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) |
| Althaus and Althaus (1982) FLC 91-233 |
| 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
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
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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- Oxenham & Oxenham [2009] FamCAFC 167
- Case
- [2009] FamCAFC 167
- Decision Date
CaseChat Overview and Summary
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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