Jie & Ting - [2024] FedCFamC2F 311

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jie & Ting [2024] FedCFamC2F 311

File number: MLC 14478 of 2022

Judgment of: JUDGE RILEY

Date of judgment: 14 March 2024

Catchwords: FAMILY LAW – application under s.44(6) of the Family Law Act 1975 to bring a de facto property proceeding out of time – applicant being held in remand – hardship – exercise of discretion.

Legislation:
Criminal Code Act 1995 (Cth), ss 11.5(1), 307.1(1), 474.22A

Family Law Act 1975, ss.44(6), 90SM

Cases cited:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 186 CLR 541; (1996) 139 ALR 1; (1996) 70 ALJR 866; [1996] 15 Leg Rep 2; (1996) Aust Torts Reports 81-402; [1996] HCA 25

Hall & Hall (1979) 5 Fam LR 411; (1979) FLC 90-679

Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216

Jacenko & Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776

Whitford & Whitford (1979) 35 FLR 445; (1979) 4 Fam LR 754; (1979) FLC 90-612; (1979) 24 ALR 424

Number of paragraphs: 63

Date of last submission/s: 16 February 2024

Dates of hearing: 15 & 16 February 2024

Place: Melbourne

Counsel for the Applicant: John Goussis

Solicitor for the Applicant: Fumens Lawyers

Counsel for the Respondent: Janine Wald

Solicitor for the Respondent: United Associates Barristers & Solicitors
ORDERS

MLC 14478 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR JIE

Applicant

AND:
MS TING

Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

14 MARCH 2024

THE COURT ORDERS THAT:
1.Paragraph 19 of the affidavit sworn by Mr B on 25 May 2023 be struck out.
2.Pursuant to s.44(6) of the Family Law Act 1975, leave be granted for the applicant to proceed with his application for property orders filed on 20 December 2022.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:
3.The net proceeds of the sale of C Street, Suburb D, be kept in an interest earning controlled monies account by the respondent’s solicitors.

THE COURT FURTHER ORDERS THAT:
4.The matter be adjourned for directions before a Judicial Registrar on a date to be advised.

Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION

This…

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 Jie & Ting

Details

AGLC: Jie & Ting [2024] FedCFamC2F 311
Case: [2024] FedCFamC2F 311
Decision Date: 14 March 2024

CaseChat Overview and Summary

Jie and Ting, applicants, brought an application under section 44(6) of the Family Law Act 1975 (Cth), seeking to bring a de facto property proceeding out of time. Jie is currently held in remand, which contributed to the delay. The court was required to decide whether to exercise its discretion to allow the application to proceed despite the late filing and the reasons behind the delay. The applicants argued that Jie's incarceration resulted in significant hardship, which justified the late filing of the application.

The court acknowledged the hardship caused by Jie's incarceration and considered it a substantial factor in the delay. However, the court also noted that the delay was not entirely due to Jie's incarceration, as Jie had been aware of the proceedings for a considerable time before being remanded. Despite the hardship, the court found that the delay was significant and weighed heavily against granting leave for the application to proceed out of time. However, the court ultimately exercised its discretion in favour of the applicants, granting leave to proceed with the application. The court found that the hardship caused by Jie's incarceration and the other factors presented by the applicants warranted the exercise of its discretion.

The court struck out paragraph 19 of the affidavit sworn by Mr B on 25 May 2023, which contained allegations that were not relevant to the application. The court granted leave for the applicants to proceed with their application for property orders filed on 20 December 2022. The court ordered that the net proceeds of the sale of the property be kept in an interest-earning controlled monies account by the respondent's solicitors. The matter was adjourned for directions before a Judicial Registrar on a date to be advised.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Paragraph 19 of the affidavit sworn by Mr B on 25 May 2023 be struck out.

2. Pursuant to s.44(6) of the Family Law Act 1975, leave be granted for the applicant to proceed with his application for property orders filed on 20 December 2022.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

3. The net proceeds of the sale of C Street, Suburb D, be kept in an interest earning controlled monies account by the respondent’s solicitors.

THE COURT FURTHER ORDERS THAT:

4. The matter be adjourned for directions before a Judicial Registrar on a date to be advised.

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

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Ratio Decidendi

Legal Principle Established

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File number:	MLC 14478 of 2022
Judgment of:	JUDGE RILEY
Date of judgment:	14 March 2024
Catchwords:	FAMILY LAW – application under s.44(6) of the Family Law Act 1975 to bring a de facto property proceeding out of time – applicant being held in remand – hardship – exercise of discretion.
Legislation:	Criminal Code Act 1995 (Cth), ss 11.5(1), 307.1(1), 474.22A Family Law Act 1975, ss.44(6), 90SM
Cases cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 186 CLR 541; (1996) 139 ALR 1; (1996) 70 ALJR 866; [1996] 15 Leg Rep 2; (1996) Aust Torts Reports 81-402; [1996] HCA 25 Hall & Hall (1979) 5 Fam LR 411; (1979) FLC 90-679 Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216 Jacenko & Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776 Whitford & Whitford (1979) 35 FLR 445; (1979) 4 Fam LR 754; (1979) FLC 90-612; (1979) 24 ALR 424
Number of paragraphs:	63
Date of last submission/s:	16 February 2024
Dates of hearing:	15 & 16 February 2024
Place:	Melbourne
Counsel for the Applicant:	John Goussis
Solicitor for the Applicant:	Fumens Lawyers
Counsel for the Respondent:	Janine Wald
Solicitor for the Respondent:	United Associates Barristers & Solicitors

MLC 14478 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR JIE Applicant
AND:	MS TING Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	14 MARCH 2024