Austwick and Leandros

Case [2019] FCCA 3846


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
Federal Circuit Court Rules 2001 rr.4.05, 5.03, 13.03B, Division 21
Family Law Amendment Act 1983, s. 21
Federal Circuit Court of Australia Act 1999 s. 17A

Cases cited:

Stanford & Stanford [2012] HCA 52
Stowe & Stowe (1981) FLC 91-027
Mayne & Mayne [2011] FamCAFC 192
Burgoyne & Burgoyne (1978) FLC 90-467
Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Ras Behari Lal v The King-Emperor (1933) LR 60 Ind App 354
Smith v Western Australia [2014] HCA 3
Allesch & Maunz [2000] HCA 40
Harris v Caladine (1991) 172 CLR 84
Aon Risk Services & ANU [2000] HCA 27

Tate & Tate(No.3) (2003) FLC 93-138

Tamaniego & Tamaniego [2010] FamCAFC 254

Riordan & Riordan [2012] FMCAfam 1297
Morgan & Flanagan [2014] FamCA 348
Holden & Holden [2015] FCCA 788

Oxenham & Oxenham [2009] FamCAFC 167

Whitford & Whitford (1979) FLC 90-612
Hedley & Hedley[2009] FamCAFC 179; (2009) FLC 93-413
Neocleous & Neocleous (1993) FLC 92-377
Hall & Hall (1979) FLC 90-679
Cox & Cox (1981) FLC 91-068

Frost and Nicholson (1981) FLC 91-051

Althaus & Althaus (1982) FLC 91-233
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Tormsen & Tormsen (1993) FLC 92-392
McMahon & McMahon (1976) FLC 90-038
Van der Kreek & Van der Kreek (1978) FLC 90-421
Coombs & More (1990) FLC 92-175
Carlon & Carlon (1982) FLC 91-272
Wirth v Wirth [1956] HCA 71
R v Watson; Ex parte Armstrong [1976] HCA 39
Jabour & Jabour [2019] FamCAFC 78
Prantage & Prantage (Costs) [2013] FamCAFC 105
Penfold & Penfold (1980) FLC 90-800
Davida & Davida (Costs)[2011] FamCAFC 61

John Richard Bryant v Hawkesbury Community Radio Communication Co-operative Society Limited [2014] NSWSC 848

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

Continue reading Austwick and Leandros

Sign in free to access the full text

Details
AGLC
Austwick and Leandros [2019] FCCA 3846
Case
[2019] FCCA 3846
Decision Date

CaseChat Overview and Summary

In the matter of *Austwick and Leandros*, heard before Judge Harman, the dispute concerned the existence of a de facto relationship and the subsequent ability to commence or continue proceedings under the *Family Law Act 1975* (Cth). The applicant sought declarations and orders relating to the de facto relationship, while the respondent contested the timing and validity of these claims.

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

Full text does not contain this section.

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

Full text does not contain this section.