FAMILY COURT OF AUSTRALIA
| HARRELL & HANCOCK-HARRELL | [2019] FamCAFC 177 |
| FAMILY LAW – APPEAL – FAMILY VIOLENCE – Parenting orders – Where the absence of the trial transcript could not be permitted to undermine the presumption in favour of the correctness of the decision – Where the conclusion that the appellant posed an unacceptable risk of emotional harm to the child was available – Where the primary judge was entitled to accept the evidence of the single expert – Presumption of equal shared parental responsibility – Where findings that the appellant engaged in family violence were open – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence on appeal – Where the majority of evidence sought to be adduced was either before the primary judge or irrelevant – Application allowed in part. FAMILY LAW – COSTS – Where the appellant is an undischarged bankrupt in receipt of welfare benefits – Where the appellant has been wholly unsuccessful – Greater weight placed on the appellant’s lack of success and that the respondent incurred legal expenses unnecessarily – Order made for the appellant to pay the respondent’s costs within six months. |
| Family Law Act 1975 (Cth) ss 61DA, 65DAA, 117 |
| APPELLANT: | Mr Harrell |
| RESPONDENT: | Ms Hancock-Harrell |
| INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
| FILE NUMBER: | BRC | 1164 | of | 2014 |
| APPEAL NUMBER: | NOA | 79 | of | 2016 |
| DATE DELIVERED: | 11 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Austin JJ |
| HEARING DATE: | 18 June 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 September 2016 |
| LOWER COURT MNC: | [2016] FamCA 831 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Firth |
| SOLICITOR FOR THE RESPONDENT: | Barton Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bunning |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
Orders
The appellant father’s Application in an Appeal filed 6 April 2018 be dismissed.
The appellant father’s Application in an Appeal filed 17 May 2019 to rely on Annexure 1 to his affidavit of 17 May 2019 as his Summary of Argument, be granted.
Otherwise, the appellant father’s Application in an Appeal dated 17 May 2019 be dismissed.
That the appellant father’s oral application to rely on an affidavit by him dated 9 August 2018 be dismissed.
That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal in the amount of $2,568 within six (6) months.
The application by the Independent Children’s Lawyer for costs…
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- AGLC
- Harrell & Hancock-Harrell [2019] FamCAFC 177
- Case
- [2019] FamCAFC 177
- Decision Date
CaseChat Overview and Summary
The court found that the absence of the trial transcript could not undermine the presumption in favour of the correctness of the decision. The court held that the conclusion that the father posed an unacceptable risk of emotional harm to the child was open on the evidence before the Family Court. The court held that the primary judge was entitled to accept the evidence of the single expert, and that the father’s evidence did not establish that he did not engage in family violence. The court held that the findings that the father engaged in family violence were open. The court dismissed the father’s appeal. The court allowed the father’s application to rely on a particular affidavit as his summary of argument, and dismissed his other applications to adduce new evidence on appeal. The court dismissed the mother’s cross-appeal.
The court ordered that the father pay the mother’s costs of and incidental to the appeal in the amount of $2,568 within six months. The court dismissed the application by the Independent Children’s Lawyer for costs against the father.
Orders
Orders of the court
1.
The appellant father’s Application in an Appeal filed 6 April 2018 be dismissed.
2.
The appellant father’s Application in an Appeal filed 17 May 2019 to rely on Annexure 1 to his affidavit of 17 May 2019 as his Summary of Argument, be granted.
3.
Otherwise, the appellant father’s Application in an Appeal dated 17 May 2019 be dismissed.
4.
That the appellant father’s oral application to rely on an affidavit by him dated 9 August 2018 be dismissed.
5.
That the appeal be dismissed.
6.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal in the amount of $2,568 within six (6) months.
7.
The application by the Independent Children’s Lawyer for costs against the appellant father be dismissed.
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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