Langley & Tarelli (No 5)

Case [2023] FedCFamC1A 208

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Langley & Tarelli (No 5) [2023] FedCFamC1A 208

Appeal from: Tarelli & Langley [2023] FedCFamC1F 386
Appeal number: NAA 160 of 2023
File number: PAC 4311 of 2014
Judgment of: HARPER, CARTER & BRASCH JJ
Date of judgment: 27 November 2023
Catchwords: FAMILY LAW – APPEAL – Parenting – Where appellant sought to appeal final property and parenting orders – Where the appeal against property orders was abandoned – Where the appellant’s grounds of appeal confined to those addressed in her Summary of Argument – Where this is the third appeal from final parenting and property orders –
Where child has been the subject of litigation for close to the duration of their life – Where primary judge made orders for the child to live with the respondent and for the respondent to have sole parental responsibility – Where the appellant granted leave to communicate with the child by way or letters, cards or gifts and electronically at the child’s instigation – Where child lives with the respondent and stepmother and has spent no time with the appellant for six years – Where the respondent perpetrated egregious family violence against the appellant between 2012 and 2015 – Where as a result of the family violence the appellant was unable to spend time with the child if they remained living with the respondent – Whether primary judge erred in failing to consider potentially significant evidence – Whether primary judge failed to have consideration to family violence – Weight placed on the views of the child – Whether primary judge failed to consider the appellant’s proposed amended spend-time with order – Whether the primary judge failed to appropriately consider s 60CC(2)(a) of the Family Law Act 1975 (Cth) – No error established – Appeal dismissed – Appellant ordered to pay the Independent Children’s Lawyer in the fixed amount of $5,000.
Legislation:  Family Law Act 1975 (Cth) Pt VIII, ss 60CC, 60CC(2)(a), 60CC(2)(b), 79
Cases cited:

Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Baghti & Baghti [2015] FamCAFC 71

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

French & Fetala [2014] FamCAFC 57

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Langley & Tarelli (No. 4) [2021] FamCAFC 107

Langley & Tarelli [2019] FamCAFC 30

Newett and Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Saltern & Mink [2020] FamCAFC 320

Tarelli & Langley (No. 4) [2020] FamCA 1095

Tarelli & Langley [2017] FamCA 708

Tarelli & Langley [2018] FamCA 522

Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 6

Whisprun…

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AGLC
Langley & Tarelli (No 5) [2023] FedCFamC1A 208
Case
[2023] FedCFamC1A 208
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Ms Langley, sought to appeal the final property and parenting orders made in the Federal Circuit and Family Court of Australia. The appeal was limited to the grounds of appeal outlined in Ms Langley's Summary of Argument, which addressed seven specific grounds. This was the third appeal from the final parenting and property orders. The child had been the subject of litigation for almost the entirety of their life. The primary judge had ordered that the child live with the respondent, Mr Tarelli, and granted Ms Langley leave to communicate with the child by way of letters, cards or gifts and electronically at the child's instigation.

The legal issues before the court were whether the primary judge erred in failing to consider potentially significant evidence and whether the primary judge failed to give proper, genuine and realistic consideration to the family violence perpetrated by Mr Tarelli against Ms Langley. The court was also required to determine whether the primary judge had appropriately considered section 60CC(2)(a) of the Family Law Act 1975 (Cth) and the views of the child. The court found no merit in the grounds of appeal, as the primary judge had given detailed consideration to the benefit of a meaningful relationship with each parent and the fundamental obstacle to this outcome lay in the state of mind of the mother, the views of the child and the inability of the mother to accept the child remaining with the father as his primary carer.

The court dismissed the appeal and ordered Ms Langley to pay the Independent Children's Lawyer in the fixed amount of $5,000 within 60 days of the date of the orders. The court found no merit in the grounds of appeal as the primary judge had given detailed consideration to the benefit of a meaningful relationship with each parent and the fundamental obstacle to this outcome lay in the state of mind of the mother, the views of the child and the inability of the mother to accept the child remaining with the father as his primary carer. The court also found no merit in the grounds of appeal relating to the primary judge's consideration of potentially significant evidence and family violence. The court found no error in the primary judgment and dismissed the appeal.

Orders

Orders of the court

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, CARTER & BRASCH JJ

DATE OF ORDER:

27 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. Within 60 days of the date of these orders, the appellant is to pay the costs of the Independent Children’s Lawyer fixed in the amount of $5,000.

