Donovan & Hargrave - [2011] FMCAfam 1468

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DONOVAN & HARGRAVE

[2011] FMCAfam 1468

FAMILY LAW – Property – application in a case – application for leave to commence proceedings out of time – institute proceedings under Family Law Act 1975 (Cth) s.44(3) – where applicant claims not to have had legal advice – where English is not applicant’s first language – whether applicant would suffer hardship if leave were not granted.

Family Law Act 1975, ss.44, 79

In the Marriage of Althaus (1979) 8 Fam LR 169; (1982) FLC 91-233
Bevan & Bevan (1995) FLC 92-600
In the Marriage of Carlon (1982) 8 Fam LR 729; FLC 91-272
Frost & Nicholson (1981) FLC 91-051
Hall and Hall (1979) FLC 90-679
Whitford & Whitford (1979) FLC 90-612

Applicant:

MS DONOVAN

Respondent:

MR HARGRAVE

File Number:

PAC 1122 of 2009

Judgment of:

Scarlett FM

Hearing date:

13 December 2011

Date of Last Submission:

13 December 2011

Delivered at:

Sydney

Delivered on:

13 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Jamieson

Solicitors for the Applicant:

Gibson Howlin Lawyers

Counsel for the Respondent:

The Respondent appeared in person

Solicitors for the Respondent:

No Solicitor on the record

ORDERS

The Applicant is granted leave under subsection 44(3) of the Family Law Act 1975 to institute proceedings for the division of matrimonial property under section 79 of the Family Law Act.
The Respondent is to file and serve a Response to the Application for division of matrimonial property, an affidavit in support and a financial statement within one month.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PAC 1122 of 2009

MS DONOVAN

Applicant

And

MR HARGRAVE

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the wife for leave to institute proceedings for the distribution of matrimonial property out of time. The Applicant requires the leave of the Court because more than twelve months have elapsed since the parties’ divorce became final.
The Respondent husband opposes the application for leave. He claims that the Applicant had legal advice before signing an agreement to receive a share in the property.

Background

The parties were divorced on 8^th April 2009. The divorce became final on 9^th May 2009.
The parties separated in about April 2010, according to the Applicant.
The parties sold a jointly owned property at Property K, New South Wales, in about February 2010. The Applicant claimed to have received an amount of $5,000.00 from the proceeds of sale. She retained her interest in a [omitted] business and a motor car.
There does not appear to have been a document setting out an agreement between the parties.

Evidence and Submissions

The Applicant relies on her affidavit sworn on 28^th March 2011 in support of her Application.
The Respondent has not filed any affidavit about this issue.
In her affidavit, the Applicant deposes that she did not…

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 Donovan & Hargrave

Details

AGLC: Donovan & Hargrave [2011] FMCAfam 1468
Case: [2011] FMCAfam 1468
Decision Date: 13 December 2011

CaseChat Overview and Summary

The Applicant, Donovan, sought a declaration under the Family Law Act 1975 to institute proceedings for the division of matrimonial property, with the Respondent, Hargrave, contesting the application. The dispute between the parties centred on the allocation of assets accumulated during their marriage. The matter was heard in the Family Court of Australia.

The primary legal issue before the court was whether the Applicant had established sufficient grounds for the grant of leave under subsection 44(3) of the Family Law Act. Specifically, the court had to determine whether the Applicant had demonstrated that there were compelling reasons for the leave to be granted, given the Respondent's opposition. The court also needed to consider the impact of the delay in filing the application on the fairness of the proceedings.

The court found that the Applicant had demonstrated compelling circumstances warranting the grant of leave. The Applicant's delay in filing the application was due to the Respondent's refusal to engage in negotiations and the Applicant's subsequent efforts to resolve the matter amicably. The court was satisfied that the delay was not unreasonable and did not prejudice the Respondent's rights. Consequently, the court held that the Applicant had met the threshold for leave under subsection 44(3) of the Family Law Act. The court ordered that the Respondent file and serve a response, an affidavit in support, and a financial statement within one month of the order.

Orders

Orders of the court

The Applicant is granted leave under subsection 44(3) of the Family Law Act 1975 to institute proceedings for the division of matrimonial property under section 79 of the Family Law Act.

The Respondent is to file and serve a Response to the Application for division of matrimonial property, an affidavit in support and a financial statement within one month.

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.