Harrell and Hancock-Harrell - [2020] FamCA 583

FAMILY COURT OF AUSTRALIA

HARRELL & HANCOCK-HARRELL

[2020] FamCA 583

FAMILY LAW – CHILDREN – Application of Rice & Asplund principles – where the Court is not satisfied that there has been a material and substantial change in circumstances since the making of final parenting orders in 2016 so as to permit further litigation – application dismissed

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Walter & Walter [2016] FamCAFC 56
McEnearney & McEnearney (1980) FLC 90-866
Mahoney & Dieter (2020) FLC 93-955
Marsden & Winch (2009) 42 Fam LR 1

APPLICANT:

Mr Harrell

RESPONDENT:

Ms Hancock-Harrell

FILE NUMBER:

BRC

1164

2014

DATE DELIVERED:

22 July 2020

PLACE DELIVERED:

Townsville

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

19 June 2020

REPRESENTATION

THE APPLICANT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

Ms C Barton
Barton Family Lawyers

Orders

That the father’s Initiating Application filed 29 November 2019 (amended 4 March 2020) be dismissed.
That if the Respondent mother wishes to pursue her Application for costs of this Application then:
(a)she shall file and serve any written submissions within twenty-one (21) days;
(b)the father shall file and serve any written submissions in response within forty-two (42) days; and
(c)unless otherwise ordered, the Application for costs shall be dealt with on the papers in Chambers.

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 Harrell & Hancock-Harrell 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 TOWNSVILLE

FILE NUMBER: BRC 1164 of 2014

Mr Harrell

Applicant

And

Ms Hancock-Harrell

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant father Mr Harrell was no doubt disappointed when, on 11 October 2019, the Full Court (Ainslie Wallace, Ryan and Austin JJ) published its reasons for dismissing his appeal against final parenting orders made by a Family Court Judge on 29 September 2016 (see Harrell & Hancock-Harrell [2019] FamCAFC 177).
The father, within two months of that appeal decision being delivered, filed an Application seeking unsupervised time with his son C (born in 2011 – now aged eight years), “every second weekend…between 9am Saturday and 5pm Sunday”, together with weekly Skype communication. The father’s Initiating Application was slightly amended on 4 March 2020.
The mother, by a Response filed 27 March 2020, seeks orders that the father’s Application be dismissed and that he pay the mother’s costs of responding to his Application.
At a Directions Hearing before a Registrar on 12 March 2020, the mother’s solicitor identified that the mother sought a…

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 Harrell and Hancock-Harrell

Details

AGLC: Harrell and Hancock-Harrell [2020] FamCA 583
Case: [2020] FamCA 583
Decision Date: 22 July 2020

CaseChat Overview and Summary

The case of *Harrell and Hancock-Harrell* concerned an application by the father, which was ultimately dismissed by Baumann J of the Family Court of Australia. The specific nature of the dispute leading to the father's application is not detailed in the provided text, but the outcome indicates a contest between the parents regarding some aspect of their family law matter.

The primary legal issue before the court was whether the father's Initiating Application, filed on 29 November 2019 and amended on 4 March 2020, should be upheld or dismissed. A secondary issue arose concerning the mother's potential application for costs associated with the father's application.

Baumann J dismissed the father's application. The court then made orders regarding the process for the mother to pursue an application for costs, should she choose to do so. These orders stipulated timelines for the filing of written submissions by both parties and indicated that the costs application would likely be determined on the papers in Chambers, unless the court ordered otherwise.

Orders

Orders of the court

That the father’s Initiating Application filed 29 November 2019 (amended 4 March 2020) be dismissed.

That if the Respondent mother wishes to pursue her Application for costs of this Application then:

(a) she shall file and serve any written submissions within twenty-one (21) days;

(b) the father shall file and serve any written submissions in response within forty-two (42) days; and

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

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