FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTWICK & LEANDROS | [2019] FCCA 3846 |
| Catchwords: FAMILY LAW – Dispute as to jurisdiction based on contested date of separation – where matter listed for hearing to determine whether a section 90RD Declaration can be granted which establishes jurisdiction – Where separation found to have occurred more than two years prior to the date of filing of the Initiating Application – Where s.44(6) considered as to whether leave to apply out of time should be granted – Where the total nett value of assets found to be approximately $1,000 – where there is no utility in leave to apply being granted in those circumstances – where applicant appears by telephone from overseas – where adjournment sought and refused – where injunctive relief was obtained at the first Court event – injunctions discharged – costs sought and considered – costs ordered. |
| Legislation: Family Law Act 1975, ss. 44, 44(1), 44(2), 44(3), 44(4), 44(5), 44(6),78, 79A, 79, 81, 90RD, 90SF, 102NA, 117, Evidence Act 1995 (Cth), ss.50 |
| Cases cited: Stanford & Stanford [2012] HCA 52 Tate & Tate(No.3) (2003) FLC 93-138 Tamaniego & Tamaniego [2010] FamCAFC 254 Riordan & Riordan [2012] FMCAfam 1297 Oxenham & Oxenham [2009] FamCAFC 167 Whitford & Whitford (1979) FLC 90-612 Frost and Nicholson (1981) FLC 91-051 Althaus & Althaus (1982) FLC 91-233 |
| Applicant: | MR AUSTWICK |
| Respondent: | MS LEANDROS |
| File Number: | BRC 4393 of 2019 |
| Judgment of: | Judge Harman |
| Hearing date: | 21 November 2019 |
| Date of Last Submission: | 21 November 2019 |
| Delivered at: | Canberra |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Austwick in person |
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- AGLC
- Austwick and Leandros [2019] FCCA 3846
- Case
- [2019] FCCA 3846
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether a de facto relationship existed between the parties, and if so, when it commenced and concluded. Crucially, the court also had to consider whether the proceedings had been commenced out of time, and if leave was required under section 44(6) of the *Family Law Act 1975* to continue or initiate them.
Judge Harman declared that a de facto relationship existed between the parties from mid-2012 until no later than 15 August 2016. Based on this finding, the court determined that the proceedings were initiated out of time and that leave pursuant to section 44(6) was required. However, the court refused to grant leave to commence, continue, or maintain the proceedings out of time. Consequently, all extant applications and responses were dismissed, and previously made injunctions were discharged, allowing the respondent to access funds held in trust. The applicant was also ordered to pay the respondent's costs fixed at $17,206.
Orders
Orders of the court
1.
Pursuant to section 90RD of the Family Law Act 1975, a declaration be made that a de facto relationship existed between the parties commencing mid-2012 and concluding no later than 15 August 2016.
2.
On the basis of the above declaration, THE COURT NOTES THAT the proceedings commenced by the Applicant are “out of time” and leave pursuant to section 44(6) of the Family Law Act 1975 is required for the proceedings to be initiated or continued.
3.
Leave to commence the proceedings out of time, or to continue or to maintain them out of time, is refused.
4.
All extant Applications and Responses are dismissed.
5.
The injunctions made by this Court on 9 May 2019 are discharged such that Ms Leandros is entitled to forthwith instruct her attorneys, Farrar Gesini Dunn, to release to her the totality of funds presently held by them in trust pursuant to the Orders which were made 9 May 2019 and now discharged.
6.
The Applicant shall pay the Respondent’s costs of, and incidental to, these proceedings fixed in the sum of $17,206, with such costs to be paid within 28 days of today’s date and, failing payment within that period:
(a) Interest shall then accrue upon the sum at the rate fixed by the Federal Circuit Court Rules 2001 from time to time; and
(b) Ms Leandros shall be entitled to commence proceedings for recovery of that sum, interest accrued thereupon and any costs of recovery in a Court of competent jurisdiction.
7.
Any material held by the parties and/or their lawyers is to be returned to the Registry or securely destroyed at the expiration of the appeal period and absent any appeal having been filed.
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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