Langley & Tarelli (No. 2)
[2021] FedCFamC1A 32
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Langley & Tarelli (No. 2) [2021] FedCFamC1A 32
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: 6 October 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders – Where the appeal was upheld – Interim parenting orders made pending redetermination. Legislation: Family Law Act 1975 (Cth) Pt VII Cases cited: Langley & Tarelli(No. 4) [2021] FamCAFC 107
Langley & Tarelli [2021] FedCFamC1A 8
Number of paragraphs: 21 Date of last submissions: 13 August 2021 Date of hearing: Heard by way of written submissions Place: In Chambers, delivered in Sydney Counsel for the Appellant: Mr Shaw Solicitor for the Appellant: F W Ewart & Ewart Counsel for the First Respondent: Mr Page QC Solicitor for the First Respondent: Adam Jones Solicitor Counsel for the Second Respondent: Ms Mahony Solicitor for the Second Respondent: Crown Solicitor’s Officer Counsel for the Independent Children’s Lawyer: Ms Eldershaw 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: Mr Tarelli
Appellant
AND: Ms Langley
First Respondent
DEPARTMENT OF COMMUNITIES AND JUSTICE
Second RespondentAND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & TREE JJ
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.Orders 1 to 17 made by a judge of the Family Court of Australia on 18 December 2020 be set aside.
2.The parenting proceedings be remitted for hearing by a judge of Division 1 of the Federal Circuit and Family Court of Australia other than the primary judge.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
3.The child ‘D’ is to live with the father.
4.The father is to have sole parental responsibility for D.
5.Subject to Order 8, the mother, if she elects to do so, is at liberty to spend time with D as follows:
a.On one initial occasion for up to one hour; and
b.Thereafter, in any week subsequent to the first visit, as follows:
i.For up to one hour after school on one weekday evening; and
ii.For up to two hours on either Saturday or Sunday in each week.
6.The mother’s time with D pursuant to Order 5 is to be supervised by a professional supervision service, or at a contact service, with the father to meet the costs of the same.
7.The maternal grandmother is able to attend with the mother on any occasion the mother spends with D in accordance with these orders.
8.The time between D and the mother is not to commence until D has attended at least one appointment with an appropriate child psychotherapist, psychologist or psychiatrist (“the therapist”) in accordance with Order 11 below, and is subject to any recommendation that the therapist may make about further appointments occurring before this time begins.
9.In the event the mother seeks to spend time with D in accordance with these orders, the mother or her nominee are to notify the Independent Children’s Lawyer no less than twenty-eight (28) days prior to the date she wishes to commence spending time with D.
10.Within fourteen (14) days of the date of these orders the Independent Children’s Lawyer, in consultation with Professor TT, is to nominate an appropriate child psychotherapist, psychologist or psychiatrist for D.
11.Within a further fourteen (14) days of the Independent Children’s Lawyer nominating a child psychotherapist, psychologist or psychiatrist for D, the father is to do all things necessary to engage D with that nominated professional, including but not limited to ensuring his attendance at appointments, taking all reasonable recommendations of the therapist, and paying the costs associated with attendance which are not otherwise met through obtaining a mental health plan.
12.The Independent Children’s Lawyer is granted leave to provide D’s treating therapist with the following:
c.A copy of these orders;
d.The expert report of Professor TT dated 30 July 2020; and
e.A copy of the primary judge’s reasons delivered on 22 January 2021.
13.D’s sessions with the therapist are not reportable, save for the Independent Children’s Lawyer being at liberty to seek a brief report about D’s progress and any recommendations as to further therapy.
14.In the event the therapist requires one or either of the parents to speak with them prior to therapy commencing, the parents are requested to make themselves available to speak with the therapist.
15.The therapist is at liberty to speak with Professor TT, Mr M and/or D’s school teacher prior to or during therapy with D.
16.Both the mother and the father are at liberty to speak with D’s treating therapist to obtain an update about D’s progress with the same.
17.Neither parent is to discuss with D any court proceedings involving the parents or either of them.
18.Neither party is to denigrate the other to D within his presence or hearing and both parties are to restrain as far as possible any other person from denigrating the other parent or members of that parent’s household to D in his presence of hearing.
19.The second respondent be removed as a party from the proceedings.
NOTATION
A.In the event the mother seeks to spend time with D, one of the goals of therapy will be to re-establish the relationship between her and D.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Tarelli (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & TREE JJ:
The parenting proceedings between these parties has a long and sorry history which is set out in the substantive judgment of the Full Court (Langley & Tarelli(No. 4) [2021] FamCAFC 107).
On 5 July 2021, the Full Court allowed an appeal from orders made on 18 December 2020 by a judge of the Family Court which had the effect of removing the child of the parties from his father’s care and placing him in his mother’s care.
The Full Court on allowing the appeal, stayed the orders made on 18 December 2020 leaving in place the previous orders which provided for the child to live with his father. It is intended that the parenting proceedings will be remitted to a judge of the Federal Circuit and Family Court (Division 1) for rehearing. Directions were made that the parties make submissions as to the interim orders to be made pending the rehearing of the parenting proceedings.
All parties save the mother complied with the directions. On the eve of the expiration of time in which the mother was to respond to the parties’ submissions, she filed an application seeking to stay the order requiring submissions from her pending the determination of her application for special leave to appeal to the High Court and, if granted, the determination of that appeal. That application was refused and an extension of time was given in which the mother may file submissions should she wish (Langley & Tarelli [2021] FedCFamC1A 8).
