Langley & Tarelli (No. 3)
[2021] FedCFamC1A 67
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Langley & Tarelli (No. 3) [2021] FedCFamC1A 67
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: AUSTIN J Date of judgment: 16 November 2021 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Stay – Where the applicant seeks a stay of Full Court orders, or in the alternative, that they be set aside and a further interim injunction made – Where the Full Court only has power to stay its own orders when an appeal or application for special leave to appeal is pending before the High Court of Australia – Where the orders of the Full Court are not the subject of any juridical challenge – Where the appeal proceedings are complete, the matter has been remitted, and the appellate jurisdiction is exhausted – Where the Full Court orders remain operative and binding – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, s 94(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32
Family Law Rules 2004 (Cth) r 17.02(1)(a)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13(1)(a)
Cases cited: DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 86
John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510
Langley & Tarelli (No. 2) [2021] FedCFamC1A 32
Langley & Tarelli (No. 4) [2021] FamCAFC 107
Langley & Tarelli [2021] FedCFamC1A 8
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20
Spencer & Spencer (No. 4) [2020] FamCAFC 254
Tarelli & Langley (No. 4) [2020] FamCA 1095
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 20 Date of hearing: 16 November 2021 Place: Newcastle (via video link) The Applicant: Litigant in person Counsel for the First Respondent: Mr Shaw Solicitor for the First Respondent: F.W Ewart & Ewart Solicitors Solicitor for the Second Respondent: Crown Solicitor’s Office The Independent Children’s Lawyer: Ms Neligan 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
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Second RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 3 November 2021 is dismissed.
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. 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 18 December 2020, a judge of the Family Court of Australia (as the Court was then known) made orders between the applicant mother and respondent father to resolve disputes over their only child and the division of their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively.
For present purposes it is only necessary to know that the parenting orders made provision for the child to live with the mother and to spend limited, supervised time with the father (Tarelli & Langley (No. 4) [2020] FamCA 1095).
The father successfully appealed from those orders, though the appeal was determined by incremental steps.
On 5 July 2021, the Full Court allowed the appeal, temporarily stayed the appealed orders, and directed the parties to file submissions enabling the Court to determine the interim parenting orders which would apply in substitution for the appealed orders pending the re-hearing at first-instance (Langley & Tarelli (No. 4) [2021] FamCAFC 107).
On 4 September 2021, the Full Court dismissed the mother’s application (filed on 13 August 2021) to stay its orders made on 5 July 2021 pending the outcome of her application to the High Court of Australia for special leave to appeal (filed on 5 August 2021). The Full Court dismissed the stay application for futility (Langley & Tarelli [2021] FedCFamC1A 8 at [11]–[16]), but extended the time for the mother to file submissions in accordance with the orders made on 5 July 2021, though she did not avail of the indulgence.
On 6 October 2021, the Full Court disposed of the appeal by setting aside Orders 1–17 made on 18 December 2020, remitting the proceedings for re-hearing at first-instance, and making interim parenting orders pending further orders being made at first-instance, which orders were made regardless of the mother’s failure to file any submissions (Langley & Tarelli (No. 2) [2021] FedCFamC1A 32 at [4]–[5]). Essentially, the interim orders provide for the father to have sole parental responsibility for the child, for the child to remain living with the father, and for the child to conditionally spend supervised time with the mother.
On 3 November 2021, the mother filed an Application in an Appeal seeking orders in these terms:
1.
a)An order staying the operation of orders 1-16 and 19 of the Full Court of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction delivered on 6 October 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.
In the alternative:
b)Set aside orders 1-16 and 19 of the Full Court of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction delivered on 6 October 2021, made in the absence of the applicant mother.
2.Until further order [the respondent] born 8 January 1978, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of [the child] born 5 February 2013 from the Commonwealth of Australia for a period of 2 years from this date or until further order of the Court whichever is the earlier.
And it is requested that the Australian Federal Police give effect to this order by placing [the child] of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period or until the Court orders its removal.
(As per the original) (Bold emphasis added)
As can be seen, the mother seeks the stay of most of the orders made by the Full Court on 6 October 2021, or alternatively their discharge, together with an additional order made in the nature of a substantive injunction.
The applications for Orders 1(a), 1(b) and 2 in the Application in an Appeal should usually be heard by a single judge exercising appellate jurisdiction (ss 32(2)(d), 32(3)(b), 32(3)(c) and 32(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The Chief Justice did not direct that the application be heard by the Full Court and the Full Court which disposed of the appeal is no longer seized of it.
