HARSHANI & DARNITH

Case [2019] FamCAFC 213

FAMILY COURT OF AUSTRALIA

HARSHANI & DARNITH [2019] FamCAFC 213
FAMILY LAW – PARENTING – Where the father seeks a discharge of the Watch List Order to facilitate travel overseas by him with the parties’ child of whom the mother has sole parental responsibility – Where the father appeals the discretionary determination refusing the application – Where the father asserts that the Court did not have regard to evidence in support of his application – Where the father did not respond to the mother’s evidence and contentions at first instance – Where the father alleges that the primary judge took irrelevant and extraneous matters into account –
 Where matters taken into account by the primary judge were found to be relevant and unexceptional – Where the father alleges apprehended bias on the part of the primary judge – Where the father asserted that the primary judge did not permit him to cross-examine the mother but where he did not seek to do so – Where the appeal is dismissed.
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII
Family Law Rules 2004 (Cth) r 11.02 and r 11.03

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Gin & Hing [2010] FamCA 617
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48
Lorde & Chu [2015] FamCAFC 3
Line and Line (1997) FLC 92-729; [1996] FamCA 145
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

APPELLANT:

Mr Harshani
RESPONDENT: Ms Darnith
FILE NUMBER: MLC 1556 of 2010
APPEAL NUMBER: SOA 16 of 2019
DATE DELIVERED: 18 November 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: Watts, Tree & Bennett JJ
HEARING DATE: 9 September 2019
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 26 February 2019
LOWER COURT MNC: [2019] FamCA 89

REPRESENTATION

THE APPELLANT: In person
THE RESPONDENT: In person

Orders

  1. The Notice of Appeal filed 18 March 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

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AGLC
HARSHANI & DARNITH [2019] FamCAFC 213
Case
[2019] FamCAFC 213
Decision Date

CaseChat Overview and Summary

In the matter of Harshani & Darthith, the father appealed a decision made by the Family Court of Australia that refused his application to discharge a Watch List Order. This order was put in place to facilitate the father’s travel overseas with the child, over whom the mother held sole parental responsibility. The Family Court was tasked with determining whether the father’s application should be granted, and subsequently, whether the appeal against the refusal should be upheld. The court had to consider the evidence presented, the relevance of the matters taken into account by the primary judge, and whether any bias or procedural errors occurred during the initial proceedings.

The legal issues before the court were multi-faceted. The father argued that the primary judge did not adequately consider evidence in support of his application and overlooked his contentions. Additionally, the father contended that the primary judge took irrelevant and extraneous matters into account, and that there was apprehended bias on the part of the primary judge. Furthermore, the father claimed that he was not permitted to cross-examine the mother, although he did not seek to do so during the initial proceedings. The court was required to assess the validity of these claims and determine whether they provided sufficient grounds for the appeal to be successful.

Upon review, the court found that the evidence and contentions raised by the father were adequately considered by the primary judge. The matters taken into account by the primary judge were deemed relevant and unexceptional. The court also found no evidence of bias or procedural errors. The father's failure to respond to the mother’s evidence and contentions at first instance further weakened his position on appeal. Consequently, the appeal was dismissed, and the original decision of the Family Court was upheld.

The court ordered that the notice of appeal filed on 18 March 2019 be dismissed, with the form of the order subject to entry in the Court’s records. This decision underscores the importance of thoroughly addressing all evidence and contentions in family law proceedings, as well as the high threshold for successfully appealing a Family Court decision.

Orders

Orders of the court

1.

The Notice of Appeal filed 18 March 2019 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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