Tarelli and Langley (No 3)

[2020] FamCA 289

FAMILY COURT OF AUSTRALIA

TARELLI & LANGLEY (NO. 3) [2020] FamCA 289

FAMILY LAW – STAY APPLICATION – Stay of an Order to vacate final hearing dates due to the father’s pending criminal proceedings and the hearing of the mothers’ Appeal of the decision to vacate the hearing dates.  

Family Law Act 1975 (Cth)

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

Fluvium & Carlson [2011] FamCA 575

APPLICANT: Mr Tarelli

RESPONDENT: Ms Langley

INTERVENOR: Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: PAC 4311 of 2014

DATE DELIVERED: 2 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 2 April 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

1. The mother’s stay application is granted and the final hearing dates of 4, 5, 6, 7, 10, 11 and 12 August 2020 remain in Justice Henderson’s docket to hear this matter.

2. It is this Court’s view that this Appeal should be heard as expeditiously as possible.

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 2014

Mr Tarelli

Applicant

And

Ms Langley

Respondent

REASONS FOR JUDGMENT

1. The matter of Tarelli & Langley is a stay application by the mother pending an Appeal that she had filed of my decision heard on 21 February 2020, delivered orally on 4 March 2020 and via written reasons on 2 April 2020, to vacate hearing dates I had allocated in August 2020 to hear this matter due to the father’s pending criminal committal hearing and possible criminal trial.

2. Ms Moss, for the Intervener, leaves this decision to the Court, and has no position. The Independent Children’s Lawyer seeks that I grant the stay so that the mother’s Appeal is not rendered nugatory, and that if at all possible, this matter proceed to hearing in August 2020. The father cannot consent to the stay pending the Appeal and has little to argue regarding the stay.

3. As always, Mr Schonell SC, in his submissions, was most persuasive, and, clearly set out the well-established law in relation to stay application. In particular, decisions such as Aldridge & Keaton[1] and Fluvium & Carlson[2] are important decisions in this area.

   [1] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106.

   [2]Fluvium & Carlson [2011] FamCA 575.

4. In the decision of Aldridge & Keaton,[3] their Honours clearly set out the principles in a stay application, at paragraph 18 and it is as follows:

   [3] Above note 1.  

   The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   §the onus to establish a proper basis for the stay is on the applicant for the stay.  However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   §a person who has obtained a judgment is entitled to the benefit of that judgment;

   §a person who has obtained a judgment is entitled to presume the judgment is correct;

   §the mere filing of an Appeal is insufficient to grant a stay;

   §the bona fides of the applicant;

   §a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   §a weighing of the risk that an Appeal may be rendered nugatory if a stay is  not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   §some preliminary assessment of the strength of the proposed Appeal – whether the appellant has an arguable case;

   §the desirability of limiting the frequency of any change in a child’s living arrangements;

   §the period of time in which the Appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   §the best interests of the child the subject of the proceedings are a significant consideration.

5. In this matter, it cannot be said, at this stage, that anyone knows the period of time in which the Appeal can be heard, but I will make a direction it be heard as expeditiously as possible.

6. The appellant mother’s case is extremely arguable, it is clearly bona fide, and raises a question that I struggled to make a determination about erring on the side of the father’s right to silence. This struggle is set out in paragraph 68 of my Judgment, where I say:

   The right to silence is a tenet of our criminal justice system, as is the paramountcy of the welfare of a child in the Family Law system.  In this matter, these two important legal and societal principles have collided.

7. In my determination, I vacated the final hearing dates, as sought by the father, on the basis of his right to silence weighing in the balance, the more, perhaps, important principle, or perhaps better said, the principle that compelled me to make the vacation Order.

8. However, this is clearly an exceedingly arguable case by the mother, whose position is the welfare of the child. The determination of, ultimately, where he should be living, is the paramount matter which I should have had regard to in my decision. The mother’s case is a very strong and highly arguable case. It has been brought within time, and raises an extremely important principle where the decision of an Appeal Court may be invaluable for other trial judges.

9. There are special and exceptional circumstances in this matter which, I say   support granting a stay. Although the father is entitled to presume my decision is correct, and to the benefit of the Judgment, the nature of the very important principles raised in this matter which will be determined on Appeal, counter that argument.

10. This is a matter where a stay must be granted. If I did not do so, not only would I render the mother’s Appeal nugatory, but I would not be acting as I see is an appropriate manner for a trial judge who has made a decision of an interlocutory, interim nature, affecting, clearly, the welfare of a child. This is, after all, the paramount consideration in this jurisdiction.

11. Therefore, in those circumstances, I grant a stay of my Orders made and delivered orally on 4 March 2020, the result of which is that the final hearing dates on 4, 5, 6, 7, 10, 11 and 12 August are to remain listed.

12. I make a direction that it is the position of the trial judge and all parties in this matter that this Appeal be heard as expeditiously as is possible.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 2 April 2020.

Associate: 

Date:  29 April 2020