Radney & Radney - [2022] FedCFamC2F 53

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Radney & Radney [2022] FedCFamC2F 53

File number(s): SYC 3761 of 2020

Judgment of: JUDGE MONAHAN

Date of judgment: 28 January 2022

Catchwords: FAMILY LAW – PROPERTY – Final hearing on the papers – where parties were separated over 30 years ago – where parties divorced over 20 years ago – where husband had a de-facto partner of over 30 years – where wife seeks leave to commence property proceedings out of time pursuant to section 44(3) – where husband died before wife’s leave application was heard – whether the Court has jurisdiction to determine the wife’s leave application – if the Court has jurisdiction then whether leave should be granted to the wife to commence property proceedings against the respondent through his personal legal representative.

Legislation: Family Law Act 1975 (Cth), Part V, ss.39(1)(a), 44(3), 44(4)

Cases cited: Carlon & Carlon (1982) FLC 91-272
Edmunds & Edmunds [2018] FamCAFC 121
Jacenko and Jacenko (1986) FLC 91-776
Montano & Kinross [2014] FamCAFC 231
Whitford& Whitford (1979) FLC 90-612; (1979) 24 ALR 424; (1979) 4 FamLR 754; (1979) 35 FLR 445
Simonds (deceased) and Coyle [2019] FamCAFC 47
Sharp & Sharp [2011] FamCAFC 150
Slocomb & Hedgwood [2015] FamCAFC 219

Division: Division 2 Family Law

Number of paragraphs: 62

Date of last submission/s: 25 August 2021

Date of hearing: Heard on the papers

Place: Sydney

Counsel for the Applicant: Mr Dura

Counsel for the Respondent: Ms Giacomo
ORDERS

SYC 3761 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RADNEY

Applicant

AND:
MR RADNEY

Respondent

ORDER MADE BY:

JUDGE MONAHAN

DATE OF ORDER:

28 JANUARY 2022

THE COURT FINDS THAT:
A.The Court does not have jurisdiction to determine the wife’s application for leave to bring property proceedings pursuant to section 44(3) of the Family Law Act 1975 (Cth).

THE COURT ORDERS ON A FINAL BASIS THAT:
1.The wife’s Initiating Application filed 12 June 2020 is dismissed.
2.In the event that either party seeks an order for costs, they are to make, file and serve an Application in a Proceeding and supporting Affidavit within 28 days of the date of these Orders.
3.Subject to paragraph 2 all extant applications be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Radney & Radney has been…

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.

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Details

AGLC: Radney & Radney [2022] FedCFamC2F 53
Case: [2022] FedCFamC2F 53
Decision Date

CaseChat Overview and Summary

The case of Radney & Radney concerned the widow's attempt to seek leave to commence property proceedings against her deceased husband. The wife filed an Initiating Application 19 years after the parties' divorce and out of the 12-month statutory limit. She sought leave under section 44(3) of the Family Law Act 1975. The husband died before the Court could rule on the wife's leave application. The issues were whether the Court had jurisdiction to consider the wife's leave application, and if so, whether leave should be granted. The Court held that it did not have jurisdiction to determine the wife's leave application because the husband's death prior to the determination of the application meant the Court could no longer exercise jurisdiction. The wife's leave application was therefore dismissed for want of jurisdiction. The Court also noted that the general rule is that each party pays their own costs and that any party seeking costs must file an Application in a Proceeding and supporting affidavit within 28 days.

Orders