The mother did not file submissions as directed. We understand there was some communication by the mother with the Appeal Registrar seeking to extend the time in which she was to file submissions, but no application nor affidavit was filed and the time passed. We note that the mother did not file any submissions in response to an earlier order of the Full Court, but sought a stay of the Full Court’s orders. It became tolerably clear from her submissions on that application that she had not prepared any submissions on the question of interim parenting orders. Given that, our subsequent order again provided time in which the mother could file submissions, and she did not persuade us that we can proceed safely on the assumption that she will not make any submissions.
It should be noted that since the child was removed from the mother’s care on 14 September 2017 there have been orders in place for the child to spend time with the mother. Save for perhaps on one or two occasions, the mother has chosen not to spend time with the child although, she and the child were seen together for the purposes of the preparation of an expert report ordered for the hearing from which the appeal arose.
It is undisputed that the father was violent to the mother during the relationship and was subsequently charged and, on his plea of guilty, convicted of several serious assaults on her. It is also undisputed that the father’s violence has left the mother seriously psychologically damaged with ongoing emotional distress. It is the mother’s position that while ever the child lives with his father she cannot tolerate seeing the child and, if the child lives with her, she could not bear for the child to see his father other than for a few short hours each month.
In short, whatever interim orders are made providing for time as between the child and the mother, it is unlikely that the time will occur if he remains living with his father.
Turning then to the submissions of the other parties on the question of interim parenting orders.
The second respondent, the Secretary of the Department of Communities and Justice (“the Secretary”) seeks only to be discharged from the proceedings and seeks no orders in their favour.
The parenting proceedings between the parties commenced in 2014 and the final hearing of those proceedings was listed for 23 October 2017. Early in the proceedings, the Secretary intervened in the matter at the Court’s request. The removal of the child from the mother’s care pursuant to the orders of 14 September 2017 was made on the Secretary’s application citing concerns for the child’s safety in his mother’s care. The orders then made vested the Secretary with sole parental responsibility for the child including where he would live and the time, if any, he spent with his mother. Immediately after those orders were made the Secretary made the decision to place the child with the father where he has lived ever since. Arrangements were made for the child to see the mother, but, as we have said, nothing really came of that. It seems from the reasons of the primary judge from whose orders the appeal was brought that after placing the child in the care of the father, the Secretary took little part in the child’s day to day or, as it appears, even in relation to long term decisions.
After finding that the appeal should be upheld and having stayed the orders appealed from, the 14 September 2017 orders revive and the vesting of sole parental responsibility remains in the Secretary. Given that but for the making of the arrangements for the child to live with his father and to see his mother, the Secretary has not exercised parental responsibility for the child, apparently delegating that to the father, it is our view, appropriate that the order that the Secretary have sole parental responsibility be discharged and be removed as a party to the proceedings.
The Independent Children’s Lawyer sought orders that the father have sole parental responsibility for the child and that the child live with him. Should the mother wish to spend time with the child, the orders of the Independent Children’s Lawyer provide for an increasing regime of supervised time.
The Independent Children’s Lawyer also proposes that the child attend a therapist and if the mother chooses to spend time with him, then the therapy will address the restoration of their relationship.
The evidence before the primary judge was overwhelmingly to the effect that any transition of the child from living with the father to the mother would have to be supported by therapy for him.
The primary judge made no order for therapy for the child notwithstanding the proposed change of the child’s residence. The primary judge did however make an order that the mother and the father consult a therapist who had been involved with the mother over many years, to receive advice about the transition between households. The primary judge further ordered the parties to accept the therapist’s advice as to the “age appropriate manner in which the child will be advised of his pending change of his residential circumstances” (Order 8 made on 18 December 2020).
The ordered move from his father to his mother’s care was to take place 14 days after the making of the order. It would be anticipated that the ordered advice would be sought within that time. However the judgment was delivered on short notice at 5.15 pm on the last Friday before the Christmas vacation. Amongst other things, that timing led to the child being informed by the therapist of the ordered change of living circumstances by a Zoom call on New Year’s Eve. While we are not aware of the circumstances in which the child was to be transferred to his mother’s care, it was not effected and the child has remained living with the father.
There is significant force in the Independent Children’s Lawyer’s submission that the child’s circumstances are uncertain and must be a source of considerable anxiety for him and thus the proposed therapy should commence in the interim period before the parenting proceedings are reheard.
The father takes no issue with the orders proposed by the Independent Children’s Lawyer save for that relating to therapy for the child. He contends through his counsel that he is insolvent, and that the COVID-19 pandemic has brought an end to his work as a handyman. He cites being indebted to his lawyers for some $200,000. In short he submits that he cannot afford to pay for any therapy for the child over and above that which is provided without charge pursuant to a mental health plan. The submission makes no reference to the father’s financial evidence before the primary judge in which he revealed that he held some $90,000 in superannuation. His present partner, who joins with him in seeking that the child live with them, has a property which she estimated in 2020 as having a value of $850,000 and an encumbrance of $197,000.
It is to be understood that any cost of therapy to be borne by the father is over and above that provided under the provision of a mental health plan. The father seeks orders for sole parental responsibility for the child and that he live with him. The child is in need of supportive therapy to assist him to deal with the present anxieties and perhaps future concerns. The only person to see that the child receives that support is the father. We propose to make the orders sought because the therapy is so clearly in the child’s best interests and we are confident that the father can make the necessary arrangements to facilitate and fund the child’s therapy.
We are otherwise persuaded that the balance of the orders sought by the Independent Children’s Lawyer are in the child’s best interests, and will make them.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Tree. Associate:
Dated: 6 October 2021
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