Langley & Tarelli (No 6)

[2024] FedCFamC1A 17

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Langley & Tarelli (No 6) [2024] FedCFamC1A 17

Appeal from:

Tarelli & Langley [2023] FedCFamC1F 386

Appeal number(s):

NAA 160 of 2023

File number:

PAC 4311 of 2014

Judgment of:

HARPER J

Date of judgment:

21 February 2024

Catchwords:

FAMILY LAW – APPLICATION IN AN APPEAL – STAY – Where orders of Full Court made on 28 November 2023 dismissing the appeal and ordering the applicant to pay the costs of the Independent Children’s Law in fixed sum of $5,000 – Where applicant filed an application for special leave in the High Court of Australia on 2 January 2024 – Where applicant seeks a stay of the orders of 28 November 2023 pending the determination of the special leave application – Order requiring the payment of the costs of Independent Children’s Lawyer is stayed – Application in an Appeal otherwise dismissed.

Cases cited:

Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106

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

Number of paragraphs:

11

Date of hearing:

21 February 2024

Place:

Sydney

The Applicant:

Did not participate

Counsel for the Respondent:

Mr Shaw

Solicitor for the ICL:

Ms Ryan of 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

Applicant

AND:

MR TARELLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARPER J
DATE OF ORDER:	21 FEBRUARY 2024

THE COURT ORDERS THAT:

1.Order 2 made on 27 November 2023 be stayed pending the determination of the applicant’s application for special leave to appeal to the High Court of Australia filed on 2 January 2024.

2.The Application in an Appeal filed 13 February 2024 be otherwise dismissed.

THE COURT FURTHER ORDERS IN CHAMBERS THAT:

3.The Application in an Appeal filed 21 February 2024 be dismissed.

THE COURT NOTES THAT:

A.There was no appearance by the applicant when the matter was called at 10.12 am on 21 February 2024.

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Tarelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

HARPER J:

1. In proceedings of NAA 160 of 2023 the Full Court of the Federal Circuit and Family Court of Australia (Division 1) delivered judgment on 27 November 2023, dismissing the applicant mother’s (“the applicant’s”) appeal (Langley & Tarelli (No 5) [2023] FedCFamC1A 208). The orders made on that occasion were:

   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.

2. The applicant filed an Application for special leave to appeal in the High Court of Australia (“the High Court”) on 2 January 2024. That application for special leave is yet to be determined.

3. On 13 February 2024, the applicant filed an Application in an Appeal seeking a stay of Orders 1 and 2 made on 27 November 2023. In support she filed a very brief affidavit and the application was listed before me sitting as the Full Court on 21 February 2024.

4. On 20 February 2024, the applicant filed in an incompetent form an application to adjourn her stay application on the basis of illness.

5. On the morning of 21 February 2024 the applicant filed a further Application in an Appeal, in proper form, seeking an adjournment of the stay application on the basis of illness supported by a brief affidavit. I have given consideration to that material.

6. There was no appearance by the appellant when the matter was called on 21 February 2024. No application in the appropriate form was made by her to appear electronically.

7. The stay sought of Order 1 made on 27 November 2024 in my view is completely futile. The order simply dismissed the appeal. A stay of that order would achieve nothing and there is reason to doubt whether a stay of such an order could ever be made. But in any event in the circumstances of this appeal I can see no basis on which a stay of that order could be appropriately ordered taking account of the various matters set out in Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106.

8. Accordingly, I am not satisfied that the applicant would suffer any prejudice by me proceeding to determine her stay application in her absence.

9. I decline to make any order staying Order 1 made on 27 November 2023.

10. As to Order 2 which provided for a payment of costs for the Independent Children’s Lawyer (“the ICL”), the ICL indicated to the Court that there was no resistance to a stay of that order pending a determination of the special leave application pending in the High Court. Since that order imposes a financial obligation on the applicant, a stay would have some utility.

11. Since it is unopposed, I will make an order staying Order 2 made on 27 November but otherwise dismiss the Application in an Appeal for a stay.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 21 February 2024.

Associate:

Dated:       21 February 2024