Langley & Tarelli - [2019] FamCAFC 30

FAMILY COURT OF AUSTRALIA

LANGLEY & TARELLI AND ANOR

[2019] FamCAFC 30

FAMILY LAW – APPEAL – Appeal against property and parenting orders – Where parties agree the appeal should be allowed – Leave given to appeal against orders for costs – Failure to consider evidence – Approach to re-opening – Error established – Matter remitted for rehearing.

FAMILY LAW – COSTS – No order as to costs – Costs certificates granted for appeal and rehearing.

Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

B & B (Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177
Stephens & Stephens (Enforcement) (2009) FLC 93-425; [2009] FamCAFC 240
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57

APPELLANT:

Ms Langley

RESPONDENT:

Mr Tarelli

INTERVENER:

Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

PAC

4311

2014

APPEAL NUMBER:

113

2018

DATE DELIVERED:

21 February 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

15 February 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 June 2018

LOWER COURT MNC:

[2018] FamCA 522

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Schonell SC

SOLICITOR FOR THE APPELLANT:

Adam Jones Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Shaw

SOLICITOR FOR THE RESPONDENT:

Ewart & Ewart Solicitors

COUNSEL FOR THE INTERVENER:

Dr Barnett

SOLICITOR FOR THE INTERVENER:

Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders made on 15 February 2019

The appeal against the orders of Cleary J of 27 June 2018 is upheld and the orders set aside.
Leave be granted nunc pro tunc to the appellant to appeal against the order of Cleary J of 26 September 2018 and the order set aside.
The matter be remitted for rehearing before a Judge of the Family Court of Australia other than Cleary J.
Leave is granted for the respondent to file and rely on a Notice of Contention received by the Eastern Appeals Registry on 16 January 2019.
The Application in an Appeal to adduce further evidence filed by the respondent on 16 January 2019 is withdrawn and dismissed on the basis of the noting of an agreed fact.
That the Application in an Appeal to adduce further evidence filed by the appellant on 4 February 2019 is withdrawn and dismissed.
Leave be granted for the appellant and respondent to rely on their respective Supplementary Appeal Books.
There be no orders as to costs.
The Court grants to the appellant a costs certificate pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal and in relation to the new trial…

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 Langley & Tarelli

Details

AGLC: Langley & Tarelli [2019] FamCAFC 30
Case: [2019] FamCAFC 30
Decision Date: 21 February 2019

CaseChat Overview and Summary

Langley and Tarelli were the parties in a family law appeal concerning property and parenting orders. The appeal was heard in the Family Court of Australia. The dispute arose from the trial judge's failure to consider certain evidence and the consequential orders made. The appeal sought to rectify these issues and, with the consent of both parties, the appeal was allowed. However, leave was granted to appeal against the orders for costs, which were found to be unjust. The court determined that the trial judge's approach to re-opening the matter was flawed and that a material error had been established. As such, the matter was remitted for rehearing.

The legal issues before the court involved the proper consideration of evidence in family law proceedings, the approach to re-opening matters, and the appropriateness of costs orders. The court was required to determine whether the trial judge's failure to consider certain evidence warranted a rehearing and whether the costs orders were fair and just. The court found that the trial judge had erred in not considering the evidence and that the costs orders were unjust.

The court reasoned that the trial judge's failure to consider the evidence was a material error that affected the outcome of the case. The court also found that the costs orders were unjust, as they did not reflect the true position of the parties. As a result, the appeal was allowed, and the matter was remitted for rehearing. The court further granted costs certificates for the appeal and the rehearing, ensuring that the costs incurred were appropriately covered.

No specific orders were made in the appeal, as the matter was remitted for rehearing. The court did, however, grant costs certificates for the appeal and the rehearing, ensuring that the parties' costs were adequately covered. This decision highlights the importance of proper consideration of evidence in family law proceedings and the need for just costs orders.

Orders