Phelan and Phelan - [2008] FMCAfam 986

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHELAN & PHELAN

[2008] FMCAfam 986

FAMILY LAW – Application to set aside consent property orders – application to extend time for application for spousal maintenance – application for summary dismissal of both applications – consideration of s.79A and s.44 of the Family Law Act 1975.

Family Law Act 1975, ss.44(4), 79A, 87A
Federal Magistrates Court Rules 2001, rr.13.10, 13.10(a)

Roach v Electoral Commissioner (2007) 81 ALJR 1830

Applicant:

MR PHELAN

Respondent:

MS PHELAN

File Number:

MLC 4531 of 2008

Judgment of:

Burchardt FM

Hearing date:

27 August 2008

Date of Last Submission:

27 August 2008

Delivered at:

Melbourne

Delivered on:

25 September 2008

REPRESENTATION

Counsel for the Applicant:

Ms S. Dosanjh

Solicitors for the Applicant:

Hartleys Lawyers

Counsel for the Respondent:

Mr D.S. Lampe

Solicitors for the Respondent:

Lampe Family Lawyers

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 4531 of 2008

MR PHELAN

Applicant

And

MS PHELAN

Respondent

REASONS FOR JUDGMENT

The Applicant husband has applied to set aside final orders made by consent in the Family Court on 10 June 2005 pursuant to s.79A of the Family Law Act 1975 (“the Act”) and that he have leave to issue an application for spousal maintenance out of time.
The Respondent wife has sought to dismiss the application summarily on the basis that it has no prospects of success.
For the reasons that follow I am not persuaded that the application should be summarily dismissed. I am also of the view that Mr Phelan should be granted leave to bring his application for spousal maintenance out of time.
The application as finally pressed in oral argument before the Court on behalf of Mr Phelan was an all-encompassing potpourri of the various matters set out in s.79A of the Act. It was put that taken cumulatively, these matters gave rise to a miscarriage of justice such that the Court should exercise its powers to allow Mr Phelan's application to proceed.
While I have come to the clear view that the application ought not be summarily dismissed, it must be said that a number of the propositions advanced in support of Mr Phelan's position are lacking in substance.

The Facts

The parties married in 1986 and were divorced on 13 November 2006 when their decree became absolute.
There are two children of the relationship, [X], born in 1987, and [Y], born in 1990.
Mr Phelan was in gaol from November 2004 for armed robbery. He pleaded guilty to two charges and was sentenced to about nine years in gaol. His affidavit material suggests that he appealed that decision and the sentence was quashed and he is now out on parole, having been released on 24 March 2008. Mr Phelan has not indicated whether or not he faces a retrial or re-sentencing.
Mr Phelan has deposed that while…

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 Phelan and Phelan

Details

AGLC: Phelan and Phelan [2008] FMCAfam 986
Case: [2008] FMCAfam 986
Decision Date: 25 September 2008

CaseChat Overview and Summary

The matter of Phelan & Phelan involved an application by the Applicant, Mr Phelan, to set aside consent property orders made in the Family Court on 10 June 2005, and to have leave to apply for spousal maintenance out of time. The Respondent, Ms Phelan, sought to have the application summarily dismissed on the basis that it had no prospects of success. The Federal Magistrates Court had to consider the provisions of sections 79A and 44 of the Family Law Act 1975.

The primary legal issues for the Court were whether the application should be summarily dismissed and if leave should be granted for Mr Phelan to apply for spousal maintenance out of time. The Court had to examine the circumstances under which the consent orders were made, the nature of Mr Phelan's claims of a miscarriage of justice, and whether the statutory provisions allowed for the relief sought.

The Court found that the application should not be summarily dismissed as there were valid grounds to believe that a miscarriage of justice had occurred. While some of Mr Phelan's arguments were lacking in substance, the potential undervaluation of the properties and the possibility of fraud or suppression of evidence by Ms Phelan could lead to a miscarriage of justice. Additionally, the Court held that Mr Phelan's incarceration should not automatically disqualify him from applying for spousal maintenance, and that the matter should be considered on its merits. Consequently, the application for summary dismissal was dismissed.

In conclusion, the Court allowed Mr Phelan's application to continue but ordered him not to sell or encumber his interest in the property he now owned outright. This decision ensures that if the application is ultimately found to be without merit, there will be assets available to satisfy any costs orders. The parties were directed to draw up orders to give effect to the Court's conclusions.

Orders