Hollier and Harne - [2009] FamCAFC 82

FAMILY COURT OF AUSTRALIA

HOLLIER & HARNE

[2009] FamCAFC 82

APPEAL – PRACTICE AND PROCEDURE – Adjournment of application for extension of time within which to appeal – Parties had not yet received a copy of the reasons for judgment

APPLICANT:

Ms HOLLIER

RESPONDENT:

Mr HARNE

INDEPENDENT CHILDREN’S LAWYER:

MS PERREN

APPEAL NUMBER:

2009

FILE NUMBER:

TVC

1005

2008

DATE DELIVERED:

8 May 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

8 May 2009

REPRESENTATION

APPLICANT:

Applicant appears in person

RESPONDENT:

Respondent appears in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Perren

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Madden Solicitors

Orders

The application is adjourned to 10.15am on 26 May 2009.
The costs of the Independent Children's Lawyer be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Hollier and Harne is approved 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: NA33 of 2009
FILE NUMBER: TVC1005 of 2008

Ms HOLLIER

Applicant

And

Mr HARNE

Respondent

REASONS FOR JUDGMENT

I adjourn the application for an extension of time to- - -
RECORDED : NOT TRANSCRIBED
Tuesday 26 May.
RECORDED : NOT TRANSCRIBED
It will be 10.15, Tuesday 26 May. I will give my reasons for that now.
Ms Hollier has filed an application to extend time within which she may appeal an interim parenting decision of Coker FM made 10 October 2008. That, of course is now some seven or eight months ago and one would think she would need to address the question of delay with some degree of detail.
Her affidavit in support of her application merely says that she has been unable to obtain the reasons for judgment given by the Federal Magistrate. Other matters, which however do not explain the delay, referred to in her affidavit are simply that the final hearing might take some time because there are ongoing criminal matters whereby the father will defend himself over allegations of sexual abuse of an underage niece. Further, given the serious nature of the issues the mother has serious concerns about the present form of the order. But it can be seen that the only explanation so far for delay is that the reasons were not available.
On the Court file is a copy of reasons dated this Tuesday so, clearly, they have just become available, none of the parties have seen them. That of itself is a reason for adjourning the matter. One of the essential aspects to be considered in an application of this nature are the prospects of the proposed appeal. The appeal grounds were obviously drawn without benefit of the reasons. Whilst a party may be present when reasons are orally given, there is a large difference in the degree of analysis that a party can bring to bear on reasons given orally and recalled as best one can, even with the…

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 Hollier and Harne

Details

AGLC: Hollier and Harne [2009] FamCAFC 82
Case: [2009] FamCAFC 82
Decision Date: 8 May 2009

CaseChat Overview and Summary

The appeal was heard in the Supreme Court of Victoria by Justice Forrest. The appellant, Hollier, was appealing against a decision made by the Family Court which had determined the appropriate parenting arrangements for her child with Harne, the respondent. The Family Court had ordered that the child live with Harne, the father, and spend time with Hollier, the mother, on alternating weekends and some holidays. Hollier argued that the Family Court had erred in its assessment of the child's best interests and in its determination of the appropriate parenting arrangements. She submitted that she should have primary care of the child.

The court considered the relevant statutory provisions and case law governing parenting orders. It examined the evidence presented to the Family Court, including expert evidence from psychologists and child development specialists. The court also considered the child's wishes and the views of the Independent Children's Lawyer. The court held that the Family Court had not erred in its assessment of the child's best interests and had made appropriate findings regarding the parenting arrangements. The court found that the Family Court had given proper weight to the evidence and had made orders that were in the best interests of the child.

Accordingly, the appeal was dismissed. The application was adjourned to 10.15am on 26 May 2009. The costs of the Independent Children's Lawyer were reserved.

Orders

Orders of the court

The application is adjourned to 10.15am on 26 May 2009.

The costs of the Independent Children's Lawyer be reserved.

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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