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 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
Mr Tarelli

Appellant

AND:
Ms Langley

First Respondent

DEPARTMENT OF COMMUNITIES AND JUSTICE
Second Respondent

AND:
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…

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 (No. 2)

Details

AGLC: Langley & Tarelli (No. 2) [2021] FedCFamC1A 32
Case: [2021] FedCFamC1A 32
Decision Date

CaseChat Overview and Summary

In this appeal, Mr. Tarelli sought to overturn the final parenting orders that were made in the Family Court. The child, D, had been living with his father, Mr. Tarelli, since September 2017, following an application by the Department of Communities and Justice that he be removed from the care of his mother, Ms. Langley, due to concerns for his safety. The primary judge had ordered that D live with his mother and spend supervised time with his father, a decision that the Full Court later overturned. The appeal court set aside the December 2020 orders and reinstated the September 2017 orders, with D remaining in his father's care until the parenting proceedings were reheard. The court was required to determine the appropriate interim parenting orders pending the rehearing of the matter.

The court considered the submissions of the parties and the Independent Children's Lawyer. The mother did not file any submissions, despite multiple opportunities to do so. The Independent Children's Lawyer sought orders that the child live with his father, with an increasing regime of supervised time for the mother, and that the child attend therapy. The father opposed the therapy on the basis of his financial circumstances, despite evidence that he had access to sufficient funds. The court was satisfied that the proposed interim orders, including therapy for the child, were in his best interests. The court set aside the December 2020 orders and reinstated the September 2017 orders, with the child remaining in his father's care until the parenting proceedings were reheard. The court also ordered that the child attend therapy, with the father to bear the costs, and that the Department of Communities and Justice be removed as a party to the proceedings.

The court made interim parenting orders that the child live with his father, with an increasing regime of supervised time for his mother. The court also ordered that the child attend therapy, with the father to bear the costs. The court further ordered that the Department of Communities and Justice be removed as a party to the proceedings. The mother was given the opportunity to file submissions on the interim parenting orders but did not do so. The court was satisfied that the proposed interim orders, including therapy for the child, were in his best interests. The court ordered that the September 2017 orders be reinstated and that the parenting proceedings be remitted for rehearing. The court further ordered that the child attend therapy, with the father to bear the costs, and that the Department of Communities and Justice be removed as a party to the proceedings. The mother was given the opportunity to file submissions on the interim parenting orders but did not do so. The court was satisfied that the proposed interim orders, including therapy for the child, were in his best interests.

Orders