Ferras & Chong - [2022] FedCFamC2F 1495

Federal Circuit and Family Court of Australia
(DIVISION 2)
Ferras & Chong [2022] FedCFamC2F 1495

File number(s): MLC 4455 of 2021

Judgment of: JUDGE BENDER

Date of judgment: 25 October 2022

Catchwords:
FAMILY LAW – PROPERTY – the Applicant de facto Husband’s application seeking property orders – where the application was filed out of time – the Applicant seeks leave to institute proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) – the Respondent de facto Wife argues that leave should not be granted.

FAMILY LAW – HELD – the Applicant’s application was filed out of time – the Applicant does not have a reasonable and arguable case – the Applicant is unable to establish he would suffer hardship in the event leave is not granted – the application for leave to proceed out of time be dismissed.

Legislation:
Corporations Act 2001 (Cth)

Fair Work Act 2009 (Cth)

Family Law Act 1975 (Cth), ss 44(3), 44(5), 44(6)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:
Arcand & Boen [2021] FamCAFC 155

Sharp & Sharp [2011] FamCAFC 150

Welland & Hawthorn [2021] FedCFamC1A 43

Whitford & Whitford [1979] FamCA 3

Division: Division 2 Family Law

Number of paragraphs: 58

Date of hearing: 25 October 2022

Place: Melbourne

The Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms Fisken

Solicitor for the Respondent: Carew Counsel Solicitors
ORDERS

MLC 4455 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FERRAS

Applicant

AND:
MS CHONG

Respondent

order made by:

JUDGE BENDER

DATE OF ORDER:

25 OCTOBER 2022

THE COURT ORDERS THAT:
1.The Application for leave to proceed out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) be dismissed.
2.The matter be removed from the list of cases requiring any further determination of the Court.

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 Ferras & Chong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)
JUDGE BENDER:
intoduction

These proceedings commenced by way of an Initiating Application filed by the Applicant de facto Husband seeking property orders following the breakdown of the parties’ relationship.
The Applicant’s then-solicitor attempted to file an Initiating Application in the Federal Circuit Court of Australia on 19 March 2021.…

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 Ferras & Chong

Details

AGLC: Ferras & Chong [2022] FedCFamC2F 1495
Case: [2022] FedCFamC2F 1495
Decision Date

CaseChat Overview and Summary

The proceedings were brought by the Applicant de facto Husband seeking property orders following the breakdown of the parties’ relationship. The Respondent de facto Wife argued that the application was filed outside the time allowed under the Family Law Act 1975 (Cth) as it was filed more than two years after the date the parties separated. In the alternative, the Respondent argued that in the event the application was filed within time then it should be summarily dismissed on the basis that it has no reasonable prospect for success. If the application was filed out of time then leave should not be granted pursuant to section 44(6) of the Act. The Court found that the application was filed out of time and that the Applicant did not have a reasonable and arguable case. The Applicant was unable to establish he would suffer hardship in the event leave was not granted. The application for leave to proceed out of time was dismissed and the matter was removed from the list of cases requiring any further determination of the Court.

Orders