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
That the application for leave to appeal be dismissed.
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
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.
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.
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
- Decision Date
CaseChat Overview and Summary
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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