HAYKAL & KRAWIEC - [2015] FamCA 74

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC

[2015] FamCA 74

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision of Registrar – Where the husband sought to make application for spousal maintenance out of time – Where it is found that hardship would not be caused to the husband if leave is not granted – Where the husband does not meet the conditions set out in s 44(4) of the Family Law Act 1975 (Cth) – Where the husband has not provided an acceptable explanation as to why he took so long to bring a spousal maintenance application – Where it is found that the husband’s application for spousal maintenance is weak – Where the husband continues to assert the wife has failed to provide frank disclosure in relation to her business and the husband has brought proceedings relying upon this argument numerous times – Where on consideration of the history of the proceedings, the merits of the application, the prospect of the husband’s success, the prejudice to the wife in allowing the husband to pursue the application and the desirability to finalise litigation, the application for leave, pursuant to s 44(3) to bring a spousal maintenance application, is dismissed.

FAMILY LAW – COSTS – Where the wife seeks costs on an indemnity basis – Where the husband already owes substantial costs which the wife has not been able to recover – Where the wife is a litigant in person – Where the wife has not indicated what recoverable costs she has incurred –Where the wife’s application for costs is dismissed.

FAMILY LAW – VEXATIOUS PROCEEDING –Where the wife seeks that the court make a vexatious proceeding order against the husband on its own initiative – Where a prima facie case is made out – Order made that the husband be given the right to be heard on this application under s 102QB(4) of the Act.

Family Law Act 1975 (Cth)

The Marriage of Neocleous (1993) FLC 92-377

Krawiec v Haykal [2013] FCCA 1957

APPLICANT:

Mr Haykal

RESPONDENT:

Ms Krawiec

FILE NUMBER:

SYC

731

2009

DATE DELIVERED:

17 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

2 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

The Application in a Case filed by the husband on 24 November 2014 be dismissed.
It is noted that the effect of this order is that the husband’s application filed 30 July 2014 for leave pursuant to s 44(3) Family Law Act (Cth) (“the Act”) to bring spousal maintenance proceedings against the wife is dismissed.
The matter is to be listed on 30 March 2015 at 10.30am before Watts J for the husband to have an opportunity to be heard as to why the following order should not be made pursuant to s 102QB(2)(b) of the Act:
The husband be prohibited from instituting proceedings of a type referred to in paragraph (c) (maintenance of one of 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.

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Details

AGLC: HAYKAL & KRAWIEC [2015] FamCA 74
Case: [2015] FamCA 74
Decision Date: 17 February 2015

CaseChat Overview and Summary

In the Family Court of Australia, Watts J considered an application by the husband for leave to make a spousal maintenance application out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). The wife opposed this application.

The primary legal issue before the court was whether the husband should be granted leave to file his spousal maintenance application beyond the statutory time limit. This required the court to consider the conditions set out in section 44(4) of the Act, specifically whether hardship would be caused to the husband if leave were not granted, and to assess the merits of the proposed application. The court also had to consider the history of the proceedings, the prospects of the husband's success, and the prejudice to the wife.

Watts J found that the husband had not established that hardship would be caused to him if leave was not granted, nor had he provided an acceptable explanation for the significant delay in bringing the application. The court considered the husband's application for spousal maintenance to be weak, noting his repeated assertions regarding the wife's alleged failure to provide frank disclosure of her business, which had been raised numerous times in prior proceedings. Taking into account the overall history, the merits, the prospects of success, the prejudice to the wife, and the desirability of finalising litigation, the court dismissed the husband's application for leave.

The wife also sought costs on an indemnity basis, but this application was dismissed as she had not specified the recoverable costs incurred, despite the husband owing substantial unrecovered costs. Separately, the wife sought a vexatious proceeding order against the husband. A prima facie case was made out, and the court ordered that the husband be given the right to be heard on this application under section 102QB(4) of the Act.

Orders

Orders of the court

The Application in a Case filed by the husband on 24 November 2014 be dismissed.

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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