BELLFIELD & BELLFIELD - [2020] FCCA 2871

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELLFIELD & BELLFIELD

[2020] FCCA 2871

Catchwords:
FAMILY LAW – Property proceedings – application to proceed out of time – matters to be considered – balance of hardship – prima facie case – explanation for delay – prospective costs of pursuing application – whether claim is considered uncommercial – consideration of respective contributions – explanation for delay inadequate – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.4, 39, 44, 75, 79, 90XZB

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541

Edmunds & Edmunds [2018] FamCAFC 121

Gadzen & Simkin [2018] FamCAFC 218

Hall, K A and Hall, J C (1979) FLC 90-679

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 [1998] FamCA 74

Sharp & Sharp [2011] FamCAFC 150

Slocomb & Hedgewood (2015) FLC 93-678

Stanford v Stanford [2012] HCA 52

Waters & Jurek (1995) FLC 92-635

Whitford & Whitford (1979) FLC 90-612

Applicant:

MS BELLFIELD

Respondent:

MR BELLFIELD

File Number:

ADC 4100 of 2016

Judgment of:

Judge Brown

Hearing date:

20 April 2020

Date of Last Submission:

20 April 2020

Delivered at:

Adelaide

Delivered on:

21 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Roberts

Solicitors for the Applicant:

Adelaide Family Law

Counsel for the Respondent:

Ms Horvat

Solicitors for the Respondent:

Culshaw Miller Lawyers

ORDERS

The application for leave to proceed with the application for property settlement out of time, pursuant to section 44(4) of the Family Law Act 1975, is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4100 of 2016

MS BELLFIELD

Applicant

And

MR BELLFIELD

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Bellfield “the wife” and Mr Bellfield “the husband”. The proceedings are concerned with matrimonial property proceedings, particularly whether the wife should be granted leave to proceed out of time.
The parties married in 1983. There is no controversy that they finally separated in mid-2010. They divorced on 2 May 2017, with the relevant divorce order having full effect from 3 June 2017.
Pursuant to the provisions of section 44(3) of the Family Law Act 1975 (“the Act”), any application for matrimonial property settlement must be commenced within a period of twelve months from the date of any applicable divorce order coming into effect, unless the court grants leave to proceed.
Pursuant to section 44(4) of the Act, the court is prohibited from granting such leave, unless it is satisfied hardship would be caused to a party to the relevant marriage if leave were not granted.
The wife commenced matrimonial property proceedings on 7 November 2019, approximately 18 months out of time and nearly a decade after she and the husband ceased to live together.

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 BELLFIELD & BELLFIELD

Details

AGLC: Bellfield and Bellfield [2020] FCCA 2871
Case: [2020] FCCA 2871
Decision Date: 21 October 2020

CaseChat Overview and Summary

In the matter of *Bellfield & Bellfield*, Judge Brown of the Family Court of Australia considered an application by one party for leave to proceed with property settlement proceedings out of time, pursuant to section 44(4) of the *Family Law Act 1975*. The application was opposed by the other party.

The central legal issue before the Court was whether the applicant had established sufficient grounds to be granted leave to commence property settlement proceedings after the expiry of the statutory time limit. This required the Court to consider various factors, including the applicant's explanation for the delay, the prima facie merits of their case, the prospective costs of pursuing the application, and the balance of hardship between the parties. The Court also had to assess whether the proposed claim could be considered uncommercial.

Judge Brown found that the applicant's explanation for the significant delay in commencing proceedings was inadequate. The Court weighed this lack of a satisfactory explanation against the other factors, including the respective contributions of the parties and the potential hardship. Ultimately, the Court determined that the applicant had not satisfied the onus of demonstrating sufficient grounds to justify granting leave to proceed out of time.

Consequently, the Court dismissed the application for leave to proceed with the property settlement application out of time.

Orders

Orders of the court

The application for leave to proceed with the application for property settlement out of time, pursuant to section 44(4) of the Family Law Act 1975, is dismissed.

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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