Pearson and Coli - [2018] FamCA 295

FAMILY COURT OF AUSTRALIA

PEARSON & COLI

[2018] FamCA 295

FAMILY LAW – PRACTICE AND PROCEDURE – Registrars – Review of decision – Delegation of power to Registrars – where the parties were unrepresented at the time the original orders were made – where the original orders are uncertain and incapable of being enforced – where the consent orders did not achieve the parties’ intention of a 50/50 division of assets – where the Registrar had not properly exercised the delegated judicial power – where it was found the original orders should not have been made – orders made granting an extension of time for the wife to file an application for review of the Registrar’s decision

Gallo v Dawson (1990) 93 ALR 479
Harris v Caladine (1991) 99 ALR 193

Redman & Redman (2013) FamCAFC 183
Sommerville & Sommerville (2000) FLC 93-042

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Ms Pearson

RESPONDENT:

Mr Coli

FILE NUMBER:

DGC

1112

2014

DATE DELIVERED:

8 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

12 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glick QC
Mr Dunlop

SOLICITOR FOR THE APPLICANT:

Mason Black Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

Orders

The Applicant is granted leave out of time to apply to the Court for a review of the orders made by the Registrar pursuant to s 79 of the Family Law Act 1975 (Cth) on 26 May 2014.
The matter be listed for directions in the Registrar’s Duty List at 9.30 am on 4 July 2018.

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 Pearson & Coli 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 MELBOURNE

FILE NUMBER: DGC 1112 of 2014

Ms Pearson

Applicant

And

Mr Coli

Respondent

REASONS FOR JUDGMENT

The substantive application in this case is the wife’s Amended Initiating Application filed 8 June 2016, in which she seeks to set aside consent orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). These orders were purportedly made pursuant to s 79 of the Act by the Registrar on 26 May 2014. In the alternative, the wife seeks that she be given leave out of time to review the Registrar’s decision. Although the wife foreshadowed an application for an adjournment of her application to set aside the orders pursuant to s 79A of the Act, counsel for both parties ultimately…

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 Pearson and Coli

Details

AGLC: Pearson and Coli [2018] FamCA 295
Case: [2018] FamCA 295
Decision Date: 8 May 2018

CaseChat Overview and Summary

In the matter of *Pearson and Coli*, heard before Macmillan J, the applicant sought leave to appeal out of time against orders made by a Registrar on 26 May 2014, pursuant to section 79 of the *Family Law Act 1975* (Cth). The precise nature of the dispute leading to the Registrar's original orders is not detailed in the provided text, but the application before Macmillan J concerned the applicant's ability to challenge those orders after the expiry of the usual time limits.

The central legal issue before the Court was whether to grant the applicant an extension of time to seek a review of the Registrar's orders. This required the Court to consider the principles governing the grant of leave to appeal or seek review out of time in family law proceedings, balancing the applicant's right to have their case heard against the finality of judicial decisions and the potential prejudice to the respondent.

Macmillan J granted the applicant leave out of time to apply for a review of the Registrar's orders. The Court ordered that the matter be listed for directions in the Registrar’s Duty List on 4 July 2018. This outcome indicates that the Court was satisfied that sufficient grounds existed to permit the applicant to pursue their review despite the delay.

Orders

Orders of the court

The Applicant is granted leave out of time to apply to the Court for a review of the orders made by the Registrar pursuant to s 79 of the Family Law Act 1975 (Cth) on 26 May 2014.

The matter be listed for directions in the Registrar’s Duty List at 9.30 am on 4 July 2018.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.