Tavarus & Tavarus - [2023] FedCFamC2F 845

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tavarus & Tavarus [2023] FedCFamC2F 845

File number(s): BRC 8965 of 2019

Judgment of: JUDGE WILLIS AM

Date of judgment: 20 July 2023

Catchwords:
FAMILY LAW – PARENTING – Family Violence perpetrated by father towards mother and children – where mother has solely provided for the children – where mother cares for a total of six children – where children of this relationship have experienced violence and trauma at the hands of the father directly and in witnessing violence towards the mother – where father has kept mother and children under surveillance and engaged in multiple acts of family violence over years – where State Magistrate satisfied that father has been keeping the mother under surveillance and a Restraining Order under section s359F of the Criminal Code (Qld) and a Domestic Violence Order issued and remains in force – father denies all violence and has no insight into the effects of his violence upon others – where father represents unacceptable risk to the children – where no contact order made – mother’s application to relocate is granted – mother to have sole parental responsibility

FAMILY LAW – PROPERTY – where husband has retained occupation of the former matrimonial/family home – where husband refused two occasions to allow access to the wife to retrieve her belongings contrary to two Court Orders to do so – where husband refused to disclose documents and delayed paying for and facilitating valuations contrary to Orders – where husband withdrew three lump sums from his superannuation for his own use – addback – where husband took redundancy in 2017 and did not return to the workforce during marriage – where the wife was the sole income earner and provider for the children from 2017 and beyond – where husband pays no child support – where the husband has a number of qualifications and ability to work when he chooses to do so – where it is just and equitable to divide the property on a 65/35 basis – where husband is provided an opportunity to pay out the wife’s property entitlement and transfer the mortgage of the former matrimonial home into his sole name – where wife to be sole trustee for sale of the former matrimonial home in the event that the husband fails to pay her out

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC(2), 60CC(3), 60CG, 69ZX(3)(b)

Family Law Reform Act 1995 (1997) FLC 92-755

Cases cited:
A and A Relocation Approach (2000) FLC 93-035

AMS v AIF (1999) 92-852

Bevan & Bevan [2013] FamCAFC 116

KB & TC (2005) FLC 93-224

Briginshaw v Briginshaw (1938) 60 CLR 336

C & C (2005) 33 Fam LR 414

Ferraro and Ferraro (1993) FLC 92-335

Franklyn & Franklyn [2019] FamCAFC 256

In the Marriage of Hickey (2003) FLC 93-143

Lansa & Clovelly [2010] FamCA 80

M and M (1988) FLC 91-979

McCall & Clarke (2009) FLC 93 405

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.

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Details

AGLC: Tavarus & Tavarus [2023] FedCFamC2F 845
Case: [2023] FedCFamC2F 845
Decision Date

CaseChat Overview and Summary

This case concerns the final determination of parenting and property issues between the parties, Ms Tavarus and Mr Tavarus. The court was required to decide whether the children should live with their father or mother, and how the property should be divided between the parties. The court considered the evidence of family violence and abuse perpetrated by the father towards the mother and children, the impact of this on the children, and the capacity of each parent to provide for the intellectual and emotional needs of the children. The court also considered the financial and non-financial contributions of each party during the marriage, and the section 75(2) factors.

The court found that the father had perpetrated severe family violence against the mother and children, and that this had a significant impact on the children. The court found that the father had kept the mother and children under surveillance for years, and had used coercive tactics, including physical violence and verbal abuse, to control the mother. The court found that the father had a history of not complying with court orders, and had failed to provide evidence of his ability to pay out the wife as required by the court. The court found that the mother had been the primary carer for the children throughout the marriage, and had been solely financially responsible for the children since separation. The court found that the husband had multiple qualifications and the capacity to work when he chose to do so.

The court made orders that the children live with the mother, that the mother have sole parental responsibility, and that there be no contact between the children and the father. The court also made orders for the division of property on a 65/35 basis, with the wife to receive 65% of the overall property pool and the husband to receive 35%. The court made orders that the husband pay the wife a cash sum of $157,809.00, with the wife retaining her own superannuation. The court made orders that if the husband failed to pay out the wife, the former matrimonial home was to be sold and the proceeds divided. The court made orders that the wife be appointed trustee for sale of the former matrimonial home and that she have sole conduct of all aspects of the sale. The court made orders that the husband pay the costs of Legal Aid Queensland for the final day of trial.

Orders