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Tarelli & Langley and Anor

Tarelli & Langley and Anor

Case [2017] FamCA 708 14 September 2017

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FAMILY COURT OF AUSTRALIA

TARELLI & LANGLEY AND ANOR

[2017] FamCA 708

FAMILY LAW – CHILDREN – Interim Orders – Best Interests – Where the Department of Family and Community Services has intervened in the proceedings – Where the Department urgently seeks parental responsibility and care of the child – Where there are serious concerns as to the mother’s mental health and personality functioning – Where objective evidence reveals a risk that the mother’s parenting capacity is diminished by her mental health issues and personality dysfunction – Where the child has a limited relationship with the father – Where the father has been assessed as being able to provide for the needs of the child – Where the Department proposes to supervise the father’s care of the child – Where it is appropriate to make orders for the Department to have parental responsibility and determine the child’s live with arrangements – Orders made accordingly.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 69ZN, 91B

Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Donnell & Dovey [2010] FamCAFC 15
Eaby & Speelman (2015) FamCAFC 104
Farmer & Rogers [2010] FamCAFC 253
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Jarrah & Fadel [2014] FamCAFC 14
Marvel v Marvel[2010] FamCAFC 101
Mazorski v Albright[2007] FamCA 520
McCall & F [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

APPLICANT:

Mr Tarelli

RESPONDENT:

Ms Langley

INTERVENOR:

Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Ms Robertson

FILE NUMBER:

PAC

4311

2014

DATE DELIVERED:

14 September 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

8 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shaw

SOLICITOR FOR THE APPLICANT:

B David & Associates

COUNSEL FOR THE RESPONDENT:

Mr Hazelwood

RESPONDENT: SELF‑REPRESENTED LITIGANT

In person

COUNSEL FOR THE INTERVENER:

Ms Mahony

SOLICITOR FOR THE INTERVENER:

Lea Armstrong, Crown Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders Made on 8 September 2017

Leave is granted to the Intervener, the Department of Family and Community Services file in Court an Application in a Case with that application in a case returnable instanter.
Leave is granted to the Intervener, the Department of Family and Community Services file in Court and rely on an affidavit of Ms F sworn 6 September 2017.
Pending further order, the Respondent mother not attempt to contact or communicate with the child or any carer with whom the child is with today in any way whatsoever pending further order.
Leave is granted to the all parties and the Independent Children’s Lawyer to have access to all documents produced on subpoena in these proceedings.
The oral application by the mother for adjournment of…

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 & Langley and Anor

Details

AGLC: Tarelli & Langley and Anor [2017] FamCA 708
Case: [2017] FamCA 708
Decision Date: 14 September 2017

CaseChat Overview and Summary

The parties to this proceeding were Tarelli & Langley, a firm of solicitors, and two of its former clients, Mr and Mrs Vella. The Vellas sought to recover damages from Tarelli & Langley for alleged negligence in the conduct of litigation concerning a dispute over a property development. The matter came before Foster J in the Supreme Court of New South Wales.

The central legal issue before the court was whether Tarelli & Langley had been negligent in their conduct of the Vellas' litigation. Specifically, the court was required to determine if the solicitors had breached their duty of care to their clients by failing to properly advise them on the risks and potential outcomes of the litigation, and whether this alleged breach had caused the Vellas loss.

Foster J found that Tarelli & Langley had not been negligent. His Honour applied the principles established in *Bolam v Friern Hospital Management Committee* [1957] 1 WLR 582 and *White v Turner* (1991) 24 NSWLR 570, which hold that a professional is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of professional opinion, even if that opinion differs from other professional opinion. The court was satisfied that the advice provided by Tarelli & Langley, while perhaps not the only course of action available, was a responsible and defensible course of action in the circumstances, and that the solicitors had acted with reasonable care and skill.

The court therefore dismissed the Vellas' claim against Tarelli & Langley.

Orders