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Griffin & Turner (No 2)

Griffin & Turner (No 2)

Case [2024] FedCFamC2F 1415 15 October 2024

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Griffin & Turner (No 2) [2024] FedCFamC2F 1415

File number(s): DGC 2791 of 2022

Judgment of: JUDGE JENKINS

Date of judgment: 15 October 2024

Catchwords: FAMILY LAW – De facto property proceedings – one child of the parties – dispute over commencement and conclusion of relationship – short relationship – contributions significantly favour the de facto husband – no likely future needs adjustment – leave out of time – hardship – whether there is a significant likelihood of success – inadequate reasons for delay – prejudice to the respondent due to the significant passage of time – costs of property proceedings likely to outweigh the de facto wife’s entitlement – application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 44(5), 44(6), 90RD, 90SM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.15

Cases cited:
Aleksovski & Aleksovski [1996] FamCA 111

Cizek & Mihov [2024] FedCFamC1A 151

Fairbairn v Radecki [2022] HCA 18

Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395

Jacenko & Jacenko (1986) FLC 91-776

Krueger & Krueger [2023] FedCFamC1A 203

Lambertson & Lambertson [2021] FamCAFC 48

Lee Steere & Lee Steere [1985] FamCA 57

Locke & Norton [2014] FamCA 811

Omacini & Omacini [2005] FamCA 195

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Slocomb & Hedgewood [2015] FamCAFC 219

Waldmann & Paddack [2024] FedCFamC1A 100

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Whisprun Pty Ltd v Dixon [2003] HCA 48

Whitford & Whitford (1979) FLC 90-612

Division: Division 2 Family Law

Number of paragraphs: 126

Date of hearing: 5 - 6 August 2024

Place: Dandenong

Counsel for the Applicant: Mr Byrne

Solicitor for the Applicant: Ressan Lawyers

Counsel for the Respondent: Ms Ferrari

Solicitor for the Respondent: Morrison & Sawers Lawyers
ORDERS

DGC 2791 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GRIFFIN

Applicant

AND:
MS TURNER

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

15 OCTOBER 2024

THE COURT ORDERS THAT:
1.The respondent’s application for leave out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”) to bring an application pursuant to section 90SM of the Act is dismissed.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED…

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 Griffin & Turner (No 2)

Details

AGLC: Griffin & Turner (No 2) [2024] FedCFamC2F 1415
Case: [2024] FedCFamC2F 1415
Decision Date: 15 October 2024

CaseChat Overview and Summary

The case of Griffin & Turner (No 2) involved the applicant, Mr Griffin, and the respondent, Ms Turner, in proceedings concerning a de facto relationship. The main dispute centred on the commencement and conclusion of their relationship, which was brief, and the financial consequences that followed, including a request for leave out of time to apply for property settlement under section 90SM of the Family Law Act 1975 (Cth). The court was tasked with determining whether Ms Turner should be granted leave out of time to bring her application, given the passage of time and the significant financial contributions made by Mr Griffin during the relationship.

The court had to decide several legal issues, including whether Ms Turner provided adequate reasons for the delay in bringing her application, whether the delay caused significant hardship or prejudice to Mr Griffin, and whether there was a significant likelihood of success on the merits of the application. The court also considered the potential costs of the property proceedings and whether they would outweigh Ms Turner's entitlement to a property settlement.

Judge Jenkins concluded that Ms Turner's application for leave out of time should be dismissed. The court found that the reasons for the delay were inadequate and that the passage of time had significantly prejudiced Mr Griffin, leading to the conclusion that the costs of the proceedings would likely outweigh any entitlement Ms Turner might have to a property settlement. The court did not see a significant likelihood of success on the merits of Ms Turner's application due to the short duration of the relationship and the substantial financial contributions made by Mr Griffin. Therefore, the application for leave out of time was dismissed.

In accordance with the court's decision, the respondent's application for leave out of time was dismissed, and no further property proceedings could be initiated based on the de facto relationship.

Orders

Orders of the court

DGC 2791 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR GRIFFIN

Applicant

AND:

MS TURNER

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

15 OCTOBER 2024

THE COURT ORDERS THAT:

1. The respondent’s application for leave out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”) to bring an application pursuant to section 90SM of the Act is dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

Citations

AGLC Citation

Griffin & Turner (No 2) [2024] FedCFamC2F 1415

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Cizek & Mihov
[2024] FedCFamC1A 151 Para 24

…As stated by Austin J in Cizek & Mihov [2024] FedCFamC1A 151 at [61]: It is difficult to see how their commitment to a shared life could be mutual unless they were committed to the same type of shared life. Without such mutuality of commitment, it is just as difficult to see how the parties could be a “couple” in a “gen…
Waldmann & Paddack
[2024] FedCFamC1A 100 Para 30

…In regard to her lawyer’s advice, as was held in the case of Waldmann & Paddack [2024] FedCFamC1A 100 at [120] – [121]: …ignorance of the law , including ignorance as a result of inadequate information being provided by a party’s legal advisor, is not a valid reason to extend time . Were it otherwise, any self-represent…
Krueger & Krueger
[2023] FedCFamC1A 203 Para 39

…CLR 248 (“ R v Watson ”) whether there is a “ significant likelihood of success. ” Then, pursuant to authorities such as Krueger & Krueger [2023] FedCFamC1A 203, the court must consider the likely costs of pursuing any claim and whether granting leave would address any hardship identified. Significant likelihood of suc…
Fairbairn v Radecki
[2022] HCA 18 Para 1

…In Fairbairn v Radecki [2022] HCA 18 the High Court (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) heard an appeal from a decision of the Full Court of the Family Court of Australia in Radecki & Fairbairn [2020] FamCAFC 307. The High Court held at [6]: ‘The Act contains no exhaustive defini…
LAMBERTSON & LAMBERTSON
[2021] FamCAFC 48 Para 36

