Star and Star - [2013] FamCA 91

FAMILY COURT OF AUSTRALIA

STAR & STAR

[2013] FamCA 91

FAMILY LAW – PRACTICE AND PROCEDURE – Section 44(3) application – Husband could not satisfy the hardship criterion because no substantive claim likely to succeed.

Family Law Act 1975 (Cth)

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Cox & Cox (1981) FLC 91-068.
Hedley & Hedley [2009] FamCAFC 179; (2009) FLC 93-413
McDonald & McDonald(1977) FLC 90-317
Sharp & Sharp [2011] FamCAFC 150
Swallow & Swallow (1977) unreported decision of Emery J
Walker & Walker (1984) FLC 91-564
Whitford& Whitford (1979) FLC 90-612

APPLICANT:

Mr Star

RESPONDENT:

Ms Star

FILE NUMBER:

MLC

1701

2009

DATE DELIVERED:

6 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

21 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Stewart

SOLICITOR FOR THE APPLICANT:

Stephen Farmer and Associates

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Marshalls & Dent

Orders

That the application of the husband filed 27 September 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Star & Star has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1701 of 2009

Mr Star

Applicant

And

Ms Star

Respondent

REASONS FOR JUDGMENT

By his application filed 27 September 2012, Mr Star (“the husband”) sought leave under s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to commence property division proceedings against Ms Star (“the wife”) arising out of the ending of their marriage. For my convenience, I shall still refer to them as husband and wife.
The husband and wife married in 1975 and by order of the Federal Magistrates Court on … May 2009, were divorced. The time limit for commencing a property proceeding expired in 2010. The husband said that a refusal of leave by the Court would create hardship for him. The wife submitted that no such hardship would arise because the husband was not entitled to anything anyway.
Although these applications should normally be determined on the documents filed, I permitted limited cross-examination. Each party filed an affidavit and each was cross-examined upon it. Upon the conclusion of the evidence, each counsel made submissions.
In this case, bearing in mind the standard of proof is the balance of probabilities and the onus of proof lies with the husband, I find that there is no ground to give him leave.
The husband is 60 years of age and works in the advertising industry. He earns a modest income.
The wife works in the health care industry and also earns a modest salary to which is added investment income.
The parties disputed the date of their final separation. The husband said it was 15 February 2008 whilst the wife said it was 2005. In their joint application for divorce, each said it was…

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 Star and Star

Details

AGLC: STAR & STAR [2013] FamCA 91
Case: [2013] FamCA 91
Decision Date: 6 February 2013

CaseChat Overview and Summary

In the matter of *Star and Star*, the husband sought to appeal an interim order made by a registrar in family law proceedings. The wife opposed the application. The case was heard by Cronin J in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the husband had established sufficient grounds to appeal the registrar's interim order. This involved considering the principles governing appeals from registrar's decisions, particularly in the context of interlocutory or interim orders, and whether the registrar had erred in law or fact.

Cronin J dismissed the husband's application. The reasoning focused on the high threshold required to overturn an interim order made by a registrar, emphasizing that such orders are generally not disturbed unless there is a clear error or the order is demonstrably unjust or against the weight of the evidence. The court found that the husband had not met this threshold.

The application of the husband filed 27 September 2012 was dismissed.

Orders

Orders of the court

That the application of the husband filed 27 September 2012 is dismissed.

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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