Tarelli and Langley (No 5) - [2021] FamCA 26

FAMILY COURT OF AUSTRALIA

TARELLI & LANGLEY (NO. 5)

[2021] FamCA 26

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where the father seeks a stay of final parenting and property orders pending the determination of an appeal – Consideration of the relevant principals relating to a stay – Where the stay is granted.

Aldridge & Keating (Stay Appeal) [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013

APPLICANT:

Mr Tarelli

RESPONDENT:

Ms Langley

FILE NUMBER:

PAC

4311

2014

DATE DELIVERED:

22 January 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

21, 22 January 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shaw

SOLICITOR FOR THE APPLICANT:

F W Ewart & Ewart

COUNSEL FOR THE RESPONDENT:

Mr O’Ryan QC

SOLICITOR FOR THE RESPONDENT:

Adam Jones Solicitor

COUNSEL FOR THE INTERVENER:

Ms Mahony

SOLICITOR FOR THE INTERVENER:

Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Robertson Solicitors

Orders

The father’s amended application for a stay on final orders filed 20 January 2021 is granted.
The mother’s application for enforcement filed 4 January 2021 is dismissed.

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

And

Department of Communities and Justice

Intervener

REASONS FOR JUDGMENT

This was an application by the mother for enforcement of final orders dated 18 December 2020 in relation to parenting and an application for a stay of those orders by the father pending the hearing of an appeal which appeal was filed on 4 January 2021.
Mr O’Ryan, senior counsel, appeared for the mother, Mr Shaw for the father, Ms Messner for the Independent Children’s Lawyer (“ICL”) and Ms Mahony for the Department of Communities and Justice (“the Department”).
I determined to hear the stay application first as that decision would impact upon the mother’s enforcement application. I note the Department and the Independent Children’s Lawyer support the father’s application for a stay.
The material I read was as follows.
a)For the mother:
i)Application in a Case filed 4 January 2021 supported by an affidavit together with an affidavit of 18 January 2021 and her Response to the father’s application for the stay;
ii)Affidavit of her mother, Ms OO, sworn 11 January 2021.
b)For the father:
i)Notice of appeal filed 4 January 2021;
ii)Application for stay of orders filed…

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 5)

Details

AGLC: Tarelli and Langley (No 5) [2021] FamCA 26
Case: [2021] FamCA 26
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by the father, Mr Tarelli, for a stay of final parenting and property orders made on 18 December 2020, pending the determination of his appeal. The mother, Ms Langley, had filed an application for enforcement of these same orders. The court determined to hear the stay application first, as its outcome would impact the enforcement application. The Department of Communities and Justice and the Independent Children’s Lawyer supported the father’s application for a stay.

The primary legal issue before the court was whether to grant the father's application for a stay of the final orders. This required consideration of the principles governing stays of proceedings pending appeal, particularly in the context of parenting and property matters within the Family Court. The court also had to determine the mother's application for enforcement of the final orders.

In granting the stay, the court considered the principles outlined in *Aldridge & Keating (Stay Appeal)* and *Clemett & Clemett*. Crucially, the court identified significant fresh evidence that had not been before it during the original hearing. This evidence, a ROSH Report concerning the child, D, dated 23 September 2020, detailed D's expressed fears and distress regarding living with his mother, including allegations of physical harm and confinement. The court found that had this report been available prior to its judgment, it would have caused a reassessment of the weight given to D's wishes and the assessment of the mother's care. The court also noted the Department's prior foreshadowing of an application to reopen the proceedings based on new evidence, which did not eventuate.

The mother's application for enforcement of the final orders was dismissed. The father's amended application for a stay of the final orders pending the determination of his appeal was granted.

Orders