MOON & WILLBANKS - [2019] FCCA 1206

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOON & WILLBANKS

[2019] FCCA 1206

Catchwords:
FAMILY LAW – Application for extension of time – de facto property proceedings – hardship – adequate explanation for delay – no prejudice to the Respondent – leave to institute proceedings granted.

Legislation:

Family Law Act 1975 (Cth), ss.44, 90SB, 90SM

Cases cited:

Edmunds & Edmunds [2018] FamCAFC 121

Frost & Nicholson (1981) FLC 91-051

Gallo v Dawson (1990) 93 ALR 479

Hedley & Hedley [2009] FamCAFC 179

In the Marriage of Althaus (1979) 8 Fam LR 169

In the Marriage of Hall (1979) 5 Fam LR 411

In the Marriage of Perkins (1979) 4 Fam LR 634

In the Marriage of Whitford (1979) 4 Fam LR 754

Montano & Kinross [2014] FamCAFC 231

Pleym & Pleym (1986) FLC 91-762

Richardson & Richardson (2000) FLC 93-012

Tems & Tems (1990) FLC 92-169

Tormsen & Tormsen (1993) FLC 92-392

Walker & Walker (1984) FLC 91-564

Applicant:

MS MOON

Respondent:

MR WILLBANKS

File Number:

MLC 563 of 2019

Judgment of:

Judge C.E. Kirton QC

Hearing date:

12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Melbourne

Delivered on:

9 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Foo

Solicitors for the Applicant:

Women's Legal Service Victoria

Solicitors for the Respondent:

Mr Da Gama of Vernon Da Gama & Associates

ORDERS

The Applicant is granted leave pursuant to s.44(6) of the Family Law Act 1975 (Cth) to commence property proceedings against the Respondent pursuant to s.90SM of the Family Law Act 1975 (Cth).
The matter be adjourned to the Federal Circuit Court of Australia on 5 September 2019 at 9:30 am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 563 of 2019

MS MOON

Applicant

and

MR WILLBANKS

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant seeks leave to commence property proceedings outside the two year time limit prescribed by s.44(5) of the Family Law Act 1975 (Cth) (Act).
The parties separated under one roof in October 2013 and the Applicant commenced receiving a parenting payment. The Applicant moved out of the home with the four children of the relationship on 22 June 2015. It was not until 18 January 2019 that the Applicant filed an Initiating Application seeking leave to commence property proceedings outside the two year time limit. The application is therefore some three years and three months out of time. The Respondent opposes the application.

Synopsis

I have determined that the Applicant should be granted leave pursuant to s.44(6) of the Act to commence property proceedings against the Respondent pursuant to s.90SM of the Act.

Background

The Applicant was born on … 1980 and is 38 years old. The Respondent was born on … 1978 and is 40 years old.
The parties first commenced cohabitation in about … 2006. There are four children of the relationship:…

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 MOON & WILLBANKS

Details

AGLC: MOON & WILLBANKS [2019] FCCA 1206
Case: [2019] FCCA 1206
Decision Date: 9 May 2019

CaseChat Overview and Summary

In *Moon & Willbanks*, the applicant sought an extension of time to commence de facto property proceedings against the respondent. The matter came before Judge C.E. Kirton QC in the Family Court of Australia.

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(6) of the *Family Law Act 1975* (Cth). This required the court to consider whether there were adequate grounds to extend the time limit, specifically addressing the applicant's explanation for the delay and any prejudice that might be suffered by the respondent.

The court reasoned that the applicant had provided an adequate explanation for the delay in commencing proceedings. Furthermore, the court found that the respondent would not suffer undue prejudice as a result of the extension being granted. Applying these considerations, the court determined that it was appropriate to grant the applicant leave to proceed.

Consequently, the court ordered that the applicant be granted leave pursuant to s.44(6) of the *Family Law Act 1975* (Cth) to commence property proceedings against the respondent under s.90SM of the Act. The matter was then adjourned to the Federal Circuit Court of Australia for a mention on 5 September 2019.

Orders

Orders of the court

The Applicant is granted leave pursuant to s.44(6) of the Family Law Act 1975 (Cth) to commence property proceedings against the Respondent pursuant to s.90SM of the Family Law Act 1975 (Cth).

The matter be adjourned to the Federal Circuit Court of Australia on 5 September 2019 at 9:30 am for Mention.

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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