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HUBERT & STROUD

HUBERT & STROUD

Case [2019] FCCA 2538 20 September 2019

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

HUBERT & STROUD

[2019] FCCA 2538

Catchwords:
FAMILY LAW – De facto relationship – application for declaration under section 90RD – application for leave to file out of time under section 44 – where dispute about the date of the end of the de facto relationship – where Applicant filed within time on their evidence and out of time on Respondent’s evidence.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 44, 90RD, 90SF, 90SM

Cases cited:

In the Marriage of Jacenko (1986) 11 Fam LR 341
Moby & Schulter [2010] FamCA 748
Ricci & Jones [2011] FamCAFC 222
Sharp & Sharp [2011] FamCAFC 150
Jonah &White [2012] FamCAFC 200
Delmarre & Asprey [2014] FamCAFC 218
Somers & Collier [2017] FamCAFC 123
Crick & Bennett [2018] FamCAFC 68
Edmunds & Edmunds [2018] FamCAFC 121
Gadzen & Simkins [2018] FamCAFC 218
Sfakianakis & Sfakianakis [2018] FamCAFC 185
Beckham & Quarrington [2019] FamCAFC 114

Applicant:

MR HUBERT

Respondent:

MS STROUD

File Number:

SYC 2009 of 2018

Judgment of:

Judge Morley

Hearing date:

2 May 2019

Date of Last Submission:

2 May 2019

Delivered at:

Sydney

Delivered on:

20 September 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Shafizdeh of Brazel Moore Lawyers

Solicitors for the Respondent:

Ms Shelly as agent for Gentles Family Lawyers

ORDERS

THE COURT DECLARES THAT:

For the purposes of these proceedings a de facto relationship existed between the Applicant and the Respondent commencing no later than 1 June 2009 and ending on 2 February 2016.

THE COURT ORDERS THAT:

Leave is granted to the Applicant to apply for orders under section 90SM of the Family Law Act 1975 (Cth) after the end of the standard application period and for that purpose the time for the filing of an Application by the Applicant is extended to 29 March 2018 being the date of the filing of the applicant’s Initiating Application in these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Hubert & Stroud is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2009 of 2018

MR HUBERT

Applicant

And

MS STROUD

Respondent

REASONS FOR JUDGMENT

Introduction

By Initiating Application filed by the Applicant male partner to a de facto relationship (“the Applicant”) on 29 March 2018 the Applicant sought final orders pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”) altering the property interests of the parties to the de facto relationship, the Applicant and the Respondent. In Part C of the Initiating Application the Applicant asserted that the parties commenced to live together on … 2009 and that the final separation (the end of their de facto relationship) occurred on 2 April 2016.
In his affidavit sworn or affirmed on 29 March 2008 and filed with his Initiating Application the Applicant deposed that he:
Commenced a relationship with [the Respondent] on 26 April 2009.
And that:
In June 2009, [the Respondent] moved in with me at my…

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 HUBERT & STROUD

Details

AGLC: HUBERT & STROUD [2019] FCCA 2538
Case: [2019] FCCA 2538
Decision Date: 20 September 2019

CaseChat Overview and Summary

In the matter of *Hubert & Stroud*, heard before Judge Morley, the applicant sought a declaration that a de facto relationship existed between the parties and leave to file an application for property settlement out of time. The central dispute concerned the precise date on which the de facto relationship had ended, with the applicant's evidence suggesting an earlier termination date than that presented by the respondent.

The court was required to determine two primary legal issues: first, the date on which the de facto relationship between the applicant and respondent commenced and ended for the purposes of the proceedings; and second, whether to grant the applicant leave to file an application for property orders under section 90SM of the *Family Law Act 1975* (Cth) outside the standard time limit.

Judge Morley declared that a de facto relationship existed between the applicant and respondent from no later than 1 June 2009 until 2 February 2016. The court further ordered that leave be granted to the applicant to apply for orders under section 90SM of the *Family Law Act 1975* (Cth) after the expiry of the standard application period, extending the time for filing the application to 29 March 2018, which was the date the applicant's initiating application was filed.

Orders

Orders of the court

THE COURT DECLARES THAT:

For the purposes of these proceedings a de facto relationship existed between the Applicant and the Respondent commencing no later than 1 June 2009 and ending on 2 February 2016.

THE COURT ORDERS THAT:

Leave is granted to the Applicant to apply for orders under section 90SM of the Family Law Act 1975 (Cth) after the end of the standard application period and for that purpose the time for the filing of an Application by the Applicant is extended to 29 March 2018 being the date of the filing of the applicant’s Initiating Application in these proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

HUBERT & STROUD [2019] FCCA 2538

Cases Citing This Decision

No citing cases yet.

