Jennings and Reeves - [2016] FCCA 1619

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENNINGS & REEVES

[2016] FCCA 1619

Catchwords:
FAMILY LAW – De facto property proceedings – Application by Respondent de facto wife for summary dismissal of Applicant de facto husband’s property proceedings – Application for summary dismissal dismissed – Application for leave to proceed out of time by Applicant de facto husband – 2 month delay – Hardship to Applicant – No prejudice to Respondent – Application for leave to proceed out of time allowed.

Legislation:

Family Law Act 1975, ss.44(5), 44(6), 90UJ, 90UC, 90SM
Federal Circuit Court of Australia Act 1999, s.17A

Federal Circuit Court Rules 2001, r. 13.10, 13.10(c), 24.04

Cases cited:

Jeffries & Jeffries [2016] FCCA 454

Applicant:

MR JENNINGS

Respondent:

MS REEVES

File Number:

PAC 767 of 2014

Judgment of:

Judge Newbrun

Hearing date:

18 November 2015

Date of Last Submission:

18 November 2015

Delivered at:

Parramatta

Delivered on:

10 June 2016

REPRESENTATION

Applicant:

Respondent:

Appeared in person

ORDERS

The Respondent’s Application in a Case filed 22 January 2015 is dismissed.
Pursuant to section 44(6) of the Family Law Act 1975 (Cth) the Applicant is granted leave to commence his proceedings out of time.
Each party shall file and serve a formal Financial Statement within 8 weeks. In relation to the Financial Statement of the Respondent wife, she shall disclose all of her interests in real estate and other property, regardless of the name in which that property is held. Regarding the husband’s Financial Statement, he shall also ensure that such statement sets out any interest in companies.
Each party shall file and serve a short updating affidavit, within 28 days, such affidavit to be no longer than 6 pages (and containing no more than 10 pages of annexures).
If not already filed or exchanged, the parties shall, within 28 days, comply with their duty of full and frank disclosure pursuant to Rule 24.04 of the Federal Circuit Court Rules 2001; most particularly by serving on the other party:
(a)A copy of the party’s 3 most recent taxation returns and assessments;
(b)The completed superannuation form for any superannuation interest of the party and for a self-managed superannuation fund the trust deed and copies of the 3 most recent financial statements for the fund;
(c)If the party has an ABN, copies of the last 4 business activity statements lodged;
(d)A copy of the financial statements for the past 3 financial years, the constitution and the most recent annual return that lists directors and shareholders for any corporation in which any of the parties has an interest in; and
(e)A copy of the financial statements for the most recent 3 financial years and a copy of the partnership agreement for any partnership in which a party has a duty of disclosure.
In the event the parties are unable to agree within 28 days as to the value of the Respondent’s jointly owned real estate properties as at the date of commencement of cohabitation as at separation date and as…

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 Jennings and Reeves

Details

AGLC: Jennings and Reeves [2016] FCCA 1619
Case: [2016] FCCA 1619
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Newbrun considered an application by the Applicant for leave to commence proceedings out of time. The Respondent had filed an application on 22 January 2015, which was dismissed by the Court. The Applicant sought to proceed with his case despite the delay.

The primary legal issues before the Court were whether to grant the Applicant leave to commence his proceedings out of time, and to establish directions for the parties to prepare for the substantive proceedings. This involved determining if the Applicant had demonstrated sufficient grounds to overcome the time limitations and ensuring that both parties would provide full and frank disclosure of their financial positions.

The Court reasoned that granting leave was appropriate in this instance, pursuant to section 44(6) of the *Family Law Act 1975* (Cth). The Court then issued detailed directions to facilitate the progression of the matter. These directions mandated the filing of formal Financial Statements, requiring comprehensive disclosure of all property interests, including those held in companies and trusts. Parties were also directed to file updating affidavits, comply with their duty of full and frank disclosure by serving specific financial documents, and obtain valuations for jointly owned real estate if agreement could not be reached. Further directions required parties to specify any orders sought in relation to superannuation interests and provide procedural fairness to trustees, as well as to serve a Short Case Outline and a Balance Sheet. The proceedings were adjourned to a future date for a call over to assess compliance with the Court's directions and readiness to proceed.

Orders

Orders of the court

The Respondent’s Application in a Case filed 22 January 2015 is dismissed.

Pursuant to section 44(6) of the Family Law Act 1975 (Cth) the Applicant is granted leave to commence his proceedings out of time.

Each party shall file and serve a formal Financial Statement within 8 weeks. In relation to the Financial Statement of the Respondent wife, she shall disclose all of her interests in real estate and other property, regardless of the name in which that property is held. Regarding the husband’s Financial Statement, he shall also ensure that such statement sets out any interest in companies.

Each party shall file and serve a short updating affidavit, within 28 days, such affidavit to be no longer than 6 pages (and containing no more than 10 pages of annexures).

If not already filed or exchanged, the parties shall, within 28 days, comply with their duty of full and frank disclosure pursuant to Rule 24.04 of the Federal Circuit Court Rules 2001; most particularly by serving on the other party:

(a) A copy of the party’s 3 most recent taxation returns and assessments;

(b) The completed superannuation form for any superannuation interest of the party and for a self-managed superannuation fund the trust deed and copies of the 3 most recent financial statements for the fund;

(d) A copy of the financial statements for the past 3 financial years, the constitution and the most recent annual return that lists directors and shareholders for any corporation in which any of the parties has an interest in; and

(e) A copy of the financial statements for the most recent 3 financial years and a copy of the partnership agreement for any partnership in which a party has a duty of disclosure.

In the event the parties are unable to agree within 28 days as to the value of the Respondent’s jointly owned real estate properties as at the date of commencement of cohabitation as at separation date and as at presently, then the parties shall each obtain market appraisals, or other relevant evidence of each of the said properties such market appraisals or other relevant evidence providing an estimate of the said properties’ likely value as at date of commencement of cohabitation as at separation date and presently.

Within 21 days, each party must:

(a) Specify any Orders sought in relation to any superannuation interest; and

(b) Provide procedural fairness to any superannuation fund trustee.

Within 28 days, each party is to send to the other party a Short Case Outline setting out the party’s contention as to contribution based entitlements and the significant factors relied on, the party’s contention as to any s 75(2) adjustment sought and the factors in s 75(2) relied on (or the party’s contention as to any s 90SF(3) adjustment sought and the factors in s 90SF(3) relied on) and a draft of the order sought to give effect to the entitlement asserted.

Within 28 days, each party is to file and serve a Balance Sheet upon the other party. A Joint Balance Sheet noting the points of difference is to be filed by the Applicant with the Court no later than 48 hours prior to the next mention of the proceedings.

10.

The proceedings are adjourned to the call over at 10:00am on 11 October 2016. At this time, the Court will consider whether the parties have complied with past directions of the Court, including today’s directions and whether they are otherwise ready to proceed with the proceedings.

11.

In light of the above directions, neither party shall be permitted to file and serve any additional evidence, without the leave of the Court.

DIRECTIONS

12.

Any service by the Applicant of documents upon the Respondent shall be through her Post Office Box address.

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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