Langley & Tarelli (No. 3)

Case [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 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS LANGLEY

Applicant

AND:

MR TARELLI

First Respondent

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Second Respondent

INDEPENDENT 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…

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Langley & Tarelli (No. 3) [2021] FedCFamC1A 67
Case
[2021] FedCFamC1A 67
Decision Date

CaseChat Overview and Summary

The case of Langley & Tarelli (No. 3) involved the mother filing an Application in an Appeal on 3 November 2021. The mother sought orders to stay the operation of certain orders made by the Full Court of the Federal Circuit and Family Court of Australia on 6 October 2021, or alternatively to set aside those orders. Additionally, she sought an injunction preventing the removal of her child from Australia for a period of two years. The court was tasked with deciding whether to grant the stay or injunction sought by the mother, as well as whether to allow an adjournment of the hearing of her application.

The primary legal issue before the court was whether the mother's application for a stay of the orders made by the Full Court should be granted, or whether those orders should be set aside. The court also had to consider whether to grant the mother's application for an injunction preventing the removal of her child from Australia. The court needed to determine whether the mother's reasons for seeking an adjournment of the hearing of her application were sufficient and whether her application was beset by a misunderstanding about the unavailability of the relief she sought.

The court held that the mother's application for a stay of the orders made by the Full Court should be dismissed, as the orders were not the subject of any juridical challenge. The court also held that the mother's application for an injunction preventing the removal of her child from Australia should be dismissed, as the mother had misunderstood the unavailability of the relief she sought. The court refused the mother's application for an adjournment of the hearing of her application, as the mother had not provided sufficient reasons for the adjournment and had not demonstrated that she would be able to properly prepare for the hearing within the additional time requested.

In conclusion, the court dismissed the mother's application for a stay of the orders made by the Full Court, as well as her application for an injunction preventing the removal of her child from Australia. The court also refused the mother's application for an adjournment of the hearing of her application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.