Cases Cited

DIGLEN & KEARTLEY [2019] FamCAFC 114
Citation 1 (Para 7)

…se paragraphs were recently referred to by Kent J in the Full Court decision in Beckham & Quarrington[32] at paragraph 16. [32] Beckham & Quarrington [2019] FamCAFC 114.…
Gadzen & Simkin [2018] FamCAFC 218
Citation 2 (Para 6)

…leviated, then the Court cannot be satisfied that the Applicant or a child would suffer hardship if leave were not granted. [30] Gadzen & Simkins [2018] FamCAFC 218. [32] The Full Court then proceeded to discuss the meaning of “hardship”. In the course of that discussion the Full Court said At 78,144 – 78,145: In our…
Sfakianakis & Sfakianakis [2018] FamCAFC 185
Citation 3 (Para 1)

…Jonah v White [2012] FamCAFC 200. [13] Delmarre & Asprey [2014] FamCAFC 218. [14] Somers & Collier [2017] FamCAFC 123. [15] Sfakianakis & Sfakianakis [2018] FamCAFC 185.…
Edmunds & Edmunds [2018] FamCAFC 121
Citation 4 (Para 2)

…pply for property settlement orders out of time under section 44 of the Act. In Edmunds & Edmunds, [25] the Full Court stated: [25] Edmunds & Edmunds [2018] FamCAFC 121 (Ryan, Aldridge and Watts JJ). [16] The hearing of applications for leave pursuant to s 44(3) should be “summary in character” (Neocleous & Neocleous…
Crick & Bennett [2018] FamCAFC 68
Citation 5 (Para 3)

…unrelated persons of the opposite sex meets the statutory test. [9] [7] Family Law Act 1975 (Cth) s 90RD. [8] Crick & Bennett [2018] FamCAFC 68 (Ainslie-Wallace, Aldridge and Watts JJ). [9] Crick & Bennett [2018] FamCAFC 68, [65], [83].…
Somers & Collier [2017] FamCAFC 123
Citation 6 (Para 1)

…C 222. [11] Moby & Schulter [2010] FamCA 748. [12] Jonah v White [2012] FamCAFC 200. [13] Delmarre & Asprey [2014] FamCAFC 218. [14] Somers & Collier [2017] FamCAFC 123. [15] Sfakianakis & Sfakianakis [2018] FamCAFC 185.…
Delamarre & Asprey [2014] FamCAFC 218
Citation 7 (Para 1)

…kis .[15] [10] Ricci & Jones [2011] FamCAFC 222. [11] Moby & Schulter [2010] FamCA 748. [12] Jonah v White [2012] FamCAFC 200. [13] Delmarre & Asprey [2014] FamCAFC 218. [14] Somers & Collier [2017] FamCAFC 123. [15] Sfakianakis & Sfakianakis [2018] FamCAFC 185.…
Cadman & Hallett [2014] FamCAFC 142
Citation 8 (Para 3)

…ties ……… make clear (Sinclair & Whittaker 92013) FLC 93-551; [2013] FamCAFC 129 at [93] – [94]; Cadman & Hallett 92014) FLC 93-603; [2014] FamCAFC 142 at [42] – [43]). … [83] As was pointed out in Sinclair at [54]–[56], a finding as to whether or not a de facto relationship exists depends upon an assessment of all of…
MCCOY & CHANCELLOR [2014] FamCAFC 62
Citation 9 (Para 6)

…e right to litigate that claim. [34] In Hall and Hall (1979) FLC 90-679 , 78,627 ; (see also McCoy and Chancellor [2014] FamCAFC 62 ; Sharp v Sharp (2011) 50 Fam LR 567 (“ Sharp ”) and Edmunds & Edmunds (2018) FLC 93-847 (“ Edmunds ”)) the Full Court said: Fundamental to that [a finding of hardship] is a determinati…
Jonah & White [2012] FamCAFC 200
Citation 10 (Para 1)

…& Collier ,[14] and Sfakianakis & Sfakianakis .[15] [10] Ricci & Jones [2011] FamCAFC 222. [11] Moby & Schulter [2010] FamCA 748. [12] Jonah v White [2012] FamCAFC 200. [13] Delmarre & Asprey [2014] FamCAFC 218. [14] Somers & Collier [2017] FamCAFC 123. [15] Sfakianakis & Sfakianakis [2018] FamCAFC 185.…
Ricci & Jones [2011] FamCAFC 222
Citation 11 (Para 1)

…referred to with approval), Jonah v White ,[12] Delmarre & Asprey ,[13] Somers & Collier ,[14] and Sfakianakis & Sfakianakis .[15] [10] Ricci & Jones [2011] FamCAFC 222. [11] Moby & Schulter [2010] FamCA 748. [12] Jonah v White [2012] FamCAFC 200. [13] Delmarre & Asprey [2014] FamCAFC 218. [14] Somers & Collier [2017…
Tamaniego & Tamaniego [2010] FamCAFC 254
Citation 12 (Para 4)

…Later on in that judgment, the Full Court said: [75] In Tamaniego v Tamaniego [2010] FamCAFC 254 (Tamaniego) O'Ryan J said at [162]: [162] As to the second part of the exercise, the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties: see…
Moby & Schulter [2010] FamCA 748
Citation 13 (Para 1)

