Riordan & Riordan - [2012] FMCAfam 1297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RIORDAN & RIORDAN

[2012] FMCAfam 1297

FAMILY LAW – Property orders sought – section 44(3) of the Family Law Act 1975 (Cth) application for leave out of time – considerable delay – hardship – prima facie case – application granted.

Family Law Act 1975, s.44(3)

Applicant:

MS RIORDAN

Respondent:

MR RIORDAN

File Number:

MLC 3497 of 2012

Judgment of:

Hartnett FM

Hearing date:

27 November 2012

Delivered at:

Melbourne

Delivered on:

13 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr Sweeney

Solicitors for the Applicant:

Slater & Gordon Lawyers

Counsel for the Respondent:

Mr Nehmy

Solicitors for the Respondent:

Moores Legal Pty Ltd

ORDERS

Pursuant to s.44(3) of the Family Law Act 1975 the applicant wife be granted leave to institute property and spousal maintenance proceedings out of time.
UNTIL FURTHER ORDER the husband and any agent of his be restrained from:
(a)Further encumbering the properties at Property M, Property B and Property H (‘the properties’);
(b)drawing down on any mortgages secured over the properties without first obtaining the consent in writing of the wife;
(c)selling or otherwise disposing of the properties;
(d)removing, selling or otherwise disposing of any of the contents of the properties;
(e)damaging or otherwise diminishing the value of any of the properties; and
(f)selling or otherwise disposing of his [Z] business.
The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia at the Melbourne Registry on 21 March 2013 at 2.15pm.
The parties file and serve any affidavits on which they seek to rely at least 14 days before trial.
The matter be listed for final hearing on 24 July 2013 at 10.00am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 3497 of 2012

MS RIORDAN

Applicant

And

MR RIORDAN

Respondent

REASONS FOR JUDGMENT

By application filed 20 April 2012 the wife sought, inter alia:
a)that she be granted leave to commence property proceedings and spousal maintenance proceedings out of time pursuant to s.44(3) of the Family Law Act 1975 (Cth) (‘the Act’); and
b)restraining orders pending trial.
The respondent husband filed a response on 18 May 2012 seeking the wife’s application be dismissed.
The wife relies upon the following documents in support of her application:
a)her affidavit filed 20 April 2012;
b)her affidavit filed 8 November 2012; and
c)her financial statement filed 20 April 2012.
The husband relies upon the following documents in support of his application (as contained in his response):
a)his affidavit sworn and filed 18 May 2012;
b)his affidavit sworn 5 November 2012 and filed 8 November 2012;
c)his affidavit sworn and filed 14 November 2012;
d)his financial statement sworn and filed 18 May 2012; and
e)affidavit of Ms K sworn and filed 8 November 2012.

Background

The wife was born [in] 1963 and she is now aged 49 years. The husband was born…

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 Riordan & Riordan

Details

AGLC: RIORDAN & RIORDAN [2012] FMCAfam 1297
Case: [2012] FMCAfam 1297
Decision Date: 13 December 2012

CaseChat Overview and Summary

The case of Riordan & Riordan involved a dispute between the husband and wife over property and spousal maintenance. The wife sought leave to institute proceedings out of time under section 44(3) of the Family Law Act 1975, following a considerable delay in making the application. The wife argued that there was a prima facie case for property orders and that the delay should be excused due to hardship.

The court was required to decide whether the wife's application for leave to institute proceedings out of time should be granted, considering the considerable delay and the presence of hardship. The court also needed to determine whether the wife had established a prima facie case for property orders.

In granting the application for leave, the court found that the wife had demonstrated considerable delay in making the application and that there was hardship to excuse the delay. The court also found that the wife had established a prima facie case for property orders. The court noted that the wife had made a late application for property orders, but that the delay was due to her being unaware of the existence of the properties and the husband's income and business. The court also found that the wife had demonstrated hardship, in that she had been financially dependent on the husband during the marriage and had been unable to make the application for property orders earlier due to her limited financial resources.

The court made orders granting the wife leave to institute property and spousal maintenance proceedings out of time, restraining the husband from encumbering, selling or disposing of the properties and business, and requiring the parties to attend a conciliation conference and file and serve any affidavits on which they seek to rely before the final hearing.

Orders

Orders of the court

Pursuant to s.44(3) of the Family Law Act 1975 the applicant wife be granted leave to institute property and spousal maintenance proceedings out of time.

UNTIL FURTHER ORDER the husband and any agent of his be restrained from:

(a) Further encumbering the properties at Property M, Property B and Property H (‘the properties’);

(b) drawing down on any mortgages secured over the properties without first obtaining the consent in writing of the wife;

(d) removing, selling or otherwise disposing of any of the contents of the properties;

(e) damaging or otherwise diminishing the value of any of the properties; and

(f) selling or otherwise disposing of his [Z] business.

The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia at the Melbourne Registry on 21 March 2013 at 2.15pm.

The parties file and serve any affidavits on which they seek to rely at least 14 days before trial.

The matter be listed for final hearing on 24 July 2013 at 10.00am.

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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