MADIN & PALIS - [2015] FamCAFC 65

FAMILY COURT OF AUSTRALIA

MADIN & PALIS

[2015] FamCAFC 65

FAMILY LAW – APPEAL – Where the trial Judge dismissed an initiating application in which the appellant sought a declaration of a de facto relationship under section 90RD of the Family Law Act 1975 (Cth) on the basis that it was filed outside the statutory time limit provided in section 44(5) of the Family Law Act 1975 (Cth) – Where the Full Court found that by virtue of the operation of section 36(1) (Item 6) of the Acts Interpretation Act 1901 (Cth) the two year period provided in section 44(5) of the Family Law Act 1975 (Cth) started on the day after the relationship ended – where the Full Court accepted the reasoning of Beaumont J in relation to the meaning of the word “within” in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 – appeal allowed – orders set aside.

FAMILY LAW – APPEAL – COSTS – where the trial Judge made costs order against the appellant – where the Full Court found that because the appeal against the dismissal of the initiating application was successful and the costs order related to that application, the appeal against the costs order should also succeed– appeal allowed – order set aside.

Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Hedley & Hedley (2009) FLC 93-413
Morton v Hampson [1962] VR 364
Slater & Slater (1985) FLC 91-641
Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574

APPELLANT:

Mr Madin

RESPONDENT:

Ms Palis

FILE NUMBER:

BRC

130

2013

APPEAL NUMBERS:

NA
NA

52
66

of
of

2014
2014

DATE DELIVERED:

29 April 2015

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, May & Strickland JJ

HEARING DATE:

14 April 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 January 2014
23 May 2014

LOWER COURT MNC:

[2014] FCCA 118
[2014] FCCA 1029

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Bertone

SOLICITOR FOR THE APPELLANT:

Leishman Legal

COUNSEL FOR THE RESPONDENT:

Ms McLennan

SOLICITOR FOR THE RESPONDENT:

Allan R De Brenni & Company

Orders

The appeal against the orders made by Judge Howard on 28 January 2014 be allowed.
Orders 1 and 2 of the orders made on 28 January 2014 be set aside.
The appeal against the costs order made by Judge Howard on 23 May 2014 be allowed.
Order 1 of the orders made on 23 May 2014 be set aside.
Each party be at liberty to file and serve any written submissions in relation to the costs of the appeals within 28 days of the date hereof.
Each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
Each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

IT IS NOTED

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 MADIN & PALIS

Details

AGLC: MADIN & PALIS [2015] FamCAFC 65
Case: [2015] FamCAFC 65
Decision Date: 29 April 2015

CaseChat Overview and Summary

The appellant, Madin, appealed against two orders made by Judge Howard in the Family Court of Australia. The initial application sought a declaration of a de facto relationship under section 90RD of the Family Law Act 1975 (Cth). The trial judge dismissed the application on the basis that it was filed outside the statutory time limit provided in section 44(5) of the Family Law Act 1975 (Cth). The Full Court was required to decide whether the statutory time limit was correctly applied and if the trial judge's costs order against the appellant was appropriate.

The Full Court examined the interpretation of the statutory time limit under section 44(5) of the Family Law Act 1975 (Cth). The court found that the two-year period started on the day after the relationship ended, by virtue of the operation of section 36(1) (Item 6) of the Acts Interpretation Act 1901 (Cth). The court accepted the reasoning of Beaumont J in relation to the meaning of the word "within" in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574. As a result, the Full Court allowed the appeal and set aside the orders made by Judge Howard on 28 January 2014.

The Full Court also considered the costs order made by Judge Howard against the appellant. The court found that because the appeal against the dismissal of the initiating application was successful and the costs order related to that application, the appeal against the costs order should also succeed. The Full Court allowed the appeal against the costs order and set aside Order 1 of the orders made on 23 May 2014. Each party was given liberty to file and serve written submissions in relation to the costs of the appeals within 28 days of the date of the Full Court's decision.

Orders

Orders of the court

The appeal against the orders made by Judge Howard on 28 January 2014 be allowed.

Orders 1 and 2 of the orders made on 28 January 2014 be set aside.

The appeal against the costs order made by Judge Howard on 23 May 2014 be allowed.

Order 1 of the orders made on 23 May 2014 be set aside.

Each party be at liberty to file and serve any written submissions in relation to the costs of the appeals within 28 days of the date hereof.

Each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.

Each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

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.