NELL & KOHLER - [2019] FCCA 281

FEDERAL CIRCUIT COURT OF AUSTRALIA

NELL & KOHLER

[2019] FCCA 281

Catchwords:
FAMILY LAW – Application for an extension of time to file property proceedings under s.79 of the Act – where the Applicant would suffer hardship if leave was not granted – adequate explanation for the delay – no prejudice to the Respondent – leave to institute proceedings granted.

Legislation:

Family Law Act 1975 (Cth), ss.44, 79

Cases cited:

Edmunds & Edmunds [2018] FamCAFC 121

Montano & Kinross [2014] FamCAFC 231

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

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 NELL

Respondent:

MR KOHLER

File Number:

MLC 2999 of 2018

Judgment of:

Judge C.E. Kirton QC

Hearing date:

13 July 2018

Date of Last Submission:

13 July 2018

Delivered at:

Melbourne

Delivered on:

13 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Paul

Solicitors for the Applicant:

ADN Lawyers

Counsel for the Respondent:

Mr Foo

Solicitors for the Respondent:

Rigoli Lawyers

ORDERS

The Applicant is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) to commence property proceedings against the Respondent under s.79 of the Family Law Act 1975 (Cth).
The costs of the parties of and incidental to the Applicant’s Applications in a Case filed on 23 April 2018 and 1 May 2018 be reserved.
The matter be adjourned to the Federal Circuit Court of Australia on 19 March 2019 at 9.30 am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2999 of 2018

MS NELL

Applicant

and

MR KOHLER

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter the Applicant seeks leave to institute property proceedings outside the 12 month time limit prescribed by s.44(3) of the Family Law Act 1975 (Cth) (Act).
The parties were divorced on 9 October 2016 and therefore any property proceedings had to be instituted on or before 9 October 2017. The Applicant filed an Initiating Application on 20 March 2018 purporting to institute proceedings pursuant to s.79 of the Act. It was not until 23 April 2018 when the Applicant filed an Application in a Case, that the Applicant sought leave to commence property proceedings outside the 12 month time limit. The application for leave to proceed is therefore six and a half months out of time. The Respondent opposes the application.

Background

The Applicant was born in Country B on … 1985 and is 34 years…

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 NELL & KOHLER

Details

AGLC: NELL & KOHLER [2019] FCCA 281
Case: [2019] FCCA 281
Decision Date: 13 February 2019

CaseChat Overview and Summary

In the matter of NELL & KOHLER, the applicant sought an extension of time to file property proceedings under section 79 of the *Family Law Act 1975* (Cth). The dispute concerned the applicant's ability to institute these proceedings out of time, with the applicant asserting that hardship would be suffered if leave was not granted.

The central legal issue before Judge C.E. Kirton QC was whether to grant the applicant leave to commence property proceedings under section 79 of the Act, notwithstanding the expiry of the statutory time limit. This required the court to consider the applicant's explanation for the delay and whether the respondent would suffer prejudice if the proceedings were permitted to continue.

The court determined that an adequate explanation for the delay had been provided and that the respondent would not suffer prejudice. Applying the principles governing extensions of time in family law proceedings, the court found that it was appropriate to grant the applicant leave to institute the property proceedings. Consequently, the applicant was granted leave pursuant to section 44(3) of the *Family Law Act 1975* (Cth) to commence property proceedings against the respondent under section 79 of the Act. The costs of the applications were reserved, and the matter was adjourned for mention in the Federal Circuit Court of Australia.

Orders

Orders of the court

The Applicant is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) to commence property proceedings against the Respondent under s.79 of the Family Law Act 1975 (Cth).

The costs of the parties of and incidental to the Applicant’s Applications in a Case filed on 23 April 2018 and 1 May 2018 be reserved.

The matter be adjourned to the Federal Circuit Court of Australia on 19 March 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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