BEAL & FLORES - [2019] FCCA 2177

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAL & FLORES

[2019] FCCA 2177

Catchwords:
FAMILY LAW – De facto property proceedings – application to proceed out of time – matters to be considered – balance of hardship – prima facie case – explanation for delay – leave to proceed granted.

Legislation:
Family Law Act 1975 (Cth), ss.4, 4AA(1), 39, 44(5), 44(6), 90RD, 90SF(3), 90SM

Cases cited:

Bevan & Bevan [2013] FamCAFC 116
Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541
Clauson & Clauson (1995) FLC 92-595
Edmunds & Edmunds [2018] FamCAFC 121
Gadzen & Simkin [2018] FamCAFC 218
Hall, K A and Hall, J C (1979) FLC 09-679
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Jacenko & Jacenko (1986) FLC 91-776
Milas v GM Holden Limited [2015] FCCA 1311
Pierce & Pierce (1999) FLC 92-844
Sharp & Sharp [2011] FamCAFC 150
Slocomb & Hedgewood (2015) FLC 93-678
Trevi & Trevi [2018] FamCAFC 173
Waters & Jurek (1995) FLC 92-635
Whitford & Whitford (1979) FLC 90-612

Applicant:

MS BEAL

Respondent:

MR FLORES

File Number:

ADC 4347 of 2018

Judgment of:

Judge Brown

Hearing date:

18 June 2019

Date of Last Submission:

18 June 2019

Delivered at:

Adelaide

Delivered on:

16 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Horvat

Solicitors for the Applicant:

Andersons Solicitors

Counsel for the Respondent:

Ms Angell

Solicitors for the Respondent:

Rebecca Boreham

ORDERS

Pursuant to section 44(6) of the Family Law Act 1975 the applicant is granted leave to proceed with his application for settlement of de facto property out of time.
The parties and their legal representatives do attend a conciliation conference with a registrar of the court on 11 October 2019 at 9:15am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
No later than 13 September 2019 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.
Further consideration of the matter is adjourned to 23 October 2019 at 9:30am for further directions in the court’s circuit to Broken Hill.

IT IS NOTED that publication of this judgment under the pseudonym Beal & Flores is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BROKEN HILL

ADC 4347 of 2018

MS BEAL

Applicant

And

MR FLORES

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Beal and Mr Flores. They have never been married. They are the parents of X, born … 2012 and Y born … 2014.
Ms Beal is employed as public servant, on a part-time basis, at a preschool in Town B. She earns approximately $20,000.00 per annum and receives an amount of child support, for the children, from Mr Flores.
The amount of child support is assessed pursuant to a statutory formula, which takes into account the respective incomes…

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 BEAL & FLORES

Details

AGLC: BEAL & FLORES [2019] FCCA 2177
Case: [2019] FCCA 2177
Decision Date: 16 August 2019

CaseChat Overview and Summary

In the matter of *BEAL & FLORES*, heard by Judge Brown, the applicant sought leave to commence de facto property proceedings out of time, pursuant to section 44(6) of the *Family Law Act 1975* (Cth). The respondent opposed the application.

The central legal issue before the court was whether to grant the applicant leave to proceed with his property settlement application, notwithstanding that the statutory time limit had expired. This required the court to consider the factors outlined in section 44(6), including whether there was a prima facie case, the explanation for the delay, and the balance of hardship between the parties.

Judge Brown granted the applicant leave to proceed. The reasoning involved an assessment of the applicant's explanation for the delay and the potential hardship to both parties if leave were refused. The court found that the balance of hardship favoured granting the application, allowing the matter to proceed to a conciliation conference. The court also made directions regarding discovery and adjourned the matter for further directions.

Orders

Orders of the court

Pursuant to section 44(6) of the Family Law Act 1975 the applicant is granted leave to proceed with his application for settlement of de facto property out of time.

The parties and their legal representatives do attend a conciliation conference with a registrar of the court on 11 October 2019 at 9:15am.

Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

No later than 13 September 2019 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.

Further consideration of the matter is adjourned to 23 October 2019 at 9:30am for further directions in the court’s circuit to Broken Hill.

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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