TAGGART & TAGGART - [2020] FCCA 194

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAGGART & TAGGART

[2020] FCCA 194

Catchwords:
FAMILY LAW – Application to grant leave to bring property proceedings out of time pursuant to s.44(3) – hardship – reasons for delay

Legislation:

Family Law Act 1975 (Cth), s.44

Cases cited:

Whitford & Whitford (1979) FLC 90-612

G & G [1999] FamCA 240

Althous & Althous (1982) FLC 91-233

Montano & Kinross [2014] FamCAFC 231

Applicant:

MS TAGGART

Respondent:

MR TAGGART

File Number:

LNC 761 of 2019

Judgment of:

Judge McGuire

Hearing date:

30 January 2020

Date of Last Submission:

30 January 2020

Delivered at:

Launceston

Delivered on:

5 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr P Sullivan

Solicitors for the Applicant:

Paul Sullivan, Lawyer

Counsel for the Respondent:

Mr L Edwards

Solicitors for the Respondent:

Friend & Edwards

ORDERS

That leave be granted to the applicant pursuant to s.44(3) of the Family Law Act 1975 to bring an Application for property settlement out of time.
That an amended Application be filed and served within 14 days of the date of these Orders particularising the applicant’s claim.
That the respondent make, file and serve a Response, responsive Affidavit and sworn Financial Statement within 21 days of service of the applicant’s Applications.
That the parties must attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by Relationships Australia (Victoria) (noting an appointment in Town A on Friday 3 April 2020 at 1.30 p.m.).
That the within fourteen days each legal representative or self-represented litigant is to contact Relationships Australia (Victoria) (accessresolve@rav.org.au or 1800 679 491) to confirm arrangements for mediation.
That within fourteen days of being notified of the nominated FDRP, each party must send to the FDRP documents outlining the dispute including the following :
(a)a copy of the parties’ respective applications, affidavits and Financial Statements;
(b)a full list of assets ( including any superannuation ) and liabilities including values;
(c)details of alleged financial contributions;
(d)relevant future needs factors pursuant to section 75(2) or 90SF(3) of the Family Law Act 1975;
(e)the proposal for property settlement; and
(f)copies of any current intervention or restraining orders.
That unless otherwise exempted from payment, the parties must each pay an amount equivalent to half of the Conciliation Conference fee in respect of the above mediation in accordance with the Family Law (Fees) Regulation 2012 prior to the property mediation.
That unless agreed in writing within 7 days of the date of these Orders, for the purposes of the Mediation only, then the parties jointly obtain valuations of any asset the value of which is in dispute such to be filed on Affidavit not later and 2 clear working days prior to the Mediation and that the parties to be equally responsible for the costs of the preparation and provision of the valuation.
That leave is granted to the parties to file with my Associate executed Consent Orders/Terms of Settlement prior to the adjourned date and if appropriate orders may be made in…

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

AGLC: TAGGART & TAGGART [2020] FCCA 194
Case: [2020] FCCA 194
Decision Date: 5 February 2020

CaseChat Overview and Summary

In the matter of Taggart & Taggart, Judge McGuire of the Federal Circuit Court considered an application by the applicant for leave to commence property settlement proceedings out of time, pursuant to section 44(3) of the *Family Law Act 1975*. The core of the dispute revolved around the applicant's request to proceed with property proceedings despite the statutory time limits having expired, necessitating the court's determination on whether to grant this leave.

The primary legal issue before the court was whether the applicant had demonstrated sufficient hardship to warrant the granting of leave to bring property proceedings out of time. This required the court to assess the reasons provided by the applicant for the delay in initiating the proceedings and to weigh these against any potential prejudice to the respondent. The court was tasked with applying the principles governing applications for leave under section 44(3) of the Act, which typically involve a consideration of fairness and the avoidance of injustice.

Judge McGuire granted leave to the applicant to bring the property settlement application out of time. The court's reasoning, though not detailed in the provided text, would have involved a favourable assessment of the applicant's grounds for delay and a finding that granting leave would not cause undue hardship to the respondent. The court then made a series of procedural orders, including directions for the filing and service of amended applications and responses, attendance at property mediation, the exchange of financial documents, and the joint obtaining of asset valuations where disputes existed. The matter was subsequently listed for further directions.

Orders

Orders of the court

That leave be granted to the applicant pursuant to s.44(3) of the Family Law Act 1975 to bring an Application for property settlement out of time.

That an amended Application be filed and served within 14 days of the date of these Orders particularising the applicant’s claim.

That the respondent make, file and serve a Response, responsive Affidavit and sworn Financial Statement within 21 days of service of the applicant’s Applications.

That the parties must attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by Relationships Australia (Victoria) (noting an appointment in Town A on Friday 3 April 2020 at 1.30 p.m.).

That the within fourteen days each legal representative or self-represented litigant is to contact Relationships Australia (Victoria) (accessresolve@rav.org.au or 1800 679 491) to confirm arrangements for mediation.

That within fourteen days of being notified of the nominated FDRP, each party must send to the FDRP documents outlining the dispute including the following :

(a) a copy of the parties’ respective applications, affidavits and Financial Statements;

(b) a full list of assets ( including any superannuation ) and liabilities including values;

(d) relevant future needs factors pursuant to section 75(2) or 90SF(3) of the Family Law Act 1975;

(e) the proposal for property settlement; and

(f) copies of any current intervention or restraining orders.

That unless otherwise exempted from payment, the parties must each pay an amount equivalent to half of the Conciliation Conference fee in respect of the above mediation in accordance with the Family Law (Fees) Regulation 2012 prior to the property mediation.

That unless agreed in writing within 7 days of the date of these Orders, for the purposes of the Mediation only, then the parties jointly obtain valuations of any asset the value of which is in dispute such to be filed on Affidavit not later and 2 clear working days prior to the Mediation and that the parties to be equally responsible for the costs of the preparation and provision of the valuation.

That leave is granted to the parties to file with my Associate executed Consent Orders/Terms of Settlement prior to the adjourned date and if appropriate orders may be made in Chambers and the above adjourned date may be administratively vacated.

10.

That the matter is listed for directions in the Federal Circuit Court at Town B on Monday 20 April 2020 at 11.30 a.m.

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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