Harshani and Darnith - [2011] FamCAFC 112

FAMILY COURT OF AUSTRALIA

HARSHANI & DARNITH

[2011] FamCAFC 112

FAMILY LAW – APPEAL - NOTICE OF APPEAL – application for leave to appeal/appeal by husband against interim parenting orders –parties self-represented – documents ill-prepared and of no assistance – during hearing before the Federal Magistrate wife raised serious allegations of violence by the husband against her and the child – Federal Magistrate careful in her treatment of the evidence – primary concern the safety and well being of the child until a formal hearing could take place – no merit in any of the grounds of appeal – oral applications by husband and wife to lead further evidence dismissed – appeal dismissed

Family Law Act 1975 (Cth) ss 93A(2), 94AAA(7), 68P

CDJ v VAJ (1998) 197 CLR 172
House and The King (1936) 55 CLR 499

APPELLANT:

Mr Harshani

RESPONDENT:

Ms Darnith

FILE NUMBER:

MLC

1556

2010

APPEAL NUMBER:

2010

DATE DELIVERED:

24 May 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

19 November 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 June 2010

LOWER COURT MNC:

[2010] FMCAfam 844

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 43 of 2010
File Number: MLC 1556 of 2010

Mr Harshani

Appellant

And

Ms Darnith

Respondent

REASONS FOR JUDGMENT

Introduction

This is in effect an application for leave to appeal filed by the husband on

16 September 2010 against interim parenting orders made by Federal Magistrate Hughes on 10 June 2010.
I heard the application on 19 November 2010 and at that time I intended to deliver an ex tempore judgment given that the next hearing before the Federal Magistrate was listed for 6 December 2010. However, the constraints of time prevented me from doing that and accordingly I made the orders and advised the parties that I would deliver my reasons for judgment subsequently.
I confirm that on 19 November 2010 I dismissed the oral application made by the husband to lead further evidence and the oral application made by the wife to lead further evidence, and I dismissed the appeal. I now provide my reasons for these orders as follows.
The husband filed an initial Notice of Appeal on 5 July 2010, but as I said at the directions hearing that I conducted on 27 August 2010 this Notice of Appeal was quite unintelligible and deserved to be struck out as an abuse of process. The husband had also filed a draft appeal index on 21 July 2010, but that too was inadequate and inappropriate. However, the husband, who had had legal representation before the Federal Magistrate, had prepared these documents himself and he appeared in person. Thus, on…

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 Harshani and Darnith

Details

AGLC: Harshani and Darnith [2011] FamCAFC 112
Case: [2011] FamCAFC 112
Decision Date: 24 May 2011

CaseChat Overview and Summary

In the Family Court of Australia, Mr Harshani (the husband) appealed against interim parenting orders made by Federal Magistrate Hughes on 10 June 2010. These orders were related to the one child of the marriage, born in November 2008. The husband's initial Notice of Appeal on 5 July 2010 was deemed unintelligible and an abuse of process. After receiving proper documents on 16 September 2010, the appeal was heard on 19 November 2010. Both parties made oral applications to lead further evidence, which were dismissed. The appeal was dismissed as there was no merit in any of the grounds of appeal.

The legal issues involved in this case included whether leave to appeal was appropriately sought, the appropriateness of admitting further evidence, and the merits of the grounds of appeal. The husband's grounds of appeal were largely misconceived, and none demonstrated any error on the part of the Federal Magistrate. The court found that the Federal Magistrate had acted carefully in treating the evidence presented and had given primary concern to the safety and wellbeing of the child pending a final hearing.

The court dismissed the appeal and the oral applications to lead further evidence. The husband's grounds of appeal were found to be baseless and unjustified, and there was no error by the Federal Magistrate. The decision was based on the need to balance the potential benefit to the child of a meaningful relationship with his father against the need to protect him from harm. The Federal Magistrate's decision to make more restrictive orders and put in place extra safety provisions was upheld.

The final orders confirmed the dismissal of the appeal and the oral applications to lead further evidence. The interim parenting orders made by Federal Magistrate Hughes on 10 June 2010 remained in place.

Orders