Li and Kong - [2016] FCCA 1484

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI & KONG

[2016] FCCA 1484

Catchwords:
FAMILY LAW – Application for an extension of time in which to bring property proceedings – inordinate delay – no evidence of hardship if application not granted – questionable merit in proposed application – extension of time refused.

Legislation:

Family Law Act 1975, s.44(6)

Cases cited:
Star & Star [2013] FamCA 91
Whitford & Whitford (1979) FLC 90-612

Applicant:

MS LI

Respondent:

MR KONG

File Number:

MLC 9005 of 2015

Judgment of:

Judge Burchardt

Hearing date:

9 February 2016

Date of Last Submission:

9 February 2016

Delivered at:

Melbourne

Delivered on:

9 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr Kuan

Solicitors for the Applicant:

Brygel Lawyers

Counsel for the Respondent:

Ms Elleray

Solicitors for the Respondent:

Slater & Gordon Lawyers

ORDERS

The Application for an extension of time pursuant to s.44(6) of the Family Law Act 1975 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9005 of 2015

MS LI

Applicant

And

MR KONG

Respondent

REASONS FOR JUDGMENT

I will commence my observations by trying to set out the law as I would appreciate it applying to these matters. Pursuant to s.44(5) of the Family Law Act (“the Act”), a party to a de facto relationship may subject to subsection (6), only apply for an order relevant for these purposes if the application is made within two years after the end of the relationship.
That is defined as the standard application period. Pursuant to section 44(6), the Court may grant leave to apply after the end of the standard application period of the Court is satisfied that (a) hardship would be caused to the party or a child if leave were not granted, (b) is about maintenance which is not relevant.
It should be noted that that is a slightly different time period to orders where a marriage has come to an end under s.44(3) but the authorities touching on s.44(3), to which I have been referred seem to me to be relevantly indistinguishable. It is safe to note that the power under s.44(6) is if anything more closely guarded so to speak more closely confined than that under s.44(3).
I have been referred to the judgment of Cronin J in Star & Star [2013] FamCA 91. This copy does not have the media neutral citation. At [36] and following his Honour had this to say:
“Relevantly, s 44(3) of the Act provides that where a divorce order has taken effect, property proceedings should not be instituted after 12 months from that date except by leave of the court. The approach to dealing with a leave application or a time limit has not been met is well-known (see Brisbane South Regional Health Authority v Taylor [1996] HCA 25, (1996) 186 CLR 541, as followed by…

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 Li and Kong

Details

AGLC: Li and Kong [2016] FCCA 1484
Case: [2016] FCCA 1484
Decision Date: 9 February 2016

CaseChat Overview and Summary

In *Li and Kong*, the applicant, Li, sought an extension of time to appeal a final order made by the Federal Circuit and Family Court of Australia. The respondent, Kong, opposed the application. The matter came before Judge Burchardt.

The primary legal issue before the Court was whether to grant an extension of time pursuant to s.44(6) of the *Family Law Act 1975* (Cth) to allow Li to file an appeal against the final orders. This required the Court to consider the principles governing the exercise of discretion to grant such extensions, particularly in the context of family law proceedings.

Judge Burchardt dismissed the application for an extension of time. The reasons for this decision are not detailed in the provided text, but the outcome indicates that the Court found insufficient grounds to exercise its discretion in favour of the applicant. The Court's decision was to refuse the extension of time sought.

Orders

Orders of the court

The Application for an extension of time pursuant to s.44(6) of the Family Law Act 1975 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.