Langley & Tarelli

[2019] FamCAFC 30

FAMILY COURT OF AUSTRALIA

LANGLEY & TARELLI AND ANOR [2019] FamCAFC 30

FAMILY LAW – APPEAL – Appeal against property and parenting orders – Where parties agree the appeal should be allowed – Leave given to appeal against orders for costs – Failure to consider evidence – Approach to re-opening – Error established – Matter remitted for rehearing.

FAMILY LAW – COSTS – No order as to costs – Costs certificates granted for appeal and rehearing.

Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

B & B (Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177
Stephens & Stephens (Enforcement) (2009) FLC 93-425; [2009] FamCAFC 240
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57

APPELLANT: Ms Langley

RESPONDENT: Mr Tarelli

INTERVENER: Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: PAC 4311 of 2014

APPEAL NUMBER: EA 113 of 2018

DATE DELIVERED: 21 February 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE: 15 February 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 June 2018

LOWER COURT MNC: [2018] FamCA 522

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Schonell SC

SOLICITOR FOR THE APPELLANT: Adam Jones Solicitor

COUNSEL FOR THE RESPONDENT: Mr Shaw

SOLICITOR FOR THE RESPONDENT: Ewart & Ewart Solicitors

COUNSEL FOR THE INTERVENER: Dr Barnett

SOLICITOR FOR THE INTERVENER: Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders made on 15 February 2019

1. The appeal against the orders of Cleary J of 27 June 2018 is upheld and the orders set aside.

2. Leave be granted nunc pro tunc to the appellant to appeal against the order of Cleary J of 26 September 2018 and the order set aside.

3. The matter be remitted for rehearing before a Judge of the Family Court of Australia other than Cleary J.

4. Leave is granted for the respondent to file and rely on a Notice of Contention received by the Eastern Appeals Registry on 16 January 2019. 

5. The Application in an Appeal to adduce further evidence filed by the respondent on 16 January 2019 is withdrawn and dismissed on the basis of the noting of an agreed fact.

6. That the Application in an Appeal to adduce further evidence filed by the appellant on 4 February 2019 is withdrawn and dismissed.

7. Leave be granted for the appellant and respondent to rely on their respective Supplementary Appeal Books. 

8. There be no orders as to costs.

9. The Court grants to the appellant a costs certificate pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal and in relation to the new trial in the matter.

10. The Court grants to the respondent and Independent Children’s Lawyer a costs certificate pursuant to the provisions of ss 6 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal and in relation to the new trial in the matter.

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 Langley & Tarelli and Anor 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 113 of 2018
File Number: PAC 4311 of 2014

Ms Langley

Appellant

And

Mr Tarelli

Respondent

And

Secretary, Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By Amended Notice of Appeal filed 18 January 2019 Ms Langley (“the mother”) appealed parenting and property settlement orders made on 27 June 2018.  Before us, it was agreed that the mother should be given leave out of time to appeal an order for costs made against her on 26 September 2018 in relation to her failed attempt to reopen the proceedings at first instance.  After senior counsel for the mother completed his oral addresses in support of the appeal, counsel for the other parties advised that they were instructed to concede the appeal and there was broad agreement that the orders should be set aside. 

2. We were satisfied that the primary judge had fallen into error and orders were made that the appeal be allowed, following which and by consent the orders under appeal were set aside. 

3. The proceedings were remitted for rehearing and it was recommended that the parties and the Independent Children’s Lawyer (“the ICL”) receive costs certificates for the appeal and rehearing pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”).  In relation to the costs certificates we indicated that we would shortly publish reasons.  These are those reasons.

4. The mother and Mr Tarelli (“the father”) have one child together, D (“the child”), who was born in 2013 and was five years old at the time of the final orders.  Litigation between the parties commenced in 2014 and on 8 July 2015 the Department of Family and Community Services (“FaCS”) was given leave to intervene.  In September 2017 FaCS filed an application seeking sole parental responsibility for the child on the basis that he would live with the father.  Until that point, the child had always lived with the mother; indeed from when the parties separated in 2014 the child had little contact with the father as his attempts to maintain contact were largely thwarted by the mother.  The application by FaCS was granted and since 8 September 2017 the child has lived with the father. 

