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MICHELSON & WALTAS

MICHELSON & WALTAS

Case [2020] FCCA 2038 28 July 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MICHELSON & WALTAS

[2020] FCCA 2038

Catchwords:
FAMILY LAW – Application for extension of time to file property proceedings under s.79 of the Family Law Act 1975 – leave to institute proceedings granted.

Legislation:

Family Law Act 1975 (Cth), ss.44, 79

Cases cited:

Hall & Hall (1979) FLC 90-679

Whitford & Whitford (1979) FLC 90-612

Edmunds & Edmunds [2018] FamCAFC 121

Gadzen v Simkin [2018] FamCAFC 218

Emerald & Emerald [2018] FamCAFC 217

Sharp & Sharp [2011] FamCAFC 150

Jacenko & Jacenko [1986] FamCA 25

Montano & Kinross [2014] FamCAFC 231

Frost and Nicholson [1981] FamCA 45

Applicant:

MS MICHELSON

Respondent:

MR WALTAS

File Number:

DGC 439 of 2020

Judgment of:

Judge O'Sullivan

Hearing date:

8 July 2020

Date of Last Submission:

8 July 2020

Delivered at:

Dandenong

Delivered on:

28 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Ng

Solicitors for the Applicant:

Pentana Stanton Lawyers

Counsel for the Respondent:

Mr Stanley

Solicitors for the Respondent:

Wheeler Family Lawyer

ORDERS

The applicant is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) to commence property proceedings against the respondent under s.79 of the Act.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 439 of 2020

MS MICHELSON

Applicant

And

MR WALTAS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern an application by Ms Michelson (“the applicant”) for leave to bring property settlement proceedings out of time. The application is opposed by Mr Waltas (“the respondent”).
For the reasons that follow the applicant will be granted leave to proceed out of time with her application for property settlement.

Background facts

The applicant is 51 years old and lives in Town B. The respondent is 52 years old and also lives in Town B.
The parties commenced a relationship in the late 1980s, married in 1991, separated in November 2013 and there was a divorce order in June 2015. There were three children of the 22 year marriage who are now all over 18 years old.
When the parties separated the children remained living with the respondent in the former matrimonial home at C Street, Town B (“the former matrimonial home”).
The respondent, the sole registered proprietor of the former matrimonial home remains living there (as he has since separation) and continues to meet the mortgage repayments (as he has also done since separation).
The applicant, for who it was agreed the separation was traumatic, remarried in 2018, and prior to that had reconciled with at least one of the adult children who now lives with her.
Finally its uncontroversial that prior to the divorce order taking effect the applicant had legal advice and had notice, when it was made, of the time limit within which to bring proceedings under s.79 of the Family Law Act 1975 (Cth) (“the Act”).
The applicant began attending counselling in 2015,…

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 MICHELSON & WALTAS

Details

AGLC: MICHELSON & WALTAS [2020] FCCA 2038
Case: [2020] FCCA 2038
Decision Date: 28 July 2020

CaseChat Overview and Summary

In *Michelson & Waltas*, heard by Judge O'Sullivan, the applicant sought an extension of time to file property proceedings against the respondent under section 79 of the *Family Law Act 1975* (Cth).

The central legal issue before the court was whether to grant the applicant leave to institute property proceedings out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). This required the court to consider the relevant factors for granting such an extension.

Judge O'Sullivan granted the applicant leave to commence property proceedings against the respondent under section 79 of the Act.

Orders

Orders of the court

The applicant is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) to commence property proceedings against the respondent under s.79 of the Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

MICHELSON & WALTAS [2020] FCCA 2038

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Cases cited in this decision · 16 of 16 shown

Gadzen & Simkin
[2018] FamCAFC 218 Para 3

…nd more recent) decisions of the Full Court of the Family Court of Australia: Edmunds & Edmunds [2018] FamCAFC 121 (“ Edmunds” ); Gadzen v Simkin [2018] FamCAFC 218 (“ Gadzen” ) and Emerald & Emerald [2018] FamCAFC 217 (“ Emerald” ).…
Emerald & Emerald
[2018] FamCAFC 217 Para 3

…Court of Australia: Edmunds & Edmunds [2018] FamCAFC 121 (“ Edmunds” ); Gadzen v Simkin [2018] FamCAFC 218 (“ Gadzen” ) and Emerald & Emerald [2018] FamCAFC 217 (“ Emerald” ).…
Edmunds & Edmunds
[2018] FamCAFC 121 Para 3

…is has also been considered in a number of separate (and more recent) decisions of the Full Court of the Family Court of Australia: Edmunds & Edmunds [2018] FamCAFC 121 (“ Edmunds” ); Gadzen v Simkin [2018] FamCAFC 218 (“ Gadzen” ) and Emerald & Emerald [2018] FamCAFC 217 (“ Emerald” ).…
Montano & Kinross
[2014] FamCAFC 231 Para 32

