HERRIOT & HOWES - [2020] FamCAFC 302

FAMILY COURT OF AUSTRALIA

HERRIOT & HOWES

[2020] FamCAFC 302

FAMILY LAW – APPEAL – PARENTING – Where the subject orders were of an interim or procedural nature directed to advancing the father’s substantive applications for contravention and contempt to a final hearing – Where there is no utility in this appeal given that the final hearing of those applications has now proceeded to completion with judgment being reserved – Where the appeal does not raise any question of general principle – Where, given the nature of the issues in dispute and the consequent need for further evidence, this Court could not re-exercise discretion even if error were established – Where an order for remitter would be nugatory given the final hearing has already proceeded – Appeal dismissed –
Costs ordered in a fixed sum.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NBA, 94AAA, 112AP, 117,
Div 13A

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Keehan v Keehan (2020) 60 Fam LR 276; [2019] FamCAFC 250
Lenova & Lenova (Costs) [2011] FamCAFC 141
McClintock v Levier (2009) FLC 93-401; [2009] FamCAFC 62
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6

APPELLANT:

Mr Herriot

RESPONDENT:

Ms Howes

FILE NUMBER:

BRC

2014

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

1 December 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

17 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

Transcript provided as reasons for judgment on 6 July 2020

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Hofstee Lawyers

Orders

The appeal from the orders made on 6 July 2020 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the fixed amount of $9,500, within a period of six months from the date of these orders.

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 Herriot & Howes 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 50 of 2020
File Number: BRC 32 of 2014

Mr Herriot

Appellant

And

Ms Howes

Respondent

REASONS FOR JUDGMENT

On 12 July 2019 final parenting orders[1] were made by the primary judge in the Federal Circuit Court of Australia (“the FCC”) concerning X (born in 2005 and currently aged 15 years) and Y (born…

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 HERRIOT & HOWES

Details

AGLC: HERRIOT & HOWES [2020] FamCAFC 302
Case: [2020] FamCAFC 302
Decision Date: 1 December 2020

CaseChat Overview and Summary

The appeal in Herriot & Howes was brought by the father against orders made in a family law matter. The father sought to challenge interim parenting orders made in relation to his two children, arguing they were unjust and contrary to the best interests of the children. The case was heard in the Family Court of Australia.

The legal issues the court needed to address were whether the appeal had any utility given that the final hearing on the father’s substantive applications had already taken place, and if the appeal raised any questions of general principle. The court also considered whether, given the nature of the issues in dispute and the need for further evidence, it could re-exercise its discretion even if an error were established. Additionally, the court examined whether an order for remitter would be effective given that the final hearing had already proceeded.

The court found that the appeal had no utility since the final hearing had already occurred and judgment was reserved. The appeal did not raise any question of general principle, and the court could not re-exercise its discretion due to the nature of the issues and the need for further evidence. An order for remitter would also be nugatory as the final hearing had already taken place. Consequently, the appeal was dismissed. The father was ordered to pay the mother’s costs of and incidental to the appeal in a fixed sum of $9,500, payable within six months from the date of the orders. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal from the orders made on 6 July 2020 be dismissed.

The appellant father pay the respondent mother’s costs of and incidental to the appeal in the fixed amount of $9,500, within a period of six months from the date of these orders.

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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