FAMILY LAW – APPEAL – PROPERTY – Leave to institute proceedings out of time – Where the wife sought leave to institute property proceedings six years out of time – Whether the primary judge made a final determination instead of assessing whether the wife had a prima facie case – Whether the primary judge failed to assess the wife’s case at its highest – Whether the primary judge erred in finding that the wife had a weak prima facie case – Where the primary judge erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property – Whether the primary judge made a material error in respect of a finding about the husband’s post-separation contributions to superannuation – Whether the primary judge took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife’s prima facie case – Whether the primary judge erred in failing to find that the wife’s reliance on an agreement in relation to the parties’ property was a reasonable explanation for her delay in instituting property proceedings – Whether the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted – Appeal allowed.
FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where leave is required to appeal an order made pursuant to s 44(3) of the Family Law Act 1975 (Cth) – Where the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and where substantial injustice would result if leave were refused – Leave to appeal granted.
[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.
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AGLC
Edmunds & Edmunds [2018] FamCAFC 121
Case
[2018] FamCAFC 121
Decision Date
CaseChat Overview and Summary
The appeal concerns the application of the wife, the appellant, to the Federal Circuit Court for leave to institute property settlement proceedings more than six years out of the time limit prescribed by section 79 of the Family Law Act 1975 (Cth). The wife sought to have the Court exercise its discretion under section 44(3) of the Family Law Act 1975 (Cth) to permit the out-of-time proceedings. The husband, the respondent, opposed the application. The primary judge declined to grant the wife leave to institute the out-of-time property proceedings. The wife appealed to the Full Court, contending that the primary judge erred in her assessment of whether the wife had a prima facie case for an out-of-time application and erred in her assessment of the prejudice to the husband if leave were granted.
The central issue before the Court was whether the primary judge made a material error in her assessment of the wife's prima facie case for an out-of-time application and whether the primary judge erred in her assessment of the prejudice to the husband if leave were granted. The Court found that the primary judge made a material error in her assessment of the wife's prima facie case. The primary judge failed to assess the wife's case at its highest, and erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property. The primary judge also took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife's prima facie case. The Court found that the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted.
Accordingly, the appeal was allowed and the orders made on 19 October 2017 were set aside. The appellant was granted leave pursuant to section 44(3) to commence proceedings under section 79 of the Family Law Act 1975 (Cth). There was no order as to costs. The Court granted the appellant a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) and the Court granted the respondent a costs certificate under the same Act.
Orders
Orders of the court
1.
Leave is granted to the appellant to make an oral application for leave to appeal.
2.
Leave to appeal is granted.
3.
The appeal be allowed and the orders made on 19 October 2017 be set aside.
4.
The appellant is granted leave pursuant to s 44(3) to commence proceedings under s 79 of the Family Law Act 1975 (Cth).
5.
There be no order as to costs.
6.
The Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.
7.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by him in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.