NESLAND & HARRELL - [2015] FamCAFC 208

FAMILY COURT OF AUSTRALIA

NESLAND & HARRELL

[2015] FamCAFC 208

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application seeking to adjourn the hearing of an appeal relating to costs until after the hearing of the substantive appeal in the same matter – Application to amend the appeal books to remove certain named documents in relation to the costs appeal – Application to amend the appeal books to remove certain affidavits and material objected to during the trial – Application allowed in part – Costs appeal adjourned – Appeal index to be amended by deleting certain named documents – Application to remove certain affidavits adjourned to Full Court hearing – Parties to file agreed list of objected material to be considered at Full Court hearing of the substantive appeal.

APPLICANT:

Mr Nesland

RESPONDENT:

Ms Harrell

FILE NUMBER:

BRC

6489

2012

APPEAL NUMBER:

2015

DATE DELIVERED:

3 November 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

3 November 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 April 2015
15 May 2015

LOWER COURT MNC:

[2015] FCCA 732
[2015] FCCA 1238

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hirst & Co

SOLICITOR FOR THE RESPONDENT:

Matthew Love Family Lawyers

Orders

The Application in Appeals NA 37 of 2015 and NA 30 of 2015 filed 22 October 2015 be allowed in part.
The hearing on 25 November 2015 of the Appeal and Cross-Appeal in NA 37 of 2015 be adjourned and not be heard until the determination of the substantive appeal NA 30 of 2015.
The index to the appeal books (of Appeal NA 30 of 2015) be amended by deleting all those documents referred to in paragraph 1 of the Application filed 22 October 2015, with the page numbering to remain unchanged in the appeal books. The Appeals Registrar to amend the court copies by removing those pages, and the parties to be responsible for their own copies.
At a time directed by the Appeals Registrar, the appellant in NA 37 of 2015 prepare a new appeal index containing those documents relevant to such appeal and bear the costs of preparing the appeal books.
In relation to paragraph 2 of the Application, being the redacting from the appeal books the affidavits of the wife filed 19 July 2012 and 11 January 2013, be adjourned to the Full Court hearing of NA 30 of 2015.
In relation to paragraph 3 of the Application, the solicitor for the respondent to Appeal NA 30 of 2015 prepare a list of objections allowed before the primary judge during the hearing on 10 and 11 March 2015 and serve this list upon the appellant no later than 4.00 pm on 9 November 2015.
The solicitors for the appellant in Appeal NA 30 of 2015 will cause an agreed list, or two disputed lists of such objections, to be filed in the Court no later than 4.00 pm…

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.

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Details

AGLC: NESLAND & HARRELL [2015] FamCAFC 208
Case: [2015] FamCAFC 208
Decision Date: 3 November 2015

CaseChat Overview and Summary

In the case of NESLAND & HARRELL, the parties involved were the appellant and the respondent. The dispute arose from the family law context, specifically concerning the appeal of a decision related to their children. The court involved was the Family Court of Australia, which was responsible for hearing the appeals and cross-appeals filed by the parties.

The legal issues that the court was required to decide pertained to the management and preparation of the appeal books, the redaction of certain affidavits, and the handling of objections raised during the primary hearing. The appellant filed an application seeking various orders, including the amendment of the appeal index, the redaction of specific affidavits, and the preparation of a list of objections. The court had to determine whether these orders were appropriate and how they should be implemented in relation to the appeals.

The court's reasoning involved a detailed examination of the appellant's application and the implications of each requested order. It was determined that certain orders could be allowed in part, while others required further consideration. The court decided that some orders should be deferred until the substantive appeal was determined, while others were to be handled by specific parties at designated times. The court also addressed the costs associated with the application, reserving some costs to be determined at a later hearing.

The final orders included allowing the application in part, adjusting the hearing schedule, amending the appeal index, and preparing a new appeal index. The redaction of affidavits and the preparation of a list of objections were to be dealt with during the substantive appeal hearing. The costs of certain paragraphs of the application were reserved for later determination, while others were allocated to the respective hearings of the appeals.

Orders

Orders of the court

The Application in Appeals NA 37 of 2015 and NA 30 of 2015 filed 22 October 2015 be allowed in part.

The hearing on 25 November 2015 of the Appeal and Cross-Appeal in NA 37 of 2015 be adjourned and not be heard until the determination of the substantive appeal NA 30 of 2015.

The index to the appeal books (of Appeal NA 30 of 2015) be amended by deleting all those documents referred to in paragraph 1 of the Application filed 22 October 2015, with the page numbering to remain unchanged in the appeal books. The Appeals Registrar to amend the court copies by removing those pages, and the parties to be responsible for their own copies.

At a time directed by the Appeals Registrar, the appellant in NA 37 of 2015 prepare a new appeal index containing those documents relevant to such appeal and bear the costs of preparing the appeal books.

In relation to paragraph 2 of the Application, being the redacting from the appeal books the affidavits of the wife filed 19 July 2012 and 11 January 2013, be adjourned to the Full Court hearing of NA 30 of 2015.

In relation to paragraph 3 of the Application, the solicitor for the respondent to Appeal NA 30 of 2015 prepare a list of objections allowed before the primary judge during the hearing on 10 and 11 March 2015 and serve this list upon the appellant no later than 4.00 pm on 9 November 2015.

The solicitors for the appellant in Appeal NA 30 of 2015 will cause an agreed list, or two disputed lists of such objections, to be filed in the Court no later than 4.00 pm on 13 November 2015, for determination by the Full Court at the hearing of NA 30 of 2015.

The costs of paragraph 2 and 3 of the Application be reserved to the hearing of NA 30 of 2015 and the costs of the remaining paragraphs of the Application to the hearing of NA 37 of 2015.

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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