NEWBROOK & GARLAND - [2019] FCCA 3732

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWBROOK & GARLAND

[2019] FCCA 3732

Catchwords:
FAMILY LAW – Property – de facto relationship – leave to proceed out of time.

Legislation:

Family Law Act 1975 (Cth), ss.44, 90SM

Cases cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Jacenko & Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776
Oxenham & Oxenham [2009] FamCAFC 167

Sharp & Sharp [2011] FamCAFC 150, (2011) 50 FamLR 567

Edmunds & Edmunds [2018] FamCAFC 121

Althaus & Althaus (1979) 8 Fam LR 169, (1982) FLC 91-233
Hedley & Hedley (2009) FamLR 147, (2009) FLC 93-413
Tamaniego & Tamaniego [2010] FamCAFC 254

Neocleous & Neocleous (1993) FLC 92-377

Whitford & Whitford (1979) FLC 90-612

Hall and Hall (1979) 5 FamLR 411, (1979) FLC 90-679
Montano & Kinross [2014] FamCAFC 231

Applicant:

MR NEWBROOK

Respondent:

MS GARLAND

File Number:

BRC 2683 of 2019

Judgment of:

Judge Lapthorn

Hearing date:

2 August 2019

Date of Last Submission:

2 August 2019

Delivered at:

Brisbane

Delivered on:

20 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr Jeffery

Solicitors for the Applicant:

Keller Nall & Brown

Solicitor for the Respondent:

Mr Rosen

Solicitors for the Respondent:

Rosen Lawyers

ORDERS

That pursuant to s.44(6) leave be granted for the applicant to apply for an order under s.90SM notwithstanding the expiration of the standard application period.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2683 of 2019

MR NEWBROOK

Applicant

And

MS GARLAND

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant, Mr Newbrook, would like to receive an order for property adjustment following the breakdown of his de-facto relationship with the Respondent, Ms Garland. In order for him to do so he will need leave of the court to apply as he did not bring his application within the time limit provided for in the Family Law Act 1975 (“the Act”). The respondent opposes the granting of that leave. This judgment relates solely to the issue of whether that leave should be granted. Throughout these reasons I will refer to Mr Newbrook as the applicant and Ms Garland as the respondent. I mean no disrespect in doing so.
By way of brief background, the parties commenced a de-facto relationship in 2006 and separated in March 2009. The applicant did not file his application until 7 March 2019 some ten years after the breakdown of the relationship and eight years after the relevant expiry period.

Documents relied on

In support of his application the applicant relied on the following documents:
a)The Initiating Application filed 7 March 2019;
b)His Affidavits filed 7 March 2019 and 30 July 2019;
c)His Financial Statement filed 7 march 2019; and
d)A Case Outline filed 30 July 2019.
The respondent did not file a Response to the Initiating Application nor any evidence by way of affidavit. Only an Amended Case Outline filed 31…

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 NEWBROOK & GARLAND

Details

AGLC: NEWBROOK & GARLAND [2019] FCCA 3732
Case: [2019] FCCA 3732
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the matter of NEWBROOK & GARLAND, heard before Judge Lapthorn, the applicant sought leave to proceed with an application for property settlement orders under section 90SM of the *Family Law Act 1975* (Cth) notwithstanding the expiration of the standard application period. The dispute concerned the ability of the applicant to bring their claim outside the statutory time limits.

The central legal issue before the court was whether the applicant had satisfied the requirements of section 44(6) of the *Family Law Act 1975* (Cth) to be granted leave to commence proceedings out of time. This involved an assessment of whether it was in the interests of justice to grant such leave.

Judge Lapthorn granted the applicant leave to proceed with their application for orders under section 90SM. The court determined that the circumstances warranted the exercise of discretion under section 44(6), permitting the matter to be heard despite the expiry of the usual time limits for commencing such proceedings.

Orders

Orders of the court

That pursuant to s.44(6) leave be granted for the applicant to apply for an order under s.90SM notwithstanding the expiration of the standard application period.

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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