Tanberg & Remmy: Best Interests Of The Child

The Full Court of the Family Court of Australia decision Tanberg & Remmy [2021] FamCAFC 49 reiterates the importance of the best interests of the child being the paramount consideration when any orders are made in respect of children – even if that means no further orders are made despite competing applications.

Background in Tanberg & Remmy

The matter of Tanberg & Remmy concerned an appeal by the mother following the primary judge’s decision to dismiss both parties’ applications for interim parenting orders for a very young child.

In December 2019, consent orders had been made for the child to spend equal time with each parent – to be spent in alternating three-day blocks. Those orders were made on an interim basis, pending a report from a single expert psychologist.

Following the release of the single expert report, each party sought further interim orders. The proposals of the parties were as follows:

1. The mother sought that the child live primarily with her and spend five nights a fortnight with the father – on one occasion for two days and the other three days.
2. The father sought that the orders for equal time continue. However, he sought that the equal time be spent in an alternate arrangement of two and three-day blocks.

The primary judge declined to make the orders sought by either of the parties, which allowed the previous interim orders to remain in place. The primary judge reasoned that the evidence had not been formally tested, the single expert did not make any recommendations regarding the existing arrangement, nor make any recommendations that the existing orders should be altered.

The mother appealed the primary judge’s decision to the Full Court. She particularised seven grounds of appeal which are outlined below. The Full Court found that none of the grounds had been established.

Ground 1: Did the primary judge err by failing to make an order?

The primary judge in Tanberg & Remmy did not make a specific order dismissing the mother’s application in a case or the father’s response. However, it was clear from the notations in the orders that those applications/responses were dismissed. The reasoning given in the notations was in summary:

1. There was insufficient material before the court to change the existing orders
2. The expert report was inconclusive and/or did not comment on the impact of the shared care arrangement – positive or negative – on the child.
3. It is unusual for a young child to have a shared care arrangement, however, the parties had agreed to interim orders for this.

The mother argued that the primary judge failed to properly engage in the proposals – which the Full Court disagreed with. The Full Court referred to the reasoning made by the primary judge where specific reference was made to the parties’ proposals and consideration of the expert report.

Ground 2: Did the primary judge err by placing an onus on the mother to prove the order was not in the child’s best interest?

The primary judge in his reasoning expressed misgivings about the existing orders, however, was not satisfied that the evidence before him proved that either of the proposals sought by the parties would improve the child’s situation. This led to the conclusion that neither of the proposals were in the best interests of the child.

The Full Court rejected the implication that the onus was on the mother to prove that the existing order was not in the best interest of the child. Instead, the onus remained on the parties to prove that their respective proposals were in the best interests of the child – which they were unable to do.

The primary judge said (at para 27) “what was in the child’s best interests in December 2019, and not cautioned against by the expert in March 2020, still seems, for the most part, to be in the child’s best interests. This is especially so given that the blocks of time with each parent are relatively short, thereby militating against any potential undue angst arising from separation.”

Ground 3- Did the primary judge err by taking into account “a risk of prejudicing one or either party”?

The Full Court referred to the reasons of the primary judge and found that the phrase used did no more than to say that if he were to prefer one set of evidence rather than the other, that would unfairly prejudice one of the parties. The Full Court disagreed that there was some intention for a forensic advantage or disadvantage being gained by one of the parties having the child for a longer period.

Ground 4 – Did the primary judge err in the manner in which it took account of the interim consent orders?

The mother argued that the interim orders should not be given any weight, given they were only intended to be interim orders pending the release of the expert’s report. However, the expert report did not provide any recommendations. The Full Court considered that it was appropriate for the primary judge to consider that the parties had agreed to those orders even as interim orders, reflecting what they considered to be the best interests of the children at the time.

The primary judge went further to say that the child was coping well enough under the interim orders and that regardless of the fact that they were intended to be short term, it was sufficient for them to remain pending a final hearing.

Ground 5 – Did the primary judge fail to  consider an equal time arrangement?

The Full Court found that the primary judge did follow the considerations required of him, including considering whether an equal time arrangement was in the best interests of the child and was practicable in the circumstances.

Ground 6 – Did the primary judge err by failing to use his “declared experience” in determining what parenting arrangements are appropriate for young children?

The primary judge made several comments about the appropriateness of a shared care arrangement for a three-year-old child. The mother argued that the primary judge should have used his experience in matters involving young children in reaching his decision.

The Full Court rejected this argument – as the primary judge was limited to evidence that was before him. It may be that other experts have recommended that shared care arrangements were not suitable for a three-year-old child – but the expert in this case did not do so.

Ground 7 – Did the primary judge err by not weighing the probabilities of the competing claims?

The mother argued that she had led uncontested evidence of the child being unsettled at the changeover. However, the father’s evidence was that no issues were experienced at the changeover. The Full Court found that the primary judge did take these matters into account – however, the evidence was insufficient to suggest that they posed a risk to the child.

The appeal was wholly unsuccessful, and the mother was ordered to pay the father’s costs.

Conclusion in Tanberg & Remmy

The takeaway from this case is the importance of evidence – particularly from an expert – on an interim basis. The court is limited to the evidence before it and can decline to make an order if the court is not persuaded that those orders would be in the best interests of the child. It is also a reminder that when consenting to parenting orders, parties are in effect agreeing that those orders are in the child’s best interests.

If you require legal advice or representation in a family law matter, please contact Armstrong Legal.