Jordon and Jordon - [2008] FamCA 589

FAMILY COURT OF AUSTRALIA

JORDON & JORDON

[2008] FamCA 589

FAMILY LAW - PROPERTY SETTLEMENT – Leave to file application out of time – questions of hardship – explanation of delay and prejudice – leave granted

Family Law Act 1975 (Cth)
Child Support Assessment Act 1989 (Cth)

Andrews & Andrews [2007] FamCA 562
Frost & Nicholson (1981) FLC 91-051
McDonald & McDonald (1977) FLC 90-317
Whitford & Whitford (1979) FLC 90-612
Woodcock and Woodcock (1997) FLC ¶92-739
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APPLICANT:

Ms Jordon

RESPONDENT:

Mr Jordon

FILE NUMBER:

LNC

282

2008

DATE DELIVERED:

31 July 2008

PLACE DELIVERED:

Hobart

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

26 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms A Trezise
SOLICITOR FOR THE APPLICANT:	Andrea Trezise
COUNSEL FOR THE RESPONDENT:	Mr D Gassner
SOLICITOR FOR THE RESPONDENT:	Rae & Partners

Orders

Ms Jordon is granted leave pursuant to s44(3) of the Family Law Act 1975 to continue the property proceedings filed by her on 28 May 2008 by way application for alteration of property interests under s 79 of the Family Law Act 1975 (“the property proceedings”).
Ms Jordon is granted leave pursuant to s 116(1)(b) of the Child Support (Assessment) Act 1989 to apply to this Court (concurrently with the property proceedings) for an order under Division 4 of Part 7 of the Child Support (Assessment) Act 1989 in relation to the children of the parties (M born […] September 1993 and L born […] March 1996) in the special circumstances of the case.
The applications be listed for mention before a Registrar at 10am on 26 August 2008 at the Launceston Registry.
Costs of both parties to this application are reserved.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 282 OF 2008

Ms Jordon

Applicant

And

Mr Jordon

Respondent

REASONS FOR JUDGMENT

These are proceedings between Ms Jordon (‘the wife”) and Mr Jordon (“the husband’) in circumstances where the wife seeks leave pursuant to s44(3) of the Family Law Act 1975 (‘the Act’) to commence proceedings for property settlement out of time.
In addition the wife seeks a determination pursuant to s116(1)(b) of the Child Support (Assessment) Act 1989 that it would be in the interest of the parties for a court to consider whether an order should be made under Division 4 of Part 7 of the Child Support (Assessment) Act 1989 in relation to the children of the marriage.
It was agreed by counsel for both of the parties that if the wife succeeded in her application for leave to commence property proceedings out of time, the leave under the Child Support (Assessment) Act should be otherwise granted. It was also agreed that if the wife failed…

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 Jordon and Jordon

Details

AGLC: Jordon and Jordon [2008] FamCA 589
Case: [2008] FamCA 589
Decision Date: 31 July 2008

CaseChat Overview and Summary

In the matter of *Jordon and Jordon*, Ms Jordon sought leave from Benjamin J of the Family Court of Australia to continue property proceedings filed on 28 May 2008, pursuant to section 44(3) of the *Family Law Act 1975*. She also sought leave to apply for orders concerning the children of the marriage, M (born September 1993) and L (born March 1996), under Division 4 of Part 7 of the *Child Support (Assessment) Act 1989*, citing special circumstances, pursuant to section 116(1)(b) of that Act.

The court was required to determine whether to grant Ms Jordon leave to proceed with her property adjustment claims under section 79 of the *Family Law Act 1975*, given the timing of her application. Additionally, the court had to consider whether the circumstances warranted granting leave to make an application for child support orders under the *Child Support (Assessment) Act 1989*.

Benjamin J granted Ms Jordon leave to continue the property proceedings, acknowledging the basis for her application under section 44(3) of the *Family Law Act 1975*. Furthermore, his Honour granted leave for Ms Jordon to apply for child support orders, finding that the special circumstances of the case justified this under section 116(1)(b) of the *Child Support (Assessment) Act 1989*. The applications were subsequently listed for mention before a Registrar, and costs were reserved.

Orders

Orders of the court

Ms Jordon is granted leave pursuant to s44(3) of the Family Law Act 1975 to continue the property proceedings filed by her on 28 May 2008 by way application for alteration of property interests under s 79 of the Family Law Act 1975 (“the property proceedings”).

Ms Jordon is granted leave pursuant to s 116(1)(b) of the Child Support (Assessment) Act 1989 to apply to this Court (concurrently with the property proceedings) for an order under Division 4 of Part 7 of the Child Support (Assessment) Act 1989 in relation to the children of the parties (M born […] September 1993 and L born […] March 1996) in the special circumstances of the case.

The applications be listed for mention before a Registrar at 10am on 26 August 2008 at the Launceston Registry.

Costs of both parties to this application are reserved.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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