FLC v AJO - [2012] QSC 21

SUPREME COURT OF QUEENSLAND

CITATION:

FLC v AJO [2012] QSC 21

PARTIES:

FLC
(Applicant)
v
AJO
(Respondent)

FILE NO/S:

31 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

14 February 2012

DELIVERED AT:

Cairns

HEARING DATE:

23 -24 November 2011 & 30 January 2012

JUDGE:

Henry J

ORDER:

1. Pursuant to s 288 Property Law Act (Qld) 1974, the application not having been made within 2 years after the day on which the de facto relationship ended, the applicant is granted leave to apply for a property adjustment order.

2. I will hear the parties as to the directions which should be given about the further conduct of the application, including its listing for hearing.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – where de facto spouse sought leave to apply for a property adjustment under Part 19 of the Property Law Act 1974 (Qld) – whether proceedings had started within two years of the cessation of the relationship – whether the applicant would suffer hardship if denied leave to apply – whether the discretion to grant leave should be exercised in favour of the applicant

Acts Interpretation Act 1954 (Qld) s 32DA
Property Law Act 1974 (Qld) Pt 19

DA v KG & Anor [2010] QSC 318
D v D [2007] QSC 131
HT v CS [2009] QSC 051
In the Marriage of Whitford (1979) 35 FLR 445
PY v CY [2005] QCA 247
SAM v IDP [2006] QSC 344
S v B [2004] QCA 449

COUNSEL:

Applicant for himself
PT Wilson for the respondent on 23 and 24 November 2011 and the respondent for herself on 30 January 2012

SOLICITORS:

Applicant for himself
Mark Gray for the respondent

The applicant seeks orders relating to property under Part 19 of the Property Law Act 1974 (Qld) (‘PLA’), in particular a property adjustment order, as against the respondent, his former de facto partner.[1]
[1]Per the Further Amended Originating Application.

The respondent did not concede the past existence of a de facto relationship but in any event contended that the application for division of property was not made within the time limitation period. Under s 288(1)(a) of the PLA an application must be made within two years of the end of the relationship.

The application was filed on 17 January 2006. In order for that application to be in time the de facto relationship must not have ended before 16 January 2004.

The applicant contends the application was made in time. Further, he argues that if he was out of time, the court should nonetheless give him leave to apply. Under s 288(2) the court can only do this where it is satisfied that hardship will result to the applicant or his children if leave is not given.

These threshold issues being potentially determinative of the whole matter, I ruled on 23 November 2011 that the question of whether:

(i) the parties were in a de…

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 FLC v AJO

Details

AGLC: FLC v AJO [2012] QSC 21
Case: [2012] QSC 21
Decision Date: 14 February 2012

CaseChat Overview and Summary

In the case of FLC v AJO, the applicant sought leave to apply for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) following the cessation of a de facto relationship. The dispute centred around the timing of the application and whether the applicant would suffer hardship if the leave to apply was denied. The Queensland Supreme Court was tasked with determining whether the proceedings were initiated within the stipulated two-year period from the end of the relationship, and if the discretion to grant leave should be exercised in the applicant's favour.

The central legal issue before the court was whether the applicant's application for leave to apply for a property adjustment was time-barred by section 288 of the Property Law Act 1974 (Qld), which mandates that such applications be made within two years of the relationship's termination. Additionally, the court had to assess whether the applicant would face significant hardship if leave to apply was not granted, which could influence the exercise of the court's discretion in favour of the applicant.

The court determined that while the application had indeed been made outside the two-year window, the applicant's potential hardship warranted the exercise of the court's discretion to grant leave. The court reasoned that despite the delay, the applicant's circumstances justified an exception to the usual statutory time limit. Consequently, the court granted the applicant leave to apply for a property adjustment order, recognising the hardship that would result from a denial of such leave. The court scheduled further directions to be discussed, including the listing of the matter for a hearing.

In conclusion, the court granted leave to the applicant to apply for a property adjustment order, notwithstanding the delay in filing the application, based on the applicant's demonstrated hardship. The matter will proceed with further directions to be determined, ensuring that the application is appropriately managed and heard.

Orders

Orders of the court

1. Pursuant to s 288 Property Law Act (Qld) 1974, the application not having been made within 2 years after the day on which the de facto relationship ended, the applicant is granted leave to apply for a property adjustment order.

2. I will hear the parties as to the directions which should be given about the further conduct of the application, including its listing for hearing.

Background

Background to the litigation

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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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CITATION:	FLC v AJO [2012] QSC 21
PARTIES:	FLC (Applicant) v AJO (Respondent)
FILE NO/S:	31 of 2006
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	14 February 2012
DELIVERED AT:	Cairns
HEARING DATE:	23 -24 November 2011 & 30 January 2012
JUDGE:	Henry J
ORDER:	1. Pursuant to s 288 Property Law *Act (Qld) 1974,* the application not having been made within 2 years after the day on which the de facto relationship ended, the applicant is granted leave to apply for a property adjustment order. 2. I will hear the parties as to the directions which should be given about the further conduct of the application, including its listing for hearing.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – where de facto spouse sought leave to apply for a property adjustment under Part 19 of the Property Law Act 1974 (Qld) – whether proceedings had started within two years of the cessation of the relationship – whether the applicant would suffer hardship if denied leave to apply – whether the discretion to grant leave should be exercised in favour of the applicant Acts Interpretation Act 1954 (Qld) s 32DA Property Law Act 1974 (Qld) Pt 19 DA v KG & Anor [2010] QSC 318 D v D [2007] QSC 131 HT v CS [2009] QSC 051 In the Marriage of Whitford (1979) 35 FLR 445 PY v CY [2005] QCA 247 SAM v IDP [2006] QSC 344 S v B [2004] QCA 449
COUNSEL:	Applicant for himself PT Wilson for the respondent on 23 and 24 November 2011 and the respondent for herself on 30 January 2012
SOLICITORS:	Applicant for himself Mark Gray for the respondent