Moylan and Murchison - [2018] FCCA 1887

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOYLAN & MURCHISON

[2018] FCCA 1887

Catchwords:
FAMILY LAW – Property – Where the husband seeks leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) to bring an application for property settlement some 25 months out of time – proper approach to evidence.

Legislation:

Family Law Act 1975, ss.44, 75, 79, 117

Cases cited:
Bevan & Bevan [2013] FamCAFC 116
Cox & Cox [1981] FamCA 58; (1981) FLC 91-068
Hall and Hall (1979) 5 FamLR 411; (1979) FLC 90-679
Hedley & Hedley [2009] FamCAFC 179; (2009) FLC 93-413
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FamCA 395; FLC 93-143
Marriage of Jacenko (1986) 11 Fam LR 341
Marriage of Perkins (1979) FLC 90-600; 4 FamLR 634
Oxenham & Oxenham [2009] FamCAFC 167
Randall & Pavot [2016] FCCA 1620
Sharp & Sharp [2011] FamCAFC 150
Stanford & Stanford [2012] HCA 52
Tamaniego & Tamaniego [2010] FamCAFC 254
Walker & Walker [1984] FamCA 55; (1984) FLC 91-564
Whitford & Whitford [1979] FamCA 3

Applicant:

MR MOYLAN

Respondent:

MS MURCHISON

File Number:

SYC 3535 of 2017

Judgment of:

Judge Harper

Hearing date:

16 March 2018

Date of Last Submission:

16 March 2018

Delivered at:

Sydney

Delivered on:

11 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bennett

Solicitors for the Applicant:

Trinity Legal Migration

Counsel for the Respondent:

Mr Fowler

Solicitors for the Respondent:

Watts McCray

ORDERS

The application for leave to institute these proceedings pursuant to s.44(3) of the Family Law Act1975 be dismissed.
The Initiating Application filed 8 June 2017 be dismissed.
If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.

THE COURT NOTES THAT:

A.Any application as to costs will be dealt with by way of written submissions in chambers, unless the parties request to be heard orally.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3535 of 2017

MR MOYLAN

Applicant

And

MS MURCHISON

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application brought by the Applicant husband, Mr Moylan (“the husband”) seeking leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute proceedings for final property adjustment Orders under s 79 of the Act. A Divorce Order was granted on 15 April 2014 and became final on 16 May 2014. The husband filed his Initiating Application on 8 June 2017, some two years outside the time delimited in s.44(3)
The wife, Ms Murchison (“the wife”), resists the grant of leave and seeks that the…

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 Moylan and Murchison

Details

AGLC: Moylan and Murchison [2018] FCCA 1887
Case: [2018] FCCA 1887
Decision Date: 11 July 2018

CaseChat Overview and Summary

In *Moylan and Murchison*, heard by Judge Harper, the applicant sought leave to institute proceedings under section 44(3) of the *Family Law Act 1975* (Cth). The respondent opposed the application. The core of the dispute concerned whether the applicant had satisfied the requirements of section 44(3) to bring proceedings outside the prescribed time limits.

The primary legal issue before the Court was whether the applicant had demonstrated that she would suffer "hardship" if the proceedings were not permitted to be instituted. This required the Court to consider the nature of hardship as contemplated by the *Family Law Act* and to assess the evidence presented by the applicant in support of her claim.

Judge Harper dismissed the application for leave to institute proceedings. The Court found that the applicant had not established the requisite degree of hardship necessary to justify an extension of time under section 44(3). Consequently, the Initiating Application filed by the applicant was also dismissed. The Court indicated that any application for costs would need to be made within 28 days, with the possibility of written submissions or oral hearing.

Orders

Orders of the court

The application for leave to institute these proceedings pursuant to s.44(3) of the Family Law Act 1975 be dismissed.

The Initiating Application filed 8 June 2017 be dismissed.

If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.

THE COURT NOTES THAT:

A. Any application as to costs will be dealt with by way of written submissions in chambers, unless the parties request to be heard orally.

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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