LAMBERTSON & LAMBERTSON - [2021] FamCAFC 48

FAMILY COURT OF AUSTRALIA

LAMBERTSON & LAMBERTSON

[2021] FamCAFC 48

FAMILY LAW – APPEAL – PROPERTY – Leave to appeal – Appeal against order to allow proceedings out of time pursuant to s 44(3) – Where 12 months had expired from date divorce order took effect – Findings of fact – Previous application for s 44(3) leave abandoned – Failure to consider evidence of actual prejudice – Leave to appeal granted – Appeal allowed – Matter remitted for rehearing – Costs certificates issued

Family Law Act 1975 (Cth) Pt VIIIB, ss 44(3), 44(4), 75(2), 79, 90C
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Althaus and Althaus (1982) FLC 91-233; [1979] FamCA 47
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPELLANT:

Mr Lambertson

RESPONDENT:

Ms Lambertson

FILE NUMBER:

LEC

443

2018

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

12 April 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ryan, Kent & Tree JJ

HEARING DATE:

21 September 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2019

LOWER COURT MNC:

[2019] FCCA 3304

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Wrightway Legal

Orders

The appellant be given leave to adduce further evidence in the appeal, being a statement from the Superannuation Fund dated 2 January 2020.
The application by the appellant to adduce evidence in the appeal beyond that referred to in Order (1) be dismissed.
The appellant be granted leave to appeal the orders made on 19 December 2019.
The appeal be allowed.
The orders made on 19 December 2019 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 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 respondent in respect of…

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.

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Details

AGLC: LAMBERTSON & LAMBERTSON [2021] FamCAFC 48
Case: [2021] FamCAFC 48
Decision Date

CaseChat Overview and Summary

In this appeal, Mr Lambertson appeals against an order of the Federal Circuit Court of Australia that granted Ms Lambertson leave to bring property settlement proceedings out of time. The Full Court of the Family Court of Australia found that the primary judge erred in granting leave to Ms Lambertson. The appeal was allowed, the order set aside and the matter remitted for rehearing. The Full Court found that the primary judge erred in failing to consider the actual prejudice the appellant would suffer if leave was granted. In addition, the Full Court found that the primary judge erred in accepting the respondent's explanation for her delay in bringing proceedings as well as mischaracterising the facts of the case. The Full Court did not consider that the errors were so fundamental that the respondent's application ought to be dismissed outright. The Full Court remitted the matter for rehearing by a different judge. Costs certificates were issued in respect of the appeal and rehearing.

Orders