Hertwig and Hertwig - [2018] FamCA 591

FAMILY COURT OF AUSTRALIA

HERTWIG & HERTWIG

[2018] FamCA 591

FAMILY LAW – PROPERTY SETTLEMENT – Application to commence property settlement proceedings out of time pursuant to s 44(3) of the Act – where the Applicant Husband has discharged the onus of establishing he would suffer hardship if leave were not granted – where affording the Applicant Husband leave to commence proceedings is the manner by which the Court can best be enabled to do justice between the parties – where the Application is granted provided that such application is filed within 28 days of the order.

Family Law Act 1975 (Cth) s 44(3)

Coombs & More (1990) FLC 92-175

Gallo v Dawson (1990) 93 ALR 479

Hall & Hall (1979) FLC 90-679
Hedley & Hedley (2009) FLC 93-413

McMahon & McMahon (1976) FLC 90-038

Montano & Kinross (2014) FLC 93-623
Sharp & Sharp (2011) 50 Fam LR 567

Tamaniego & Tamaniego [2010] FamCAFC 254

Tormsen & Tormsen (1993) FLC 92-392

Van der Kreek & Van der Kreek (1978) FLC 90-421

Whitford & Whitford (1979) FLC 90-612

APPLICANT:

Mr Hertwig

RESPONDENT:

Ms Hertwig

FILE NUMBER:

BRC

2437

2016

DATE DELIVERED:

7 August 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

21 June 2018

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Selfridge

SOLICITOR FOR THE RESPONDENT:

Berck Solicitors

Orders

IT IS ORDERED THAT

Mr Hertwig has leave, pursuant to s 44(3) of the Family Law Act1975 (Cth) to institute property settlement proceedings pursuant to s 79 of the Act provided that such application is filed within 28 days of the date of this Order.
In the event that any party seeks an order that the other party pay his or her costs:
(a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and
(b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hertwig & Hertwig has been approved by the Chief Justice pursuant…

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

Case: [2018] FamCA 591
Decision Date: 7 August 2018

CaseChat Overview and Summary

In the matter of *Hertwig and Hertwig*, Hogan J considered an application by Mr Hertwig for leave to institute property settlement proceedings under section 79 of the *Family Law Act 1975* (Cth), pursuant to section 44(3) of the Act. The specific nature of the dispute between the parties, beyond the need for Mr Hertwig to seek leave to commence property settlement proceedings, is not detailed in the provided text.

The primary legal issue before the court was whether to grant Mr Hertwig the necessary leave to commence property settlement proceedings. This involved an assessment of the circumstances justifying the late filing of such an application, as contemplated by section 44(3) of the *Family Law Act 1975* (Cth). Additionally, the court addressed the procedural steps to be followed should either party seek an order for costs in relation to the proceedings.

Hogan J granted Mr Hertwig leave to institute property settlement proceedings, provided that the application was filed within 28 days of the date of the order. The court also established a detailed timetable for the filing and service of affidavits and written submissions if any party intended to seek costs, outlining specific timeframes for initial applications, responses, and replies, with any costs applications to be considered in Chambers.

Orders

Orders of the court

IT IS ORDERED THAT

Mr Hertwig has leave, pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute property settlement proceedings pursuant to s 79 of the Act provided that such application is filed within 28 days of the date of this Order.

In the event that any party seeks an order that the other party pay his or her costs:

(a) if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and

(b) any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

(c) the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any written submissions in answer to the submissions filed and served by the party seeking costs; and

(d) the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

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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