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 very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

However, this most recent iteration of the Summary of Argument addressed none of the grounds articulated in the mother’s Amended Notice of Appeal. It addressed only seven grounds, which appeared to have some overlap with the grounds in the Amended Notice. These seven grounds were those addressed by the father and the ICL. The appeal was therefore conducted on the basis of the seven grounds of appeal set forth in the Summary of Argument provided on 30 October 2023. The mother accepted that her appeal was confined to those grounds. The grounds in the Amended Notice of Appeal were otherwise abandoned.BRIEF BACKGROUND As the primary judge observed, these proceedings have an extremely sad history. He adopted the procedural and historical chronology set out by Henderson J in Tarelli & Langley (No. 4) [2020] FamCA 1095 (“Tarelli & Langley (No. 4)”). We consider it unnecessary to repeat that history in full. We will refer to aspects of it as necessary in the course of these reasons. In that regard, the following matters should be specifically mentioned here. The child and the parties have been involved in litigation for almost the child’s entire life. The parties commenced a relationship in about April 2012. The child was born on 5 February 2013. The relationship ended in either December 2013 or February 2014. Parenting proceedings were commenced in 2014 by the father. On 8 July 2015, the Department of Family and Community Services (“the Department”), as it was then known, was granted leave to intervene in the proceedings. On 8 September 2017, interim orders were made for the child to be immediately placed by the Department into his father’s care and for the mother to spend time with the child as directed by the Secretary or his delegate (Tarelli & Langley [2017] FamCA 708). The child was collected from his preschool that afternoon by a member of the Department and placed in the father’s care. As the primary judge observed, this was a “pivotal” court event (at [7]). The first trial took place between October and November 2017. It appears the child and the mother spent some time together after 8 September 2017 but contact ceased after 8 November 2017. Judgment in the first trial was then delivered on 27 June 2018 (Tarelli & Langley [2018] FamCA 522). The father and the Department were given sole parental responsibility and the child was ordered to live with the father and spend supervised time with the mother as directed. The mother appealed. The first appeal was conceded on 21 February 2019, the final parenting orders were set aside and the proceedings were remitted for rehearing (Langley & Tarelli [2019] FamCAFC 30). Consequently, the interim orders of 8 September 2017 continued to govern the parenting position. The rehearing took place in August 2020 and judgment in the second trial was delivered on 18 December 2020, ordering the immediate return of the child to the mother’s care and supervised time with the father (Tarelli & Langley (No. 4)).

Evidence

Evidence Before The Court

It is convenient next to address the grounds of appeal as they were grouped by the mother in her Summary of Argument.Ground 1: That his Honour erred in failing to have regard to the mother’s potentially significant, evidence and/or his Honour failed to give reasons for not considering the evidence.Ground 2: His Honour erred in failing to give proper, genuine and realistic consideration to family violence by failing to consider the facts of the father’s offending that constitutes family violence. The contention that the primary judge failed to have regard to “potentially” significant evidence is the same as alleging he failed to consider it. Section 60CC of the Act stipulates that, in determining the best interests of a child, the Court “must” consider the primary and additional considerations set forth in subsections (2) and (3). We understand that Ground 2 is specifically directed to an alleged failure to consider s 60CC(2)(b), the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [43] the High Court made clear the term “consider” “imports an obligation to give proper, genuine and realistic consideration” when used in s 60CC of the Act. Throughout her submissions the mother lent heavily on the collocation “proper, genuine and realistic” as qualifiers of the necessary consideration. She argued consistently that the primary judge’s consideration in numerous ways was not “proper, genuine and realistic”. However, the asserted impropriety can only justify appellate intervention if it rises to the level of a failure to take mandatory or relevant considerations into account (Bugmy v The Queen (2013) 249 CLR 571 at [53] (per Gageler J as he then was)). Grounds of appeal criticising the primary judgment as to proper consideration, or indeed weight, are only a valid justification for appellate intervention if the result achieved is unreasonable or plainly unjust (Hedlund & Hedlund (2021) FLC 94-065 at [37]). The mother’s grounds put in issue how the process of consideration was manifested in the primary judgment. The Full Court (Murphy and Cronin JJ and Strickland J agreeing) pointed out in Tibb v Sheean (2018) 58 Fam LR 351 (“Tibb”):83. To “consider” is to engage in something that occurs inside the mind. Plainly enough however, an assertion that a judge has failed to consider cannot be directed to what did, or did not, occur within the judge’s mind. Rather, it must be an assertion directed to how that mental activity has, or has not, manifested itself objectively. In seeking to substantiate the assertion by reference to the presence or absence of any such objective manifestations of a judge’s thinking, it must be borne in mind that: It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty [to consider all of the evidence in the case] which rests upon him or her… [Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA)].84. Similarly, by reference to a parenting case and the obligation to “consider” within s 60CC, the Full Court has said:50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations… [Banks & Banks (2015) FLC 93-637].(Footnotes inserted)

