Morgan and Flanagan - [2014] FamCA 348

FAMILY COURT OF AUSTRALIA

MORGAN & FLANAGAN

[2014] FamCA 348

FAMILY LAW – PROPERTY – Application for leave to commence property settlement proceedings out of time pursuant to section 44(3) of the Family Law Act 1975 (Cth) – Whether the wife has demonstrated “hardship” – Factors to be considered in respect of whether the Court should grant leave – Hardship proven – Whether the Court’s discretion in granting leave should be exercised - Application granted

Family Law Act 1975 (Cth) ss 44(3) & (4), 81

Carlon & Carlon (1982) FLC 91-272
Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060
Hall & Hall (1979) FLC 90-679
Neocleous (1993) FLC 92-377
Whitford& Whitford (1979) FLC 90-612

APPLICANT:

Ms Morgan

RESPONDENT:

Mr Flanagan

FILE NUMBER:

PAC

5345

2010

DATE DELIVERED:

30 May 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

23 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shaw

SOLICITOR FOR THE RESPONDENT:

Adams & Partners Lawyers

Orders

That leave be granted to the Applicant wife to institute property proceedings, notwithstanding that the proceedings were not commenced within twelve (12) months of the date of the Divorce Order dissolving the parties’ marriage took effect, pursuant to section 44(3) of the Family Law Act 1975 (Cth).
That the Respondent husband file and serve a response as to property and a financial statement within fourteen (14) days.
That the matter be listed before the docket Registrar for appropriate directions on Friday 25 July 2014 at 10.30 am to facilitate the matter proceeding to a conciliation conference.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morgan & Flanagan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5345 of 2010

Ms Morgan

Applicant

And

Mr Flanagan

Respondent

REASONS FOR JUDGMENT

The Applicant wife seeks leave to commence property proceedings out of time.
The parties lived together from about late 1996 / early 1997, married in May 2002, separated in April/May 2010 and were divorced on … December 2011.
The wife was required to commence proceedings within 12 months of the Divorce Order, that is by … December 2012. She did not do. She commenced the present application for leave on the 21 January 2014 when she was only a little over a year out of time.
The husband opposes the wife being granted leave to commence proceedings.
The question for determination is whether circumstances are such that the wife should be granted leave to commence these proceedings out of time.
Sections 44(3) and (4) of the Family Law Act 1975 (Cth), in summary, provide that such proceedings cannot be commenced without leave of the Court after the expiration of 12 months after a divorce order takes effect.
The Court may grant leave at any time, even if the proceedings have already been instituted, however, such leave shall not be granted unless…

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 Morgan and Flanagan

Details

AGLC: Morgan and Flanagan [2014] FamCA 348
Case: [2014] FamCA 348
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Ms Morgan (the wife) for leave to commence property settlement proceedings out of time against Mr Flanagan (the husband). The parties separated in April/May 2010, and their divorce order took effect in December 2011. Under section 44(3) of the *Family Law Act 1975* (Cth), the wife was required to commence property proceedings within 12 months of the divorce order, meaning by December 2012. Her application for leave was filed in January 2014, just over a year after the deadline. The husband opposed the wife's application.

The primary legal issue before the Court was whether to grant the wife leave to institute property proceedings out of time. This required the Court to determine two broad questions: first, whether the wife had demonstrated that hardship would be caused to her or a child of the marriage if leave were not granted; and second, if hardship was established, whether the Court should exercise its discretion to grant leave. The Court noted that hardship in this context means substantial detriment, and relevant factors include the applicant's reasonable case, the parties' financial circumstances, and other relevant facts. If hardship is found, the Court then considers the length of the delay, the explanation for it, any prejudice to the respondent, and other discretionary factors.

The Court found that the wife had demonstrated hardship. She is 54 years old, receives a disability pension, and has primary care of the parties' 15-year-old child, for whom the husband pays minimal child support. The wife asserted that she had made significant financial advances to the husband and incurred substantial borrowings secured against her property for his benefit. Her property was subsequently sold, and she now lives in impecunious circumstances, with limited assets and debts including school fees and legal costs. The Court also found that the wife had an arguable case for significant contributions to the relationship and potential adjustment factors under section 75(2) of the Act, particularly concerning her health, the child's care, and the husband's superannuation. The husband did not assert any prejudice if leave were granted.

Consequently, the Court granted the wife leave to institute property proceedings out of time. The husband was ordered to file and serve a response and financial statement within 14 days, and the matter was listed for directions to facilitate a conciliation conference.

Orders