FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLDEN & HOLDEN | [2015] FCCA 788 |
| Catchwords: FAMILY LAW – Application for leave pursuant to section 44(3) – capacity of the applicant to provide instructions and participate in proceedings – where applicant’s evidence is internally inconsistent and deficient – where applicant fails to provide disclosure or any evidence on significant issues – where applicant calls evidence that he is unable to be cross-examined – significant debt incurred of which the respondent was previously unaware and which is not explained or inadequately explained by the applicant – where the parties have been separated for a period of time approaching the length of their relationship – where the applicant is a sophisticated litigant, being a (occupation omitted) experienced in Family Law and fails to offer any adequate explanation for failing to make application within the limitation period – where any hardship to the applicant would be significantly outweighed by hardship to the respondent and the child of the marriage – where a prima facie case cannot be found in light of the inadequacies and deficiencies of the applicant’s evidence – meaning of “informality” in proceedings before the Federal Circuit Court – refusal to adjourn proceedings as sought by applicant when sole basis for adjournment is deficiency of the applicant’s evidence after both trial directions and prior adjournment and where adjournment would now, in light of diminished Court resources, create delay of over 12 months – admissibility of evidence regarding FDR intake – conditional admission of material then demonstrated as relevant and unconditionally admitted – rejection of tender of aide memoir where its contents are not in accordance with the evidence as led – rejection of evidence of settlement negotiations – inappropriate communication with chambers following closure of case. |
| Legislation: Family Law Act 1975, ss.10J, 44(3), 79 Family Law (Family Dispute resolution Practitioner) Regulations 2008, reg.25 |
| Neocleous & Neocleous (1993) FLC 92-377 Tate & Tate (1997) FLC 92-724 AMS & AIF (1999) CLR 160 Hall & Hall (1979) FLC 90-679 Thompson & Berg [2014] FamCAFC 73 |
| Applicant: | MR HOLDEN |
| Respondent: | MS HOLDEN |
| File Number: | BRC 5040 of 2011 |
| Judgment of: | Judge Harman |
| Hearing date: | 24 March 2015 |
| Date of Last Submission: | 24 March 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 2 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bennett |
| Solicitors for the Applicant: | MacDonnells Lawyers |
| Counsel for the Respondent: | Ms Gillies |
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- Holden & Holden [2015] FCCA 788
- Case
- [2015] FCCA 788
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicant had established sufficient grounds to be granted leave to institute property adjustment proceedings after the expiry of the statutory time limit. This required the court to consider the specific criteria and the applicant's ability to satisfy them.
Judge Harman dismissed the application for leave. The reasoning for this decision is not detailed in the provided text, but the outcome indicates that the applicant failed to meet the necessary threshold for commencing proceedings out of time. The court then made consequential orders regarding the remaining parenting proceedings, adjourning them for further mention and directions, with a provision for settlement to vacate the listing.
Orders
Orders of the court
1.
The Application pursuant to section 44(3) of the Family Law Act 1975 for leave to commence property adjustment proceedings out of time is dismissed.
2.
Remove the above issue from the list of cases awaiting hearing.
3.
Adjourn the balance of the proceedings (parenting proceedings) for further mention and directions and, if all issues are not resolved to finality, call over to 10 July 2015 at 9:30am.
4.
Grant leave to the parties to vacate the further listing of the proceedings upon Terms of Settlement being filed to deal with and dispose of all extant issues.
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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