Schult and Little - [2017] FCCA 1594

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHULT & LITTLE

[2017] FCCA 1594

Catchwords:
FAMILY LAW – De facto property proceedings – application to proceed out of time – matters to be considered – hardship – prima facie case – explanation for delay – leave to proceed granted.

Legislation:

Family Law Act 1975, ss.4(1); 4AA; 39B; 44(5); 44(6); 75(2); 79; 79(4); 90RD; 90SE; 90SF; 90SG; 90SM

Cases cited:
Taisha v Peng (2013) 48 FamLR 150
Moby & Schulter (2010) FLC 93-447
Jonah v White (2012) 45 Fam LR 460
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
Waters & Jurek (1995) FLC 92-635
Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541
Milas v GM Holden Limited [2015] FCCA 1311
Whitford & Whitford (1979) FLC 90-612
Jacenko & Jacenko (1996) FLC 91-776
Hall, K A and Hall, J C (1979) FLC 09-679
Sharp & Sharp [2011] FamCAFC 150

Applicant:

MR SCHULT

Respondent:

MS LITTLE

File Number:

ADC 64 of 2017

Judgment of:

Judge Brown

Hearing date:

8 June 2017

Date of Last Submission:

8 June 2017

Delivered at:

Adelaide

Delivered on:

6 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr Craney

Solicitors for the Applicant:

Doyle Kingston Swift

Counsel for the Respondent:

Ms Boreham

Solicitors for the Respondent:

Rebecca Boreham

ORDERS

Pursuant to section 44(6) of the Family Law Act 1975 the applicant is granted leave to proceed with his application for settlement of de facto property out of time.
The parties and their legal representatives do attend a conciliation conference with a registrar of the court on 28 August 2017 at 9:15am.
Each party and their respective legal advisers are given leave to attend the conciliation conference by telephone.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
No later than 14 August 2017 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.
Further consideration of the matter is adjourned to 1 November 2017 at 9.30 am for further directions in the court’s circuit to (town omitted).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 64 of 2017

MR SCHULT

Applicant

And

MS LITTLE

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Mr Schult and Ms Little. They have never been married. They are the parents of [X], who was born in (town omitted), on (omitted) 2012.
Mr Schult was born on (omitted) 1959. He is a (omitted) by profession. At present, he is in receipt of a carer’s allowance, whilst he tends to his elderly mother, who lives in (town omitted).

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.

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Details

Case: [2017] FCCA 1594
Decision Date: 6 July 2017

CaseChat Overview and Summary

In the matter of *Schult and Little*, heard before Judge Brown, the applicant sought leave to proceed with an application for the settlement of de facto property out of time. The specific nature of the dispute between the parties regarding the property settlement was not detailed in the provided text.

The primary legal issue before the court was whether to grant the applicant leave to file their property settlement application after the statutory time limit had expired, pursuant to section 44(6) of the *Family Law Act 1975*.

Judge Brown granted the applicant leave to proceed with the application out of time. The court then made directions for the parties to attend a conciliation conference with a registrar, with leave for them and their legal representatives to attend by telephone. Further directions included the applicant's responsibility for the conciliation conference fee, the exchange of informal discovery of relevant documents by a specified date, and an adjournment for further directions.

Orders

Orders of the court

Pursuant to section 44(6) of the Family Law Act 1975 the applicant is granted leave to proceed with his application for settlement of de facto property out of time.

The parties and their legal representatives do attend a conciliation conference with a registrar of the court on 28 August 2017 at 9:15am.

Each party and their respective legal advisers are given leave to attend the conciliation conference by telephone.

Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

No later than 14 August 2017 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.

Further consideration of the matter is adjourned to 1 November 2017 at 9.30 am for further directions in the court’s circuit to (town omitted).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.