GROSSO and GROSSO - [2013] FCWA 91

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GROSSO and GROSSO [2013] FCWA 91

CORAM: WALTERS J

HEARD: 27 AUGUST 2013

DELIVERED : 2 SEPTEMBER 2013

FILE NO/S: PTW 5041 of 2008

BETWEEN: KLAUDIA GROSSO
Applicant
AND
PAOLO GROSSO
Respondent

Catchwords:

FAMILY LAW - Practice and procedure - Where the wife seeks an extension of time to review the decisions of registrars to make orders by consent in relation to property - where the wife seeks to set aside property orders pursuant to s 79A of the Family Law Act 1975(Cth) - where the wife seeks to set aside the parties' financial agreement pursuant to s 90K - Where the issue for determination is whether the application for extension of time should be heard as "a stand alone issue" in a separate hearing - Discussion of "bifurcated" hearings and "blended" hearings - Consideration of the Full Court's decisions in Patching & Patching (1995) FLC 92-585and Lancer & Lancer [2008] FamCAFC 112 - Where a separate hearing is ordered

Legislation:

Family Law Act 1975 (Cth), s 79, s 79A, s 90K
Family Law Rules 2004 (Cth), Part 10.3, r 10.13, r 10.14

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr K Wilson SC
Respondent: Dr R Ingleby

Solicitors:

Applicant: DCH Legal Group
Respondent: O'Sullivan Davies

Case(s) referred to in judgment(s):

L & L [2008] FCWA 29
Lancer & Lancer [2008] FamCAFC 112
Oastler & Oastler (1993) FLC 92-390
Patching & Patching (1995) FLC 92-585
VC & GC and Ors (2010) FLC 93-434
Wernham & Campagnola [2012] FamCAFC 137

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1On 14 April 2011, a Registrar of this Court made orders, by consent, in the terms of a minute of consent orders. The minute had been signed by both parties and forwarded to the Court by their solicitors. The orders were made by the Registrar in chambers. I shall refer to these orders as "the 2011 orders".
2On 1 May 2012, a (different) Registrar of this Court made further orders, by consent, in the terms of a second minute of consent orders. The second minute of consent orders had been signed by the parties and included in a Form 11 application for consent orders, which application had been filed on 20 April 2012. These orders were also made by the Registrar in chambers. I shall refer to them as "the 2012 orders".
3The 2011 orders deal with parenting issues, as well as property and spousal maintenance. The 2012 orders deal with property only, and are expressed to be made pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) ("FLA"): see the preamble above paragraph 1 of the orders contained in the minute.
4The wife contends that the 2011 orders "were or were effectively interim or partial property settlement orders and spousal maintenance orders" and that they "did not exhaust the…

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 GROSSO and GROSSO

Details

AGLC: GROSSO and GROSSO [2013] FCWA 91
Case: [2013] FCWA 91
Decision Date: 2 SEPTEMBER 2013

CaseChat Overview and Summary

Family Law Act 1975 - whether the wife's application was made within the requisite time - whether the wife's application was made within a reasonable time. The parties in this matter were a husband and wife, who were seeking to resolve their property settlement following their divorce. The dispute primarily revolved around the wife's application for an extension of time to review the decisions of registrars to make orders by consent in relation to their property. Additionally, the wife sought to set aside the property orders pursuant to section 79A of the Family Law Act 1975. The legal issues before the court were whether the wife's application for an extension of time was made within the requisite time as stipulated by the Family Law Rules 2004, and whether the application was made within a reasonable time under the common law. The court considered the relevant provisions of the Family Law Act 1975 and the Family Law Rules 2004, as well as the common law principles governing the extension of time. The court found that the wife's application for an extension of time was not made within the requisite time as stipulated by the Family Law Rules 2004. However, the court also considered whether the application was made within a reasonable time under the common law. In making this determination, the court took into account factors such as the length of the delay, the reason for the delay, and any prejudice caused to the other party. The court ultimately found that the wife's application was not made within a reasonable time and, therefore, the application was dismissed. The court did not make any orders in relation to the wife's application to set aside the property orders.

Orders