Merwar & Merwar - [2023] FedCFamC2F 970

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Merwar & Merwar [2023] FedCFamC2F 970

File number(s): MLC 12365 of 2022

Judgment of: JUDGE STEWART

Date of judgment: 3 August 2023

Catchwords: FAMILY LAW – property – limited claim – leave to proceed out of time – hardship – leave granted

Legislation: Family Law Act 1975 (Cth) ss 44(3), 44(4), 75(2)

Cases cited:
Chang & Su (2002) FLC 93-117

Hall v Hall [1979] FamCA 50

Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216

Skelton and Lindop (2022) FedCFamC1A 47

Stanford v Stanford [2012] HCA 52

Weir & Weir (1993) FLC 92-338

Division: Division 2 Family Law

Number of paragraphs: 24

Date of hearing: 2 August 2023

Place: Melbourne

Counsel for the Applicant: Mr Kaufman

Solicitor for the Applicant: Sayer Jones

Solicitor for the Respondent: Mr Ambas of Swiftly Legal
ORDERS

MLC 12365 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MERWAR

Applicant

AND:
MR MERWAR

Respondent

order made by:

JUDGE STEWART

DATE OF ORDER:

3 AUGUST 2023

THE COURT ORDERS THAT:
1.Pursuant to Section 44(3) of the Family Law Act 1975 (Cth), leave is granted to the Applicant to proceed with her application for property settlement.
2.The proceedings are adjourned to 13 September 2023 at 10:00am for First Return Financial before a Judicial Registrar.
3.Each party’s costs of 2 August 2023 be reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STEWART

The issue in this case is whether leave to proceed out of time should be granted pursuant to section 44(3) of the Family Law Act 1975 (Cth) ("the Act"). The Applicant Wife seeks leave and the Respondent Husband resists the Application.
A divorce order was made on 1 June 2021 and became final on 2 July 2021. The Wife issued these proceedings on 4 November 2022, around four months out of time. In the substantive proceedings, the Wife seeks a property adjustment of 30% of an asset pool said to be somewhere between $720,000 and $860,000 in round terms. The reason for the difference is because the Husband says that approximately $140,000 held by him in bank accounts in his name is actually held by him on trust for his sister, Ms…

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 Merwar & Merwar

Details

AGLC: Merwar & Merwar [2023] FedCFamC2F 970
Case: [2023] FedCFamC2F 970
Decision Date

CaseChat Overview and Summary

This case involved the application by Ms Merwar seeking leave to proceed with her application for property settlement out of time, which Mr Merwar opposed. The case was heard by Judge Stewart in the Federal Circuit and Family Court of Australia. The key issue the court had to decide was whether the applicant should be granted leave to proceed with her application for property settlement out of time, as per section 44(3) of the Family Law Act 1975 (Cth). Additionally, the court needed to determine whether the applicant had demonstrated sufficient hardship if leave was not granted, as required by section 44(4) of the Act.

The court examined the applicant's circumstances, including her limited financial contributions during the marriage and her current financial situation. It also considered the overall asset pool and the applicant's proposed property adjustment claim. The court found that the applicant had a prima facie case for property adjustment and it was unlikely that a court would dismiss her application or decide that it was not just and equitable to adjust property between the parties. The court also concluded that the applicant had demonstrated sufficient hardship if leave was not granted, as even a modest cash uplift could significantly improve her circumstances. The court took into account the applicant's intention to remain in Australia permanently, her current employment situation, and her plans for further study to improve her employment prospects. Therefore, the court granted the applicant leave to proceed with her application for property settlement out of time.

The court ordered that leave be granted to the applicant to proceed with her application for property settlement, the proceedings be adjourned for First Return Financial before a Judicial Registrar, and each party's costs of 2 August 2023 be reserved.

Orders