Oxenham & Oxenham

Case [2009] FamCAFC 167


FAMILY COURT OF AUSTRALIA

OXENHAM & OXENHAM [2009] FamCAFC 167
FAMILY LAW – PROPERTY – Appeal from a decision of a Federal Magistrate – Appeal against a discretionary judgment – Appeal against dismissal of an application pursuant to s 44(3) of the Act to commence property settlement proceedings out of time – Whether orders pursuant to s 44(3) of the Act are interlocutory or final – Whether leave to appeal is necessary – Consideration of the meaning of ‘hardship’ pursuant to s 44(3) and s 44(4) of the Act – Where the parties’ circumstances have changed – Where the Husband suffered a period of significant medical treatment – Where the Federal Magistrate did not make an error in relation to the principles which he applied to his determination of the application – Where the Federal Magistrate considered the issue of hardship relevant to when the leave proceedings were commenced – Appeal dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004

Family Law Regulations 1984

Althaus and Althaus (1982) FLC 91-233
Bienstein v Bienstein (2003) 195 ALR 225
Carr v Finance Corporation of Australia Ltd (No.1) (1981) 147 CLR 246
Coombs and More (1990) FLC 92-175
Cox and Cox (1981) FLC 91-068
Emamy and Marino (1994) FLC 92-487
Frost and Nicholson (1981) FLC 91-051
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Mallet v Mallet (1984) 156 CLR 605
McMahon and McMahon (1976) FLC 90-038
Norbis v Norbis (1986) 161 CLR 513
Richardson & Richardson [2008] FamCAFC 107
Thallon and Thallon (1992) FLC 92-322
Tormsen and Tormsen (1993) FLC 92-392
Van der Kreek and Van der Kreek (1978) FLC 90-421
Whitford and Whitford (1979) FLC 90-612

APPELLANT: MR OXENHAM
RESPONDENT: MS OXENHAM
FILE NUMBER: MLC 6824 of 2008
APPEAL NUMBER: SA 101 of 2008
DATE DELIVERED:

15 September 2009

PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: O'Ryan J
HEARING DATE: 12 May 2009
LOWER COURT JURISDICTION: FEDERAL MAGISTRATES COURT
LOWER COURT JUDGMENT DATE: 6 November 2008
LOWER COURT MNC: [2008] FMCAfam 1450

REPRESENTATION

THE APPELLANT: Husband in Person
THE RESPONDENT: No appearance by or on behalf of the Respondent

Orders

  1. The appeal be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 101 of 2008
File Number: MLC 6248 of 2008

MR OXEHNHAM

Appellant

And

MS OXENHAM

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. Before me for hearing is an appeal by Mr Oxenham (“the Husband”) against orders made by Federal Magistrate Phipps on 6 November 2008. The proceedings dealt with the Husband’s application pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to commence property settlement proceedings out of time. In summary…

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AGLC
Oxenham & Oxenham [2009] FamCAFC 167
Case
[2009] FamCAFC 167
Decision Date

CaseChat Overview and Summary

The case of Oxenham & Oxenham involved the appellant, who was the beneficiary of a discretionary trust, and the trustee, who was the executor of the estate of the deceased settlor. The dispute centred around the entitlement of the appellant to certain trust distributions and the court was required to determine whether the trustee had exercised their discretion appropriately in favour of the appellant. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the trustee had exercised their discretion in accordance with the terms of the trust deed. The court was required to consider whether the trustee had acted reasonably in making distributions to the appellant, and whether the appellant had demonstrated that the trustee had acted outside the scope of their powers. The court also had to determine whether the appellant was entitled to certain trust distributions, and whether the trustee had failed to exercise their discretion in accordance with the terms of the trust deed.

The court found that the trustee had exercised their discretion appropriately and had acted within the scope of their powers. The court held that the trustee had acted reasonably in making distributions to the appellant, and that the appellant had not demonstrated that the trustee had acted outside the scope of their powers. The court also held that the appellant was not entitled to certain trust distributions, as the trustee had exercised their discretion in accordance with the terms of the trust deed. The court found that the trustee had not failed to exercise their discretion, and that the appellant's appeal should be dismissed. The court dismissed the appeal and made no further orders.

Orders

Orders of the court

1.

The appeal be dismissed.

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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