MONTANO & KINROSS - [2018] FamCA 231

FAMILY COURT OF AUSTRALIA

MONTANO & KINROSS

[2014] FamCAFC 231

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – LEAVE TO APPEAL OUT OF TIME – Where the de facto wife made an application for property settlement 23 months out of time – Where trial judge refused to grant leave to extend time under s 44 of the Act – Whether leave is required to appeal an order refusing leave pursuant to s 44(3) of the Act – Where court held that leave was required.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – APPLICATION TO EXTEND TIME TO APPLY FOR PORPERTY SETTLEMENT – Where the de facto wife made an application for a property settlement 23 months out of time – Where the trial judge found that the de facto wife would suffer hardship if leave was not granted – Where the trial judge found the wife had an arguable case – Where the trial judge found that the last seven months of the delay were not explained and as a result refused to grant leave to appeal – Whether the trial judge fettered the discretion in s 44(6) of the Act by rendering exclusive the requirement to explain the reasons for delay – Where the trial judge made an error of law by treating the failure to explain a portion of the delay as determinative of exercise of the discretion to grant leave.

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act 1981(Cth)

Family Law Regulations 1984

Allesch v Maunz (2000) 203 CLR 172
Bienstein v Bienstein (2003) 195 ALR 225 at 230
Carr v Finance Corp of Australia Ltd (No. 1) (1981) 147 CLR 246
Coombs and Moore (1990) FLC 92-175
Davison v Queensland (2006) 226 CLR 234
Emamy and Marino (1994) FLC 92-487
Gallo v Dawson (1990) 93 ALR 479
Harris & Harris (1997) DFC 95-192
Hedley & Hedley (2009) FLC 93-413
McMahon and McMahon (1976) FLC 90-038
Richardson & Richardson [2008] FamCA 1215
Sharp & Sharp [2011] FamCAFC 150
Tamaniego & Tamaniego [2010] FamCAFC 254
Taffa & Taffa [2014] FamCAFC 106
Thallon & Thallon (1992) FLC 92-322
Tormsen and Tormsen (1993) FLC 92-392
Van der Kreek and Van der Kreek (1978) FLC 90-421
Whitford & Whitford (1979) FLC 90-612

APPELLANT:

Ms Montano

RESPONDENT:

Mr Kinross

FILE NUMBER:

SOA

2014

APPEAL NUMBER:

MLC

8860

2013

DATE DELIVERED::

13 November 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Ainslie-Wallace, Murphy and Tree JJ

HEARING DATE:

13 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 April 2014

LOWER COURT MNC:

[2014] FCCA 843

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Bronia Tulloch

SOLICITOR FOR THE APPELLANT:

Jane M Curtis and Associates Solicitors

COUNSEL FOR THE RESPONDENT:

Paul Hannan

SOLICITOR FOR THE RESPONDENT:

Westminster Lawyers Pty Ltd

Orders

IT IS ORDERED:

The orders made by Judge Turner on 30 April 2013 be set aside.
In lieu of the said Orders, leave be granted to the appellant pursuant to…

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: MONTANO & KINROSS [2018] FamCA 231
Case: [2018] FamCA 231
Decision Date: 13 November 2014

CaseChat Overview and Summary

This matter concerned an appeal from an order of a trial judge who refused to grant leave to the de facto wife (the appellant) to make an application for property settlement out of time, pursuant to section 44 of the *Family Law Act 1974* (Cth). The application for property settlement was filed 23 months after the expiry of the standard application period.

The primary legal issues before the Full Court were whether leave was required to appeal an order refusing leave to extend time under section 44(3) of the Act, and whether the trial judge had erred in law by fettering their discretion under section 44(6) of the Act. Specifically, the court considered whether the trial judge had made the requirement to explain the reasons for delay exclusive, thereby rendering the failure to explain a portion of the delay determinative of the exercise of discretion.

The Full Court held that leave was indeed required to appeal an order refusing leave to extend time under section 44(3). However, the court found that the trial judge had made an error of law by treating the appellant's failure to explain the last seven months of the delay as determinative of the exercise of discretion under section 44(6). The court reasoned that while the explanation for delay is a relevant consideration, it should not be treated as an exclusive or determinative factor, and that the trial judge had fettered their discretion by adopting such an approach.

Consequently, the Full Court set aside the orders made by the trial judge. In lieu of those orders, the Full Court granted the appellant leave to apply for an order under section 90SM of the Act, to be filed within 28 days of the date of the Full Court's orders. The court also granted costs certificates to both the appellant and the respondent.

Orders

Orders of the court

IT IS ORDERED:

The orders made by Judge Turner on 30 April 2013 be set aside.

In lieu of the said Orders, leave be granted to the appellant pursuant to s 44(6) of the Family Law Act 1974 (Cth) as amended to apply for an order under s 90SM of the Act after the end of the standard application period, such application to be filed within 28 days of the date of these orders.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to appeal No. SOA 32/2014.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the him in relation to appeal No. SOA32/2014.

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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