Langley & Tarelli (No. 4)

Case [2021] FamCAFC 107

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 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…

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AGLC
Langley & Tarelli (No. 4) [2021] FamCAFC 107
Case
[2021] FamCAFC 107
Decision Date

CaseChat Overview and Summary

In the appeal, Mr Tarelli, the father, challenged the final parenting orders made by the Family Court, which provided for the mother, Ms Langley, to have sole parental responsibility for the child and for the father to spend limited supervised time with the child. The court was required to decide whether the primary judge erred in failing to consider the effect on the child of a move from the father's care to that of the mother, and whether there was an error in the property settlement orders. The court also needed to determine whether the appeal against the final parenting orders should be allowed and if the property settlement orders should be re-determined.

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

It is useful to set out in brief the expert evidence before her Honour.The expert evidence The primary judge had the benefit of a number of expert opinions. Professor TT, a consultant psychiatrist, was appointed as the single expert in the matter and she interviewed the parties, the child and other, relevant people. She also 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. Professor LL, a specialist child and adolescent psychiatrist, has been treating the mother since 2017 and Mr M, a Child and Family Consultant and an accredited mental health social worker, had been consulting with the mother since 2015. Each prepared a report and each gave oral evidence. Other professionals who had been engaged with the mother over the years provided reports but were not required to give oral evidence. It was the overwhelming view of the professionals with whom the mother had contact that she suffered from PTSD which caused her to experience high levels of distress and anxiety.Professor TT Apart from conducting interviews with the parties, the child and other relevant people, Professor TT was provided with the reports from other professionals who had dealings with the mother. Professor TT’s record of her discussion with the father notes his concerns for the mother’s mental health and his denial of the allegations of violence, although he conceded that there had been “significant conflict, verbal abuse and tension”[12] between them. The interviews conducted for the preparation of the report took place on 17 and 24 July 2020. On 12 June 2020 the father, having been charged in October 2019 with serious criminal offences arising from the mother’s allegations of violence, pleaded guilty to three counts of assault on her and in August 2020 he was sentenced to a period of imprisonment for 18 months, although he was not in fact required to serve any time in prison. The father made no mention of these circumstances when he was interviewed by Professor TT who became aware of them shortly before she gave evidence. That information did not cause her to change her opinion.[13][12] Exhibit 1, Professor TT’s report dated 30 July 2020 at page 10.[13] Transcript 13 August 2020, p.716 lines 21–42. The father and his new partner told Professor TT that when the child was first placed in their care he asked to see his mother although over time his requests lessened. Professor TT reported the mother as saying that she could not tolerate any contact with the child even indirectly while he was living with his father because of the effect of the father’s conduct on her emotional functioning and thoughts of the child being with the father triggered “acute experiences of panic and anxiety”.[14] Professor TT said that the mother presented as anxious and distressed when discussing her experiences.[14] Exhibit 1, Professor TT’s report dated 30 July 2020 at page 12. Professor TT commented that the mother may benefit from further therapy focussing on improving her “parental reflective capacity and appreciation of the needs of the child” because, Professor TT said that people like the mother who were preoccupied with trauma may find it difficult to have an empathetic understanding of the needs of the child.[15][15] Exhibit 1, Professor TT’s report dated 30 July 2020 at page 19.

Decision

Reasons for decision

On 29 March 2021 the Department sought to adduce further evidence following the making of the orders of the primary judge on 18 December 2020. This evidence sought to be adduced was said to be relevant only if the father’s application to adduce evidence was allowed. As it was withdrawn this application will be dismissed.THE DECISION OF THE PRIMARY JUDGE The parties met in April 2012 and commenced living together in September 2012. In early 2013 the child was born. Up until 14 September 2017 the mother was the child’s primary carer. As we have indicated, from September 2017, the child has lived with his father and, while orders provided for the mother to spend time with the child, that time has not eventuated. It was the mother’s position from the outset, well before the child was removed from her care, that because of the father’s extreme violence towards her, she suffered from PTSD and, among the many aspects of emotional distress brought on by this condition, the mother said that she could not tolerate the prospect of the child spending time with the father. Thus, she was unable to make him available to spend time with the father while the child lived with her and, after his removal to live with the father, for the same reasons, neither could she bring herself to see him (at [404]). The maternal grandmother too, who it seems had a good and close relationship with the child in the past, has not seen the child apparently in deference to the mother’s emotional fragility (at [460]–[461]). In the time in which the child has been living with his father, the father has re-partnered and he and his new partner have a child who was born in late 2018. The child, the subject of these proceedings, commenced school in early 2018. The primary judge, over many, many paragraphs, set out the mother’s allegations of violence against the father. Her Honour said in conclusion:334.It is patently clear that the father convinced all in authority that he was blameless and his mendacity has resulted in significant injustice to his son and the mother as authorities accepted what he said and not even the possibility the mother may have been correct, and traumatic events followed.335.Had the father been truthful and accepted his part in what was an unsafe and toxic relationship, their son and his mother would not have been subjected to further trauma under the guise of the mantra of “child protection.”336.He has been believed and the mother not believed when the truth is his behaviour is unacceptable at every level and the mother is the witness of truth in relation to his treatment of her. Neither the primary judge’s findings about the father’s violence to the mother nor her findings as to his general credibility was challenged on the appeal. Her Honour said that the mother’s resistance identified by the Department in 2017 to providing the child to see the father was justified and that her assertion of suffering from PTSD was correct (at [350]–[355]).

Ratio Decidendi

Legal Principle Established

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