KENCH & KENCH - [2020] FCCA 962

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENCH & KENCH

[2020] FCCA 962

Catchwords:
FAMILY LAW – Property – Applicant Wife’s application for leave to issue property and spousal maintenance proceedings out of time pursuant to section 44(3) of the Family Law Act 1975 – Application filed 14 months out of time – whether the Wife will suffer hardship if leave to proceed out of time is refused – hardship established – exercise of Court’s discretion to grant leave for the Application to proceed out of time.

Legislation:

Family Law Act 1975 (Cth), ss.44(3), 44(4)

Cases cited:

Emerald & Emerald [2018] FamCAFC 217
Frost & Nicholson (1981) FLC 91-051
Gadzen & Simkin [2018] FamCAFC 218
In the Marriage of Hall (1979) 5 Fam LR 417; (1979) FLC 90-679
Montano v Kinross [2014] FamCAFC 231
Whitford & Whitford (1979) 24 ALR 424; (1979) FLC 90-612

Applicant:

MS KENCH

Respondent:

MR KENCH

File Number:

MLC 9832 of 2019

Judgment of:

Judge Blake

Hearing date:

31 January 2020

Date of Last Submission:

31 January 2020

Delivered at:

Melbourne

Delivered on:

28 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Carne

Solicitors for the Applicant:

RKL Lawyers and Consultants

Advocate for the Respondent:

Ms Mojidi

Solicitors for the Respondent:

Genuine Legal

ORDERS

Pursuant to section 44(3) of the Family Law Act 1975, the Applicant be granted leave to proceed out of time.
The matter be listed for Mention on 19 May 2020 at 10am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9832 of 2019

MS KENCH

Applicant

And

MR KENCH

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the Applicant Wife to pursue proceedings for a property settlement and proceedings for spousal maintenance out of time. The application is opposed by the Respondent Husband.
For the reasons that follow, I have decided to grant the Applicant leave to proceed out of time with her application for property settlement and spousal maintenance.

Background facts

The Applicant is currently aged 56 years. She is unemployed, receives the Newstart Allowance, and lives in public housing.
The Respondent is currently aged 57. He is in employment as a labourer earning around $20,000 per year. He lives in the former matrimonial home in Suburb A (‘Property’). There is no mortgage over the Property. The Respondent is the sole registered proprietor over the Property. The Property was acquired in 2001.

The parties were married in 1998. There are conflicting accounts in relation to whether the parties endured periods of separation during the marriage. For example, the Applicant says there was a period of separation between 2001 and 2005 and also that final separation occurred under the one roof in 2013. The Respondent, for his part, asserts that final separation, albeit under the one roof, occurred in 2009.
The parties were granted a divorce on 24 May 2017. The…

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 KENCH & KENCH

Details

AGLC: KENCH & KENCH [2020] FCCA 962
Case: [2020] FCCA 962
Decision Date: 28 April 2020

CaseChat Overview and Summary

In *Kench & Kench*, the Applicant Wife sought leave from the Federal Circuit Court of Australia to commence property and spousal maintenance proceedings more than 12 months after the finalisation of divorce proceedings. The application for leave was filed approximately 14 months out of time.

The central legal issue before Judge Blake was whether the Applicant Wife would suffer hardship if leave to proceed out of time was refused, and consequently, whether the Court should exercise its discretion to grant such leave under section 44(3) of the *Family Law Act 1975* (Cth).

The Court found that the Applicant Wife had established that she would suffer hardship if leave were not granted. Applying the principles governing the exercise of discretion under section 44(3), Judge Blake determined that it was appropriate to grant the Applicant leave to proceed with her property and spousal maintenance applications out of time. The Court ordered that the Applicant be granted leave to proceed out of time and listed the matter for a mention.

Orders

Orders of the court

Pursuant to section 44(3) of the Family Law Act 1975, the Applicant be granted leave to proceed out of time.

The matter be listed for Mention on 19 May 2020 at 10am.

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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