Tarelli and Langley (No 5)

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.