…amental question in any application of this nature is whether granting an extension of time will do justice between the parties. In Montano & Kinross [2014] FamCAFC 231 Murphy J writing for the Full Court [ said: “ [14] Like many applications for indulgence, an application for leave to apply after the end of the stan…
MCCOY & CHANCELLOR
[2014] FamCAFC 62 Para 7

…probable order to be made if leave were granted. 20 (1979) FLC 90-679, 78,627; see also McCoy and Chancellor [2014] FamCAFC 62; Sharp v Sharp (2011) 50 Fam LR 567 (“Sharp”) and Edmunds & Edmunds (2018) FLC 93-847 (“Edmunds”). [36] In Edmunds the Full Court recently cited with approval the judgment in Sharp and said…
Sharp v Sharp
[2009] NSWSC 841 Para 7

…be made if leave were granted. 20 (1979) FLC 90-679, 78,627; see also McCoy and Chancellor [2014] FamCAFC 62; Sharp v Sharp (2011) 50 Fam LR 567 (“Sharp”) and Edmunds & Edmunds (2018) FLC 93-847 (“Edmunds”). [36] In Edmunds the Full Court recently cited with approval the judgment in Sharp and said: 47. As the Full Cour…
McLean v Sydney Water Corporation
[2001] NSWCA 122 Para 6

…tances of the case, it is just and reasonable to grant the extension sought. The New South Wales Court of Appeal in McLean v Sydney Water Corporation [2001] NSWCA 122, per Giles JA (Hodgson and Stein JA agreeing) said at [22] that: [22] Prejudice engendered by delay and unlikelihood of a fair trial will be highly m…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 2

…the application ought to be considered. [6] Such an approach is consistent with the authorities: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; McDonald and McDonald (1977) FLC 90-317 at 76,688; Jacenko and Jacenko (1986) FLC 91-776 (“ Jacenko ”) at 75,644; Sharp v Sharp (2…
Jacenko & Jacenko
[1986] FamCA 25

…Edmunds [2018] FamCAFC 121 Gadzen v Simkin [2018] FamCAFC 218 Emerald & Emerald [2018] FamCAFC 217 Sharp & Sharp [2011] FamCAFC 150 Jacenko & Jacenko [1986] FamCA 25 Montano & Kinross [2014] FamCAFC 231 Frost and Nicholson [1981] FamCA 45…
Warren v Coombes
[1979] HCA 9 Para 1

…s of the trial judge ” having of course given proper “ respect and weight to the conclusion of the trial judge ” ( Warren v Coombes (1979) 142 CLR 531 at 551). [130] A challenge to the second component for the grant of leave involves a challenge to the exercise of discretion to which different principles apply. A con…
Beecham Group Ltd v Bristol Laboratories Pty ltd
[1968] HCA 1 Para 4

…ory injunction in a patent case but in terms that apply to all interlocutory injunctions, in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 (“Beecham”) at 622 the High Court described the inquiry the Court is to undertake in the following way: The Court addresses itself in all cases, patent as we…
House v R
[1936] HCA 40 Para 1

…ry judge does not attract appellate intervention; error within recognised categories must be established (see, eg, House v The King (1936) 55 CLR 499 at 505; Gronow at 519 – 520).”…
[1979] FAMCA 50
[1979] FAMCA 50 Para 13

…In Hall & Hall [1979] FamCA 50 the Full Court held that a court considering the preliminary question did not need to find that the application will ultimately be successful and went on to say: “… Similarly it needs to be borne in mind that the prospect of success need not relate to the whole of the proposed claim.…
Frost and Nicholson
[1981] FAMCA 45 Para 30

…In Frost and Nicholson [1981] FamCA 45 it was said prejudice means that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought. The respondent’s evidence, even on his own affidavit, did not rise to the level that he had been led to believe no action…
[2011] FAMCAFC 150
[2011] FAMCAFC 150 Para 11

…Many authorities have addressed what is meant by ‘ hardship ’ in the context of a leave application. In Sharp & Sharp [2011] FamCAFC 150 May and Ainslie-Wallace JJ held: o [17] It is well accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attendi…
House v The King
63 WN 176 Para 1

…that of the primary judge does not attract appellate intervention; error within recognised categories must be established (see, eg, House v The King (1936) 55 CLR 499 at 505; Gronow at 519 – 520).”…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
44, 79 3 mentions (from Para 1)
Family Law Amendment Act 1983 (Cth)
1 mention (from Para 1)
Limitation of Actions Act 1974 (Qld)
1 mention (from Para 4)