Hines & Easton - [2023] FedCFamC2F 311

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hines & Easton [2023] FedCFamC2F 311

File number(s): ADC 5343 of 2022

Judgment of: JUDGE BROWN

Date of judgment: 23 March 2023

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – de facto property proceedings – application for leave to proceed out of time – relationship of 22 years – relationship produced two children – prima facie case – consideration of hardship – matters to be considered – consideration of justice and equity

Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 4, 4AA, 39A, 44, 48, 49, 55, 90RD, 90SF, 90SM

Cases cited:
Batty v Batty (1986) FLC 91-703

Bevan & Bevan [2013] FamCAFC 116

Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541

Edmunds & Edmunds [2018] FamCAFC 121

Falk v Falk (1977) FLC 90-247

Gadzen & Simkin [2018] FamCAFC 218

Hall, K A and Hall, J C (1979) FLC 90-679

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

Jacenko & Jacenko (1986) FLC 91-776

Milas v GM Holden Limited [2015] FCCA 1311

Pavey v Pavey (1976) FLC 90-051

Sharp & Sharp [2011] FamCAFC 150

Slocomb & Hedgewood (2015) FLC 93-678

Stanford v Stanford (2012) 247 CLR 108

Waters & Jurek (1995) FLC 92-635

Whitford & Whitford (1979) FLC 90-612

Division: Division 2 Family Law

Number of paragraphs: 116

Date of hearing: 16 March 2023

Place: Adelaide

Counsel for the Applicant: Ms Dichiera

Solicitor for the Applicant: Adelta Legal

Respondent: Appeared in person
ORDERS

ADC 5343 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HINES

Applicant

AND:
MS EASTON

Respondent

order made by:

JUDGE BROWN

DATE OF ORDER:

23 March 2023

THE COURT ORDERS THAT:
1.Pursuant to section 44(6) of the Family Law Act 1975 (Cth) the applicant is granted leave to proceed with his application for settlement of de facto property out of time and time is extended to 23 November 2022.
2.The parties attend a Conciliation Conference with a Judicial Registrar of the Federal Circuit and Family Court of Australia on 12 May 2023 at 9:00am.
3.The applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 prior to the Conciliation Conference unless otherwise exempted from payment.
4.Within 28 days the parties jointly instruct a property valuer to provide a written valuation of the property situated at B Street, Suburb C and the cost of such written valuation to be borne equally between the parties.
5.Within 28 days of the date of these Orders, each party must exchange with each other party a copy of each of the following documents (to the extent such documents have not already been provided):
(a)the documents mentioned in Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
(b)statements for all bank or credit union accounts (including loan, mortgage and credit card accounts) in which the party has an interest for the period from 12 months before the date of separation to…

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 Hines & Easton

Details

AGLC: Hines & Easton [2023] FedCFamC2F 311
Case: [2023] FedCFamC2F 311
Decision Date

CaseChat Overview and Summary

The case of Hines & Easton involved an application by Mr. Hines for leave to proceed out of time for a settlement of de facto property with Ms. Easton. The key issue was whether Mr. Hines should be granted leave to proceed with his application for de facto property settlement, which was out of the standard application period of two years after the end of the de facto relationship. The court considered various factors such as the length of the delay, the reasons for the delay, any prejudice occasioned to the respondent by reason of the delay, the strengths, on the merits, of the applicant’s case, and the degree of the hardship, which would be suffered unless leave was granted. The court held that the application for an extension of time should be granted. It found that the delay was not significant given the length of the relationship, and Mr. Hines had provided a reasonable explanation for the delay. The court also found that Mr. Hines had established a reasonable prima facie case for a settlement of de facto property, including receiving some portion of the capital represented in the former family home. The court further found that if Mr. Hines' claim was dismissed, it would constitute a severe hardship to him.

Orders