Haigh & Reilly - [2022] FedCFamC2F 1164

Federal Circuit and Family Court of Australia
(DIVISION 2)
Haigh & Reilly [2022] FedCFamC2F 1164

File number(s): CAC 1995 of 2021

Judgment of: JUDGE MANSFIELD

Date of judgment: 1 September 2022

Catchwords: FAMILY-LAW - PROPERTY- Family Law Act 1975 Section 44 – Application for leave to proceed up to seven years out of time granted – Jurisdiction in de facto financial causes - respondent has put the applicant in the position of a defendant by instituting a de facto financial cause in a state court – de facto financial provisions under the Family Law Act 1975 relationship with NSW State laws – State court claim is not severable from the applicant’s claim and it arises out of a common sub-stratum of facts

Legislation: Family Law Act 1975 (Cth) – ss4, 39A, 44(5), 44(6), 90RC, 90SF, 90SM

Cases cited: Arcand & Boen [2021] FamCAFC 155
Emerald & Emerald [2018] FamCAFC 217
Hall v Hall (1979) FLC 90-679
Skelton & Lindop [2022] FedCFamC1A 47
Whitford & Whitford (1979) FLC 90-612

Division: Division 2 Family Law

Number of paragraphs: 44

Date of hearing: 7 July 2022

Place: Canberra

Counsel for the Applicant: Mr Howard

Solicitor for the Applicant: Keating Avery Solicitors

Counsel for the Respondent: Mr Mathews

Solicitor for the Respondent: Broun Abrahams Burreket
ORDERS

CAC 1995 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HAIGH

Applicant

AND:
MS REILLY

Respondent

order made by:

JUDGE MANSFIELD

DATE OF ORDER:

1 sEPTEMBER 2022

THE COURT ORDERS THAT:
1.The applicant is granted leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) to prosecute her claim for property settlement relief under Pt VIIIAB of the Act, filed on 14 September 2021.
2.The matter be listed before Judicial Registrar Hiles for further case management at 12:00pm on 8 November 2022.

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 Haigh & Reilly has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
INTRODUCTION

In 2006, the applicant de facto wife (‘the applicant’) and the respondent de facto wife (‘the respondent’) commenced their relationship and began living together. The applicant says they separated in 2015. The respondent says they separated in 2013. The standard application period within which a party may apply for a property order under Part VIIIAB…

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 Haigh & Reilly

Details

AGLC: Haigh & Reilly [2022] FedCFamC2F 1164
Case: [2022] FedCFamC2F 1164
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, in the case of Haigh & Reilly, was tasked with determining whether the applicant, Mr Haigh, should be granted leave to apply for property settlement relief under the Family Law Act 1975 (Cth) outside the standard application period. The legal issues before the Court were whether Mr Haigh could demonstrate hardship if deprived of the chance to bring his claim, and whether his claim had a sufficient likelihood of success. Additionally, the Court had to consider various factors in exercising its discretion to grant leave, such as the length of the delay and the adequacy of reasons for the delay, as well as the prejudice the respondent, Ms Reilly, would suffer if the application for the extension of time was granted.

Judge Mansfield found that Mr Haigh had established that hardship would be caused to him if leave were not granted. This was based on the fact that the NSW District Court claim, brought by Ms Reilly, was not severable from Mr Haigh's claim and arose from a common substratum of facts. As a result, Mr Haigh's claim would be determined under NSW state laws instead of the Family Law Act 1975 (Cth). Furthermore, the Court found that the delay in instituting proceedings was due to Ms Reilly's actions, who had put Mr Haigh in the position of a defendant by initiating the de facto financial cause in the state court. The Court also concluded that the respondent's evidence regarding the reasons for the delay was unsatisfactory, and that the delay had unfairly prejudiced both parties with respect to their claims for property relief. As a result, the Court exercised its discretion in favour of the applicant and granted leave for Mr Haigh to apply for property settlement relief outside the standard application period.

The Court's final order granted the applicant leave to prosecute her claim for property settlement relief under Part VIIIAB of the Family Law Act 1975 (Cth) and listed the matter for further case management at 12:00 pm on 8 November 2022. The form of the order is subject to the entry in the Court's records and may be subject to review or variation as necessary.

Orders