Langley & Tarelli
[2020] FamCAFC 106
•30 April 2020
FAMILY COURT OF AUSTRALIA
| LANGLEY & TARELLI AND ANOR | [2020] FamCAFC 106 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Mother seeks expedition of her appeal against orders granting the father’s application for final hearing dates to be vacated – Where hearing dates were vacated due to the father facing criminal charges in relation to family violence alleged by the mother – Where the Department of Communities and Justice has sole parental responsibility for the child and the child lives with the father – Grounds of appeal raise significant issues in relation to the welfare of a child and administration of justice – Failure to grant expedition would render appeal nugatory – Application granted. |
| Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) s 94(2D)(j) |
| APPLICANT: | Ms Langley |
| RESPONDENT: | Mr Tarelli |
| INTERVENER: | Secretary, Department of Communities and Justice |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | PAC | 4311 | of | 2014 |
| APPEAL NUMBER: | EA | 33 | of | 2020 |
| DATE DELIVERED: | 30 April 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via videolink) |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 29 April 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 March 2020 |
| LOWER COURT MNC: | [2020] FamCA 196 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Adam Jones Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Shaw |
| SOLICITOR FOR THE RESPONDENT: | F W Ewart & Ewart |
| COUNSEL FOR THE INTERVENER: | Mr Harper |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor’s Office |
| COUNSEL FOR THE INDEPENDENT CHIDLREN’S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER: | Robertson Solicitors |
Orders made 29 April 2020
That the Application in an Appeal for expedition filed 20 April 2020 be granted.
That the appeal EA 33 of 2020 be listed for hearing before the Full Court at 10.00 am on 15 May 2020.
That the Secretary, Department of Communities and Justice file and serve any application to adduce further evidence in the appeal and supporting affidavit within seven (7) days from today.
That the parties confer with the Appeals Registrar as to further directions in relation to the appeal.
That the costs of the application be costs in the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Tarelli and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 33 of 2020
File Number: PAC 4311 of 2014
| Ms Langley |
Applicant
And
| Mr Tarelli |
Respondent
And
| Secretary, Department of Communities & Justice |
Intervener
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 20 April 2020, Ms Langley (“the mother”) seeks to expedite her Amended Notice of Appeal filed 2 April 2020. The mother’s appeal is against interim orders, which in effect, vacate the dates allocated to this case for final hearing, pending determination of criminal charges laid against Mr Tarelli (“the father”). The interim orders were made upon determination of an application filed by the mother on 2 January 2020 to confirm the final hearing dates (and it would appear for interim parenting costs), which were listed in August 2020, and to which a Response by the father was filed, seeking for the dates to be vacated pending the outcome of criminal charges he is currently facing.
The final hearing is a remitted rehearing of final property and parenting matters. The parenting component concerns the parties’ only child, who is currently seven years of age (“the child”). An Independent Children’s Lawyer has been appointed to represent the best interests of the child (“the ICL”) and the Secretary, Department of Communities and Justice is an intervener in this case (“the Department”). The ICL supports expedition and the respondents collectively do not oppose it.
Background
In order to understand the context within which the mother makes this application, it is necessary to refer to some brief background facts and the procedural history of this matter, which is lengthy and complex.
The parties met in April 2012, began living together in September 2012 and the child was born in 2013. The parties separated in December 2013 and from separation until around September 2017, the child lived with the mother and spent limited time with the father.
A few weeks before the trial was due to start, the Department, without notice, lodged an application seeking sole parental responsibility for the child. This application was granted and it remains the case that the Department has sole parental responsibility for the child. Having assumed the care of the child, the Department placed him in the care of the father, where he has remained.
The matter proceeded to trial in October 2017. In April 2018, whilst judgment was reserved, the mother unsuccessfully applied to reopen the case so as to adduce further evidence. On 27 June 2018 final orders were made for the child to live with the father. The mother appealed this decision and on 15 February 2019, the Full Court heard that appeal.
On appeal, the mother argued that her evidence of family violence, which included unchallenged eyewitness accounts of the father inflicting family violence on her provided by the maternal grandmother, was not considered by the primary judge. In relation to this, the Full Court observed:
9.As to the substantive parenting component of the appeal, it is accepted that the primary judge failed to have regard to evidence in the mother’s case given by [Mr J], [Ms P] and the second report of her treating psychiatrist. Moreover, for reasons which are not explained, unchallenged evidence given by the maternal grandmother of her direct observation of family violence inflicted by the father on the mother was not considered; indeed, the evidence given by the maternal grandmother is neither identified in the material read at trial, nor mentioned at all in the trial reasons. The submission for the mother that the inescapable conclusion is that the primary judge had no regard to the evidence given by the maternal grandmother at the hearing should be accepted (Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [130]).
10.It is not necessary to say more. Once the mother established that potentially significant evidence in relation to her mental health and allegations of family violence was overlooked the findings in relation to those important matters could not stand.
All respondents conceded the appeal and the matter was remitted for rehearing.
