MANDLEY & DEBBINS - [2020] FCCA 523

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANDLEY & DEBBINS

[2020] FCCA 523

Catchwords:
FAMILY LAW – PROPERTY – Where the de facto wife made an application for property settlement four and a half years out of time – refusal to grant leave to extend time under s.44 of the Act – where the de facto wife filed an Amended Initiating Application that did not include an application for an order for leave – no jurisdiction to entertain the Amended Initiating Application – Amended Initiating Application be dismissed – no evidence of any circumstance of a de facto relationship existing.

Legislation:

Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), ss.4AA, 39B, 44, 90SB, 90SE, 90SG, 90SM, 90SL, & 106A
Federal Circuit Court Rules 2001 (Cth), r.21.02

Cases cited:

Montano v Kinross [2014] FamCAFC 231
Parker v Arcus and Castiglione (1984) FLC 91-581
Phillips and Phillips (1985) FLC 91-634; [1985] FamCA 19
Simonds (Deceased) & Coyle [2019] FamCAFC 47
Sims and Sims (1981) FLC 91-072; [1981] FamCA 102

Applicant:

MS MANDLEY

Respondent:

THE ESTATE OF MR DEBBINS

File Number:

MLC 702 of 2019

Judgment of:

Judge C E Kirton QC

Hearing date:

26 February 2020

Date of Last Submission:

26 February 2020

Delivered at:

Melbourne

Delivered on:

12 March 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Sweeney

Solicitors for the Respondent:

David Gibbs & Associates

ORDERS

The Applicant’s Initiating Application, filed on 23 January 2019 is dismissed.
The Applicant’s Application in a Case, filed on 17 February 2020 is dismissed.
The Applicant’s Contravention Application, filed 17 February 2020 is dismissed.
Order 7(c) of the Orders made on 27 February 2019 as amended by Order 5 of the Orders made on 2 October 2019 are hereby discharged.
Any application by the Respondent for costs against the Applicant be made within 28 days in accordance with r.21.02(1)(b) of the Federal Circuit Court Rules 2001 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 702 of 2019

MS MANDLEY

Applicant

and

THE ESTATE OF MR DEBBINS

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant, Ms Mandley, seeks leave pursuant to s.44(6) of the Family Law Act 1975 (Cth) (Act) to commence property settlement proceedings against the Respondent, the Estate of Mr Debbins (Respondent), outside the two year time limit prescribed by s.44(5) of the Act.
The Applicant claims to have been in a de facto relationship with Mr Debbins from 2008[1] to 26 July 2012[2]. Therefore the application for leave to proceed pursuant to s.44(6) of the Act is some four and a half years out of time, on the Applicant’s case.
[1] Initiating Application, at [Item 25] and Affidavit of the Applicant, filed 6.2.20, at [17].
[2] Initiating Application, at [Item 27], filed 23.1.19.
The family of Mr Debbins allege that the Applicant was not in a de facto…

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 MANDLEY & DEBBINS

Details

AGLC: MANDLEY & DEBBINS [2020] FCCA 523
Case: [2020] FCCA 523
Decision Date: 12 March 2020

CaseChat Overview and Summary

In the matter of *Mandley & Debbins*, the de facto wife (the applicant) sought property settlement orders against the de facto husband (the respondent). The applicant's application for property settlement was filed approximately four and a half years after the de facto relationship ended, which was outside the statutory time limit. The court was therefore required to consider whether to grant leave to extend the time for making such an application under section 44 of the relevant Act.

The primary legal issue before the court was whether it had jurisdiction to entertain the applicant's amended initiating application, given that it did not explicitly include an application for leave to extend time. This also encompassed the question of whether the court should grant such leave, considering the significant delay in commencing proceedings and the absence of evidence establishing the existence of a de facto relationship.

Judge C E Kirton QC determined that the court lacked jurisdiction to consider the amended initiating application as it did not contain a specific request for an order granting leave to extend time. Consequently, the court found it could not entertain the application for property settlement. The court also noted the lack of evidence presented by the applicant to demonstrate the existence of a de facto relationship.

The court ordered the dismissal of the applicant's initiating application filed on 23 January 2019, as well as her application in a case and contravention application filed on 17 February 2020. Existing orders relating to the matter were discharged, and the respondent was granted 28 days to make any application for costs against the applicant.

Orders

Orders of the court

The Applicant’s Initiating Application, filed on 23 January 2019 is dismissed.

The Applicant’s Application in a Case, filed on 17 February 2020 is dismissed.

The Applicant’s Contravention Application, filed 17 February 2020 is dismissed.

Order 7(c) of the Orders made on 27 February 2019 as amended by Order 5 of the Orders made on 2 October 2019 are hereby discharged.

Any application by the Respondent for costs against the Applicant be made within 28 days in accordance with r.21.02(1)(b) of the Federal Circuit Court Rules 2001 (Cth).

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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