Tamaniego & Tamaniego

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Family Court Of Australia

TAMANIEGO & TAMANIEGO [2010] FamCAFC 254

FAMILY LAW - APPEAL – LEAVE TO APPEAL – Application for leave to appeal and appeal against dismissal of an application pursuant to s 44(3) of the Family Law Act 1975 (Cth) to commence proceedings out of time for property settlement, spouse maintenance and child support – Whether orders pursuant to s 44(3) of the Family Law Act 1975 (Cth) are interlocutory or final – Whether leave to appeal is necessary – Consideration of the meaning of ‘hardship’ pursuant to ss 44(3) and (4) of the Family Law Act 1975 (Cth) – Where the Federal Magistrate was in error in relation to the approach she took to consideration of the application pursuant to s 44(3) – Where it was demonstrated that the Wife had a prima facie entitlement in that she had a reasonable claim to be heard – Where the Federal Magistrate failed to consider whether there existed a prima facie case on the strength of the available evidence – Where the Federal Magistrate made errors of principle and also that to refuse leave to the Wife to appeal would cause her substantial injustice – Leave to appeal granted – Appeal allowed

REDETERMINATION – Where the Wife should have the opportunity to institute proceedings for property settlement out of time
Althaus and Althaus (1982) FLC 91-233
Bienstein v Bienstein (2003) 195 ALR 225
Carr v Finance Corporation of Australia Limited (No.1) (1981) 147 CLR 246
Coombs and More (1990) FLC 92-175
Emamy and Marino (1994) FLC 92-487
Frost and Nicholson (1981) FLC 91-051
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
Hall and Hall (1979) FLC 90-679
Hedley & Hedley (2009) FLC 93-413
House v The King (1936) 55 CLR 499
Jacenko and Jacenko (1986) FLC 91-776
Mallet v Mallet (1984) 156 CLR 605
McDonald and MacDonald (1977) FLC 90-317
McMahon and McMahon (1976) FLC 90-038
MZXRL v Minister for Immigration and Citizenship [2009] FCA 114
Neocleous and Neocleous (1993) FLC 92-377
Norbis v Norbis (1986) 161 CLR 513
Oxenham & Oxenham [2009] FamCAFC 167
Re Luck (2003) 203 ALR 1
Richardson & Richardson [2008] FamCAFC 107
Rutherford and Rutherford (1991) FLC 92-255
Thallon and Thallon (1992) FLC 92-322
Tormsen and Tormsen (1993) FLC 92-392
Van der Kreek and Van der Kreek (1978) FLC 90-421
Whitford and Whitford (1979) FLC 90-612
Family Law Act 1975 (Cth) – s 4(1), s 44, s 44(1), s 44(3), s 44(4), s 44(6), s 72, s 75(2), s 75(3), s 79, s 79(4), s 94A, s 94AA, s 94AAA(3)
Family Law Rules 2004 (Cth) – r 22.02
Family Law Regulations 1984 (Cth) – Regulation 15A
APPELLANT: MS TAMANIEGO
RESPONDENT: MR TAMANIEGO
FILE NUMBER: MLC 6946 of 2009
APPEAL NUMBER: SA 99 of 2009
DATE DELIVERED: 15 December 2010
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: O’Ryan J
HEARING DATE: 6 May 2010
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 27 November 2009
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Details
Case
[2010] FamCAFC 254
Decision Date

CaseChat Overview and Summary

Tamaniego & Tamaniego involved a dispute between a wife and her former husband regarding the dismissal of her application for leave to appeal and her appeal against the dismissal of an application under section 44(3) of the Family Law Act 1975 (Cth) to commence proceedings out of time for property settlement, spouse maintenance and child support. The case was heard by the Family Court of Australia. The primary issue before the court was whether the orders made under section 44(3) of the Family Law Act 1975 (Cth) were interlocutory or final, and if the wife required leave to appeal the decision. The court also had to determine the meaning of 'hardship' as per sections 44(3) and (4) of the Act, and whether the Federal Magistrate had erred in her approach to the application. Furthermore, the court had to consider if the wife had demonstrated a prima facie entitlement to institute proceedings out of time and whether the Federal Magistrate failed to consider the available evidence to establish a prima facie case.

The court found that the Federal Magistrate had erred in her approach to the application under section 44(3) of the Family Law Act 1975 (Cth). The court held that the wife had demonstrated a prima facie entitlement in that she had a reasonable claim to be heard. The Federal Magistrate had failed to consider whether there existed a prima facie case on the strength of the available evidence. The court also found that the Federal Magistrate made errors of principle and that to refuse leave to the wife to appeal would cause her substantial injustice. Consequently, the court granted leave to appeal and allowed the appeal. The court determined that the wife should have the opportunity to institute proceedings for property settlement out of time.

In light of the findings, the court made several orders. Firstly, the wife's application for leave to appeal and the appeal against the order made by the Federal Magistrate were granted. Secondly, the order made by the Federal Magistrate was set aside. Thirdly, the wife was granted leave to institute proceedings for property settlement out of time under section 44(3) of the Family Law Act 1975 (Cth). Fourthly, the wife was required to file and serve an application for property settlement within eight weeks of the date of the orders. Fifthly, each party was at liberty to make written submissions in respect of costs incurred in relation to the appeal, with specific timelines provided for filing and serving the submissions. Lastly, the court ordered that each party endorse the cover sheet of any submissions with the date a copy was served on the other parties.

Orders

Orders of the court

1.

The Wife’s application for leave to appeal Order 2 of the orders made by Federal Magistrate Riley on 27 November 2009 be granted and that the appeal against that order be allowed.

2.

Order 2 of the orders made by Federal Magistrate Riley on 27 November 2009 be set aside.

3.

The Wife be granted leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for property settlement pursuant to s 79 of the said Act.

4.

The Wife file and serve within eight weeks of the date of these orders an application for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth).

5.

Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 14 days of the date hereof.

6.

Each party have a further seven days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.

7.

Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.

8.

Each party endorse on the cover sheet of any submissions filed pursuant to orders (5), (6) and (7), the date upon which a copy of that submission was served on the other parties.

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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