Langley & Tarelli (No 4) - [2023] FedCFamC1A 151

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Langley & Tarelli (No 4) [2023] FedCFamC1A 151

Appeal from: Tarelli & Langley [2023] FedCFamC1F 386

Appeal number(s): NAA 160 of 2023

File number(s): PAC 4311 of 2014

Judgment of: HARPER J

Date of judgment: 5 September 2023

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL –
Where appellant sought that the Court provide the transcript of the proceedings before the primary judge, variation of procedural orders and for the appeal listing to be vacated – Where unusual circumstances may require the Court to provide the transcript – Where formal orders with respect of the provision of the transcript cannot be presently made – Listing of the appeal vacated – Application otherwise dismissed.

Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Number of paragraphs: 17

Date of hearing: 5 September 2023

Place: Heard in Sydney (via video-link)

The Appellant: Litigant in person

Solicitor for the Respondent: F.W. Ewart & Ewart

Solicitor for the ICL: Legal Aid, NSW
ORDERS

NAA 160 of 2023
PAC 4311 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS LANGLEY

Appellant

AND:
MR TARELLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.By no later than close of Registry filing on 13 September 2023, the appellant file and serve an Amended Notice of Appeal.
2.The listing for hearing of the appeal on 26 September 2023 be vacated.
3.The appeal be stood over before an Appeal Judicial Registrar on a date to be advised.
4.By no later than 4.00 pm on the day before the next listing before an Appeal Judicial Registrar, the appellant file and serve written submissions of no more than two pages specifying in respect of which grounds of appeal she contends the transcript of the proceedings below is necessary, by reference to specific dates upon which the primary proceedings took place.

THE COURT FURTHER ORDERS IN CHAMBERS THAT:
5.The Application in an Appeal filed on 28 August 2023 be otherwise dismissed.

THE COURT NOTES THAT:
A.The Appeal Judicial Registrar may give consideration to making further procedural orders in relation to the provision of the transcript after the appellant’s compliance with these orders.
B.In the event there is non-compliance with any of these orders by the appellant, the Appeal Judicial Registrar may consider making orders for dismissal of the appeal.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in…

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 4)

Details

AGLC: Langley & Tarelli (No 4) [2023] FedCFamC1A 151
Case: [2023] FedCFamC1A 151
Decision Date

CaseChat Overview and Summary

The appeal in Langley & Tarelli (No 4) was brought by Ms. Langley, a litigant in person, against Mr. Tarelli, with the Independent Children's Lawyer also involved. The appeal arose from orders made by a primary judge in the Federal Circuit and Family Court of Australia (Division 1) on 18 May 2023. Ms. Langley filed a Notice of Appeal on 15 June 2023, appealing the primary judge's orders on seven grounds, and the appeal was listed for hearing on 26 September 2023. On 28 August 2023, Ms. Langley filed an Application in an Appeal, seeking three orders: the provision of a transcript of the proceedings before the primary judge, variation of procedural orders, and the vacating of the appeal listing. The application was supported by an affidavit from Ms. Langley, who claimed to have spent a considerable amount of money on obtaining parts of the transcript and required financial support from her mother. She also cited her health conditions as grounds for vacating the appeal listing.

The legal issues before the court included whether the Court should provide the transcript of the proceedings before the primary judge, whether formal orders could be made with respect to the provision of the transcript, and whether the listing of the appeal should be vacated. The court considered the submissions from all parties, including the Independent Children's Lawyer, who conceded that the entire transcript would be necessary for all issues raised by the existing and any additional grounds of appeal to be properly considered and determined. The court also considered the overarching purpose of s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which imposes a duty to give serious consideration to claims of other litigants in the Court and the appropriate and expeditious allocation of judicial resources for the determination of any proceedings, including appeals.

The court found that in light of the appellant's submissions and the Independent Children's Lawyer's concession, there was a compelling reason to support the conclusion that the transcript of the proceedings would be necessary. However, the court was reluctant to make formal orders for the transcript to be provided at the Court's cost, even in circumstances where the appellant gave evidence of impecuniosity leading to an inability to obtain the transcript herself. The court also found that the appellant's medical ailments did not constitute a sufficient ground to justify vacating the listing on 26 September 2023. Therefore, the court proposed to make orders for the filing and service of an Amended Notice of Appeal within seven days, to vacate the listing on 26 September, and then for the matter to be listed before the appeal judicial registrar on a date to be advised, and for the appellant to file and serve written submissions specifying precisely what grounds of appeal, which may be included in an Amended Notice of Appeal, require a reference to the transcript and what days of the transcript precisely that reference should be.

The court dismissed the application otherwise, noting that the Appeal Judicial Registrar may give consideration to making further procedural orders in relation to the provision of the transcript after the appellant's compliance with these orders. In the event of non-compliance with any of these orders by the appellant, the Appeal Judicial Registrar may consider making orders for dismissal of the appeal.

Orders