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) |
| 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 | 32 | of | 2014 |
| APPEAL NUMBER: | MLC | 8860 | of | 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…
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- Montano & Kinross [2014] FamCAFC 231
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- [2014] FamCAFC 231
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CaseChat Overview and Summary
The court had to determine 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 correctly exercised the discretion under section 44(6). The court found that leave was indeed required to appeal such an order. Furthermore, the court held that the trial judge made an error of law by treating the failure to explain a portion of the delay as determinative of the exercise of the discretion to grant leave. The court found that the trial judge fettered the discretion by rendering exclusive the requirement to explain the reasons for delay, which was not permissible under the Act.
In light of the findings, the orders made by Judge Turner on 30 April 2013 were set aside, and leave was granted to the appellant to apply for an order under section 90SM of the Family Law Act 1974 (Cth) after the end of the standard application period. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981, finding it appropriate for the Attorney-General to authorise payments for the costs incurred by the parties in relation to the appeal.
Orders
Orders of the court
IT IS ORDERED:
1.
The orders made by Judge Turner on 30 April 2013 be set aside.
2.
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.
3.
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.
4.
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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