Harradine and Hermsely-Lane - [2018] FamCA 260

FAMILY COURT OF AUSTRALIA

HARRADINE & HERMSELY-LANE

[2018] FamCA 260

FAMILY LAW – SETTING ASIDE – whether miscarriage of justice - whether “any other circumstance” – whether implied consent to variation or setting aside

Family Law Act 1975 (Cth) ss 75(2), 79, 79A(1)(a), 79A(1A)

Badawi & Badawi (2017) FLC 93-784
In the Marriage of Fagan and Fagan (1985) FLC 91-607
In the Marriage of Gilbert & Estate of Gilbert (decd) (1990) FLC 92-125
In the Marriage of N W and S F McCabe (1995) FLC 92-634
SH v DH (No 1) (2003) 202 ALR 660
Simpson v Hamlin (1984) FLC 91-576

Waterman & Waterman [2017] FamCAFC 23

APPLICANT:

Mr Harradine

RESPONDENT:

Ms Hermsely-Lane

FILE NUMBER:

SYC

6418

2015

DATE DELIVERED:

27 April 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Gill J

HEARING DATE:

9-10 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Access Law Group

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Kells The Lawyers

Orders

The Applicant’s Initiating Application filed 4 May 2017 is dismissed.
If either party wishes to seek costs they are to file written submissions and further evidence to be relied upon directed to the issue of whether a costs order ought to be made and if so, in what terms, within a period of a further 14 days from the date of these Orders.
If either party resists any such order, they are to file written submissions and further evidence to be relied upon directed to the issue of whether a costs order ought to be made and if so, in what terms, within a period of a further 14 days.
Unless either party identifies at the commencement of their written submissions that an oral hearing is sought in relation to costs, the matter will be determined without oral hearing.

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 Harradine & Hermsely-Lane 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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 6418 of 2015

Mr Harradine

Applicant

And

Ms Hermsely-Lane

Respondent

REASONS FOR JUDGMENT

Background

The husband in these proceedings is Mr Harradine, the Respondent wife is Ms Hermsely-Lane. The husband has had a case guardian appointed, Ms B, who is the husband’s niece.
The parties met in 1993, and lived together for a period before being married in 1995.
In 2004 the husband was incarcerated following conviction in the New South Wales District Court. The parties are in dispute about whether they separated at…

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.

Keep reading for free

Create a free CaseChat account to read Harradine and Hermsely-Lane and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 260
Decision Date: 27 April 2018

CaseChat Overview and Summary

The applicant, Harradine, sought orders against the respondent, Hermsely-Lane. The nature of the dispute and the specific relief sought by the applicant are not detailed in the provided text, beyond the fact that the applicant's Initiating Application was dismissed. The decision was made by Gill J.

The primary legal issue before the court was whether the applicant's Initiating Application should be granted. Implicitly, the court was required to consider the merits of the application and determine if the applicant had established grounds for the relief sought. The subsequent orders regarding costs indicate that the court also considered the question of whether a costs order should be made and, if so, on what terms.

Gill J dismissed the applicant's Initiating Application. The court did not provide reasons for this dismissal in the excerpt. Following the dismissal, the court made detailed orders concerning the process for any party seeking costs, requiring written submissions and evidence within 14 days, and allowing for oral hearings if specifically requested.

Orders

Orders of the court

The Applicant’s Initiating Application filed 4 May 2017 is dismissed.

If either party wishes to seek costs they are to file written submissions and further evidence to be relied upon directed to the issue of whether a costs order ought to be made and if so, in what terms, within a period of a further 14 days from the date of these Orders.

If either party resists any such order, they are to file written submissions and further evidence to be relied upon directed to the issue of whether a costs order ought to be made and if so, in what terms, within a period of a further 14 days.

Unless either party identifies at the commencement of their written submissions that an oral hearing is sought in relation to costs, the matter will be determined without oral hearing.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.