Beltran & Preston - [2023] FedCFamC2F 514

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beltran & Preston [2023] FedCFamC2F 514

File number(s): NCC 1850 of 2022

Judgment of: JUDGE KEARNEY

Date of judgment: 5 May 2023

Catchwords: FAMILY LAW – De facto relationship – to determine when the breakdown of relationship occurred - summary dismissal of spousal maintenance application sought – untested evidence taken at its highest – leave granted pursuant to s 44(6) – financial hardship if discretion not exercised

Legislation: Family Law Act 1975 (Cth) ss 4AA, 44(6), 90RD

Cases cited:
Fairbairn & Radecki [2020] FCCA 1556

Fairbairn & Radecki [2022] HCA 18

Hall & Hall [1979] FamCA 50

Hardwick & Hardwick (No. 2) [2022] FedCFamC1A 216

Jonah v White [2012] FamCAFC 200

Kendall & Vilmos [2022] FedCFamC2F 1484

Lynam v Director-General of Social Security (1983) 53 ALR 128

Sharp & Sharp [2011] FamCAFC 150; (2011) 50 FLR 567

Skelton & Lindop [2022] FedCFamC1A 47

Whitford & Whitford (1970) FLC90-62; [1979] FamCA 3

Division: Division 2 Family Law

Number of paragraphs: 51

Date of hearing: 23 March 2023

Place: Newcastle

Counsel for the Applicant: Mr Weightman

Solicitor for the Applicant: Toronto Legal

Solicitor for the Respondent: Mr Craney, Craney Family Solicitors

Solicitor for the Independent Children's Lawyer: Excused from appearing
ORDERS

NCC 1850 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BELTRAN

Applicant

AND:
MS PRESTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

5 May 2023

THE COURT DECLARES THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) (‘the Act’), the de facto relationship between the applicant MR BELTRAN and the respondent MS PRESTON broke down by 16 May 2018.

THE COURT ORDERS THAT:
2.The de facto wife’s application for leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) is granted.
3.All applications relevant to the determination of the court’s jurisdiction pursuant to s 44 of the Family Law Act 1975 (Cth) are dismissed.

THE COURT NOTES THAT:
A.In the event that a party exercises their rights to file an application for costs by 4.00pm 2 June 2023, THEN registry staff are permitted to liaise directly with the chambers of Judge Kearney for the making of chambers orders allocating a hearing date before Judge Kearney and directions in support of such event.
B.The Court heard that the husband no longer opposes the Court having jurisdiction to make property settlement orders pursuant to Pt VIIAB of the Act.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except…

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 Beltran & Preston

Details

AGLC: Beltran & Preston [2023] FedCFamC2F 514
Case: [2023] FedCFamC2F 514
Decision Date

CaseChat Overview and Summary

The case of Beltran & Preston was a family law matter heard by Judge Kearney in the Federal Circuit and Family Court of Australia. Mr. Beltran sought a declaration that the de facto relationship between him and Ms. Preston ended in May 2018, and that Ms. Preston's application for spouse maintenance was out of time. Ms. Preston argued that the relationship continued until April 2021, and sought leave to file her spouse maintenance application out of time. The key legal issue before the court was to determine when the de facto relationship between the parties had broken down, and whether Ms. Preston should be granted leave to bring her spouse maintenance application out of time. After reviewing the evidence, Judge Kearney found that the de facto relationship between the parties had ended on 16 May 2018. The court also found that Ms. Preston should be granted leave to bring her spouse maintenance application out of time, as she would suffer hardship if not permitted to do so. The court made a declaration that the de facto relationship between the parties had ended on 16 May 2018, granted Ms. Preston leave to bring her spouse maintenance application out of time, and dismissed all other applications. The decision provides guidance on the factors to be considered when determining the breakdown of a de facto relationship and the exercise of discretion to grant leave to bring proceedings out of time.

Orders