Arcand & Boen

Case [2021] FamCAFC 155

FAMILY COURT OF AUSTRALIA

Arcand & Boen [2021] FamCAFC 155

Appeal from: Arcand & Boen [2021] FCCA 372
Appeal number(s): SOA 13 of 2021
File number(s): DGC 3235 of 2020
Judgment of: WATTS, AUSTIN & BENNETT JJ
Date of judgment: 20 August 2021
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – DE FACTO RELATIONSHIPS – Limitation period – Where the primary judge dismissed an application pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“The Act”) – Where leave to appeal is required – Where at least one of the grounds of appeal appeared to have merit – Leave to appeal granted – Hardship – Where the Court may grant an extension of time if the applicant demonstrates hardship through the deprivation of the chance to bring proceedings for substantive relief – Whether the primary judge erred by evaluating the prima facie merit of the prospective property settlement claim, rather than by considering whether the appellant had an arguable case – Where the primary judge erred by unduly elevating the importance of the appellant’s inactivity during the limitation period – Where the error is immaterial as the appellant was unable to demonstrate his hardship – Appeal dismissed – No order as to costs.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the respondent seeks to adduce further evidence pursuant to s 93A(2) of the Act – Where the evidence shows the primary judge was correct to accept that the appellant will not bear any future liability under an existing bank loan – Application granted.

Legislation: Family Law Act 1975 (Cth), Pt VIIIAB, ss 44, 90SM(3), 93A(2), 117(1)
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Althaus and Althaus (1982) FLC 91-233; [1979] FamCA 47

Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121

Gadzen & Simkin (2018) FLC 93-871; [2018] FamCAFC 218

Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Montano & Kinross (2014) FLC 93-623; [2014] FamCAFC 231

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Slocomb & Hedgewood (2015) FLC 93-678; [2015] FamCAFC 219

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Division: Appeal Division
Number of paragraphs: 53
Date of hearing: 10 August 2021
Place: Heard in Melbourne (via video-link), delivered in Newcastle
Counsel for the Appellant: Dr Smith
Solicitor for the Appellant: Davison Family Lawyers
Counsel for the Respondent: Ms Renwick
Solicitor for the Respondent: Lander & Rogers

ORDERS

SOA 13 of 2021
DGC 3235 of 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

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Arcand & Boen [2021] FamCAFC 155
Case
[2021] FamCAFC 155
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CaseChat Overview and Summary

The case of Arcand & Boen involves a dispute between the parties, who were in a de facto relationship for over five years, regarding property settlement. The appellant, Mr Arcand, filed an application for leave to apply after the standard application period under section 44(6) of the Family Law Act 1975 (Cth) to seek relief for property settlement. The Federal Circuit Court dismissed the application on 5 March 2021, and Mr Arcand sought leave to appeal this decision. The appeal was heard by Watts, Austin & Bennett JJ, who granted leave to appeal but dismissed the appeal itself.

The primary legal issue before the court was whether the primary judge erred in dismissing the appellant's application for leave to apply after the standard application period. The court considered whether the primary judge was correct in evaluating the prima facie merit of the prospective property settlement claim and whether the primary judge unduly emphasised the appellant's inactivity during the limitation period. Additionally, the court considered whether the appellant demonstrated sufficient hardship to warrant the granting of leave to apply after the standard application period.

In reaching its decision, the court referred to the principles set out in Althaus, which emphasise the importance of considering the whole period from the accrual of the cause of action to the date of the application. The court also noted that the primary judge erred in evaluating the prima facie merit of the prospective property settlement claim and unduly emphasised the appellant's inactivity during the limitation period. However, the court found that the primary judge's error was immaterial as the appellant was unable to demonstrate sufficient hardship to warrant the granting of leave to apply after the standard application period.

The court granted leave to appeal but dismissed the appeal itself, finding that the primary judge's error was immaterial as the appellant was unable to demonstrate sufficient hardship. The court also granted the respondent's application to adduce further evidence in the appeal, finding that the evidence addressed the merit of the grounds of appeal. The court dismissed the respondent's application for costs.

In summary, the court granted leave to appeal but dismissed the appeal itself, finding that the primary judge's error was immaterial as the appellant was unable to demonstrate sufficient hardship. The court also granted the respondent's application to adduce further evidence in the appeal and dismissed the respondent's application for costs.

Orders

Orders of the court

SOA 13 of 2021

DGC 3235 of 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR ARCAND

Appellant

AND:

MS BOEN

Respondent

ORDER MADE BY:

WATTS, AUSTIN & BENNETT JJ

DATE OF ORDER:

20 AUGUST 2021

THE COURT ORDERS THAT:

1. Leave to appeal is granted.

2. The Application in an Appeal filed on 21 July 2021 is granted and the respondent has leave to adduce as evidence in the appeal the affidavit of Craig Douglas Henderson filed on 21 July 2021.

