Tarelli and Langley (No 2) - [2020] FamCA 196

FAMILY COURT OF AUSTRALIA

TARELLI & LANGLEY (NO. 2)

[2020] FamCA 196

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks that the final hearing dates be vacated and that the proceedings be stayed until his criminal proceedings are determined – Where the father’s right to silence to not incriminate himself is found to override the necessity for the Court to determine to finality where it is in the best interests of the child that he live – Where the child is not at any immediate risk of harm in father’s care – Father’s application is successful – Trial dates vacated until father’s criminal charges determined.

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) s 60CC

Re K (1994) FLC 92-461
De Luca & Martinelli [2016] FamCA 207

APPLICANT:

Mr Tarelli

RESPONDENT:

Ms Langley

INTERVENOR:

Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

PAC

4311

2014

DATE DELIVERED:

4 March 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

21 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Adam Jones Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Shaw

SOLICITOR FOR THE RESPONDENT:

F W Ewart & Ewart

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors Office

Orders

The Final Hearing dates on 4, 5, 6, 7, 10, 11 and 12 August 2020 are vacated.
The matter will remain in Justice Henderson’ docket for future management and Registrar McGrath will remain as the docket Registrar.
Upon determination of the father’s criminal charges, this matter will be listed for final hearing forthwith and as soon as is possible.
The matter is listed for mention on 4 August 2020 at 10am to determine the progress of the father’s criminal matters.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4311 of 2018

Mr Tarelli

Applicant

And

Ms Langley

Respondent

REASONS FOR JUDGMENT

The matter of Tarelli and Langley is an interim Judgment in relation to the wife’s application filed 2 January 2020 to confirm final hearing dates listed in August 2020.
The respondent father has responded to that application seeking that the hearing dates be vacated due to pending criminal charges in relation to himself which are currently before a Local Court on a committal basis.
Mr Schonell SC…

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 Tarelli and Langley (No 2)

Details

AGLC: Tarelli and Langley (No 2) [2020] FamCA 196
Case: [2020] FamCA 196
Decision Date: 4 March 2020

CaseChat Overview and Summary

In *Tarelli and Langley (No 2)*, Henderson J of the Federal Circuit Court of Australia considered an application concerning parenting arrangements. The dispute involved the father's ongoing criminal charges and their impact on the final hearing of the parenting proceedings.

The central legal issue before the court was how to manage the parenting proceedings in light of the father's criminal matters. Specifically, the court had to determine whether to proceed with the scheduled final hearing or to adjourn it pending the resolution of the criminal charges, and how to best manage the case in the interim.

Henderson J ordered that the final hearing dates be vacated. The court reasoned that it was in the best interests of the child and the efficient management of the proceedings to await the determination of the father's criminal charges. The matter was to remain under Justice Henderson's docket for future management, with Registrar McGrath continuing as the docket registrar. The court directed that upon the determination of the father's criminal charges, the matter would be listed for final hearing forthwith and as soon as possible. A mention date was set to ascertain the progress of the father's criminal matters.

Orders

Orders of the court

The Final Hearing dates on 4, 5, 6, 7, 10, 11 and 12 August 2020 are vacated.

The matter will remain in Justice Henderson’ docket for future management and Registrar McGrath will remain as the docket Registrar.

Upon determination of the father’s criminal charges, this matter will be listed for final hearing forthwith and as soon as is possible.

The matter is listed for mention on 4 August 2020 at 10am to determine the progress of the father’s criminal matters.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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