Harrell & Hancock-Harrell

Case [2019] FamCAFC 177


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
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jacks & Samson (2008) FLC 93-387; [2008] FamCAFC 173
L v T (1999) FLC 92-875; [1999] FamCA 1699
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
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

  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…

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AGLC
Harrell & Hancock-Harrell [2019] FamCAFC 177
Case
[2019] FamCAFC 177
Decision Date

CaseChat Overview and Summary

The appeal was brought by the father against a decision of the Family Court of Australia which dealt with parenting arrangements for the parties’ child. The father challenged the Family Court’s finding that he posed an unacceptable risk of emotional harm to the child, and the finding that he engaged in family violence. The father also sought to adduce new evidence on appeal. The mother cross-appealed against the Family Court’s finding that there was no basis for a presumption of equal shared parental responsibility. The court was required to determine whether the absence of the trial transcript could undermine the presumption in favour of the correctness of the decision, whether the trial judge was entitled to accept the evidence of the single expert, and whether the father’s evidence could establish that he did not engage in family violence. The court was also required to determine whether the father’s application to adduce new evidence on appeal should be allowed.

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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