by Ms H. The court made orders for the children to live with the father and for contact with the mother, as well as orders for the children’s education, health and safety.

Orders