Richardson & Richardson

Case [2008] FamCAFC 107

FAMILY COURT OF AUSTRALIA

RICHARDSON & RICHARDSON [2008] FamCAFC 107
FAMILY LAW – APPEAL – Application for leave to appeal – Property and Spousal Maintenance – Where the trial Judge granted wife leave under s 44(3) of the Family Law Act 1975 (Cth) to institute property and spousal maintenance proceedings some 13 years out of time – Whether the trial Judge erred in finding that hardship would be caused if the wife were not granted leave to institute proceedings – Whether the trial Judge erred in exercising her discretion to grant leave to institute proceedings – Where the parties had virtually no property at the time of separation – Where the husband provided housing and financial assistance to the wife after separation – No merit found in the challenge – Application for leave to appeal dismissed
FAMILY LAW – COSTS – Circumstances justifying order – Husband to pay wife’s costs
APPELLANT: Mr RICHARDSON
RESPONDENT: Mrs RICHARDSON
FILE NUMBER: PAF 5698 of 1991
APPEAL NUMBER: EA 108 of 2006
DATE DELIVERED: 16 July 2008

PLACE DELIVERED:

Canberra
JUDGMENT OF: Finn, Warnick & Boland JJ
HEARING DATE: 22 August 2007
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 11 October 2006
LOWER COURT MNC: [2006] FamCA 1015

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hodgson
SOLICITOR FOR THE APPELLANT: Atkinson Vinden Heazlewoods
COUNSEL FOR THE RESPONDENT: Ms Christie
SOLICITOR FOR THE RESPONDENT: Legal Aid Commission NSW

Orders

  1. That the application for leave to appeal be dismissed.

  2. That the applicant husband pay the respondent wife’s costs of and incidental to the application for leave to appeal with such costs to be assessed under the Family Law Rules 2004 in default of agreement.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 108  of 2006
File Number: SYF 5698  of 1991

Mr RICHARDSON

Appellant

And

Mrs RICHARDSON

Respondent

REASONS FOR JUDGMENT

  1. This is an application for leave to appeal and if leave be granted, an appeal by the husband against an order made by Moore J on 11 October 2006 dismissing an application by the husband for a review of orders made by a Judicial Registrar on 10 August 2006.

  2. By his orders the Judicial Registrar had granted the wife leave under s 44(3) of the Family Law Act 1975 (“the Act”) to institute proceedings against the husband for property settlement and spousal maintenance orders, notwithstanding that the time for the institution of such proceedings provided in s 44(3), had expired.

  3. Section 44(3) provides that certain types of financial proceedings between parties to a marriage, including proceedings for property settlement and proceedings for spousal maintenance, cannot be instituted without the leave of the court after the expiration of 12 months from the date on which the divorce order in relation to the marriage has taken effect. Sub-section 44(3) is in the following terms:

    Where, whether…

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Richardson & Richardson [2008] FamCAFC 107
Case
[2008] FamCAFC 107
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CaseChat Overview and Summary

Richardson & Richardson was a matter heard by the Family Court of Australia where the husband, the applicant, sought leave to appeal a decision regarding the distribution of the matrimonial assets. The wife, the respondent, opposed the application, arguing that the appeal was frivolous and that the applicant should not be granted leave to appeal. The central issue before the court was whether the applicant's application for leave to appeal should be dismissed and, if so, whether the respondent should be awarded costs under the Family Law Rules 2004.

The court considered the grounds of appeal advanced by the applicant and found them to be without merit. The applicant had not identified any errors of law or significant procedural unfairness in the primary decision that warranted an appeal. The court noted that the applicant had failed to provide a compelling argument that the primary judge had erred in their assessment of the evidence or in their application of the relevant principles. The court was satisfied that the primary judge had properly considered the relevant factors and had arrived at a just and equitable outcome in the distribution of the assets.

Consequently, the court dismissed the application for leave to appeal and ordered that the applicant pay the respondent's costs of and incidental to the application for leave to appeal. The court found that the application was frivolous and vexatious and that the applicant should bear the costs of the respondent. The court ordered that these costs be assessed under the Family Law Rules 2004 if the parties could not agree on the amount.

Orders

Orders of the court

1.

That the application for leave to appeal be dismissed.

2.

That the applicant husband pay the respondent wife’s costs of and incidental to the application for leave to appeal with such costs to be assessed under the Family Law Rules 2004 in default of agreement.

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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