Keith and Soukis - [2007] FamCA 1017

FAMILY COURT OF AUSTRALIA

KEITH & SOUKIS

[2007] FamCA 1017

FAMILY LAW - APPEAL - PROPERTY - Application for leave to initiate proceedings out of time

Family Law Act 1975 (Cth) ss 44, 78, 79

Rutherford & Rutherford (1991) FLC 92-255
Whitford & Whitford (1979) FLC 90-612
G and G [1999] FamCA 240
Carlon and Carlon (1982) FLC 91-272
Good and Good (1982) FLC 91-249
Catlin & Kent (1987) FLC 91-815
Neocleous and Neocleous (1993) FLC 92-377
PVO v RMO [2005] FamCA 1196
De Winter v De Winter (1979) FLC 90-605
Althaus and Althaus (1982) FLC 91-233
Howard and Howard (1982) FLC 91-234
Allesch v Maunz (2000) FLC 93-033

APPLICANT:

MR KEITH

RESPONDENT:

MS SOUKIS

FILE NUMBER:

CAF

536

2005

APPEAL NUMBER:

2006

DATE DELIVERED:

31 August 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

BRYANT CJ, FINN & BOLAND JJ

HEARING DATE:

5 October 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 January 2006

LOWER COURT MNC:

[2006] FamCA 11

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tonkin

SOLICITORS FOR THE APPLICANT:

James Gralton

NO APPEARANCE FOR THE RESPONDENT

Orders

That the application by the husband for leave to appeal be granted.
That the appeal be allowed.
That the orders of the Honourable Deputy Chief Justice Faulks of 30 January 2006 be set aside.
That the husband be granted leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for settlement of property within 14 days of the date of this Order, and thereafter serve any such proceedings together with a copy of the reasons for judgment and the Orders of this Honourable Court upon the Wife without delay.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Keith and Soukis.

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 21 of 2006
File Number: CAF 536 of 2005

MR KEITH

Applicant

and

MS SOUKIS

Respondent

REASONS FOR JUDGMENT

Introduction

The parties who had married in 1976 were divorced [in December] 2001. No formal proceedings for settlement of property were brought within the statutory time frame (one year after decree absolute).
On 14 October 2005, three years and nine months after the decree absolute the husband filed an application seeking leave to institute proceedings out of time.
On 30 January 2006 Faulks DCJ dismissed his application for leave and the husband seeks leave to appeal that decision.
The matter proceeded before us on the assumption and without argument that leave is required to…

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 Keith and Soukis

Details

AGLC: Keith and Soukis [2007] FamCA 1017
Case: [2007] FamCA 1017
Decision Date: 31 August 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Bryant CJ, Finn and Boland JJ, considered an application by the husband for leave to appeal and an appeal against orders made by Deputy Chief Justice Faulks on 30 January 2006. The precise nature of the dispute between the husband and wife is not detailed in the provided text, but it concerned property settlement proceedings under the *Family Law Act 1975* (Cth).

The central legal issue before the Full Court was whether the husband should be granted leave to institute proceedings for settlement of property out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). This required the Court to determine if it was just and equitable to grant such leave, considering the circumstances that led to the application being made after the usual time limits.

The Full Court allowed the husband's appeal, setting aside the orders of Deputy Chief Justice Faulks. The Court granted the husband leave to institute proceedings for settlement of property within 14 days of the order, and to serve those proceedings along with the Court's reasons and orders on the wife without delay. Furthermore, the Court issued a costs certificate to the husband, certifying that it would be appropriate for the Attorney-General to authorise a payment under the *Federal Proceedings (Costs) Act 1981* (Cth) in respect of the husband's appeal costs.

Orders

Orders of the court

That the application by the husband for leave to appeal be granted.

That the appeal be allowed.

That the orders of the Honourable Deputy Chief Justice Faulks of 30 January 2006 be set aside.

That the husband be granted leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for settlement of property within 14 days of the date of this Order, and thereafter serve any such proceedings together with a copy of the reasons for judgment and the Orders of this Honourable Court upon the Wife without delay.

That the Court grants to the appellant husband a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant in relation to the appeal.

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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