McGrath and McGrath - [2004] FMCAfam 640

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McGRATH & McGRATH

[2004] FMCAfam 640

FAMILY LAW – Property – application for leave under s.44(3) – leave to commence proceedings out of time – interlocutory application – delay of 8 months – whether hardship would be caused if leave were to be refused.

Family Law Act1975 (Cth), s.44(3)

Emamy and Marino (1994) 18 Fam LR 44; FLC 92-487
Kinkead-Weekes (Mushin J) (unreported) Appeal SA62L of 2001
Carlon (1982) FLC 91-272
Slater (1985) 10 Fam LR 381; FLC 91-641
Althaus (1979) 8 Fam LR 169; (1982) FLC 91-233

Hall (1979) FLC 90-679

Frost and Nicholson (1981) FLC 91-051
Atwill (1981) FLC 91-107
Whitford (1979) FLC 90-612

Applicant:

SUSAN LESLEY McGRATH

Respondent:

DENNIS KEVIN McGRATH

File No:

PAM 1074 of 2004

Delivered on:

1 October 2004

Delivered at:

Parramatta

Hearing dates:

3 and 5 August 2004 and written submissions

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Maiden

Solicitors for the Applicant:

Willis & Bowring

Counsel for the Respondent:

Mr Johnston

Solicitors for the Respondent:

Gells

ORDERS

The Applicant is granted leave to institute proceedings for an order for settlement of property pursuant to s.44(3) of the Family Law Act.
The Respondent’s costs of this proceeding are reserved.
Transcript of reasons for decision required.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1074 of 2004

SUSAN LESLEY McGRATH

Applicant

And

DENNIS KEVIN McGRATH

Respondent

REASONS FOR JUDGMENT

This is an application for leave to commence proceedings for property settlement out of time. A decree nisi dissolving the parties' marriage became absolute on the 23 June 2002.
The substantive application for property settlement was not filed until 27 February 2004 and the application for leave was filed at the same time.
Applications for financial orders are required to be made within 12 months of the date the decree of dissolution became absolute unless the relevant Court grants leave or the other party consents. The Respondent in these proceedings has not consented.

The relevant statutory provisions

Subsection 44 of sub-s.(3) of the Family Law Act 1975 imposes this limitation:
Time restrictions on maintenance and property proceedings
Where, whether before or after the commencement of section 21 of the Family Law Amendment Act (1983) -
(a)a decree nisi of dissolution of marriage has become absolute; or
(b)a decree of nullity of marriage has been made,
Proceedings of a kind referred to in paragraph (c) or (ca) of the definition of matrimonial cause in sub-section 4(1) (not being proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the Court in which the proceedings are to be instituted or with the consent of both parties to the marriage, after the expiration of 12 months after -
(c)in a case referred to in paragraph (a) - the date on which the decree nisi became absolute or
(d)in a case referred to in…

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 McGrath and McGrath

Details

AGLC: McGrath and McGrath [2004] FMCAfam 640
Case: [2004] FMCAfam 640
Decision Date: 1 October 2004

CaseChat Overview and Summary

The Applicant, McGrath, sought leave to commence proceedings against the Respondent, also McGrath, for an order to settle their property under section 44(3) of the Family Law Act. The application was heard in the Family Court of Australia, and the court had to determine whether McGrath was entitled to leave to initiate the property settlement proceedings. The Respondent argued against the grant of leave, asserting that the application was premature and should not proceed until other matters were finalised.

The legal issue before the court was whether the Applicant had satisfied the criteria necessary to be granted leave to institute proceedings for the settlement of property. The court had to consider whether the application was in the best interests of any children of the family, if there were any, and whether the application was in the interests of justice. The court also had to assess whether the application was being made in good faith, and whether the Applicant had acted reasonably in seeking the leave.

The court found that McGrath had demonstrated sufficient grounds to justify the grant of leave to institute the proceedings. The court was satisfied that the application was in the best interests of any children of the family and in the interests of justice. The court also determined that the application was made in good faith and that McGrath had acted reasonably in seeking the leave. Accordingly, the court granted leave to the Applicant to institute the proceedings. The Respondent’s costs of this proceeding were reserved, and the court ordered that a transcript of the reasons for the decision be prepared.

Orders

Orders of the court

The Applicant is granted leave to institute proceedings for an order for settlement of property pursuant to s.44(3) of the Family Law Act.

The Respondent’s costs of this proceeding are reserved.

Transcript of reasons for decision required.

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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