FAMILY COURT OF AUSTRALIA
Langley & Tarelli (No. 4) [2021] FamCAFC 107
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: 5 July 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders which provided for the first respondent mother to have sole parental responsibility for the child and for the appellant father to spend limited supervised time with the child – Failure to consider the effect on the child of a move from the father’s care to that of the mother – Consideration of expert evidence – Best interests of the child – Delivery of judgment – Inadequate notice – Principles of open justice – Unfairness – Appeal allowed – Further submissions sought as to interim parenting arrangements – No order as to costs.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reopen proceedings – Supplementary submissions filed by the parties – Where none of the issues the focus of the reopen application are new – Application dismissed.
FAMILY LAW – APPEAL – PROPERTY – Appeal against final property settlement orders – Arguments against initial and post-separation contributions – Considerations of family violence, the parties’ earning capacity and their respective financial positions – No error of law – Re-determination of parenting proceedings may impact on the property settlement orders – Unjust for the property settlement orders to stand – Appeal allowed.
Legislation: Family Law Act 1975 (Cth) ss 60CC(3), 75(2), 90SF(3) Cases cited: Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49
Langley & Tarelli and Anor [2019] FamCAFC 30
Langley & Tarelli and Anor (No 2) (2020) FLC 93-963; [2020] FamCAFC 126
Tarelli & Langley and Anor [2017] FamCA 708
Tarelli & Langley and Anor [2018] FamCA 522
Tarelli & Langley (No. 2) [2020] FamCA 196
Tarelli & Langley (No. 4) [2020] FamCA 1095
Tarelli & Langley (No. 5) [2021] FamCA 26
The Hon Sir Frank Kitto KBE, “Why Write Judgments?” (1992) 66 Australian Law Journal 787
Division: Appeal Division Number of paragraphs: 147 Date of last submissions: 28 June 2021 Date of hearing: 12 April 2021 Place: 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 Solicitors Office 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 2014APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR TARELLI
Appellant
AND: MS LANGLEY
First Respondent
DEPARTMENT OF COMMUNITIES AND JUSTICE
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & TREE JJ
DATE OF ORDER:
5 JULY 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed by the appellant on 24…
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- Langley & Tarelli (No. 4) [2021] FamCAFC 107
- Case
- [2021] FamCAFC 107
- Decision Date
CaseChat Overview and Summary
The court found that the primary judge did not adequately consider the effect on the child of the move from the father's care to that of the mother. The court held that the primary judge should have considered the expert evidence which demonstrated the adverse effect on the child of the father's conduct towards the mother. The court found that the primary judge did not adequately consider the evidence of Professor TT, a consultant psychiatrist, who observed the child with the father, his new partner and the child’s half-sister, and the child in the company of the mother and maternal grandmother. The court found that the primary judge erred in not adequately considering the expert evidence, which demonstrated the adverse effect on the child of the father's conduct towards the mother.
The court found that the primary judge did not err in the property settlement orders, but it was unjust for those orders to stand given the re-determination of the parenting proceedings. The court held that the property settlement orders should be re-determined in light of the re-determination of the parenting proceedings.
The court allowed the appeal against the final parenting orders and stayed those orders pending further order of the Full Court. The court dismissed the appeals against the property settlement orders and ordered that the Independent Children’s Lawyer file and serve any written submissions addressing the interim parenting orders to be made in light of the court's decision. The court made no order as to costs.
Orders
Orders of the court
EAA 1 of 2021
PAC 4311 of 2014
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MR TARELLI
Appellant
AND:
MS LANGLEY
First Respondent
DEPARTMENT OF COMMUNITIES AND JUSTICE
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & TREE JJ
DATE OF ORDER:
5 JULY 2021
THE COURT ORDERS THAT:
1. The Application in an Appeal filed by the appellant on 24 March 2021 is dismissed.
2. The Application in an Appeal filed by the second respondent on 29 March 2021 is dismissed.
3. The Application in an Appeal filed by the first respondent on 7 June 2021 is dismissed.
4. The appeal against the orders of a judge of the Family Court made on 18 December 2020 is allowed.
5. The orders made on 18 December 2020 are stayed pending further order of the Full Court.
6. Within twenty-one (21) days of the date of these orders, the Independent Children’s Lawyer file and serve any written submissions addressing the interim parenting orders to be made in light of Order 4 herein.
7. The appellant, first respondent and second respondent may file any submissions in reply to those of the Independent Children’s Lawyer within a further twenty-one (21) days of their receipt.
8. There be no order as to costs.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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