Chancellor and McCoy - [2013] FCCA 740

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANCELLOR & McCOY

[2013] FCCA 740

Catchwords:
FAMILY LAW – Application for leave to proceed out of time pursuant to section 44 Family Law Act 1975 – same sex relationship of 27 years – parties separated in December 2010 – parties attended mediation and attempted to negotiate consent orders – negotiations halted by February 2013 – proceedings commenced in March 2013 – applicant out of time for filing of application by three months – respondent argues that hardship not able to be established by applicant as applicant unlikely to receive any more than what she had in her possession if matter proceeded – Held that hardship established, delay explained, conduct of parties supported the need for a property division, respondent not prejudiced if discretion exercised in favour of the applicant, it is just and equitable to grant the application for leave to proceed out of time – Held that costs of both parties be reserved.

Legislation:

Family Law Act 1975, Pt VIII, s.44

Sharp & Sharp [2011] FamCACF 150
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Whitford & Whitford (1979) FLC 90-612
Hall & Hall (1979) FLC 90-679
Althaus & Althaus (1982) FLC 91-233
Hedley & Hedley [2009] FamCAFC 179
Richardson & Richardson [2008] FamCAFC 107
McDonald & McDonald (1977) FLC 90-317
Gallo v Dawson [1990] 93 ALR 479
Ramadam v Leda Holdings [2001] NSWCA 41
McLean v Sydney Water Corporation [2001] NSWCA 122
Frost & Nicholson (1981) FLC 91-051

Applicant:

MS CHANCELLOR

Respondent:

MS MCCOY

File Number:

BRC 1650 of 2013

Judgment of:

Judge L. Turner

Hearing date:

22 April 2013

Date of Last Submission:

22 April 2013

Delivered at:

Brisbane

Delivered on:

15 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

Murdoch Lawyers

Counsel for the Respondent:

Mr Page, SC

Solicitors for the Respondent:

Feeney Family Law

ORDERS

That the application by Ms Chancellor to proceed out of time pursuant to section 44 Family Law Act 1975 with the de facto property proceedings filed on 8 March 2013 is granted.
That the costs of both parties in respect to the application to proceed out of time be reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1320 of 2013

MS CHANCELLOR

Applicant

And

MS MCCOY

Respondent

REASONS FOR JUDGMENT

Introduction

The parties after being in a same sex relationship which spanned some 27 years are now before the Court with respect to a de facto property division.
There is an issue however as the proceedings have been filed out of time, with the applicant seeking an extension of time whereas the respondent argues that the application should be dismissed.

Issues

The issue that requires determination is:
a)Should the application for the de facto property proceedings to proceed out of time be granted?

Evidence

Both parties are legally…

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 Chancellor and McCoy

Details

AGLC: CHANCELLOR & McCOY [2013] FCCA 740
Case: [2013] FCCA 740
Decision Date: 15 July 2013

CaseChat Overview and Summary

In the matter of *Chancellor and McCoy*, heard before Judge L. Turner, the applicant, Ms Chancellor, sought leave to commence de facto property proceedings out of time, pursuant to section 44 of the *Family Law Act 1975* (Cth). The respondent, Mr McCoy, opposed this application.

The central legal issue before the Court was whether Ms Chancellor had established sufficient grounds to be granted an extension of time to file her de facto property proceedings. This required the Court to consider the criteria and principles governing applications made under section 44 of the *Family Law Act 1975* for leave to proceed out of time.

Judge L. Turner granted Ms Chancellor's application to proceed out of time. The Court's reasoning, though not detailed in the provided text, would have involved an assessment of the factors relevant to granting such an extension, likely including the merits of the substantive application, the reasons for the delay, and any prejudice to the respondent. The costs of the application to proceed out of time were reserved.

Orders

Orders of the court

That the application by Ms Chancellor to proceed out of time pursuant to section 44 Family Law Act 1975 with the de facto property proceedings filed on 8 March 2013 is granted.

That the costs of both parties in respect to the application to proceed out of time be reserved.

Background

Background to the litigation

Full text does not contain this section.

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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