RICH & SHORLAND - [2019] FamCAFC 50

FAMILY COURT OF AUSTRALIA

RICH & SHORLAND

[2019] FamCAFC 50

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant seeks leave to appeal – No prejudice to the respondent in allowing the appeal to proceed – Where the decision appealed from is attended with sufficient doubt such that it would result in an injustice if leave were not granted – Application for leave to appeal granted.

FAMILY LAW – APPEAL – DE FACTO – PROPERTY – Leave given to commence property proceedings out of time on the basis of hardship – Weight given by the primary judge to relevant principles – Where the primary judge failed to give appropriate consideration to the relevant principles – Where the primary judge was required to determine whether there is a real probability of success that will alleviate the hardship – Where the primary judge erred by failing to make the required assessment – Failure of the primary judge to draw a nexus between the probability of success and the alleviation of hardship – Inadequate reasons – Where his Honour failed to take into account the interlocutory nature of the proceedings – Where his Honour failed to engage with the principles around time limits and applications for extension of time to file an application – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – Orders made to allow the parties to file submissions on the question of costs.

Family Law Act 1975 (Cth) ss 445, 79(2), 79(4)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Sharp & Sharp (2011) 50 FamLR 567; [2011] FamCAFC 150
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

APPELLANT:

Ms Rich

RESPONDENT:

Mr Shorland

FILE NUMBER:

SYC

4800

2016

APPEAL NUMBER:

120

2018

DATE DELIVERED:

27 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

19 February 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

8 August 2018

LOWER COURT MNC:

[2018] FCCA 1928

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Coleman SC

SOLICITOR FOR THE APPELLANT:

Mr Cohen Solicitor

COUNSEL FOR THE RESPONDENT:

Mr O'Ryan QC

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

The appellant be granted leave to appeal the orders of Judge Monahan made on

8 August 2018.
The appeal against the orders of Judge Monahan made on 8 August 2018 is upheld and those orders are set aside.
The hearing of the application is remitted to the Federal Circuit Court to be heard by a judge other than Judge Monahan.
Any submissions as to either costs certificates or otherwise be filed and served within 14 days of these orders.

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

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 RICH & SHORLAND

Details

AGLC: RICH & SHORLAND [2019] FamCAFC 50
Case: [2019] FamCAFC 50
Decision Date: 27 March 2019

CaseChat Overview and Summary

The appeal in Rich & Shorland involved an appellant who sought leave to appeal against the orders made by Judge Monahan on 8 August 2018. The central dispute centred on the granting of leave to appeal and the subsequent assessment of property proceedings in the context of a de facto relationship. The appellant contested the decision of the primary judge, arguing that there was sufficient doubt in the decision that would result in an injustice if the appeal were not allowed. The case was heard in the Federal Circuit Court of Australia, where the appellant sought to challenge the lower court's ruling on several grounds.

The legal issues before the court included whether the appellant should be granted leave to appeal the decision of the primary judge and whether the primary judge appropriately assessed the probability of success in relation to the property proceedings. The court was required to determine if the primary judge adequately considered the principles relevant to granting leave to proceed out of time and whether there was an error in the assessment of the probability of success. Additionally, the court needed to examine if the primary judge failed to draw a nexus between the probability of success and the alleviation of hardship, and whether the reasons provided by the primary judge were adequate.

The court found that the primary judge did not adequately consider the relevant principles when determining whether there was a real probability of success that would alleviate the hardship. The primary judge's reasoning was insufficient as he failed to make the required assessment and did not establish a connection between the probability of success and the alleviation of hardship. The court held that the primary judge also did not engage with the principles around time limits and applications for extension of time to file an application, which is critical in interlocutory proceedings. Consequently, the appeal was allowed, and the matter was remitted for rehearing before a different judge. The court also made orders to allow the parties to file submissions on the question of costs within 14 days of the orders.

The orders made by the court included granting the appellant leave to appeal the orders of Judge Monahan, setting aside the appeal against those orders, remitting the hearing of the application to the Federal Circuit Court to be heard by a different judge, and allowing the parties to file submissions on costs. These orders were subject to entry in the court's records.

Orders

Orders of the court

The appellant be granted leave to appeal the orders of Judge Monahan made on

8 August 2018.

The appeal against the orders of Judge Monahan made on 8 August 2018 is upheld and those orders are set aside.

The hearing of the application is remitted to the Federal Circuit Court to be heard by a judge other than Judge Monahan.

Any submissions as to either costs certificates or otherwise be filed and served within 14 days of these orders.

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

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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