Maybry and McLaughlin - [2019] FCCA 1347

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYBRY & MCLAUGHLIN

[2019] FCCA 1347

Catchwords:

FAMILY LAW – De facto property settlement proceedings – Applicant has filed proceedings outside standard application period – requires leave of court to proceed – consideration of hardship – exercise of discretion – leave refused – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.44, 44(3), 44(6), 90SF(3), 90SM

Cases cited:

Whitford v Whitford (1979) FLC90-612

Sharp v Sharp (2011) 50 FamLR 567

Edmunds v Edmunds (2018) FLC93-847

Graetz v Stanley [2018] FamCAFC 218

Althaus v Althaus (1982) FLC91-233

Gadzen & Simkin [2018] FamCAFC 218

Applicant:

MR MAYBRY

Respondent:

MS MCLAUGHLIN

File Number:

NCC 995 of 2018

Judgment of:

Judge Betts

Hearing dates:

14 & 26 February 2019

Date of Last Submission:

18 April 2019

Delivered at:

Newcastle

Delivered on:

12 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Tony Cox lawyers

Counsel for the Respondent:

Mr Duane

Solicitors for the Respondent:

East Coast Family Lawyers

ORDERS

The application for leave to apply out of time pursuant to s.44(6) of the Family Law Act 1975 is dismissed.
The Initiating Application filed 29 March 2018 is dismissed.
The court will hear the parties on the question of costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 995 of 2018

MR MAYBRY

Applicant

And

MS MCLAUGHLIN

Respondent

REASONS FOR JUDGMENT

Background:

These are property settlement proceedings brought pursuant to the provisions of Part VIIIAB of the Family Law Act1975 (“the Act”). They arise as a result of the breakdown of the de facto relationship between the Applicant and the Respondent on 5 January 2016.
The de facto relationship between the parties subsisted for around ten (10) years. It produced three (3) children, all of whom live with the Respondent and presently spend very limited time with the Applicant who has since moved to a location some four (4) hours drive away.
Pursuant to s.44(5) of the Act, the Applicant was obliged to bring his property settlement application within two (2) years after the end of the de facto relationship (“the standard application period”).
The Applicant in fact filed his Initiating Application on 29 March 2018, some eighty-two (82) days or so after the end of the standard application period.
Because his application was filed late, the Applicant requires leave to apply. The Respondent opposes a grant of leave and this is the issue that I am presently asked to determine.

Leave to apply out of time – the law:

Section 44(6) of the Act provides that the court may grant a party to a former de facto relationship leave to apply after the end of the standard application period if the court is satisfied that hardship would be caused to that party if leave were not granted.
(my emphasis)
This is relevantly the same test as that which…

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 Maybry and McLaughlin

Details

AGLC: Maybry and McLaughlin [2019] FCCA 1347
Case: [2019] FCCA 1347
Decision Date: 12 June 2019

CaseChat Overview and Summary

In *Maybry and McLaughlin*, heard by Judge Betts, the applicants sought leave to commence proceedings out of time under section 44(6) of the *Family Law Act 1975* (Cth). The respondents opposed this application.

The central legal issue before the court was whether the applicants had established sufficient grounds to be granted an extension of time to file their Initiating Application, which had been lodged significantly out of time. This required the court to consider the criteria and discretion afforded by section 44(6) of the Act.

Judge Betts dismissed the application for leave to proceed out of time. The court found that the applicants had not satisfied the necessary threshold to justify an extension, and consequently, the Initiating Application filed on 29 March 2018 was also dismissed. The court indicated it would hear the parties on the question of costs.

Orders

Orders of the court

The application for leave to apply out of time pursuant to s.44(6) of the Family Law Act 1975 is dismissed.

The Initiating Application filed 29 March 2018 is dismissed.

The court will hear the parties on the question of costs.

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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