Slocomb & Hedgewood

Case [2015] FamCAFC 219


FAMILY COURT OF AUSTRALIA

SLOCOMB & HEDGEWOOD [2015] FamCAFC 219

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the wife made an application for property settlement 18 years out of time – Where the primary judge refused to grant leave to extend time under s 44(3) of the Family Law Act 1975 (Cth) – Leave to appeal is required (Taffa & Taffa [2014] FamCAFC 106) – Leave to appeal granted.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the primary judge found the wife had demonstrated hardship and a reasonable primary face case – Where the primary judge did not accept the wife’s explanation for the delay was adequate and found there would be prejudice to the husband – The conclusion of the judge in relation to delay demonstrated an error of law affecting the proper exercise of discretion – Where the result was unjust – Where it is appropriate to re-exercise and grant leave to the wife to file an initiating application out of time seeking property settlement orders – Appeal allowed.

FAMILY LAW – COSTS – Costs Certificates – Where it is not appropriate to make a costs order against the husband in circumstances where the wife is “approaching the Court for an indulgence” (Jacenko and Jacenko (1986) FLC 91-776) – Where appeal allowed on a question of law – Costs certificates granted to each party.

Family Law Act 1975 (Cth) ss 4(1), 44(3), 94AA

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Family Law Regulations 1984 (Cth) reg 15A

Carlon and Carlon (1982) FLC 91-272
Gallo v Dawson (1990) 93 ALR 479
Jacenko and Jacenko (1986) FLC 91-776
McDonald and McDonald (1977) FLC 90-317
Sharp & Sharp (2011) 50 Fam LR 567
Taffa & Taffa [2014] FamCAFC 106
Whitford and Whitford (1979) FLC 90-612

APPELLANT: Ms Slocomb
RESPONDENT: Mr Hedgewood
FILE NUMBER: PAC 886 of 2013
APPEAL NUMBER: EA 182 of 2013
DATE DELIVERED: 12 November 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: May, Ainslie-Wallace & Johnston JJ
HEARING DATE: 10 November 2015
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 25 November 2013
LOWER COURT MNC: [2013] FCCA 1949

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Campton SC
SOLICITOR FOR THE APPELLANT: Matthews Dooley & Gibson
COUNSEL FOR THE RESPONDENT: Ms Judge
SOLICITOR FOR THE RESPONDENT: A J & Associates

Orders

  1. Leave to appeal is granted.

  2. The appeal is allowed.

  3. The application of the wife filed 6 March 2013 seeking leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) is granted.

  4. The wife file and serve any Initiating Application seeking property orders within 21 days of today.

  5. That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the…

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AGLC
Slocomb & Hedgewood [2015] FamCAFC 219
Case
[2015] FamCAFC 219
Decision Date

CaseChat Overview and Summary

In the matter of Slocomb & Hedgewood, the wife sought leave to appeal a decision that refused her an extension of time to file an application for property settlement. The case came before the court following a refusal by the primary judge to grant leave to extend time under section 44(3) of the Family Law Act 1975 (Cth). The wife’s application was made 18 years after the divorce, and the husband opposed the application on the grounds of delay and potential prejudice.

The court was tasked with determining whether the primary judge's refusal to grant leave was justified and if the appeal could be allowed. The key issue was whether the primary judge had erred in concluding that the delay and lack of adequate explanation for it would prejudice the husband, despite acknowledging the wife's demonstrated hardship and reasonable prospects of success. The court found that the primary judge's conclusion regarding the delay had demonstrated an error of law, impacting the proper exercise of discretion and resulting in an unjust outcome.

Upon reviewing the matter, the court determined that it was appropriate to re-exercise the discretion and grant leave to the wife to file an initiating application out of time seeking property settlement orders. The appeal was allowed, and leave to appeal was granted. The wife was permitted to file and serve any initiating application seeking property orders within 21 days. Additionally, costs certificates were granted to both parties in accordance with sections 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

1.

Leave to appeal is granted.

2.

The appeal is allowed.

3.

The application of the wife filed 6 March 2013 seeking leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) is granted.

4.

The wife file and serve any Initiating Application seeking property orders within 21 days of today.

5.

That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal against the orders which dismissed her application pursuant to s 44(3) of the Family Law Act 1975 (Cth).

6.

That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal against orders which dismissed the wife’s application pursuant to s 44(3) of the Family Law Act 1975 (Cth).

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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