Lappin and Alwood - [2009] FamCA 874

FAMILY COURT OF AUSTRALIA

LAPPIN & ALWOOD

[2009] FamCA 874

FAMILY LAW – PRACTICE AND PROCEDURE – Application to institute property proceedings out of time – Short marriage – Separation nine years ago – Limited financial assets disclosed – Matrimonial cause – Hardship – Delay – What the justice of the case requires – Reasonable claim – Prejudice to parties – Proceedings instituted in Supreme Court of Victoria for financial orders between the parties arising out of a default on mortgage payments – Appropriate venue for hearing – Jurisdiction of Family Court – Whether the facts show a matrimonial cause and dispute arising out of the matrimonial relationship – Terms and conditions imposed upon an order granting leave to institute proceedings – Future assessment of wife’s costs for Supreme Court proceedings – To be paid by husband as a condition to being granted leave to institute proceedings

Family Law Act 1975 (Cth) ss 4(1), 8(1), 39(1), 39(5), 40, 44(3), 44(4), 75(2), 79(4), 90AD(1)
Family Law Rules 2004 (Cth) Rules 1.04, 1.06, 1.07, 1.10(2)(a)

Bak v Bak (1980) FLC 90-877
Coluzzi v Coluzzi (2001) NSWSC 94
DMW v CGW (1982) 151 CLR 491
Farr v Farr (1976) FLC 90-133
Frost v Nicholson (1981) FLC 91-051
Hall and Hall (1979) FLC 90-697
In the Marriage of Neocleous (1993) FLC 92-377
Kowalski v Kowalski (1993) FLC 92-342
McMahon and McMahon (1976) FLC 90-038
McNeill v McNeill's Transport Pty Ltd (1985) 81 FLR 26
Mills v Mills (1976) FLC 90-079
Perkins and Perkins (1979) FLC 90-600
Re Dovey; Ex parte Ross (1979) FLC 90-616
Tormsen and Tormsen (1993) FLC 92-392
Whitford and Whitford (1979) FLC 90-612

APPLICANT:

MR LAPPIN

RESPONDENT:

MS ALWOOD

FILE NUMBER:

MLC

6971

2009

DATE DELIVERED:

10 SEPTEMBER 2009

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

4 SEPTEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR STAINDL, with him MR STRUM

SOLICITOR FOR THE APPLICANT:

CLANCY & TRIADO

COUNSEL FOR THE RESPONDENT:

DR INGLEBY

SOLICITOR FOR THE RESPONDENT:

ROCHELLE BELCHER

Orders

THAT subject to order 2 hereof leave be granted to the husband, pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings out of time for an alteration of the interests of the parties to this marriage in property.
THAT as a term or condition of order 1 hereof the husband pay to the wife, prior to instituting such Family Court s 79 proceedings, her reasonable legal costs and disbursements incurred by her or on her behalf in Supreme Court proceedings No. ... in the sum agreed or assessed for the period 1 May 2008 until the date of this order.
THAT otherwise paragraph 1 of both the final orders and the interim orders sought in the initiating application of the husband filed 7 August 2009 be dismissed.
THAT all extant interim and final orders as sought by the husband in that initiating application, and the response of the wife thereto, be adjourned to and be listed in the Judicial Duty…

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 Lappin and Alwood

Details

AGLC: Lappin and Alwood [2009] FamCA 874
Case: [2009] FamCA 874
Decision Date: 10 SEPTEMBER 2009

CaseChat Overview and Summary

In the matter of *Lappin and Alwood*, heard by Young J, the husband sought leave to institute proceedings out of time for an alteration of interests in property pursuant to s 44(3) of the *Family Law Act 1975* (Cth). The wife opposed this application.

The primary legal issue before the court was whether to grant the husband leave to commence property adjustment proceedings after the statutory time limit had expired. A secondary issue concerned the terms and conditions upon which such leave, if granted, should be made, particularly in relation to the wife's legal costs.

Young J granted the husband leave to institute proceedings out of time, subject to the condition that the husband first pay the wife's reasonable legal costs and disbursements incurred in Supreme Court proceedings for the period from 1 May 2008 until the date of the order. These costs were to be either agreed or assessed. The court dismissed other aspects of the husband's initiating application and adjourned the remaining extant interim and final orders to a later date. The costs of the interim application were reserved.

Orders

Orders of the court

THAT subject to order 2 hereof leave be granted to the husband, pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings out of time for an alteration of the interests of the parties to this marriage in property.

THAT as a term or condition of order 1 hereof the husband pay to the wife, prior to instituting such Family Court s 79 proceedings, her reasonable legal costs and disbursements incurred by her or on her behalf in Supreme Court proceedings No. ... in the sum agreed or assessed for the period 1 May 2008 until the date of this order.

THAT otherwise paragraph 1 of both the final orders and the interim orders sought in the initiating application of the husband filed 7 August 2009 be dismissed.

THAT all extant interim and final orders as sought by the husband in that initiating application, and the response of the wife thereto, be adjourned to and be listed in the Judicial Duty List on 22 September 2009 at 10.00 a.m.

THAT the costs of and incidental to the hearing of this interim application be reserved to Young J and the matter fixed for oral submissions on costs issues at a date to be fixed.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

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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