Decision

Reasons for decision

The father consistently denied allegations of family violence during the proceedings until August 2020. One reason for the child being removed from the mother’s care in 2017 appears to have been the perception by the Department, which was conveyed to the Court, that the mother’s allegations were unfounded. However, the father eventually conceded some of the allegations were true. He pleaded guilty to three counts of common assault of the mother and entered into a statement of agreed facts which was presented to the sentencing court as the basis for the charges against him. He was sentenced in August 2020 to an 18 month Intensive Correction Order (“ICO”). The father did not spend any time in prison but rather served the ICO within the community. The ICO was discharged on or about February 2020. The mother was also successful in obtaining an Apprehended Domestic Violence Order (ADVO), naming her as the protected person and which expired in July 2022.THE PRIMARY JUDGMENT At the time of the hearing before the primary judge the child had turned 10 years old and had not spent any time with the mother for nearly six years. By the time this appeal was heard, the child was closer to eleven years old and had not spent time with his mother for more than six years. At trial, the father proposed that the child live with the father, that he have sole parental responsibility, and the child spend time with the mother in accordance with his wishes, but that any such time be supervised for the first six months and thereafter as recommended by Professor TT. The mother initially proposed a reversal of primary care, for the child to live with her and spend four hours each month with the father. By the end of the trial the mother proposed, in addition to the child living with her, an initial six week period of therapeutic assistance to prepare the child for the transition to her care followed by weekly therapy sessions with the mother to assist with the reunification and stabilisation of the relationship with her. Thereafter the child should spend such time with the father as the Court determined to be in the child’s best interests. By the conclusion of the hearing the mother’s proposals appeared to contemplate overnight visits. It is important to note that his Honour explained:53. The mother considers that the choice for the Court is limited to the following options: (1) That the child live with the father and spend no time with the mother; or (2) That the child live with the mother and spend time, albeit limited, with the father.(Footnote omitted) In other words, the mother could not countenance a parenting outcome whereby the child continued to live with the father and spend time with her. The primary judge recorded at [54] that “[the mother’s] diagnosis that she suffers from PTSD was as direct result of the violence inflicted upon her by the father. As a result, the mother is not able to contemplate an outcome other than the two options that she puts forward”.

Ratio Decidendi

Legal Principle Established

There is no merit in Ground 4. Ground 5: His Honour failed to give proper, genuine and realistic consideration to s 60CC(2)(a) of the Act. Ground 6: His Honour failed to provide adequate reasons for orders that the child has no relationship with his mother. Ground 7: His Honour misdirected himself on the law in respect of s 60CC(2)(a). As explained above at [43], in our view, there can be no doubt the primary judge gave detailed consideration to the benefit of a meaningful relationship with each parent. The mother herself pointed out in her submissions that his Honour specifically considered the benefit to the child of spending time with the mother “to dispel any misunderstandings that the child has as to the mother presenting as a safe and caring parent” (at [225]). Nonetheless, the mother argued the primary judge:58. … impermissibly elevated the child’s optimal relationship with his father at the expense of the child having any relationship with his mother. His Honour failed to consider whether orders could be fashioned to ensure that the child has a meaningful relationship with both parents.(Mother’s Summary of Argument filed 30 October 2023, p.21) We do not accept this is a correct rendering of the primary judgment. His Honour did consider ways in which the child could have a relationship with the mother. As the salient conclusions make clear the fundamental obstacle to this outcome lay in the state of mind of the mother, the views of the child and the inability of the mother to countenance the child remaining with the father as his primary carer. The primary judge pointed out that:227. It is a matter for the mother in terms of her capacity to accept that the child will remain living with the father and therefore to explore the extent to which she would seek to spend time with the child. 228. Ideally, a process could be put in place which would see the child spending each alternate weekend and half school holidays with the mother but in the absence of evidence that would support such an outcome, it is very much a matter of speculation rather than evidence. We find no merit in Grounds 5, 6 and 7.CONCLUSION The appeal should be dismissed.COSTS The mother was self-represented. The father sought costs in the event the appeal was unsuccessful. He filed a Schedule of Costs quantifying his costs at $42,248.43, and $29,142 of this total was said to be for counsel’s fees. Counsel who appeared for the father in the appeal also appeared for him before the primary judge. The Court was not assisted by the written or oral submissions of the father. We are not satisfied that there is any circumstance justifying an order for costs in his favour. On the other hand, the Court was greatly assisted by the submissions of the ICL, who sought costs of $8,976 against the mother in the event the appeal was unsuccessful. We consider that in the exercise of discretion, the mother should be ordered to pay the costs of the ICL in the amount fixed at $5,000. The mother will be allowed a period of 60 days to make such a payment.