…,[12] Delmarre & Asprey ,[13] Somers & Collier ,[14] and Sfakianakis & Sfakianakis .[15] [10] Ricci & Jones [2011] FamCAFC 222. [11] Moby & Schulter [2010] FamCA 748. [12] Jonah v White [2012] FamCAFC 200. [13] Delmarre & Asprey [2014] FamCAFC 218. [14] Somers & Collier [2017] FamCAFC 123. [15] Sfakianakis & Sfaki…
Sharp v Sharp [2009] NSWSC 841
Citation 14 (Para 6)

…that claim. [34] In Hall and Hall (1979) FLC 90-679 , 78,627 ; (see also McCoy and Chancellor [2014] FamCAFC 62 ; Sharp v Sharp (2011) 50 Fam LR 567 (“ Sharp ”) and Edmunds & Edmunds (2018) FLC 93-847 (“ Edmunds ”)) the Full Court said: Fundamental to that [a finding of hardship] is a determination of the quality or ch…
McLean v Sydney Water Corporation [2001] NSWCA 122
Citation 15 (Para 1)

…nces of the case, it is just and reasonable to grant the extension sought. The New South Wales Court of Appeal in McLean v Sydney Water Corporation [2001] NSWCA 122, per Giles JA (Hodgson and Stein JA agreeing) said at [22] that: [22] … Prejudice engendered by delay and unlikelihood of a fair trial will be highly m…
Ramadam v Leda Holdings [2001] NSWCA 41
Citation 16 (Para 1)

…not merely look at the time which has elapsed since the expiration of the limitation period. [95] As Meagher JA observed in Ramadam v Leda Holdings [2001] NSWCA 41 at [6] (Ramadam) "it is the prejudice to the defendant as at the date of the filing of the statement of claim which must be examined, no matter what wa…
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Citation 17 (Para 3)

…e principles concerning applications for leave to commence an action out of time are well-known. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; 139 ALR 1 at 8 McHugh J said: The discretion to extend time must be exercised in the context of the rationales for the existence of limitatio…
Gallo v Dawson [1990] HCA 30
Citation 18 (Para 4)

…any application for extension of time is whether this will enable the court to do justice between the parties: see Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30. In Gallo v Dawson McHugh J referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the liti…
Lynam v Director-General of Social Security [1983] FCA 274
Citation 19 (Para 3)

…ropriate. The Court in Sinclair quoted with approval the following statement from Lynam v Director General of Social Security (1983) 52 ALR 128 at [131]: Each element of a relationship draws it colour and its significance from the other elements some of which may point in one direction and some in the other. What mu…
Beecham Group Ltd v Bristol Laboratories Pty ltd [1968] HCA 1
Citation 20 (Para 2)

…ory injunction in a patent case but in terms that apply to all interlocutory injunctions, in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 (“Beecham”) at 622 the High Court described the inquiry the Court is to undertake in the following way: The Court addresses itself in all cases, patent as we…
Sinclair & Whittaker [2013] FamCAFC 129
Citation 21 (Para 3)

…o be taken not to add a gloss to the words of the section, as the authorities ……… make clear (Sinclair & Whittaker 92013) FLC 93-551; [2013] FamCAFC 129 at [93] – [94]; Cadman & Hallett 92014) FLC 93-603; [2014] FamCAFC 142 at [42] – [43]). … [83] As was pointed out in Sinclair at [54]–[56], a finding as to whether o…
[1979] FAMCA 50 [1979] FAMCA 50
Citation 22 (Para 3)

…so much is seen from the opening words of the s 44(4), "[t]he court shall not grant leave under subs (3) unless". [15] In In the Marriage of Whitford (1979) 24 ALR 424; 4 Fam LR 754; 35 FLR 445; (1979) FLC 90-612 (Whitford) the Full Court noted at ALR 433; Fam LR 761; FLR 455-6; FLC 78,146 that while the section int…
[2009] FAMCAFC 179 [2009] FAMCAFC 179
Citation 23 (Para 3)

…); In the Marriage of Walker (1984) 9 Fam LR 983; (1984) FLC 91-564. See also Hedley v Hedley (2009) 42 Fam LR 147; 235 FLR 58 ; (2009) FLC 93-413; [2009] FamCAFC 179 at [132] (Hedley) per Boland J and at [218] per Cronin J). [22] [22] Sharp & Sharp [2011] FamCAFC 150, [12]-[23], [27].…
[2011] FAMCAFC 150 [2011] FAMCAFC 150
Citation 24 (Para 3)

…In Sharp & Sharp ,[21] the Full Court said: [21] Sharp & Sharp [2011] FamCAFC 150. [12] It is important to bear in mind the purpose of s 44 in the context of the Act, which is that time limits are to be observed as the wording of that section makes clear. The principles concerning applications for leave to commence a…

Legislation Cited

Family Law Act 1975 (Cth) 44, 44(5), 44(6), 4AA, 90RD, 90RD(1), 90...
13 mentions (from Para 1)
Limitation Act 1969 (NSW)
1 mention (from Para 1)
Limitation of Actions Act 1974 (Qld)
1 mention (from Para 2)