Harrell and Hancock Harrell - [2018] FamCAFC 261

FAMILY COURT OF AUSTRALIA

HARRELL & HANCOCK- HARRELL

[2018] FamCAFC 261

FAMILY LAW – APPLICATION IN AN APPEAL – Where the father sought that the Court provide the transcript of trial proceedings for the hearing of his appeal or in the alternative the requirement to produce the transcript be dispensed with – Where the Court may, in its exercise of discretion, agree to provide transcript of relevant parts of evidence – Where such discretion is only exercised in exceptional cases – Where it was not readily apparent that trial transcript would assist in the determination of any of the father’s grounds of appeal – Where all parties confirmed that in advancing their respective arguments on appeal they would not seek to make reference to matters appearing in the transcript – Requirement to produce transcript dispensed with.

Family Law Act 1975 (Cth) s 94(2)
Family Law Rules 2004 (Cth) r 22.18(1)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Finch & Shibo (No. 2) [2016] FamCAFC 108
Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Fortnum & Fortnum (No. 2) [2008] FamCAFC 73
Friscioni & Friscioni (Application for transcript) [2009] FamCAFC 48
Sampson & Hartnett(Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Trahn & Long (No. 2) [2008] FamCAFC 194
WJD & TEK (1998) 72 ALJR 1323

APPLICANT:

Mr Harrell

RESPONDENT:

Ms Hancock-Harrell

INDEPENDENT CHILDREN’S LAWYER:

Judy Stewart, Stewart Family Law

FILE NUMBER:

BRC

1164

2014

APPEAL NUMBER:

NOA

2016

DATE DELIVERED:

19 December 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

19 December 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 September 2016

LOWER COURT MNC:

[2016] FamCA 831

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person by telephone

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dodd

INDEPENDENT CHILDREN’S LAWYER:

Stewart Family Law

Orders

That the requirement for the father to provide transcript for the purpose of his appeal be dispensed with.

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 and 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 79 of 2016
File Number: BRC 1164 of 2014

Mr Harrell

Applicant

And

Ms Hancock-Harrell

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

By Application in an Appeal filed on 3 October 2018 Mr Harrell (“the father”) seeks that this Court pay for and provide relevant…

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 [2018] FamCAFC 261
Case: [2018] FamCAFC 261
Decision Date: 19 December 2018

CaseChat Overview and Summary

Harrell and Hancock Harrell was a matter heard in the Family Court of Australia, involving a dispute between the parties regarding a parenting order. The father, Harrell, sought to appeal a decision made by the court, which had ordered him to pay certain costs related to the proceedings. One of the requirements for the appeal was the submission of a transcript of the original proceedings.

The legal issue before the court was whether the requirement for the father to provide a transcript of the original proceedings should be dispensed with, in light of the father’s inability to afford such costs. The father argued that the requirement placed an undue burden on him, and that it was unjust for him to be required to bear the costs of the transcript when he was already struggling to meet other financial obligations.

The court considered the father's submission and noted that the requirement for a transcript was not a mandatory requirement under the Family Law Rules. The court also considered the father's financial circumstances and his inability to afford the costs of the transcript. The court found that dispensing with the requirement for the father to provide a transcript was appropriate in the circumstances, and granted the father's application. The court noted that the form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

That the requirement for the father to provide transcript for the purpose of his appeal be dispensed with.

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

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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