Arias & Grasso (No 2) - [2022] FedCFamC2F 1191

Federal Circuit and Family Court of Australia
(DIVISION 2)
Arias & Grasso (No 2) [2022] FedCFamC2F 1191

File number(s): NCC 4198 of 2021

Judgment of: JUDGE CARTY

Date of judgment: 1 September 2022

Catchwords: FAMILY LAW – PROPERTY – INTERLOCUTORY- application for property orders filed out of time – application for leave to proceed out of time – consideration of prima facie case for relief – consideration of hardship – consideration of delay – consideration of prejudice to the respondent – leave granted

Legislation: Family Law Act 1975 (Cth) ss.44, 90SM

Cases cited:
Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57

Catlin & Kent (1987) FLC 91-815

Clauson & Clauson (1995) FLC 92-595

Edmunds & Edmunds (2018) FLC 93-847

Jacenko & Jacenko (1986) FLC91-766

Skelton & Lidop [2022] FedCFamC1A 47

Slocomb & Hedgewood (2015) FLC 93-678

Tormsen & Tormsen (1993) FLC 92-392

Whitford & Whitford (1979) FLC 90-612

Division: Division 2 Family Law

Number of paragraphs: 83

Date of last submission/s: 14 April 2022

Date of hearing: 14 April 2022

Place: Newcastle

Counsel for the Applicant: Mr Weightman

Solicitor for the Applicant: Baker Love Lawyers

Counsel for the Respondent: Mr Duane

Solicitor for the Respondent: Tiyce & Lawyers
ORDERS

NCC 4198 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ARIAS

Applicant

AND:
MR GRASSO

Respondent

order made by:

JUDGE CARTY

DATE OF ORDER:

1 Septemeber 2022

THE COURT ORDERS THAT:
1.Pursuant to s.44(6) of the Family Law Act1975, leave is granted to the applicant Ms Arias to apply for an order under s.90SM of the Family Law Act1975.
2.The matter is adjourned to 19 September 2022 at 9.30am for directions in the Federal Circuit and Family Court of Australia at Newcastle.
3.Each party and the legal representatives have leave to appear on 19 September 2022 by telephone by dialling in using the following details:
(a)Phone Number: …
(b)Conference ID: …#

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Arias & Grasso has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
introduction

Pursuant to s.44 (6) Family Law Act 1975 (“the Act”) the applicant de facto wife, Ms Arias (“the applicant”) applies for leave to institute property proceedings under s.90SM of the Act. The applicant requires leave…

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 Arias & Grasso (No 2)

Details

AGLC: Arias & Grasso (No 2) [2022] FedCFamC2F 1191
Case: [2022] FedCFamC2F 1191
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant Ms Arias, a de facto wife, applied for leave to institute property proceedings under s.90SM of the Family Law Act 1975 (“the Act”) because her application was filed nine years and ten months outside of the time limit provided by s.44(5) of the Act. The respondent Mr Grasso opposed the granting of leave to the applicant. The court was required to determine whether to grant leave to the applicant to bring her application out of time, and if so, on what terms. The court exercised its discretion under s.44(6) of the Act to grant leave to the applicant to bring her application out of time. The court accepted that the applicant had a prima facie case for relief which was not trifling, and that she would suffer hardship if denied the opportunity to prosecute her prima facie case. The court found that the applicant had adequately explained the delay in bringing her claim, and that any prejudice to the respondent was limited to the prospect that he may have to make a cash payment to the applicant if she was successful in her substantive application. The court considered that the prejudice to the respondent, when balanced against the prejudice to the applicant, was not sufficient to deny the exercise of discretion in favour of the applicant. The court granted leave to the applicant to bring her application out of time and adjourned the matter to 19 September 2022 at 9.30am for directions in the Federal Circuit and Family Court of Australia at Newcastle.

Orders