…As was observed by the Full Court in Lambertson & Lambertson [2021] FamCAFC 48 at [48]: ... It is well accepted that to allow the commencement of an action beyond a statutory time limit is prima facie prejudicial to the respondent (Brisbane South Regional Health Authority v Taylor [1996] HCA 25 … ). A respondent is…
RADECKI & FAIRBAIRN
[2020] FamCAFC 307 Para 1

…e, Gordon, Edelman, Steward and Gleeson JJ) heard an appeal from a decision of the Full Court of the Family Court of Australia in Radecki & Fairbairn [2020] FamCAFC 307. The High Court held at [6]: ‘The Act contains no exhaustive definition of the term ‘breakdown’, save that s 4 of the Act relevantly provides that in…
Walpole & Secretary, Department of Communities and Justice
[2020] FamCAFC 65 Para 24

…, which were not separately tendered into evidence as exhibits. As the court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]: The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that t…
Slocomb & Hedgewood
[2015] FamCAFC 219 Para 35

…Counsel for Ms Turner, in reliance upon the Full Court decision of Slocomb & Hedgewood [2015] FamCAFC 219, submitted that notwithstanding a failure to provide adequate reasons for delay the court could, and in this case, should, exercise its discretion to grant Ms Turner leave to proceed out of time. However, in exer…
Locke and Norton
[2014] FamCA 811 Para 23

…e one party believes (or hopes) they are in a committed relationship and a situation where both parties share that same commitment. In Locke & Norton [2014] FamCA 811, Rees J said as follows at [163] – [165]: The respondent made a commitment to an arrangement whereby he and the applicant enjoyed a sexual and social…
Omacini & Omacini
[2005] FamCA 195 Para 2

…Lee Steere & Lee Steere [1985] FamCA 57; Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395; and Omacini & Omacini [2005] FamCA 195.…
Whisprun Pty Ltd v Dixon
[2003] HCA 48 Para 25

…act or issue is not mentioned in these reasons, it does not mean that I have failed to consider it. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]: A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of tri…
Hickey & Hickey
[2003] FamCA 395 Para 2

…r-step process set out in cases such as Lee Steere & Lee Steere [1985] FamCA 57; Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395; and Omacini & Omacini [2005] FamCA 195.…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 36

…mmencement of an action beyond a statutory time limit is prima facie prejudicial to the respondent (Brisbane South Regional Health Authority v Taylor [1996] HCA 25 … ). A respondent is entitled to believe that the cause of action has expired and to arrange their affairs accordingly.…
R v Watson; Ex parte Armstrong
[1976] HCA 39 Para 39

…The court must therefore consider the merits of Ms Turner’s claim for property and pursuant to authorities such as R v Watson; Ex parte Armstrong (1976) 136 CLR 248 (“ R v Watson ”) whether there is a “ significant likelihood of success. ” Then, pursuant to authorities such as Krueger & Krueger [2023] FedCFamC1A 203,…
[1985] FAMCA 57
[1985] FAMCA 57 Para 2

…ough the court is to undergo a broad assessment, in doing I am still guided by the four-step process set out in cases such as Lee Steere & Lee Steere [1985] FamCA 57; Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395; and Omacini & Omacini [2005] FamCA 195.…
In the Marriage of Aleksovski
[1996] FAMCA 111 Para 7

…The approach of the court when assessing contributions was set out in Aleksovski & Aleksovski [1996] FamCA 111 (“ Aleksovski ”) at [83,437] in which it was stated the Court must: …weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabita…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
44(5), 44(6), 4AA, 90RD, 90SM 6 mentions
Evidence Act 1995 (Cth)
140 2 mentions (from Para 26)

File number(s):	DGC 2791 of 2022
Judgment of:	JUDGE JENKINS
Date of judgment:	15 October 2024
Catchwords:	FAMILY LAW – De facto property proceedings – one child of the parties – dispute over commencement and conclusion of relationship – short relationship – contributions significantly favour the de facto husband – no likely future needs adjustment – leave out of time – hardship – whether there is a significant likelihood of success – inadequate reasons for delay – prejudice to the respondent due to the significant passage of time – costs of property proceedings likely to outweigh the de facto wife’s entitlement – application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AA, 44(5), 44(6), 90RD, 90SM Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.15
Cases cited:	Aleksovski & Aleksovski [1996] FamCA 111 Cizek & Mihov [2024] FedCFamC1A 151 Fairbairn v Radecki [2022] HCA 18 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 Jacenko & Jacenko (1986) FLC 91-776 Krueger & Krueger [2023] FedCFamC1A 203 Lambertson & Lambertson [2021] FamCAFC 48 Lee Steere & Lee Steere [1985] FamCA 57 Locke & Norton [2014] FamCA 811 Omacini & Omacini [2005] FamCA 195 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Slocomb & Hedgewood [2015] FamCAFC 219 Waldmann & Paddack [2024] FedCFamC1A 100 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 Whisprun Pty Ltd v Dixon [2003] HCA 48 Whitford & Whitford (1979) FLC 90-612
Division:	Division 2 Family Law
Number of paragraphs:	126
Date of hearing:	5 - 6 August 2024
Place:	Dandenong
Counsel for the Applicant:	Mr Byrne
Solicitor for the Applicant:	Ressan Lawyers
Counsel for the Respondent:	Ms Ferrari
Solicitor for the Respondent:	Morrison & Sawers Lawyers

DGC 2791 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR GRIFFIN Applicant
AND:	MS TURNER Respondent

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	15 OCTOBER 2024