Tarelli & Langley (No. 4) - [2020] FamCA 1095

FAMILY COURT OF AUSTRALIA

TARELLI & LANGLEY (NO. 4)

[2020] FamCA 1095

FAMILY LAW – CHILDREN – Where matter was remitted by the Full Court for re-hearing – Risk to child in either parent’s care – Assessment of least worst risk to the child – Mother primary carer of child for first four and a half years until the Department was granted sole parental responsibility for the child by Court order in 2017 and child was removed from the mother’s care and placed into the father’s care– Where the father has pleaded guilty to three charges of common assault against the mother in mid-2020 and has been sentenced to a suspended sentence of 18 months imprisonment – Findings the mother was subjected to violence perpetrated by the father during and post the relationship – Where the mother suffers from complex PTSD and is unable to spend time with the child whilst he remains in the care of the father – Where the father does not admit any violence towards the mother – Where the mother has engaged multiple health professionals for assistance – Where the presumption of equal shared parental responsibility is rebutted – Orders made that it is in the best interests of the child to transition to the sole care of the mother and spend supervised time with the father and time weekly with his sister as this is the only order that will permit him to have a relationship with both of his parents.

FAMILY LAW – PROPERTY – Where it is appropriate to assess the property on an asset-by-asset basis – Where the mother and her mother made the overwhelming initial and ongoing financial contributions to the acquisition, maintenance and conservation of the Suburb C property – Where the father’s contribution to the Suburb C property in paying the mortgage 12 months post separation and ongoing rates and taxes is outweighed by his retention of joint assets being a redundancy and the first home owner’s grant – Where the father has assets overseas which he failed to value and to which the mother made no contribution together with superannuation in Australia – Where the mother’s contribution to the Suburb C property is assessed at 90% – Where there is a nexus between the violence perpetrated upon the mother by the father and her current incapacity to work into the future – Where the mother will have full time care of the child – Mother’s future needs assessed at 10% under s 90SF(3) of the Act – Orders made for father to transfer his interest in the former matrimonial home to the mother – Father to retain his overseas assets and his superannuation.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 90SM, 90SF(3)

B v B (1988) FLC 91-978
Britt &Britt (2017) FLC ¶93-764
Goode & Goode [2006] FLC 93-286
M v M (1988) 166 CLR 69
MRR v GR (2010) FLC 93-424
Norbis v Norbis (1986) FLC 91-712

APPLICANT:

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 (No. 4)

Details

AGLC: Tarelli & Langley (No. 4) [2020] FamCA 1095
Case: [2020] FamCA 1095
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered parenting and property matters between Mr Tarelli (the father) and Ms Langley (the mother) concerning their son, D. The case was a re-hearing following a successful appeal by the mother. The primary dispute involved determining the child's living arrangements, with the court assessing the risk to the child in each parent's care. The father had recently pleaded guilty to common assault charges against the mother and received a suspended sentence. The mother suffered from complex PTSD, impacting her ability to spend time with the child while he remained in the father's care.

The court was required to determine the presumption of equal shared parental responsibility and, if rebutted, what parenting orders would be in the child's best interests. This involved assessing the risk of harm to the child and identifying the "least worst risk" scenario. In relation to property, the court needed to assess the contributions of each party to the acquisition, maintenance, and conservation of the former matrimonial home and other assets, considering the nexus between the father's violence towards the mother and her future earning capacity.

The court found that the presumption of equal shared parental responsibility was rebutted due to the father's violence towards the mother. Applying the "best interests of the child" principle, the court ordered that the child live with the mother and that she have sole parental responsibility. The father was to have supervised, limited time with the child monthly, and the child was to spend weekly time with his sister. The court also made orders regarding property, assessing the mother's contribution to the former matrimonial home at 90% and her future needs at 10%, given her incapacity to work due to the violence. The father was ordered to transfer his interest in the former matrimonial home to the mother, while retaining his overseas assets and superannuation.

Orders