Langley & Tarelli - [2021] FedCFamC1A 8

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Langley & Tarelli [2021] FedCFamC1A 8

Appeal from: Tarelli & Langley (No.4) [2020] FamCA 1095

Appeal number(s): EAA 1 of 2021

File number(s): PAC 4311 of 2014

Judgment of: AINSLIE-WALLACE, ALDRIDGE & TREE JJ

Date of judgment: 14 September 2021

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Application to stay Full Court orders pending determination of an Application for Special Leave to appeal to the High Court – Where to refuse stay would have no impact on the subject matter of the appeal – Application dismissed – Orders made for the filing of submissions as to interim parenting orders.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Langley & Tarelli (No. 4) [2021] FamCAFC 107

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Tarelli & Langley and Anor [2017] FamCA 708

Tarelli & Langley (No. 4) [2020] FamCA 1095

Division: Division 1 Appellate Jurisdiction

Number of paragraphs: 19

Date of hearing: 25 August 2021

Place: Sydney (via video link)

Applicant: Self-represented litigant

Counsel for the First Respondent: Mr Shaw

Solicitor for the First Respondent: F W Ewart & Ewart

Counsel for the Second Respondent: Ms Mahony

Solicitor for the Second Respondent: Crown Solicitor’s Office

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

EAA 1 of 2021
PAC 4311 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS LANGLEY

Applicant

AND:
MR TARELLI

First Respondent

DEPARTMENT OF COMMUNITIES AND JUSTICE

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & TREE JJ

DATE OF ORDER:

14 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 13 August 2021 is dismissed.
2.The time in which the mother may file submissions in relation to interim parenting orders is extended to seven days from the date of these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Tarelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & TREE JJ:

On 5 July 2021 the Full Court allowed an appeal in this matter [1] with the result that orders made by a judge of the Family Court for the parties’ child, D who was born in 2013, to return to…

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 [2021] FedCFamC1A 8
Case: [2021] FedCFamC1A 8
Decision Date

CaseChat Overview and Summary

The applicant, Ms Langley, sought to stay the Full Court orders made on 5 July 2021 pending the determination of an application for special leave to appeal to the High Court. The Full Court had set aside orders that had required the parties' child to return to live with Ms Langley, who had not spent significant time with the child since September 2017. Ms Langley argued that the stay was necessary to preserve the subject matter of the appeal and that the delay would prejudice no one. The court was not persuaded by the arguments put forward by Ms Langley and dismissed the application for a stay.

The legal issues before the court were whether the application for a stay should be granted and whether there was a need to preserve the subject matter of the appeal. The court noted that the mother had not provided a clear explanation as to what purpose would be achieved by staying the orders, and her submissions did not persuade the court that it was necessary to preserve the subject matter of the appeal. The court held that failing to make orders that would provide certainty to the child about his arrangements would not be in his best interests.

The court dismissed the application for a stay and made orders for the filing of submissions as to interim parenting orders. The court noted that there was a low likelihood of the mother taking advantage of any order that provided for time between her and the child, but if such orders were made, she might not spend time with the child. The court held that it was in the best interests of the child to provide certainty about his arrangements, and therefore, the application for a stay was dismissed.

The final orders made by the court were that the application in an appeal filed on 13 August 2021 was dismissed, and the time in which the mother could file submissions in relation to interim parenting orders was extended to seven days from the date of these orders.

Orders