STREETON & STREETON - [2015] FCCA 294

FEDERAL CIRCUIT COURT OF AUSTRALIA

STREETON & STREETON

[2015] FCCA 294

Catchwords:
FAMILY LAW – Application to grant leave to file out of time pursuant to s.44(3) – evidence of hardship – wife has a prima facie case – delay – prejudice – leave granted.

Legislation:

Family Law Act 1975

Althous & Althous (1982) FLC 91-233
Frost & Nicholson (1981) FLC 91-051
G & G [1999] FamCA 240
Hall & Hall (1979) FLC 90-679
Mackenzie & Mackenzie (1978) 34 FLR 56
Montano & Kinross [2014] FamCAFC 231
Perkins & Perkins (1979) FLC 90-600
Whitford & Whitford (1979) FLC 90-612

Applicant:

MS STREETON

Respondent:

MR STREETON

File Number:

MLC 2963 of 2013

Judgment of:

Judge McGuire

Hearing date:

16 December 2014

Date of Last Submission:

16 December 2014

Delivered at:

Melbourne

Delivered on:

25 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr Dunlop

Solicitors for the Applicant:

Berry Family Law

Counsel for the Respondent:

Mr Edward

Solicitors for the Respondent:

Slater & Gordon

ORDERS

That the applicant wife have leave to institute proceedings against the respondent husband for property settlement under section 79 of the Family Law Act 1975.
The parties attend a conciliation conference with a Registrar at the Federal Circuit Court at Melbourne on 5 May 2015 at 9:15 a.m.
That unless the valuations of all assets are agreed between the parties within twenty eight (28) days of the date of these orders then the parties obtain valuations on affidavit not later than fourteen (14) days prior to the conciliation conference or at their discretion, obtain joint valuations at shared cost.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2963 of 2013

MS STREETON

Applicant

And

MR STREETON

Respondent

REASONS FOR JUDGMENT

This is an application by the wife for leave pursuant to section 44(3) of the Family Law Act1975 (“The Act”) to bring proceedings out of time under section 79 of the Act. The wife’s application also seeks substantive orders in respect of children’s matters.
The application is filed 16 October 2014. The parties were granted a final order of divorce on 30 June 2013. The application is therefore now some five and a half months out of time, but was filed three and a half months out of time on 16 October 2014.
The application for leave is opposed by the husband.
The wife relies on her affidavit and financial statement both sworn 14 October 2014.
The wife is a (occupation omitted) with an income of approximately $87,000 per annum. There are two children of the marriage aged 11 and 10 years. The children currently live nine nights with the wife and five nights with the husband each fortnight.
The husband is employed as a (occupation omitted). He has filed a response, affidavit and financial statement all sworn 9 December 2014. He discloses an income from his employment of…

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 STREETON & STREETON

Details

AGLC: Streeton and Streeton [2015] FCCA 294
Case: [2015] FCCA 294
Decision Date: 25 February 2015

CaseChat Overview and Summary

In *Streeton & Streeton*, the applicant wife sought leave to institute proceedings against the respondent husband for property settlement under section 79 of the *Family Law Act 1975* (Cth). The matter came before Judge McGuire of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the applicant wife should be granted leave to commence property settlement proceedings, given the time that had elapsed since the parties' separation.

Judge McGuire granted the wife leave to institute proceedings. The Court also made orders for the parties to attend a conciliation conference and directed that, in the absence of agreement on asset valuations within 28 days, the parties were to obtain valuations on affidavit no later than 14 days before the conciliation conference, or alternatively, arrange joint valuations at their shared expense.

Orders

Orders of the court

That the applicant wife have leave to institute proceedings against the respondent husband for property settlement under section 79 of the Family Law Act 1975.

The parties attend a conciliation conference with a Registrar at the Federal Circuit Court at Melbourne on 5 May 2015 at 9:15 a.m.

That unless the valuations of all assets are agreed between the parties within twenty eight (28) days of the date of these orders then the parties obtain valuations on affidavit not later than fourteen (14) days prior to the conciliation conference or at their discretion, obtain joint valuations at shared cost.

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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