3. The appeal is dismissed.

4. The respondent’s application for costs is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

For the reasons which follow, leave to appeal is granted, but the appeal is dismissed.BACKGROUND The parties were in a de facto relationship for in excess of five years, commencing in April 2013 and ending in August 2018 (at [1] and [12]). Pursuant to the provisions of s 44(5) of the Act, the appellant had until 29 August 2020 to commence proceedings for property settlement relief under Pt VIIIAB of the Act. The appellant instituted proceedings before the Federal Circuit Court on 23 September 2020 (not 20 December 2020 as the appealed orders initially wrongly recorded), being some 25 days late. Realising the application was filed late, the appellant sought an interim order granting him leave nunc pro tunc under s 44(6) of the Act to prosecute his claim for substantive relief. Even though the Initiating Application did not expressly say so, the application for such leave was posited exclusively on the basis of s 44(6)(a) of the Act, requiring the appellant to satisfy the primary judge that he would suffer hardship if leave were not granted. The statutory conditions provide:44Institution of proceedings…(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:(a)hardship would be caused to the party or a child if leave were not granted; or(b)in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit. The application for leave was listed for discrete hearing before the primary judge on 18 February 2021 and the hearing proceeded by the parties’ counsel making submissions on the foundation of the untested evidence they each filed. The dismissal order was made and reasons were delivered on 5 March 2021.LEAVE TO APPEAL The appellant requires leave to appeal from the order dismissing his application under s 44 of the Act (Montano & Kinross (2014) FLC 93-623; Slocomb & Hedgewood (2015) FLC 93-678). The grant of leave ordinarily requires an applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate interference and, furthermore, that substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]). However, that guideline does not fetter the wide statutory discretion. The respondent sought leave to adduce further evidence in the appeal, but was unable to adduce it unless leave was first granted to the appellant to bring the appeal. The respondent asked for the question of leave to appeal to be determined without reference to the further evidence she wished to adduce, but we reject the artificiality of that approach. The answer to the question of whether or not leave to appeal should be granted may be influenced by the perceived merit of the proposed grounds of the appeal and, here, at least one of the appellant’s proposed grounds appeared meritorious. We are consequently inclined to grant the appellant leave to appeal because it suits both parties. Despite the respondent’s opposition to the grant of leave, the evidence she seeks to lead in the appeal addresses the merit of the grounds of appeal.THE APPEAL

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In Althaus, which authority has been repeatedly adopted, Evatt CJ said (at 77,267) with agreement by Marshall SJ and Strauss J (at 77,269):The requirement that the applicant under sec. 44(3) give an explanation of the delay in bringing proceedings in my view requires a consideration of the whole period from the date of the decree nisi [dissolving the marriage] to the lodging of the application. It requires the Court to consider whether the [applicant] took all reasonable steps to pursue her claim or whether, on the other hand, she acted at any time as if she had no intention of proceeding or pursuing any claim at all against the [respondent]. It requires the Court to consider whether it can reach conclusions as to why the proceedings were started beyond the time lodged and whether those proceedings are attributable to default on the part of the applicant.(Emphasis added) The Full Court was there dealing with an application by a spouse for leave under s 44(3) of the Act but an application for leave by a de facto spouse under s 44(6) of the Act, as here, operates on the same principle (Gadzen at [29]). As has been recognised (Brisbane South at 21–22 per Kirby J):A controversy has arisen in the authorities, and in this case, as to whether, in the exercise of the residual discretion, regard should be had to the period of time which has elapsed between the expiry of the limitation period and the date of the application. Or whether the entire time from the accrual of the cause of action to the date of the application must be considered. Some decisions favour the view that the only time relevant is that after the limitation period has expired. This opinion is often explained on the footing that limitation periods are arbitrary; that they involve acceptance that some interval of time (however prejudicial to a defendant) must be tolerated; and that, accordingly, the attention of the Court should be focussed only upon the marginal increase in prejudice occasioned once the normal limitation period has elapsed. This view of the legislation is also supported by reference to the argument that what is under consideration is an extension of the ordinary limitation period so that the decision maker should consider only the time of the extension, not the initial time during which no extension was required. The contrary argument is that, a broad discretion being invoked, without relevant words of limitation, the generality should not be glossed by excluding the earlier interval which has elapsed. Its expiry also involved elements of prejudice which could, and should, be taken into account in judging where the justice of the case lies. To some extent the resolution of this controversy depends upon the language of the Act in question. Thus, where an Act refers to "the delay" it may be taken to mean “the delay after the primary limitation period expired”.(Citations omitted) Althaus, and the authorities in this jurisdiction which have followed it, are devotees of the approach which involves attention to the “whole period” elapsed from the accrual of the cause of action.