M and G - [2006] FCWA 1

[2006] FCWA 1

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997

LOCATION

: [REGIONAL CENTRE]

CITATION

:	[M] and [G ][2006] FCWA 1

CORAM

:	THACKRAY J

HEARD

:	25 & 26 OCTOBER 2005

DELIVERED

:	6 JANUARY 2006

FILE NO/S

:	PT 3360 of 2005

BETWEEN

:	[M] Applicant

AND
[G]
Respondent

Catchwords:

Property settlement - de facto marriage - date of separation - application filed out of time.

Law reform - desirability of amendment of s 205ZB(1) Family Court Act 1997.

Legislation:

Family Court Act 1997, s 205ZB(1), s 205ZB(2)

Interpretation Act 1984, s 13A

Category: Not Reportable

[2006] FCWA 1

Representation:

Counsel:

Applicant	:	Mr N Cogin
Respondent	:	Mr D Childs

Solicitors:

Applicant	:	Bowen Buchbinder & Vilensky
Respondent	:	Ball & Co.

Case(s) referred to in judgment(s):

Bloomfield & Clarke [2003] FCWA 158
Evans & Parkinson [2005] FCWA 4
Hiberson v George (1989) DFC 95-064

[2006] FCWA 1

1 Mr [M] and Ms [G] began living in a de facto marriage relationship in 1997. The question I am required to determine is when did that relationship end?
2 The answer has significant consequences. Mr [M] filed an application for
property settlement on 24 June 2005. If the relationship ended on 22 July 2003, as Ms [G] claims, Mr [M] needed leave of the Court before filing. This is so, because S205ZB(1) of the Family Court Act 1997 provides that applications for property settlement must be made within one year after a de facto marriage relationship ends.
3 Mr [M] filed an amended application in August 2005. He maintained his claim
that the relationship ended on 17 November 2004; however, in case he was wrong, he also sought leave to commence proceedings out of time. This application was abandoned at trial, presumably because it was conceded Mr [M] could not establish he would suffer “hardship” if denied the right to litigate.

Credibility

4 There were a number of witnesses called on behalf of both parties. This was
a refreshing case where all of the witnesses appeared to be attempting to give their honest recollection of relevant events. None of them gave the appearance of adjusting their evidence to support the party on whose behalf they had been called. None of them was successfully challenged in cross-examination and I therefore generally accepted all of their evidence. However, it was apparent that Mr [M]’s son, [MM], did not have a particularly good memory for events and conversations – a fact he readily admitted in cross-examination.
5 I found Ms [G] to be a particularly impressive witness. She gave her evidence in
a measured and a thoughtful way. She was ready to make concessions and allowances where they were due. Other than on a very few occasions, I did not gain the impression she was adjusting her evidence to support her case.
6 Mr [M] also seemed to be a reasonably credible and open person. He too was
prepared to make some allowances and…

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 M and G

Details

AGLC: M and G [2006] FCWA 1
Case: [2006] FCWA 1
Decision Date: 6 JANUARY 2006

CaseChat Overview and Summary

The case of M and G was heard in the Family Court of Australia, where the primary dispute was the property settlement between the de facto spouses following their separation. The husband filed an application for a property settlement out of time, after the statutory deadline under section 205ZB(1) of the Family Court Act 1997. The wife opposed the application, arguing that it was not in the interests of justice to allow the application to proceed past the statutory period. The central legal issue before the court was whether the application should be dismissed as being out of time, or if there were exceptional circumstances that would justify an extension of time under section 205ZB(1).

The court considered whether the statutory period should be strictly adhered to or if there were grounds to permit the husband's application, despite it being filed beyond the deadline. The court acknowledged the importance of the statutory time limit but also recognised the potential hardship and unfairness that could result from its strict application. In reaching its decision, the court examined the circumstances of the separation and the reasons for the delay in filing the application. The court held that the husband's application was not filed within the statutory period but found that there were exceptional circumstances that warranted an extension of time. The court took into account the husband's late realisation of the need to make an application, his initial willingness to cooperate with the wife, and the absence of any prejudice to the wife if the application was allowed to proceed.

The court granted the husband's application, allowing it to proceed despite being out of time. The court also expressed the view that there was a need for reform of the legislation to provide a more flexible approach to the application of the statutory time limit. The court noted that the current law may lead to unjust outcomes in some cases and recommended that the desirability of amending section 205ZB(1) of the Family Court Act 1997 be considered by the relevant authorities. The final orders of the court included granting the husband's application for property settlement, with specific directions as to the manner in which the proceedings should be conducted to ensure a fair and efficient resolution of the dispute.

Orders