Hulce and Chorley (No 2) - [2020] FamCAFC 201

FAMILY COURT OF AUSTRALIA

HULCE & CHORLEY (NO. 2)

[2020] FamCAFC 201

FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Family violence – Where the primary judge ordered that the children could remain living with the mother in Victoria after she relocated with them without the father’s consent – Where the father’s time with the children pursuant to the orders is impacted by travel restrictions associated with the COVID‑19 pandemic – Where reasons of the primary judge given in short form pursuant to s 69ZL of the Family Law Act 1975 (Cth) – Consideration of s 60CC factors in interim proceedings – No error established – Where the appeal lacks utility given the proximity of final hearing – Appeal dismissed – Mother’s application for costs dismissed.

Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) ss 60CC, 69ZL, 94AAA(3)

Family Law Rules 2004 (Cth)

Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v the King (1936) 55 CLR 499; [1936] HCA 40
Nasparus & Frankham [2018] FamCAFC 190
Reece & Reece [2011] FamCAFC 24
Tobey & Rezek and Ors [2011] FamCAFC 86
Yabon & Tabano [2020] FamCAFC 22

APPELLANT:

Mr Hulce

RESPONDENT:

Ms Chorley

FILE NUMBER:

SYC

1539

2020

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

13 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

10 August 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2020

LOWER COURT MNC:

[2020] FCCA 1568

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Kennedy

SOLICITOR FOR THE APPELLANT:

Doolan Callaghan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Smith

SOLICITOR FOR THE RESPONDENT:

BJT Legal

Orders

The father’s Application in and Appeal filed 22 July 2020 to adduce further evidence be allowed in part.
The appeal be dismissed.
The mother’s application for costs 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 Hulce & Chorley (No. 2) 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 SYDNEY

Appeal Number: EAA 79 of 2020
File Number: SYC 1539 of 2020

Mr Hulce

Appellant

And

Ms Chorley

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed 29 July 2020, Mr Hulce (“the father”) appeals…

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 Hulce and Chorley (No 2)

Details

AGLC: Hulce and Chorley (No 2) [2020] FamCAFC 201
Case: [2020] FamCAFC 201
Decision Date: 13 August 2020

CaseChat Overview and Summary

The case of Hulce and Chorley (No 2) involved the father, seeking to adduce further evidence in a child-related matter, and the mother, who opposed this application. The dispute was heard in the Family Court of Australia, with the appeal subsequently being heard in the Federal Circuit and Family Court of Australia. The father's primary objective was to introduce new evidence that he believed would impact the existing parenting orders. The mother argued against the introduction of this new evidence, asserting that it was not relevant or appropriate for the court to consider at this stage.

The legal issues that the court had to address included whether the father's application to introduce further evidence was permissible under the existing procedural rules, and if the new evidence was relevant and necessary for the court to consider. The court also had to determine whether the mother's application for costs was justified, given the circumstances of the case. The court's analysis involved a careful examination of the procedural rules governing the introduction of new evidence in family law matters, as well as an assessment of the relevance and admissibility of the proposed evidence.

The court concluded that the father's application to adduce further evidence should be allowed in part, as some of the proposed evidence was relevant and necessary for the court to consider. However, the court found that the father's appeal was not successful, and the existing parenting orders should remain in place. Additionally, the court dismissed the mother's application for costs, as it did not consider the mother's conduct to warrant an award of costs against the father. The court's decision was based on a thorough analysis of the evidence and arguments presented by both parties, as well as a consideration of the best interests of the child.

Orders

Orders of the court

The father’s Application in and Appeal filed 22 July 2020 to adduce further evidence be allowed in part.

The appeal be dismissed.

The mother’s application for costs 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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