HARRELL & HANCOCK-HARRELL - [2015] FamCAFC 74

FAMILY COURT OF AUSTRALIA

HARRELL & HANCOCK-HARRELL

[2015] FamCAFC 74

FAMILY LAW – APPLICATION IN AN APPEAL – Application to file a notice of appeal from an interim parenting decision of a Federal Circuit Court Judge out of time – Where the Federal Circuit Court Judge suspended orders – Where the delay is adequately explained – Where there is no merit or utility in the appeal – Application dismissed.

Family Law Act 1975 (Cth) s94AAA(10)
Family Law Rules 2004 r 1.14, 22.03

Allesch v Maunz (2000) 203 CLR 172
Gallo v Dawson (1990) 93 ALR 479
Taylor v Taylor (1979) 143 CLR 1
Wilkes and Wilkes (1981) FLC 91-060

APPLICANT:

Mr Harrell

RESPONDENT:

Ms Hancock-Harrell

FILE NUMBER:

BRC

1164

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

6 May 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

5 May 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

12 February 2015

LOWER COURT MNC:

[2014] FCCA 2413

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Appeared in person

COUNSEL FOR THE RESPONDENT:	Ms Galbraith
SOLICITOR FOR THE RESPONDENT:	Schultz Toomey O’Brien Lawyers
INDEPENDENT CHILDREN’S LAWYER:	Stewart Family Law

Orders

The Application in an Appeal filed 19 March 2015 seeking an extension of time to file a Notice of Appeal is dismissed.
No order as to costs.

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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 21 of 2015
File Number: BRC 1164 of 2014

Mr Harrell

Applicant

And

Ms Hancock-Harrell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 19 March 2015, Mr Harrell (“the father”) filed an Application (together with an affidavit) seeking an extension of time to file a Notice of Appeal from orders made on 12 February 2015 by Judge Lapthorn.
As a result of pending criminal charges and incarceration (discussed in greater detail below), Judge Lapthorn suspended the time the father would spend with the parties’ child (“the child”), until further order. The father was not in court on the day these orders were made as he was in jail.
The child lives with Ms Hancock-Harrell (“the mother”) and is now four years of age.
On 12 February 2015, certain procedural orders were made in preparation for trial, including that the father be granted liberty to provide the family report and psychiatric report to his treating psychiatrist and/or psychologist. The father was also restrained by injunction from communicating with the mother’s legal representatives and the Independent Children’s Lawyer (“the ICL”). The proceedings were transferred to the Family Court of Australia.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a Notice of Appeal must be filed “within 28 days after the date the order appealed from was made”. The father was therefore approximately…

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 & HANCOCK-HARRELL

Details

AGLC: HARRELL & HANCOCK-HARRELL [2015] FamCAFC 74
Case: [2015] FamCAFC 74
Decision Date: 6 May 2015

CaseChat Overview and Summary

The court was called upon to consider an application for an extension of time to file a Notice of Appeal in the case of Harrell & Hancock-Harrell. The application was filed on 19 March 2015. The application sought to extend the time within which the appellants could lodge their Notice of Appeal from a decision made by a lower court. The application was opposed by the respondents.

The primary legal issue before the court was whether the application for an extension of time should be granted, considering the principles of law governing late appeals and the discretion of the court in such matters. The court had to assess the appellants' reasons for the delay, the prospects of success of the appeal, and whether the extension of time would prejudice the respondents.

In dismissing the application, the court noted that the appellants had not demonstrated any satisfactory explanation for the delay in filing the Notice of Appeal. Furthermore, the court found that the delay had caused significant prejudice to the respondents, as it had disrupted the orderly administration of justice. The court held that the application did not meet the necessary threshold for an extension of time, and therefore, the application was dismissed. The court made no order as to costs.

Orders

Orders of the court

The Application in an Appeal filed 19 March 2015 seeking an extension of time to file a Notice of Appeal is dismissed.

No order as to costs.

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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