APPLEFORD & MERIDEN (No.2)

Case [2019] FCCA 234


FEDERAL CIRCUIT COURT OF AUSTRALIA

APPLEFORD & MERIDEN (No.2) [2019] FCCA 234

Catchwords:

FAMILY LAW – De facto property proceedings – application for extension of time – appeal following final adjudication granting leave to proceed and the making of final orders – orders envisaged payment of fixed sum by respondent to applicant – respondent has appealed on the basis trial judge’s discretion miscarried in respect of both extension and final orders – application for stay pending disposal of appeal – matters to be considered – balance of hardship – potential for appeal to be rendered nugatory if stay not granted.

Legislation:

Family Law Act 1975 (Cth), ss.44(6), 117B(1)

Cases cited:

Appleford & Meriden [2018] FCCA 3333
Jackson & Balen [2009] FamCAFC 131
Atuk & Atuk & Anor (No2) [2016] FamCA 491

Applicant: MR APPLEFORD
Respondent: MS MERIDEN
File Number: ADC 25 of 2016
Judgment of: Judge Brown
Hearing date: 1 February 2019
Date of Last Submission: 1 February 2019
Delivered at: Adelaide
Delivered on: 6 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Jordan
Solicitors for the Applicant: Jordan & Fowler
Counsel for the Respondent: Mr Tredrea
Solicitors for the Respondent: Angela Ferdinandy

ORDERS

  1. That Order 3 made on 20 November 2018 be stayed, pending the determination of the appeal in Appeal file number SOA 95 of 2018.

IT IS NOTED that publication of this judgment under the pseudonym Appleford & Meriden (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 25 of 2016

MR APPLEFORD

Applicant

And

MS MERIDEN

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 13 January 2016, over two years ago, Mr Appleford began proceedings, in this court, seeking orders to settle the division of de facto relationship property between him and Ms Meriden.  It is evident through the protracted proceedings which followed this application that Ms Meriden has stringently opposed Mr Appleford’s application.

  2. I have not been previously involved in the proceedings, which has gone to judgment.  The trial judge was Judge Kelly, who is currently indisposed.  Ms Meriden has appealed and seeks a stay of Judge Kelly’s final orders pending the outcome of her appeal.

Background

  1. Mr Appleford was born in 1945.  He receives an aged pension.  He is not in a strong financial position.  His original financial statement indicated accumulated assets worth around $5,000.00 and negligible superannuation. 

  2. It is Mr Appleford’s case that he met Ms Meriden in August of 1995 and the two began to live together, as a couple, in a property owned by Ms Meriden at Property B, a few months later.  He asserts that they finally separated in October of 2013. 

  3. Ms Meriden responded to the application on 25 May 2016.  It was her position that there had never been a de facto relationship between the parties.  Rather, she asserted that Mr Appleford had boarded at her home and made some modest contributions to shared living expenses at the Property B property. 

  4. Ms Meriden was born in 1957.  She…

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Details
AGLC
Appleford and Meriden (No.2) [2019] FCCA 234
Case
[2019] FCCA 234
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from final property orders made in de facto proceedings. The applicant, Appleford, had sought and been granted an extension of time to commence proceedings, followed by final adjudication which resulted in orders for the respondent, Meriden, to pay a fixed sum to the applicant. Meriden appealed these orders, contending that the trial judge had erred in exercising discretion regarding both the extension of time and the final property settlement. Meriden also sought a stay of the final orders pending the determination of the appeal.

The central legal issues before the court were whether the trial judge had miscarried in their discretion in granting the extension of time and in making the final property orders. Additionally, the court was required to determine whether a stay of the final orders should be granted pending the appeal, and if so, on what basis.

In considering the application for a stay, the court applied the principles governing such applications, which involve a consideration of the balance of hardship. The court recognised that if a stay were not granted, there was a potential for the appeal to be rendered nugatory. Accordingly, the court ordered that Order 3 made on 20 November 2018 be stayed, pending the determination of the appeal.

Orders

Orders of the court

1.

That Order 3 made on 20 November 2018 be stayed, pending the determination of the appeal in Appeal file number SOA 95 of 2018.

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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