The mother’s case remains that the father perpetrated significant family violence against her during and following their relationship. The father is now facing 20 criminal charges as a result of the mother making a complaint to the police. The offences relate to sexual assaults, sexual intercourse without consent, assault causing actual bodily harm, common assault, destroy/damage property, acts of indecency and threatening and intimidating behaviour against the mother, from the period of October 2012 to March 2015. The primary judge found that the mother first made a complaint to the police in 2019, however, it seems to be unchallenged that the mother was interviewed by police about these matters on 11 October 2017, she completed her statement in December 2017 and a two year long investigation followed which resulted in the father being charged on … October 2019.
Despite the current interim orders providing for the mother to have supervised time with the child, she has not seen him for more than two years. The mother’s explanation for not taking the opportunity to see the child is that the experience of seeing the child whilst he remains in the father’s care, in particular knowing that the child will return to the father following the visit, would trigger her Post‑Traumatic Stress Disorder (“PTSD”), which she says she has developed as a result of her relationship with the father. The mother’s evidence in relation to her inability to see the child in accordance with the current orders is supported by her treating psychiatrist.
In vacating the final hearing dates, the primary judge found that the father’s right to silence and defence to his impending criminal trial was more pressing than the necessity for the family law proceedings to be determined as listed. In so doing the mother’s attempts to have her application for interim parenting orders heard seem to have been overlooked. For reasons which are unclear, that application had been listed into the August 2020 dates (one might contemplate whether this was a constructive dismissal of the application without hearing or reasons) and it seems that the decision to vacate the August dates has had the dual effect of denying the mother both an interim and final hearing. Her Honour found that should the case proceed on the hearing dates allocated in August 2020, the father would be at risk of incriminating himself should he answer questions under cross‑examination in relation to family violence, “which go to the very heart of the decision [the primary judge is] asked to make” [62]. Conversely, should the father exercise his right to silence, the proceedings would be compromised as the Court would be deprived of the evidence required to make a final decision in relation to parenting for this child. The primary judge rejected the mother’s submission that the father could seek a Certificate pursuant to s 128 of the Evidence Act 1995 (Cth) as “this may not be a sufficient protection to protect his right to silence given the serious criminal charges he is facing” [64].
Ultimately, the primary judge was satisfied that, contrary to submissions advanced by the mother, the child enjoys “stable and regular living arrangements” [60]. Notwithstanding that the child is not spending any time with his mother, the primary judge determined that the child is living in a well‑settled environment and faces no immediate risk of harm.
The appeal and application for expedition
The mother’s Amended Notice of Appeal presents nine grounds of appeal. Stated broadly, the grounds challenge the adequacy of the primary judge’s reasons, assert errors of law in relation to s 60CC of the Act and assert that the primary judge failed to make findings in relation to whether the father had disclosed his defence to the criminal charges. Further, that the primary judge made findings in relation to the wellbeing of the child that were not available, made errors of fact in relation to the dates on which the alleged criminal offences took place and that her Honour took into account an irrelevant consideration, being the time and date of the first complaint she made to the police. Finally, the mother says that the medical evidence provided by her was not properly understood and led the primary judge to miscarry her discretion.
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that an order for expedition of an appeal may be made by a Full Court of the Family Court, or a judge of the Appeal Division, or any other judge if a judge of the Appeal Division is not available. Whilst neither the Act nor the Family Law Rules 2004 (Cth) (“the Rules”) specifically set out applicable criteria for deciding expedition of an appeal, the Rules contain useful guidance for the approach to determining expedition applications for trials in r 12.10A, which may be adopted when determining expedition of an appeal. A key consideration is whether a relevant circumstance exists which would justify the appeal being afforded priority to the possible detriment of other appeals filed ahead of it (r 12.10A(2(d)). Examples of what may constitute a relevant circumstance are contained in r 12.10A(4)(a)–(g).
It is clear from the mother’s evidence filed in support of this application that her primary concern is that the child be returned to her care and the risk to the child of exposure to family violence and being in the care of a violent role model be alleviated. These are very serious matters. All the more so when it is appreciated that the mother was his primary carer for almost the first five years of his life and much of the mother’s evidence on these matters was overlooked at trial. Whilst the primary judge found that the child is not at risk of suffering harm by continuation of the current living arrangements, the matters raised by the mother in relation to the emotional and psychological welfare of the child in support of this application are highly relevant.
The mother’s appeal is not, on the face of it, without merit albeit some attention needs to be given to the nature of the “decree”, the grounds of appeal raise significant matters which concern the welfare of the child and the administration of justice in this case. These matters weigh heavily in favour of expedition.
Although significant issues concerning the best interests of the child and the effective administration of justice discussed above are sufficient enough to warrant this appeal being afforded priority to the possible detriment of other appeals, particularly in circumstances where all of the respondents to the application do not oppose that course, there is one final matter which tips the balance in favour of expedition. Rule 12.10A(4)(e) provides that whether the purpose of the case will be lost if it is not heard quickly is a relevant circumstance which may be considered when deciding an application for expedition. Should this appeal be set down for hearing in the ordinary course, there is every likelihood that it would not be heard until very shortly before August 2020, and possibly after that time. If that were to be the case, the purpose of the mother’s appeal would be rendered nugatory.
Conclusion and Costs
It follows that the appeal will be expedited.
Costs of the application will be costs in the appeal.
I certify that the nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Ryan J delivered on 30 April 2020.
Associate:
Date: 30 April 2020
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