Ressel & Morath - [2022] FedCFamC1F 863

Federal Circuit and Family Court of Australia (DIVISION 1)
first instance
Ressel & Morath [2022] FedCFamC1F 863

File number(s): BRC 12043 of 2020

Judgment of: CAREW J

Date of judgment: 9 November 2022

Catchwords: FAMILY LAW - PROPERTY – s 44(6) – oral application for leave to commence proceedings out of time – whether the applicant would suffer hardship if leave is not granted – whether discretion should be exercised in favour of granting leave – where the evidence relied upon by the applicant is replete with inconsistency and vagueness, there is no explanation for the delay, there is an absence of any reliable evidence as to valuation of any property, and the property pool is at best modest – where the application to commence proceedings out of time is dismissed

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Civil Law and Justice Legislation Amendment Bill 2018

Cases cited:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Hedley & Hedley (2009) FLC 93-413

In the marriage of Althaus (1982) FLC 91-233

Sharp & Sharp (2011) 50 Fam LR 567

Tamaniego & Tamaniego [2010] FamCAFC 254

Welland & Hawthorn [2021] FedCFamC1A 43

Whitford & Whitford (1979) FLC 90 – 612

Number of paragraphs: 37

Date of hearing: 24 October 2022

Place: Brisbane

The Applicant: Litigant in person

Counsel for the Respondent: Ms M. Murphy

Solicitor for the Respondent: Naughton McCarthy Family Lawyers
ORDER

BRC 12043 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR RESSEL

Applicant

AND:
MS MORATH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAREW J

DATE OF ORDER:

9 November 2022

THE COURT ORDERS THAT:
1.Pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”), the applicant’s oral application for leave to apply for an order under s 90SM of the Act out of time is dismissed.
2.The applicant’s Amended Initiating Application filed 17 June 2022 is dismissed.
3.The respondent’s Application in a Proceeding filed 26 August 2022 is dismissed.
4.Any application for costs is reserved for hearing to 25 November 2022 at 9.30 am, when the proceedings are next before the Honourable Justice Carew for a Case Management Hearing in relation to parenting matters.

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 the pseudonym Ressel &…

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 Ressel & Morath

Details

AGLC: Ressel & Morath [2022] FedCFamC1F 863
Case: [2022] FedCFamC1F 863
Decision Date

CaseChat Overview and Summary

The case of Ressel & Morath involved a dispute between the parties regarding the applicability of leave to apply for a property settlement order under section 90SM of the Family Law Act 1975 (Cth) in the context of a de facto relationship that ended on 27 February 2020. The applicant, Mr Ressel, sought to amend his existing initiating application to include a property settlement claim, which the respondent, Ms Morath, opposed on the grounds that the two-year limitation period had expired and that Mr Ressel had not obtained leave to file the application out of time. Mr Ressel argued that either leave was not required or, if it was, he had been granted leave to make an oral application for leave to file his amended initiating application nunc pro tunc.

The court was required to determine whether leave is necessary to apply for a property settlement order under section 90SM of the Act, in light of the two-year limitation period that expired on 27 February 2022, and if leave is indeed required, whether it should be granted in this particular case. The court also needed to consider the effect of the limitation period on the applicant's ability to seek a property settlement and assess the circumstances of the case to decide whether leave should be granted.

The court ruled that leave is required to apply for a property settlement order under section 90SM of the Act and that the two-year limitation period had expired on 27 February 2022. The court found that Mr Ressel did not have leave to make an oral application for leave to file his amended initiating application nunc pro tunc, and therefore, his application was filed out of time. Consequently, the court dismissed the application for leave and denied the application for a property settlement order. The court held that the applicant's circumstances did not warrant an extension of time or the granting of leave, and therefore, the application was dismissed in its entirety.

Orders

Orders of the court

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Background

Background to the litigation

The questions for determination in this case are: firstly, whether or not leave is required to apply for an order for property settlement under s 90SM of the Family Law Act 1975 (Cth) (“the Act”), arising out of a de facto relationship that ended at the latest on 27 February 2020; and, secondly, if leave is required pursuant to s 44(6), whether it should be granted. Brief background Mr Ressel is 44 years of age and the applicant in substantive proceedings involving parenting matters. On 17 June 2022, he purported to amend his Initiating Application to add an additional cause of action, namely, to seek a property settlement order pursuant to s 90SM of the Act. In the proposed property application, Mr Ressel appears to seek an equal division of various items of property including the sale of a real property, and, in the case of one item, Mr Ressel seeks that it be divided among three people, and, further, for the physical return of some other items. Mr Ressel contends he is currently unemployed and, according to his Financial Statement filed 17 June 2022, he is in receipt of “Government benefits” of $395 per week but also receives a “total salary or wage” of $55 per week and “other income” of $450 per week. His weekly expenses are $300. Ms Morath is 35 years of age and the respondent in the substantive proceedings involving parenting matters and the applicant in an Application in a Proceeding filed 26 August 2022 in which she seeks the summary dismissal of Mr Ressel’s Amended Initiating Application filed 17 June 2022, or alternatively, (as became apparent from submissions) to dismiss any application for leave to commence property proceedings out of time. Ms Morath is a “[consultant]”. According to her Financial Statement filed 26 August 2022, Ms Morath’s total salary or wage per week is $3,346. Her average weekly income from all sources is estimated to be $3,821 and her weekly expenses are estimated to be $3,785. The parties commenced cohabitation in 2013 and separated at the latest on 27 February 2020 (according to Mr Ressel). There is one child born to the relationship, namely, X, born 2014. X lives with Ms Morath and has spent no time with Mr Ressel since late April 2020. In early 2022, Mr Ressel pleaded guilty to criminal charges and was released from prison on time served, namely, nine months. Mr Ressel represented himself at the hearing before me, but informed the Court that he had sought legal advice on the issues currently before me. Counsel for Ms Morath submitted that the Court had no jurisdiction to deal with the property application because Mr Ressel had not been granted leave (nor sought leave) to file the application out of time. The two year limitation period expired, in her submission, at the latest on 27 February 2022. Mr Ressel’s primary submission is that leave is not required but, if it is, he was granted leave to make an oral application for leave to file his Amended Initiating Application nunc pro tunc.

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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File number(s):	BRC 12043 of 2020
Judgment of:	CAREW J
Date of judgment:	9 November 2022
Catchwords:	FAMILY LAW - PROPERTY – s 44(6) – oral application for leave to commence proceedings out of time – whether the applicant would suffer hardship if leave is not granted – whether discretion should be exercised in favour of granting leave – where the evidence relied upon by the applicant is replete with inconsistency and vagueness, there is no explanation for the delay, there is an absence of any reliable evidence as to valuation of any property, and the property pool is at best modest – where the application to commence proceedings out of time is dismissed
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Civil Law and Justice Legislation Amendment Bill 2018
Cases cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Hedley & Hedley (2009) FLC 93-413 In the marriage of Althaus (1982) FLC 91-233 Sharp & Sharp (2011) 50 Fam LR 567 Tamaniego & Tamaniego [2010] FamCAFC 254 Welland & Hawthorn [2021] FedCFamC1A 43 Whitford & Whitford (1979) FLC 90 – 612
Number of paragraphs:	37
Date of hearing:	24 October 2022
Place:	Brisbane
The Applicant:	Litigant in person
Counsel for the Respondent:	Ms M. Murphy
Solicitor for the Respondent:	Naughton McCarthy Family Lawyers

BRC 12043 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR RESSEL Applicant
AND:	MS MORATH Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAREW J
DATE OF ORDER:	9 November 2022