KABLER & KABLER - [2020] FCCA 1688

FEDERAL CIRCUIT COURT OF AUSTRALIA

KABLER & KABLER

[2020] FCCA 1688

Catchwords:
FAMILY LAW – Property – application for leave to proceed out of time – delay of four years found to be compounded by court errors – delay assessed at two years – reason for delay not adequately explained – prima facie case and hardship established – prejudice to respondent established – negative pool other than for superannuation – superannuation splitting order would be sought if leave granted - discretion exercised to dismiss application.

Legislation:

Family Law Act 1975 (Cth), ss.44, 75, 79

Cases cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Jacenko & Jacenko (1986) FLC 91-776
Oxenham & Oxenham [2009] FamCAFC 167
Sharp & Sharp (2011) 50 Fam LR 567
Edmunds & Edmunds [2018] FamCAFC 121

Whitford & Whitford (1979) FLC 90-612
Hall & Hall (1979) 5 FamLR 411, (1979) FLC 90-679
Montano & Kinross [2014] FamCAFC 231

Applicant:

MS KABLER

Respondent:

MR KABLER

File Number:

BRC 8280 of 2012

Judgment of:

Judge Lapthorn

Hearing dates:

11 November 2019, 30 January 2020 and 9 March 2020

Date of Last Submission:

9 March 2020

Delivered at:

Brisbane

Delivered on:

26 June 2020

REPRESENTATION

Solicitors for the Applicant:

Self represented

Solicitors for the Respondent:

Self represented

ORDERS

The applicant’s application for leave to proceed out of time pursuant to section 44(3) be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8280 of 2012

MS KABLER

Applicant

And

MR KABLER

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Ms Kabler, is hopeful of obtaining a property adjustment order as a consequence of the breakdown of her marriage to the respondent, Mr Kabler. In order to do so she will firstly need leave to bring her application as it is out of time. The parties were divorced on 25 August 2013. Any application for property adjustment orders was required to be filed by 25 August 2014. The respondent opposes the application.
The application that came before me was filed 3 December 2018 some four years and three months out of time. However, this was not the first application filed by the applicant in this court. On 11 September 2012 she filed an Initiating Application seeking parenting orders but filed a Notice of Discontinuance on 18 January 2013. She filed an Application for Divorce on 9 April 2013 and an Application in a Case on 8 May 2013. A new Initiating Application seeking parenting orders was filed on 10 April 2015 with an amended application filed 25 September 2015. On 31 August 2016 this application was further amended to introduce property proceedings including an application for leave to proceed out of time. At this point in time the application was two years out of date. Final parenting orders were made by Judge Spelleken on 1 November 2016 and amended on 15 December…

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 KABLER & KABLER

Details

AGLC: KABLER & KABLER [2020] FCCA 1688
Case: [2020] FCCA 1688
Decision Date: 26 June 2020

CaseChat Overview and Summary

In *Kabler & Kabler*, the applicant sought leave to proceed with a property settlement application out of time, approximately four years after the finalisation of divorce proceedings. The respondent opposed the application.

The primary legal issue before the court was whether to grant the applicant leave to commence proceedings out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). This required the court to consider the applicant's prima facie case, the hardship that would be occasioned by refusing leave, and the prejudice that would be suffered by the respondent if leave were granted.

Judge Lapthorn found that while the applicant had established a prima facie case and hardship, the significant delay of four years was not adequately explained. The court also noted that court errors had compounded the delay, leading the judge to assess the effective delay as approximately two years. However, the prejudice to the respondent, particularly in the context of a negative asset pool (excluding superannuation), weighed heavily against granting leave. The court considered that any potential superannuation splitting order, which would likely be sought if leave were granted, would not outweigh the prejudice to the respondent.

Consequently, the court exercised its discretion to dismiss the applicant's application for leave to proceed out of time.

Orders

Orders of the court

The applicant’s application for leave to proceed out of time pursuant to section 44(3) be dismissed.

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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