NESBITT & NESBITT - [2020] FamCA 359

FAMILY COURT OF AUSTRALIA

NESBITT & NESBITT

[2020] FamCA 359

FAMILY LAW – PROPERTY SETTLEMENT – Leave to file application out of time – Where the husband seeks leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings pursuant to s 79 of the Act eight years out of time – Where the wife opposes the granting of leave – Where the parties separated in 2008 and divorced in 2011 – Where the husband will suffer if leave is not granted – Where the husband has adequately explained the delay – Leave granted.

FAMILY LAW – PROPERTY – INJUNCTIONS – Where the husband also seeks that the wife be restrained from dealing with two properties owned by a family trust – Where there is no evidence of a risk of the wife disposing of the property – Application dismissed.

Family Law Act 1975 (Cth), ss 44(3), 79, 114

Family Law Rules 2004 (Cth), r 13.05

Aldred & Aldred (No 2) (1985) FLC 91-602
Althaus & Althaus (1982) FLC 91-233
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Frost and Nicholson (1981) FLC 91-051
Gadzen & Simkin (2018) FLC 93-871
Gallo v Dawson (1990) 93 ALR 479
Hall & Hall (1979) FLC 90-679
Kennon & Spry (2008) FLC 93-388
Mullen & De Bry (2006) FLC 93-293
Richardson & Richardson [2008] FamCAFC 107
Sharp & Sharp (2011) 50 Fam LR 567
Waugh & Waugh (2000) FLC 93-052
Whitford and Whitford (1979) FLC 90-612

APPLICANT:

Mr Nesbitt

RESPONDENT:

Ms Nesbitt

FILE NUMBER:

BRC

1525

2020

DATE DELIVERED:

14 May 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

5 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. Bunning

SOLICITOR FOR THE APPLICANT:

Shanahan Family Law

COUNSEL FOR THE RESPONDENT:

Ms A. Black

SOLICITOR FOR THE RESPONDENT:

Butler McDermott Lawyers

Order

Pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) the applicant be granted leave to institute proceedings pursuant to s 79 of the Act by filing an amended Initiating Application particularising the Order sought by him within 14 days of the date of this Order.
The respondent file an amended financial statement within 7 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1525 of 2020

Mr Nesbitt

Applicant

And

Ms Nesbitt

Respondent

REASONS FOR JUDGMENT

Mr Nesbitt (“the husband”) applies for leave…

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.

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Details

AGLC: NESBITT & NESBITT [2020] FamCA 359
Case: [2020] FamCA 359
Decision Date: 14 May 2020

CaseChat Overview and Summary

In *Nesbitt & Nesbitt*, the husband sought leave pursuant to s 44(3) of the *Family Law Act 1975* (Cth) to institute property settlement proceedings under s 79 of the Act, eight years after the parties' separation in 2008. The wife opposed the granting of leave. The parties had divorced in 2011. The husband also sought an injunction restraining the wife from dealing with two properties held by a family trust.

The primary legal issue before Carew J was whether to grant the husband leave to file his property settlement application out of time, considering the significant delay. A secondary issue was whether to grant an injunction preventing the wife from dealing with the trust properties.

Carew J reasoned that the husband had adequately explained the delay in filing his application and would suffer if leave were not granted. Consequently, the court exercised its discretion to grant the husband leave to institute proceedings out of time. Regarding the injunction, the court found no evidence of a risk that the wife would dispose of the trust properties, and therefore dismissed that application.

Orders