Black & Wilkinson - [2022] FedCFamC2F 629

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Black & Wilkinson [2022] FedCFamC2F 629

File number(s): MLC 10239 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 18 May 2022

Catchwords: FAMILY LAW – application to proceed out of time – application opposed by trustee in bankruptcy – prior agreement to have out of time application determined at the same time as the substantive property application – insufficient evidence – application for adjournment after trustee raises potential negligence by applicant’s solicitor – trustee opposed adjournment and pressed for out of time application be determined – procedural fairness – adjournment granted

Legislation:
Family Law Act 1975 (Cth) ss 19, 90SM

Federal Circuit and Family Court Rules 2021 (Cth) r 1,04

Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021

Cases cited:
Montano & Kinross [2014] FamCAFC 231

Slocomb & Hedgewood [2015] FamCAFC 219

Division: Division 2 Family Law

Number of paragraphs: 34

Date of hearing: 11 May 2022

Place: Melbourne

Counsel for the Applicant: Ms Wald

Counsel for the Respondent: Did not participate

Counsel for the Second Respondent: Mr Culshaw

Solicitor for the Applicant: Bramham Lawyers

Solicitor for the Second Respondent: Wallmans Lawyers
ORDERS

MLC 10239 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BLACK

Applicant

AND:
MS WILKINSON

Respondent

MR PERKINS AND MR MANNING ATF THE BANKRUPT ESTATE OF MS WILKINSON

Second Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

18 MAY 2022

THE COURT ORDERS THAT:
1.The proceeding is adjourned for a compliance mention and possible interim argument on 14 July 2022 at 9.30am.
2.All parties are to note and comply with Central Practice Direction – Family Law Case Management paragraph 5.1-5.20 at
3.The parties are to file and serve any further affidavits with respect to the out of time application by 1 July 2022 and written submissions by 7 July 2022.
4.The costs of the hearing on 11 May 2022 are reserved.

AND THE COURT NOTES THAT:
A.The purpose of the compliance mention is to determine the future progress of the matter. If the extension of time application remains in dispute any further argument may be heard on 14 July 2022.

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 in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Black & Wilkinson has been approved pursuant to…

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 Black & Wilkinson

Details

AGLC: Black & Wilkinson [2022] FedCFamC2F 629
Case: [2022] FedCFamC2F 629
Decision Date: 18 May 2022

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia in Division 2 was an application by Mr Black for an extension of time to proceed with a property settlement application, opposed by Ms Wilkinson and her trustee in bankruptcy. The court was asked to determine whether the application should be heard out of time and if procedural fairness was maintained throughout the process. The dispute arose from the applicants' previous agreement that the out of time application would be determined simultaneously with the substantive property application. However, the trustee raised concerns about potential negligence by the applicant's solicitor, leading to a request for an adjournment.

The court considered the procedural fairness and the necessity of determining the out of time application separately from the substantive property application. The court noted that the prior agreement to hear both applications together was not adequately supported by evidence. Additionally, the court was required to address the trustee's allegations of potential negligence by the applicant's solicitor and the request for an adjournment. The court found that procedural fairness required the separate determination of the out of time application, and granted the adjournment to allow the parties to address the issues properly.

The court ordered the matter to be adjourned for a compliance mention and possible interim argument, with specific deadlines for filing further affidavits and written submissions. The court also noted that the purpose of the compliance mention was to determine the future progress of the matter and that any further argument on the extension of time application could be heard on the mentioned date. The costs of the hearing on 11 May 2022 were reserved, and the form of the order was subject to review and potential variation.

The court's decision highlights the importance of procedural fairness and the need for adequate evidence to support agreements made between parties in family law proceedings. The court also emphasised the necessity of determining applications for extensions of time separately from substantive property applications, particularly when allegations of professional negligence are raised. The outcome underscores the importance of proper documentation and evidence to support agreements and the court's role in ensuring that justice is administered fairly and efficiently.

Orders

Orders of the court

MLC 10239 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BLACK

Applicant

AND:

MS WILKINSON

Respondent

MR PERKINS AND MR MANNING ATF THE BANKRUPT ESTATE OF MS WILKINSON

Second Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

18 MAY 2022

THE COURT ORDERS THAT:

1. The proceeding is adjourned for a compliance mention and possible interim argument on 14 July 2022 at 9.30am.

2. All parties are to note and comply with Central Practice Direction – Family Law Case Management paragraph 5.1-5.20 at https://www.fcfcoa.gov.au/fl/pd/fam-cpd#cpd5interim

3. The parties are to file and serve any further affidavits with respect to the out of time application by 1 July 2022 and written submissions by 7 July 2022.

4. The costs of the hearing on 11 May 2022 are reserved.

AND THE COURT NOTES THAT:

A. The purpose of the compliance mention is to determine the future progress of the matter. If the extension of time application remains in dispute any further argument may be heard on 14 July 2022.

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 in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 10239 of 2020
Judgment of:	JUDGE HARLAND
Date of judgment:	18 May 2022
Catchwords:	FAMILY LAW – application to proceed out of time – application opposed by trustee in bankruptcy – prior agreement to have out of time application determined at the same time as the substantive property application – insufficient evidence – application for adjournment after trustee raises potential negligence by applicant’s solicitor – trustee opposed adjournment and pressed for out of time application be determined – procedural fairness – adjournment granted
Legislation:	Family Law Act 1975 (Cth) ss 19, 90SM Federal Circuit and Family Court Rules 2021 (Cth) r 1,04 Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021
Cases cited:	Montano & Kinross [2014] FamCAFC 231 Slocomb & Hedgewood [2015] FamCAFC 219
Division:	Division 2 Family Law
Number of paragraphs:	34
Date of hearing:	11 May 2022
Place:	Melbourne
Counsel for the Applicant:	Ms Wald
Counsel for the Respondent:	Did not participate
Counsel for the Second Respondent:	Mr Culshaw
Solicitor for the Applicant:	Bramham Lawyers
Solicitor for the Second Respondent:	Wallmans Lawyers

MLC 10239 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BLACK Applicant
AND:	MS WILKINSON Respondent
MR PERKINS AND MR MANNING ATF THE BANKRUPT ESTATE OF MS WILKINSON Second Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	18 MAY 2022