Scolaro & Mang - [2022] FedCFamC2F 576

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scolaro & Mang [2022] FedCFamC2F 576

File number(s): MLC 10711 of 2017

Judgment of: JUDGE DAVIS

Date of judgment: 11 May 2022

Catchwords:
FAMILY LAW – DE FACTO RELATIONSHIP – Where there is a Child of a De facto relationship within the meaning of s 90RB – Where a declaration is made that de facto relationship existed pursuant to s 90RD(1) – Where a declaration is made that there is a Child of a de facto relationship pursuant to s 90RD(1).

FAMILY LAW – PRACTICE AND PROCEDURE – Application by de facto Mother for leave to institute proceedings out of time pursuant to s 44(6) of the Family Law Act 1975 (Cth) – Where Leave is granted under s 44(6) – Where the Mother and Child would suffer hardship if leave under s 44(6) were not granted. .

Legislation:
Family Law Act 1975 (Cth) ss, 4AA, 45A(2), s 44(5), 44(6), 90RB, s 90RD, 90SB, 90SM

Federal Circuit and Family Court Act 2021 (Cth), s 143(2))

Cases cited:
Baker & Landon [2010] FMCAfam 280

Jonah & White [2012] FamCAFC 200

Nescor Industries Group Pty Ltd & Ors v Miba Pty Ltd & Ors [1997] FCA 1431

Sharp & Sharp [2011] FamCAFC

Sinclair & Whittaker [2013] FamCAFC 129

Whitford & Whitford (1979) FLC 90

Division: Division 2 Family Law

Number of paragraphs: 184

Date of last submission/s: 14 December 2021

Date of hearing: 24 November 2021

Place: Melbourne

Counsel for the Applicant: Mr Nicholson

Solicitor for the Respondent: Fogarty Oliver Rothschild
ORDERS

MLC 10711 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SCOLARO

Applicant

AND:
MS MANG

Respondent

ORDER MADE BY:

JUDGE DAVIS

DATE OF ORDER:

11 MAY 2022

THE COURT DECLARES THAT:
1.Pursuant to s 90RD(1) of Family Law Act 1975 (Cth) (Family Law Act), a de facto relationship existed between Ms Mang (Mother) and Mr Scolaro (Father).
2.Pursuant to s 90RD(1) of the Family Law Act, the Child X born in 2016 (Child) is a child of a de facto relationship between the Mother and the Father within the meaning s 90RB of the Family Law Act.

AND THE COURT ORDERS THAT:
3.Pursuant to s 44(6) of the Family Law Act, the Mother is granted leave to institute property proceedings out of time, such proceedings naming the Father as the Respondent.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish…

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 Scolaro & Mang

Details

AGLC: Scolaro & Mang [2022] FedCFamC2F 576
Case: [2022] FedCFamC2F 576
Decision Date

CaseChat Overview and Summary

In the case of Scolaro & Mang, the Federal Circuit and Family Court of Australia (Division 2) was tasked with determining whether a de facto relationship existed between the parties and, if so, whether the court should grant the mother leave to institute property proceedings out of time. The court found that a de facto relationship did exist between the parties, and that the child was a child of that relationship. Consequently, the court had jurisdiction to make orders altering the parties' property interests. The court also found that the mother had demonstrated that hardship would be caused to her and the child if leave were not granted, and that she had a prima facie property claim worth pursuing. Therefore, the court exercised its discretion to grant the mother leave to institute property proceedings out of time. The court's decision highlights the importance of considering all the circumstances of a relationship when determining whether a de facto relationship exists and the need to exercise discretion liberally to avoid hardship in property proceedings.

Orders