Appeal from: Harrell & Hancock - [2021] FamCA 132

FAMILY COURT OF AUSTRALIA
Harrell [2021] FamCAFC 119

Appeal from: Harrell & Hancock [2021] FamCA 132

Appeal number(s): NOA 19 of 2021

File number(s): BRC 1164 of 2014

Judgment of: AINSLIE-WALLACE, WATTS & AUSTIN JJ

Date of judgment: 15 July 2021

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious Litigant – Application for leave governed by s 102QE Family Law Act 1975 (Cth) (“the Act”) – Where the applicant requires the grant of leave to bring any fresh proceedings under Pt VII of the Act – Where the grant of leave to appeal from an order made under s 102QB(2) of the Act by a judge of the Family Court of Australia order should be decided by the Full Court consistent with s 94AA(1) of the Act – Where the applicant did not satisfy the requirements of s 102QE(3) of the Act – Where the applicant did not discharge his onus of demonstrating the proposed appeal is not vexatious – Where the application was pursued without reasonable ground and must be dismissed

Legislation:
Family Law Act 1975 (Cth) Pts VII, X, XIB, ss 94AA, 102Q, 102QB, 102QE, 102QF, 102QG

Family Law Regulations 1984 (Cth) reg 15A(1)

Cases cited:
Harrell & Hancock-Harrell [2019] FamCAFC 177

Harrell & Hancock-Harrell [2020] FamCA 583

Harrell & Hancock [2021] FamCA 132

Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210

Division: Appeal Division

Number of paragraphs: 24

Date of hearing: 15 July 2021

Place: Brisbane (via video-link)

The Applicant: Litigant in person
ORDERS

NOA 19 of 2021
BRC 1164 of 2014

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
MR HARRELL

Applicant

ORDER MADE BY:

AINSLIE-WALLACE, WATTS & AUSTIN JJ

DATE OF ORDER:

15 JULY 2021

THE COURT ORDERS THAT:
1.Leave to appeal from the orders made by the Family Court of Australia on 5 February 2021 is refused and the Application in an Appeal filed on 1 March 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:

The applicant father seeks leave to appeal from orders made by a judge of the Family Court of Australia on 5 February 2021 under Pt XIB of the Family Law Act 1975 (Cth) (“the Act”) dismissing his pending application for parenting orders in respect of his son and prohibiting him from bringing any further application for parenting orders without leave, which orders represented the culmination of protracted litigation.
The child who is the object 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 Appeal from: Harrell & Hancock

Details

AGLC: Appeal from: Harrell & Hancock [2021] FamCA 132
Case: [2021] FamCA 132
Decision Date: 15 July 2021

CaseChat Overview and Summary

In the Appeal Division of the Family Court of Australia, Mr Harrell was the applicant in an application for leave to appeal from orders made by the Family Court on 5 February 2021. The application in an appeal was filed on 1 March 2021.

The primary legal issue before the Full Court was whether to grant Mr Harrell leave to appeal from an order made under section 102QB(2) of the *Family Law Act 1975* (Cth). This required the Court to consider the provisions of section 102QE of the Act, which governs applications for leave to bring fresh proceedings under Part VII of the Act, and specifically whether the applicant had satisfied the requirements for such leave.

The Court reasoned that the grant of leave to appeal from an order made under section 102QB(2) should be decided by the Full Court, consistent with section 94AA(1) of the Act. It found that Mr Harrell had not satisfied the requirements of section 102QE(3) of the Act. Crucially, the Court determined that the applicant had not discharged his onus of demonstrating that the proposed appeal was not vexatious, and that the application was pursued without reasonable grounds.

Consequently, the Court ordered that leave to appeal be refused and the application in an appeal be dismissed.

Orders

Orders of the court

NOA 19 of 2021

BRC 1164 of 2014

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR HARRELL

Applicant

ORDER MADE BY:

AINSLIE-WALLACE, WATTS & AUSTIN JJ

DATE OF ORDER:

15 JULY 2021

THE COURT ORDERS THAT:

1. Leave to appeal from the orders made by the Family Court of Australia on 5 February 2021 is refused and the Application in an Appeal filed on 1 March 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:	Harrell & Hancock [2021] FamCA 132
Appeal number(s):	NOA 19 of 2021
File number(s):	BRC 1164 of 2014
Judgment of:	AINSLIE-WALLACE, WATTS & AUSTIN JJ
Date of judgment:	15 July 2021
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious Litigant – Application for leave governed by s 102QE Family Law Act 1975 (Cth) (“the Act”) – Where the applicant requires the grant of leave to bring any fresh proceedings under Pt VII of the Act – Where the grant of leave to appeal from an order made under s 102QB(2) of the Act by a judge of the Family Court of Australia order should be decided by the Full Court consistent with s 94AA(1) of the Act – Where the applicant did not satisfy the requirements of s 102QE(3) of the Act – Where the applicant did not discharge his onus of demonstrating the proposed appeal is not vexatious – Where the application was pursued without reasonable ground and must be dismissed
Legislation:	Family Law Act 1975 (Cth) Pts VII, X, XIB, ss 94AA, 102Q, 102QB, 102QE, 102QF, 102QG Family Law Regulations 1984 (Cth) reg 15A(1)
Cases cited:	Harrell & Hancock-Harrell [2019] FamCAFC 177 Harrell & Hancock-Harrell [2020] FamCA 583 Harrell & Hancock [2021] FamCA 132 Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Division:	Appeal Division
Number of paragraphs:	24
Date of hearing:	15 July 2021
Place:	Brisbane (via video-link)
The Applicant:	Litigant in person

ORDER MADE BY:	AINSLIE-WALLACE, WATTS & AUSTIN JJ
DATE OF ORDER:	15 JULY 2021