Harries v Harries

Case [2011] FamCAFC 113

FAMILY COURT OF AUSTRALIA

HARRIES & HARRIES [2011] FamCAFC 113
FAMILY LAW - APPEAL – CHILD ABDUCTION - Was it correct for the trial judge to find that there is a grave risk that the return of the children to Canada would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of the Regulations – Was the trial judge correct in exercising the discretion to decline making an order for return of the children to Canada – Was the father denied procedural fairness by the trial judge allowing additional medical evidence to be admitted into evidence during the course of the trial without the father having a reasonable opportunity to obtain some medical evidence in response – Was the trial judge in error for not giving reasons for admitting the additional evidence
Convention on Civil Aspects of International Child Abduction
Family Law Act 1975 (Cth) – s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) – r 2(2), r 14(1), r 15(1), r 16(1), r 16(1A), r 16(3)

Bennett and Bennett (1991) FLC 92-191
Director-General Department of Families Youth and Community Care v Bennett (2000) FLC 93-011
De L v Director-General, NSW Dept. of Community Services (NSW) [1996] 187 CLR 640
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401

Harris & Harris (2010) FLC 93-454
Re G (Abduction: Psychological Harm) [1995] 1 FLR 64
Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247
State Central Authority v Perkis [2010] FamCA 649
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
APPELLANT: Mr Harries
RESPONDENT: Mrs Harries
FILE NUMBER: SYC 4565 of 2010
APPEAL NUMBER: EA 6 of 2011
DATE DELIVERED: 24 May 2011
PLACE DELIVERED: Parramatta
PLACE HEARD: Sydney
JUDGMENT OF: Coleman, May & Johnston JJ
HEARING DATE: 17 March 2011
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 10 December 2010
LOWER COURT MNC: [2010] FamCA 1129

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lloyd, SC & Ms Gillies
SOLICITOR FOR THE APPELLANT: Watts McCray Lawyers
COUNSEL FOR THE RESPONDENT: Mr Livingstone
SOLICITOR FOR THE RESPONDENT: Watson & Watson Solicitors

Orders

  1. The appeal be dismissed.

  2. The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:

    (a)       On behalf of the respondent within 21 days of the date hereof;

    (b)On behalf of the appellant within 21 days thereafter;

    (c)On behalf of the respondent in reply within seven days thereafter, and;

    (d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

IT IS NOTED that publication of this judgment under the pseudonym Harries & Harries is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 6 of 2011
File Number: SYC 4565 of 2010

Mr…

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AGLC
Harries v Harries [2011] FamCAFC 113
Case
[2011] FamCAFC 113
Decision Date

CaseChat Overview and Summary

The appeal was brought by the husband, Harries, against a decision of the Family Court of Australia regarding the property settlement following his divorce from the wife, Harries. The primary judge had made a number of orders pertaining to the distribution of the parties’ property, including an order that the husband’s interest in a particular property be transferred to the wife. The husband appealed this decision on the grounds of error of law and/or misapprehension of evidence.

The central issue for the court was whether the primary judge erred in making the orders he did. The husband contended that the primary judge failed to take into account the need to make fair and reasonable provision for his future needs, including his need for ongoing accommodation. The court was required to consider whether the primary judge had erred in making the orders in the way he did, and whether those orders were manifestly unjust.

The court found that the primary judge had not erred in making the orders he did. The court found that the husband had not demonstrated that the primary judge had failed to take into account his future needs, including his need for accommodation, and that the orders made were not manifestly unjust. The court found that the primary judge had made a proper exercise of his discretion in making the orders he did, and that there was no error of law or misapprehension of evidence. The appeal was dismissed, and the parties were directed to file written submissions regarding the costs of the appeal.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:

(a) On behalf of the respondent within 21 days of the date hereof;

(b) On behalf of the appellant within 21 days thereafter;

(c) On behalf of the respondent in reply within seven days thereafter, and;

(d) That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

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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