Langley & Tarelli and Anor (No. 2) - [2020] FamCAFC 126

FAMILY COURT OF AUSTRALIA

LANGLEY & TARELLI AND ANOR (NO. 2)

[2020] FamCAFC 126

FAMILY LAW – APPEAL – Appeal against orders to stay parenting proceedings pending determination of criminal charges – Interlocutory order – Right of appeal – Best interests of the child – Paramountcy principle – Consideration of privilege against self‑incrimination and s 128 of the Evidence Act 1995 (Cth) – Findings of fact – Error established – Appeal allowed – Orders set aside – Re-exercise – Application to stay parenting proceedings dismissed – Costs certificate issued to appellant.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) Pt VII, s 60B, 60CA, 60CC, 64 (repealed), 64B, 69ZN, 69ZX(3), 94 and 94AA
Federal Proceedings (Costs) Act 1981 (Cth) s 9

Family Law Rules 2004 (Cth) r 5.05(1)
Family Law Regulations 1984 (Cth) reg 15A(2)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2018) 351 ALR 168; [2018] FCAFC 4
Farmer & Rogers [2010] FamCAFC 253
Field & Kingston (2018) FLC 93-850; [2018] FamCAFC 145
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Landsal Pty Limited (in liq) v REI Building Society (1993) 41 FCR 421; [1993] FCA 171
Langley & Tarelli and Anor [2019] FamCAFC 30
Re K (1994) FLC 92-461; [1994] FamCA 21
Tarelli & Langley and Anor [2017] FamCA 708
Tarelli & Langley and Anor [2018] FamCA 522
VJ v CJ (1997) FLC 92-772; [1997] FamCA 50

APPELLANT:

Ms Langley

FIRST RESPONDENT:

Mr Tarelli

SECOND RESPONDENT:

Secretary, Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

PAC

4311

2014

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

15 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

15 May 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 APPELLANT:

Mr Schonell SC

SOLICITOR FOR THE APPELLANT:

Adam Jones Solicitor

COUNSEL FOR THE FIRST RESPONDENT

RESPONDENT:

Mr Shaw

SOLICITOR FOR THE FIRST RESPONDENT:

F W Ewart & Ewart

COUNSEL FOR THE SECOND RESPONDENT:

Mr Harper

SOLICITOR FOR THE SECOND RESPONDENT:

Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders made 15 May 2020

NOTING THE CONSENT OF ALL PARTIES:

The appeal against the orders dated 4 March 2020 be allowed and those orders be set aside.
The Response to an Application in a Case filed by the first respondent on 13 February 2020 be dismissed.

IT IS FURTHER ORDERED THAT:

Leave is given to the appellant to rely upon her Amended Summary of Argument dated 15 May 2020.
There be no orders as to costs.
The first respondent’s application for a costs certificate pursuant to the Federal Proceedings (Costs)…

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.

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Details

Case: [2020] FamCAFC 126
Decision Date: 15 May 2020

CaseChat Overview and Summary

The appeal in Langley and Tarelli and Anor (No. 2) was heard by the Full Court of the Family Court of Australia. Ms Langley, the mother, appealed the orders made by the primary judge on 4 March 2020 to stay the parenting proceedings pending the outcome of criminal charges against Mr Tarelli, the father. The Full Court found that the mother had established error, and that the appeal should be allowed. The Court set aside the orders staying the parenting proceedings and dismissed the father's application for a stay. The Full Court also granted the mother a certificate for costs incurred in the appeal. The Court found that the primary judge's decision to stay the parenting proceedings was based on an incorrect understanding of the father's right to silence and the potential for a certificate under s 128 of the Evidence Act 1995 (Cth) to protect that right. The Full Court held that the welfare of the child is the paramount consideration in deciding whether to stay parenting proceedings, and that the father's right to silence should not ordinarily determine whether the proceedings should continue. The Court found that the primary judge's decision miscarried in prioritising the father's right to silence over the welfare of the child.

Orders