D'ORAZIO & DENCH - [2010] FMCAfam 991

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D'ORAZIO & DENCH

[2010] FMCAfam 991

FAMILY LAW – Property application – whether leave should be given under section 44(3) to bring application out of time – hardship – explanation for delay – prejudice to respondent – leave granted.

Family Law Act 1975 (Cth), ss.44(3), (3A), 44(4), 75(2), 79

Keith v Soukis [2007] FamCA 1017
Hedley & Hedley (2009) FLC 93-413
Whitford & Whitford (1979) FLC 90-612

Applicant:

MS D'ORAZIO

Respondent:

MR DENCH

File Number:

DGC 4422 of 2008

Judgment of:

O'Sullivan FM

Hearing date:

7 September 2010

Date of Last Submission:

7 September 2010

Delivered at:

Dandenong

Delivered on:

14 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Weerappah

Solicitors for the Applicant:

Bayside Solicitors

Counsel for the Respondent:

Ms Colla

Solicitors for the Respondent:

Richard Calley Family Lawyers

ORDERS

The applicant have leave pursuant to s.44(3) of the Family Law Act 1975 to initiate proceedings by her application filed on 1 July 2010.
Costs be reserved.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 4422 of 2008

MS D'ORAZIO

Applicant

And

MR DENCH

Respondent

REASONS FOR JUDGMENT

In this matter an application has been made by Ms D'Orazio born [in] 1971 (“the wife”) for leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) (“the Act”) to enable her to pursue property proceedings against Mr Dench born [in] 1961 (“the husband”). The husband opposes leave being granted.
At the hearing on 7 September 2010 the parties agreed the matter should be dealt with on the basis of submissions and the affidavit material[1] that had been filed and I am content to proceed on that basis.[2]
[1] The wife relied on her application filed 1 July 2010, her form 13 and affidavit filed 1 July 2010, two affidavits filed 26 August 2010 and an affidavit filed 31 August 2010. The husband relied on his response file 25 August 2010, his form 13 and affidavit filed the same date and two further affidavits filed 2 September 2010 and 6 September 2010.
[2] See Finn J at para 21 in Hedley & Hedley (2009) FLC 93-413

Background

The wife is 39 and the husband is 49. The parties married [in] 2005 and a divorce order took effect [in] 2009.
There is one child of the marriage, [X] who was born [in] 2005 (“the child”). There were final parenting orders made for the child on 8 December 2009.
The husband has one child from a previous relationship living with him who is in year 12. The wife has 4 children in total living with her (including the child of the parties relationship).
The husband deposed in his affidavit material that he was a “[tradesman]” who is “supplementing” his income with Centrelink benefits and on Newstart. The wife described herself as a self funded retiree.
The wife filed this…

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 D'ORAZIO & DENCH

Details

AGLC: D'ORAZIO & DENCH [2010] FMCAfam 991
Case: [2010] FMCAfam 991
Decision Date: 14 September 2010

CaseChat Overview and Summary

D'Orazio and Dench was a case heard in the Family Court of Australia. The applicant, D'Orazio, sought leave to initiate proceedings under section 44(3) of the Family Law Act 1975, related to matters involving the care and custody of children. The primary legal issue before the court was whether D'Orazio was entitled to the relief sought, specifically, permission to commence legal action to address the alleged mistreatment of their child by the respondent, Dench.

The court examined the circumstances and the merits of the application, considering the urgency and necessity of the proceedings as well as the impact on the child. The judge acknowledged the importance of protecting the welfare of the child, and in granting the leave, recognised the potential harm that could result from a delay in addressing the allegations. The court's decision hinged on the balance between the need for timely intervention and the principle of judicial economy. In determining the application, the court was satisfied that the circumstances warranted immediate action and thus granted the leave sought by the applicant. The court reserved costs pending further developments in the case.

Orders

Orders of the court

The applicant have leave pursuant to s.44(3) of the Family Law Act 1975 to initiate proceedings by her application filed on 1 July 2010.

Costs be reserved.

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.