Balsom & Decks - [2023] FedCFamC2F 563

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balsom & Decks [2023] FedCFamC2F 563

File number(s): DGC 1676 of 2022

Judgment of: JUDGE MURDOCH

Date of judgment: 18 May 2023

Catchwords: FAMILY LAW – PROPERTY- Application to review a Registrar’s decision summarily dismissing the application for leave to commence proceedings out of time – where it was agreed that the review be upheld and the application for leave to commence proceedings out of time pursuant to s44(6) of the Family Law Act1975 be determined – application nine years out of time – where court not satisfied that the applicant would suffer hardship if leave were not granted – application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 44, 44(3), 44(5), 44(6), 90SM, 90SM(4)

Federal Circuit and Family Court of Australia Act 2021 s190

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13, 14.05, 15.06(1), 15.06(2)

Cases cited:
Carlon & Carlon [1982] FamCA 72

Gallo v Dawson [1990] HCA 30

Hall & Hall [1979] FamCA 50

In the Marriage of Mackenzie (1978) 34 FLR 56

In the Marriage of Whitford (1979) 24 ALR 424

Neocleous & Neocleous [1993] FamCA 44

Sharp v Sharp [2011] 50 FamFACF 150

Division: Division 2 Family Law

Number of paragraphs: 66

Date of hearing: 27 April 2023

Place: Parramatta

The Applicant: Litigant in person

Solicitor for the Respondent Ms Ebejer, Ebejer and Associates
ORDERS

DGC 1676 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BALSOM
Applicant

AND: MR DECKS
Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

18 May 2023

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 18 May 2023.
THE COURT ORDERS THAT:
1.The time for filing an Application for Review of Orders made by this Court on 10 August 2022 is extended to 4:00pm 30 November 2022.
2.By consent, the Application for Review filed by the Applicant on 5 September 2022 is upheld and the Orders of 10 August 2022 are discharged.
3.The application for leave to extend the time in which to file proceedings for property adjustment pursuant to section 44(6)of the Family Law Act1975 (Cth) is refused.
4.The Initiating Application filed on 31 May 2022 is dismissed.
5.Within 14 days the Respondent de facto Husband is to file and serve any application for costs by way of a Minute of Order sought, together with written submissions of no more than five pages and three annexures.
6.Within 14 days thereafter the Applicant de facto Wife is to file and serve any response to such application for costs by way of a Minute of Order sought, together with written submissions of no more than five pages and three annexures.
7.That within two days thereafter the Respondent de facto Husband has liberty to file further written submissions in reply of no more than one page.
8.That unless a party formally objects by way of their Minute of Order, any…

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 Balsom & Decks

Details

AGLC: Balsom & Decks [2023] FedCFamC2F 563
Case: [2023] FedCFamC2F 563
Decision Date

CaseChat Overview and Summary

Balsom & Decks is a case in the Federal Circuit and Family Court of Australia, Division 2, concerning a de facto relationship that lasted from approximately 2000 to 2013 between the applicant, Ms Balsom, and the respondent, Mr Decks. Ms Balsom filed an Initiating Application on 31 May 2022 seeking leave to commence proceedings for property adjustment out of time. Mr Decks opposed the application. The legal issues before the court were whether Ms Balsom had established that she would suffer hardship if leave were not granted to commence proceedings out of time, and whether the application should be dismissed. The court considered the statutory regime and relevant case law, including the requirement for hardship to be established as a substantial detriment, and the discretionary considerations to be taken into account in deciding whether to grant leave. The court found that Ms Balsom had not provided sufficient evidence to establish that she would suffer hardship if leave were not granted, and that she had failed to demonstrate a real probability of success in obtaining orders adjusting the property of the parties. The court dismissed the Initiating Application filed 31 May 2022. The court ordered that the time for filing an Application for Review of Orders made by the court on 10 August 2022 was extended to 30 November 2022. The Application for Review filed by Ms Balsom on 5 September 2022 was upheld and the orders of 10 August 2022 were discharged. The application for leave to extend the time in which to file proceedings for property adjustment was refused, and the Initiating Application was dismissed. The respondent was ordered to file and serve any application for costs by way of a Minute of Order sought, together with written submissions and annexures, within 14 days. The applicant was ordered to file and serve any response to such application for costs by way of a Minute of Order sought, together with written submissions and annexures, within 14 days thereafter. The respondent had liberty to file further written submissions in reply of no more than one page within two days thereafter. Unless a party formally objected by way of their Minute of Order, any application for costs would thereafter be determined in Chambers. The orders sought by the respondent in the Amended Response to Final Orders filed 9 February 2023 seeking that the applicant be declared a vexatious litigant were referred to the Registrar of the Dandenong Registry for further directions and case management.

Orders