BALMORE & NADEEM - [2020] FCCA 1798

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALMORE & NADEEM

[2020] FCCA 1798

Catchwords:
FAMILY LAW – Property – de facto relationship – application for extension of time to institute proceedings pursuant to section 44 of the Family Law Act – applicant mother commenced proceedings five years after the expiry of time limit – allegations of family violence – respondent father suffers from extremely ill-health – mother is primary carer for the children – mother has a prima facie case – reasonable claim that requires hearing – adequate explanation for delay – mother would suffer hardship if leave was not granted – no prejudice to the respondent father for allowing the application – application allowed.

Legislation:

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

Cases cited:

Hall & Hall (1979) FLC 90-679

Riordan & Riordan [2012] FMCAfam 1297

Whitford & Whitford (1979) FLC 90-612

Applicant:

MS BALMORE

Respondent:

MR NADEEM

File Number:

MLC 7206 of 2019

Judgment of:

Judge McNab

Hearing date:

7 May 2020

Date of Last Submission:

7 May 2020

Delivered at:

Melbourne

Delivered on:

3 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Hall

Solicitors for the Applicant:

Keogh & Co

The Respondent in person

ORDERS

The applicant be granted an extension of time to commence proceedings to the date of the filing of this application.
The costs of this application be reserved.
Within 14 days the parties advise the court whether they consent to the matter being referred to mediation/conciliation before a registrar of the Court.
If there is no agreement to having the matter referred as outlined in Order 3 above, the Court will make Orders that:
(a)the matter be adjourned to Federal Circuit Court of Australia on 19 October 2020 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).
(b)the evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:
(i)     the applicant electronically file and serve one trial affidavit upon which she intends to rely and one affidavit of each witness upon which she intends to rely not later than 35 days prior to the trial; and
(ii)    the respondent electronically file and serve one trial affidavit upon which he intends to rely and one affidavit of each witness upon which he intends to rely not later than 14 days prior to the trial;
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(i)     the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(ii)    the party has first obtained leave of the court,
(c)not later than two business days prior to the trial all parties do electronically file and serve an Outline of Case Document including the following:
(i)     a list of the material relied upon;
(ii)a brief chronology listing significant events;
(iii)a table listing…

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 BALMORE & NADEEM

Details

AGLC: BALMORE & NADEEM [2020] FCCA 1798
Case: [2020] FCCA 1798
Decision Date: 3 July 2020

CaseChat Overview and Summary

In the matter of *Balmore & Nadeem*, heard by Judge McNab, the applicant mother sought an extension of time to institute property proceedings under section 44 of the *Family Law Act 1975* (Cth). The application was filed approximately five years after the expiry of the statutory time limit. The dispute arose from the breakdown of a de facto relationship between the applicant and the respondent father.

The central legal issue before the court was whether to grant the applicant an extension of time to commence her property proceedings. This required the court to consider whether the applicant had a prima facie case, whether there was an adequate explanation for the significant delay in filing the application, whether the applicant would suffer hardship if leave was not granted, and whether granting the extension would cause prejudice to the respondent.

Judge McNab reasoned that the applicant had presented a prima facie case that warranted a hearing. The court found that the applicant had provided an adequate explanation for the delay, citing allegations of family violence and her role as the primary carer for the children. Furthermore, the court determined that the applicant would suffer hardship if leave was not granted, while the respondent, who suffered from extremely ill-health, would not be unduly prejudiced by the extension.

Consequently, the court ordered that the applicant be granted an extension of time to commence proceedings to the date of the filing of the application. The costs of the application were reserved, and the parties were directed to advise the court within 14 days whether they consented to mediation. If mediation was not agreed upon, the matter was adjourned for a final hearing with detailed directions regarding affidavit evidence and the filing of an Outline of Case Document.

Orders

Orders of the court

The applicant be granted an extension of time to commence proceedings to the date of the filing of this application.

The costs of this application be reserved.

Within 14 days the parties advise the court whether they consent to the matter being referred to mediation/conciliation before a registrar of the Court.

If there is no agreement to having the matter referred as outlined in Order 3 above, the Court will make Orders that:

(a) the matter be adjourned to Federal Circuit Court of Australia on 19 October 2020 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

(b) the evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:

(i) the applicant electronically file and serve one trial affidavit upon which she intends to rely and one affidavit of each witness upon which she intends to rely not later than 35 days prior to the trial; and

(ii) the respondent electronically file and serve one trial affidavit upon which he intends to rely and one affidavit of each witness upon which he intends to rely not later than 14 days prior to the trial;

AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:

(i) the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or

(ii) the party has first obtained leave of the court,

(c) not later than two business days prior to the trial all parties do electronically file and serve an Outline of Case Document including the following:

(i) a list of the material relied upon;

(ii) a brief chronology listing significant events;

(iii) a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

(iv) main contentions on disputes as to inclusion of items in the pool and the value of items where the value is in dispute;

(v) list of contributions claimed or contended for and the percentage assessment on contributions contended for;

(vi) list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;

(vii) other contentions relevant to determining a ‘just and equitable’ division of property; and

(viii) the actual orders sought,

(d) each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing;

(e) no party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court;

(f) each party must have available for their witnesses copies of all affidavits and all of their documents that those witnesses shall be referring to at the hearing; and

(g) the party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

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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