The Application in an Appeal was promptly listed today (16 November 2021) for the mother to be heard as to why the application should not be dismissed, since the orders of the Full Court are not the subject of any juridical challenge.
When the hearing began, the mother sought to fragment the hearing of her application, by proceeding with her application for Order 2, but seeking an adjournment of her application for Order 1. Even though the father and the Independent Children’s Lawyer did not actively oppose an adjournment of the hearing of the mother’s application for Order 1, the application for it was refused. The mother said she had been without access to a computer for the last few days, thereby precluding her legal research in readiness for the hearing, but she was notified a week ago of the purpose of the hearing fixed for today. The mother said she would need two more weeks within which to be properly prepared, but her asserted readiness to deal separately with her application for Order 2 reflected a misconception which was likely to be perpetuated in respect of her residual application for Order 1, irrespective of how much preparation time she was given. The entirety of her application is beset by misunderstanding about the unavailability of the relief she seeks.
Following the orders made on 6 October 2021 to set aside the appealed orders and remit the proceedings for re-hearing, the appeal proceedings were complete. Such orders are final and dispositive unless and until set aside on appeal or pursuant to a prerogative writ (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 393).
While the mother filed with the High Court an application for special leave to appeal from the orders made by the Full Court on 5 July 2021, which is as yet undetermined, no application for special leave to appeal has been filed in respect of the orders made by the Full Court on 6 October 2021. The mother confirmed that to be so in an affidavit she filed on 4 November 2021, in which she said:
…I had served the Special Leave Application of 5 August 2021 upon the Famiky Court (sic) on 10 August 2021 and no additional Applications for Special Leave have been filed.
As an aside, it may be wondered whether an appeal even competently lies (with special leave) from the orders made by the Full Court on 5 July 2021. Although the appeal was then allowed, the orders did not finally conclude the appeal within the ambit of the jurisdiction conferred by s 94(2) of the Family Law Act 1975 (Cth), which then applied, because the orders did not “affirm, reverse or vary” the original decree which was the subject of appeal and so were not entirely decisive of the parties’ rights (Yule v Junek (1978) 139 CLR 1). It was the orders later made on 6 October 2021 which were finally dispositive of the appeal.
The Full Court has the power to stay its own orders when an appeal or an application for special leave to appeal is pending before the High Court of Australia, but such power should usually be exercised in only extraordinary circumstances (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 682–684; John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 at 511–512; Spencer & Spencer (No. 4) [2020] FamCAFC 254 at [7]–[11]).
Significantly however, the mother was unable to refer to any authority for the proposition that such power extends so far as to enable the stay of operative and binding orders which are not the subject of any application or appeal to the High Court, as is the case for the orders made on 6 October 2021, particularly when the time for filing of such has expired and no application for an extension of time has been made. Absent authority for the proposition, I am not satisfied such power exists.
Even if the power does exist, the extraordinary circumstances which are required to invoke it apparently do not. The mother admitted she would not accrue any tangible benefit from the orders being stayed, but abstained from explaining why she was then motivated to apply for the stay. She deposed this in her affidavit filed on 3 November 2021:
The grant of a stay until the High Court of Australia determines my Special Leave application, or if granted, an appeal, will change nothing in this matter. A stay will maintain [the child’s] usual care arrangements and [the child] will continue to live with my abuser as is the outcome of the Full Court Appeal. Therefore, there will be no change to [the child’s] living arrangements…
…[The child] lives with [the father] and a stay would result in no change to these tragic circumstances and no prejudice to [the father].
Nor is the remainder of the mother’s application competent. There is no power to set aside the Full Court’s orders or to make supplementary orders, as she wants. Once the Full Court’s orders were perfected and the proceedings were remitted, appellate jurisdiction was exhausted. Use of the slip rule aside, there is no power to re-open the Full Court’s final orders after their entry (DJL v Central Authority (2000) 201 CLR 226 at 249, 263–264 and 291).
The mother’s complaint about the interim parenting orders being made by the Full Court in her absence and therefore in error is groundless. The Full Court made orders in July 2021 and September 2021 setting a timetable for the mother (and others) to file written submissions about the form of the interim parenting orders which should be made to govern the subject child’s care arrangements pending the re-hearing at first-instance. It was explicitly intended such orders would then be determined by the Full Court in chambers without the need for any further personal appearances in Court, as subsequently occurred on 6 October 2021. The mother’s reliance upon r 17.02(1)(a) of the Family Law Rules 2004 (Cth) (since repealed and replaced by r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) was therefore misplaced.
Since there is no power to grant the relief sought by the mother, the Application in an Appeal filed on 3 November 2021 is incompetent and should be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 16 November 2021
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