5. In the ensuing months the child spent time with the mother as arranged by FaCS and under supervision.  However, after judgment was reserved on 13 November 2017 the mother stopped seeing the child and on 28 May 2018 she filed an application to reopen the proceedings.  The mother’s mental health and capacity to meet the child’s emotional needs were important issues at trial and the application to reopen was supported by a further report by her treating psychiatrist, which outlined, in particular, how the mother’s mental health impacted on her capacity to spend time with the child while so ever he lived with the father. 

6. The application to reopen was opposed and dismissed. Thus, and notwithstanding that time between the child and mother had broken down, the trial reasons given in relation to the parenting proceedings proceeded on the basis that “[s]upervised time between the child and the mother had been taking place since that change of residence” [6]. Although that statement is correct as far as it goes, the trial reasons did not go on to engage with the fact that the child’s time with the mother had broken down.

7. Considered in conjunction with the expert evidence, the application to reopen, had it been granted, demonstrated that the dynamic of the case had changed.  Whereas the proceedings were undertaken on the basis that the child could maintain a relationship with both his parents (in one form or another), the evidence sought to be adduced raised the spectre that this was one of those sad cases where it might not be possible for the child to have a relationship with both his mother and father.   

8. We agree with the submission advanced for the mother that the primary judge, in considering the mother’s application to reopen, erred by imposing a test that she establish that the evidence would affect the result, whereas cases such as Stephens & Stephens (Enforcement) (2009) FLC 93-425 at [267] – [274], demonstrate that on this point it was sufficient that she establish that the evidence sought to be introduced may affect the result. Furthermore it cannot be doubted that the evidence sought to be relied upon was not easily available at the time and the finding that this criterion was not met was not available.

9. As to the substantive parenting component of the appeal, it is accepted that the primary judge failed to have regard to evidence in the mother’s case given by Mr J, Ms P and the second report of her treating psychiatrist.  Moreover, for reasons which are not explained, unchallenged evidence given by the maternal grandmother of her direct observation of family violence inflicted by the father on the mother was not considered; indeed, the evidence given by the maternal grandmother is neither identified in the material read at trial, nor mentioned at all in the trial reasons.  The submission for the mother that the inescapable conclusion is that the primary judge had no regard to the evidence given by the maternal grandmother at the hearing should be accepted (Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [130]).

10. It is not necessary to say more.  Once the mother established that potentially significant evidence in relation to her mental health and allegations of family violence was overlooked the findings in relation to those important matters could not stand. 

11. In relation to the property proceedings, it is sufficient that we record the argument advanced in support of Ground 33, which is set out below:

    71.[The mother’s] mother gave evidence that in 2012 she lent $180,000 to [the mother]; in 2013 she paid $2,500 to [the mother]; and since July 2015 she has paid the mortgage repayments and arrears.  [The mother’s] mother has also paid for the household expenses such as food and utilities.  The trial Judge found that the parties struggled financially throughout their short relationship.

    72.As to the loan of $180,000, in her Financial Statement [the mother] disclosed that she owed considerable amounts to her mother and such liabilities included the amount of $180,000. The trial Judge, without giving any reasons, omitted such debts when determining the net assets. As well, her Honour then wrongly ignored the contribution of $180,000, and the other contributions made by the [mother’s] mother, when considering the matters in s.90SM(4)(a), (b) and (c) of the Act.

    (Mother’s summary of argument filed 18 January 2019) (Emphasis as per original) (Footnotes omitted)

12. These submissions are well made.

Costs

1. Before orders pursuant to ss 6, 8 or 9 of the Costs Act may be made three matters must be established (see B & B (Costs Certificates) (2007) FLC 93-339): They are:

   ·The existence of a federal appeal;

   ·That the appeal has succeeded on a question of law; and

   ·That the court concerned should have heard the appeal.

2. In addition, there must be no order as to costs.

3. Each matter is established.  It is appropriate that the parties and the ICL receive certificates for the appeal and rehearing.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 21 February 2019.

Associate: 

Date:  21 February 2019