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 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 live with the mother, he having lived with his father since 14 September 2017, were set aside.
[1] Tarelli & Langley (No. 4) [2020] FamCA 1095; Langley & Tarelli (No. 4) [2021] FamCAFC 107.
Relevantly, the Full Court made the following orders:
4.The appeal against the orders of a judge of the Family Court made on
18 December 2020 is allowed.
5.The orders made on 18 December 2020 are stayed pending further order of the Full Court.
It was accepted by all parties that should the appeal be allowed, the parenting matter must be referred to another judge of the Family Court for rehearing. The Independent Children's Lawyer sought an order that she be permitted to make submissions on the appropriate interim orders to be made in relation to the child before the matter is reheard.
Thus the following orders were made:
6.Within twenty-one (21) days of the date of these orders, the Independent Children’s Lawyer file and serve any written submissions addressing the interim parenting orders to be made in light of Order 4 herein.
7.The appellant, first respondent and second respondent may file any submissions in reply to those of the Independent Children’s Lawyer within a further twenty-one (21) days of their receipt.
The Independent Children’s Lawyer filed submissions on 26 July 2021, the second respondent, the Secretary of the Department of Communities and Justice, filed submissions on 9 August 2021 and the father’s submissions were filed on 13 August 2021.
On 5 August 2021 the mother filed an Application for Special Leave to appeal to the High Court.
On 13 August 2021, the day before the time referred to in Order 7 expired, the mother filed an Application in an Appeal in the following terms:
An order staying the operation of Orders 4 and 7 of the Full Court of the Family Court of Australia made on 5 July 2021 pending determination of the special leave application filed in the High Court of Australia on 5 August 2021 and of any consequent appeal if special leave is granted.
The affidavit in support of the application did no more than identify that an Application for Special Leave had been filed and that the mother’s enquiries led her to understand that the determination of that application will be made within three to four months of its filing.
In oral submissions on the application, the mother contended that it was necessary to stay those orders in order to preserve the subject matter of the appeal. In elaboration of this submission the mother said that if Order 4 was stayed then the operative parenting order would be that made in September 2017, an order which removed the child from the mother’s care; gave the Minister for Family and Community Services (“the Minister”) sole parental responsibility for the child and who would direct where the child would live. The orders left it to the Minister to determine the time and duration of any time spent between the child and the mother.[2]
[2] Tarelli & Langley and Anor [2017] FamCA 708.
It was common ground that immediately on those orders being made, the Minister placed the child in the care of his father where he has lived ever since. It was also common ground that arrangements were made for the mother and child to spend time together but, save for a few occasions, the mother has been unable to spend time with the child and at the date of the hearing of the appeal, she had not spent any significant time with him since September 2017. It was also acknowledged that the mother could not and would not spend any time with the child while ever he lived with his father.
We were unable to glean an understanding from the mother’s submissions what purpose would be achieved by staying Order 4 and there being a reversion to the orders made on
14 September 2017.
The mother’s oral submissions threw even less light on why it was said Order 7 should be stayed to preserve the subject matter of the appeal. The mother conceded that she did not file submissions in response to those already received in accordance with Order 7 saying that to do so would require her to expend funds on a lawyer and that would draw funds away from her High Court challenge. While we accept that the mother may prefer the assistance of a lawyer in making submissions about interim parenting orders, we note that she is legally trained and had practised at the bar for several years. However how the mother chooses to spend her resources cannot, of itself, be a basis for a stay of that order.
Next the mother argued that if she filed submissions in accordance with Order 7 she might experience difficulties if she later wished to make an application for interim orders. We assumed this to be a reference to satisfaction of the threshold question posed in Rice and Asplund.[3]
[3] (1979) FLC 90-725.
In short then the mother’s position was that she did not want to make submissions on what interim parenting orders should be made until she knew the outcome of the application for special leave. She argued that a delay of three to four months would prejudice no one. Of course this argument fails to take into account two important aspects – first it is in the child’s interests that where he will live and whether he will spend time with his mother are settled for the time being. Secondly, if the special leave application is successful, more time will pass before the High Court hears and determines the appeal.
Further clouding the issue is a suggestion apparently advanced shortly before the stay hearing by the Independent Children’s Lawyer that the mother and Independent Children’s Lawyer engage in mediation. The purpose of the mediation was never articulated with any clarity and, in any event, the mother said she has not decided to take up the offer but wished to take legal advice on it.
We do not propose to stay the orders. Nothing put to us persuades us it is necessary to preserve the subject matter of the appeal and to fail to make orders which will at least for a time give certainty to the child about his arrangements would not be in his best interests.
Should the mother wish to file submissions in response to the Independent Children’s Lawyer’s proposed interim orders or indeed the submissions filed by the other parties, she must do so within seven days of the date of these orders.
We note that there is scant likelihood of the mother taking advantage of any order that provides for time between her and the child but if such orders are made, she may, as she has done in the past, not spend time with the child.
The application for stay will be dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Tree. Associate:
Dated: 14 September 2021
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