MCCOY & CHANCELLOR - [2014] FamCAFC 62

FAMILY COURT OF AUSTRALIA

MCCOY & CHANCELLOR

[2014] FamCAFC 62

FAMILY LAW – APPLICATION FOR LEAVE TO APPEAL – Where the application for leave to appeal was not challenged by the respondent – Where the proposed appeal considers applications for extensions of time following the High Court decision of Stanford v Stanford (2012) 247 CLR 108 – Leave to appeal granted.

FAMILY LAW – APPEAL – PROPERTY – Application for leave to appeal against orders allowing the respondent to commence de facto property proceedings out of time – Where the delay did not prejudice the appellant – Where the parties had entered into a mediated agreement which included a clause requiring the parties to consent to an extension of time for the commencement of property proceedings if the agreement was not effected – Where the submissions were confined to the trial judge’s finding that hardship would be caused if leave to bring proceedings out of time was not granted – Where hardship amounted to the denial of a chance to pursue a reasonable claim – Where the use of common property had come to an end through the voluntary conclusion of the de facto relationship – Appeal dismissed.

Family Law Act 1975 (Cth)

Frost & Nicholson (1981) FLC 91-05

Sharp & Sharp [2011] FamCAFC 150
Stanford v Stanford (2012) 247 CLR 108

APPELLANT:

Ms McCoy

RESPONDENT:

Ms Chancellor

FILE NUMBER:

BRC

1650

2013

APPEAL NUMBER:

2013

DATE DELIVERED:

11 April 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland & Kent JJ

HEARING DATE:

29 November 2013

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

15 July 2013

LOWER COURT MNC:

[2013] FCCA 740

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page QC

SOLICITOR FOR THE APPELLANT:

Feeney Family Law

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Phillips Family Law

Orders made on 29 November 2013

The appellant be granted leave to appeal.
The appeal NA 40 of 2013 be dismissed.
The appellant pay the respondent’s costs of the application for leave to appeal and the appeal, and failing agreement such costs to be assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCoy & Chancellor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 40 of 2013
File Number: BRC 1650 of 2013

Ms McCoy

Appellant

And

Ms Chancellor

Respondent

REASONS FOR JUDGMENT

In an amended notice of appeal filed 8 August 2013, Ms McCoy, the appellant sought leave to appeal from orders made by Judge Turner on 15 July 2013. Those orders allowed an application by Ms Chancellor, the respondent in this appeal, to proceed with de facto property proceedings filed outside the time provided in the Family Law Act 1975 (Cth) (“the Act”). Subject to leave being granted, on appeal the appellant sought that those orders…

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.

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Details

AGLC: McCoy and Chancellor [2014] FamCAFC 62
Case: [2014] FamCAFC 62
Decision Date: 11 April 2014

CaseChat Overview and Summary

Ms McCoy, the appellant, sought leave to appeal from the orders made by Judge Turner on 15 July 2013, which allowed Ms Chancellor, the respondent, to proceed with de facto property proceedings filed outside the time provided in the Family Law Act 1975 (Cth). The primary legal issues in this appeal were whether the trial judge correctly exercised her discretion in granting leave to proceed out of time, and whether she correctly determined that the appellant would suffer hardship if leave was not granted.

The court considered the grounds of appeal raised by the appellant, which primarily contested the trial judge's assessment of hardship. The appellant argued that the trial judge did not properly consider the statutory provisions and made a predetermination regarding the division of property. However, the court found that the trial judge correctly exercised her discretion and determined hardship based on the denial of the opportunity to pursue a reasonable claim. The court held that the voluntary severance of the de facto relationship rendered the just and equitable requirement readily satisfied, and that the denial of a chance to pursue a reasonable claim must of itself cause hardship.

In conclusion, the court dismissed the appeal and granted leave to appeal. The appellant was ordered to pay the respondent's costs of the application for leave to appeal and the appeal itself. The court found no merit in the grounds of appeal and held that the trial judge's decision was correct.

Orders