MYERS & MAY - [2014] FamCA 332

FAMILY COURT OF AUSTRALIA

MYERS & MAY

[2014] FamCA 332

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 husband has demonstrated “hardship” – Factors to be considered in respect of whether the Court should grant leave – Hardship proven – Should the discretion be exercised? – Application granted

FAMILY LAW – SPOUSAL MAINTENANCE – Application for leave to commence spousal maintenance proceedings out of time pursuant to section 44(3) of the Family Law Act 1975 (Cth) – No evidence to satisfy section 44(4)(b) of the Family Law Act 1975 (Cth) – Application dismissed

Family Law Act 1975 (Cth) ss 44(3), 44(4)(a) & (b), 75(2)

Carlon & Carlon (1982) FLC 91-272
Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060
Hall & Hall (1979) FLC 90-679
McCarron & McCarron (1978) 4 Fam LR 112
Neocleous (1993) FLC 92-377
Whitford& Whitford (1979) FLC 90-612

APPLICANT:

Mr Myers

RESPONDENT:

Ms May

FILE NUMBER:

PAC

4735

2012

DATE DELIVERED:

22 May 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

11 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gersbach

SOLICITOR FOR THE APPLICANT:

Taperell Rutledge Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Aitken Lawyers Pty Ltd

Orders

That leave be granted pursuant to section 44(3) of the Family Law Act 1975 (Cth) for the Applicant husband to institute proceedings against the Respondent wife in respect of property.
That the Applicant husband’s application for leave to commence proceedings against the Respondent wife in respect of spousal maintenance be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myers & May 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 4735 of 2012

Mr Myers

Applicant

And

Ms May

Respondent

REASONS FOR JUDGMENT

Eight years after separation and seven years after divorce the Applicant husband seeks leave to commence proceedings for the property settlement and spousal maintenance against the Respondent wife.
The question for determination is whether circumstances are such that the husband 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. In this matter the parties were divorced on … May 2007.
The Court may grant leave at any time, even if the proceedings have already been instituted, however, such leave shall not be granted unless the court is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted and, in the case of proceedings in relation to spousal maintenance, that at the end of 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 MYERS & MAY

Details

AGLC: MYERS & MAY [2014] FamCA 332
Case: [2014] FamCA 332
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Myers (the Applicant husband) for leave to commence property settlement and spousal maintenance proceedings out of time against Ms May (the Respondent wife). The parties had separated eight years prior and divorced seven years prior, well outside the usual 12-month time limit for commencing such proceedings after a divorce order takes effect, as stipulated by section 44(3) of the *Family Law Act 1975* (Cth). The central question before the Court was whether circumstances warranted granting the husband leave to proceed out of time.

The Court was required to determine two primary legal issues. Firstly, whether the husband had demonstrated "hardship" as contemplated by section 44(3) of the *Family Law Act 1975* (Cth), which is a prerequisite for granting leave. Secondly, if hardship was established, whether the Court should exercise its discretion to grant leave for both property settlement and spousal maintenance proceedings. The Court noted that for spousal maintenance proceedings specifically, section 44(4)(b) also requires evidence that the applicant would have been unable to support themselves without an income-tested pension, allowance, or benefit at the end of the 12-month period post-divorce.

In its reasoning, the Court applied the principles established in *Whitford & Whitford* (1979) FLC 90-612, which outlines a two-stage process for applications for leave under section 44(3). The first stage involves determining if hardship would be caused to a party or child if leave were not granted. If hardship is established, the second stage requires the Court to consider whether, in its discretion, it should grant or refuse leave. The Court considered various factors relevant to hardship, including the reasonableness of the case, the financial circumstances of the parties, and other relevant facts. It also noted that while the absence of a reasonable explanation for delay is a consideration, it does not automatically preclude the granting of leave, as per *Neocleous* (1993) FLC 92-377 and *Carlon & Carlon* (1982) FLC 91-272. The Court found that the husband had demonstrated hardship, particularly given the significant disparity in financial circumstances and his prospective loss of employment.

Consequently, the Court ordered that leave be granted pursuant to section 44(3) of the *Family Law Act 1975* (Cth) for the Applicant husband to institute property settlement proceedings against the Respondent wife. However, the husband's application for leave to commence spousal maintenance proceedings out of time was dismissed, as he failed to satisfy the requirements of section 44(4)(b) of the Act.

Orders