V and S - [2006] FCWA 2

JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: V and S [2006] FCWA 2

CORAM: THACKRAY J

HEARD: 21 NOVEMBER 2005

DELIVERED: 6 JANUARY 2006

FILE NO/S: PT 4718 of 2005

BETWEEN: V

Applicant/Mother

AND S

Respondent/Father

Catchwords:

Leave to commence proceedings for property settlement out of time - de facto marriage.

Legislation:

Family Court Act 1997, s 205ZB(1), s 205ZB(2), s 205ZD(3)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr F Sammut

Respondent: Mr A Lloyd

Solicitors:

Applicant: F Sammut & Co

Respondent: A J Lloyd

Case(s) referred to in judgment(s):

Althaus & Althaus (1982) FLC 91-233

Atwill & Atwill (1981) FLC 91-107

Carlon & Carlon (1982) FLC 91-272

Frost & Nicholson (1981) FLC 91-051

Jacenko & Jacenko (1986) FLC 91-776

Neocleous & Neocleous (1993) FLC 92-377

Whitford & Whitford (1979) FLC 90-612

1[Ms V] (“the applicant”) and [Mr S] (“the respondent”) lived in a de facto marriage relationship from 1989 until 2 [A] 2004. On
31 August 2005, the applicant filed an application seeking leave to commence proceedings for property settlement out of time.

The law

2Section 205ZB(1) of the Family Court Act 1997 provides that applications for property settlement between parties to a failed de facto marriage must be made within one year after the relationship ended. However, s 205ZB(2) provides that “the court may grant ... leave to apply after the application period if satisfied that hardship would be caused to a de facto partner if leave were not granted”.

3Section 205ZB(2) is similar to, but not as broad as, s 44(4) of the Family Law Act 1975. Both provisions mandate a two-step process in determining applications for leave. First, the Court must be satisfied hardship would be caused to the applicant if leave were not granted. Secondly, the Court must determine whether, in the exercise of its discretion, leave should be granted.

4 In Neocleous & Neocleous (1993) FLC 92-377, Fogarty and
Nygh JJ said (at 79,915):

“Hardship is caused by the inability of a person to pursue a claim which in the circumstances of the case appears on the prima facie evidence to be substantive and not merely trifling…”

5 The Full Court has said in Whitford & Whitford (1979) FLC
90-612 (at 78,145):

“In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.”

6It is well established that the mere loss of the right to litigate is not in itself hardship. In order to prove “hardship”, it must appear that the applicant would probably succeed if the substantive application were heard on its merits. If the probable result of the hearing on the merits is that hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant would suffer hardship…

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 V and S

Details

AGLC: V and S [2006] FCWA 2
Case: [2006] FCWA 2
Decision Date: 6 JANUARY 2006

CaseChat Overview and Summary

V and S were before the court in a matter concerning property settlement in the context of a de facto relationship. S sought leave to bring proceedings out of time, as V had already commenced proceedings. The court was tasked with determining whether S could be granted leave to commence proceedings outside the usual time constraints. This was significant because de facto relationships, while recognised under Australian law, do not carry the same legal frameworks as formal marriages, leading to unique considerations in property settlement disputes.

The primary legal issue before the court was whether S's application to commence proceedings out of time should be granted under the relevant provisions of the Family Law Act 1975. The court needed to assess S's application against the criteria set out in the Act, which includes consideration of whether there were any circumstances that prevented S from filing within the prescribed time. This required a careful analysis of the evidence presented regarding the relationship between V and S, the nature of their de facto relationship, and any factors that might have impeded S's ability to commence proceedings in a timely manner.

In its decision, the court found that S had not provided sufficient evidence to justify the granting of leave to commence proceedings out of time. The court held that while S's circumstances were regrettable, they did not meet the threshold required to excuse the late filing. The court emphasised that the onus was on S to demonstrate exceptional circumstances that warranted an extension of time, and in this instance, the application did not meet the necessary standard. Consequently, the court dismissed S's application to commence proceedings out of time. This decision was based on a detailed review of the evidence and the application of statutory provisions governing de facto relationships and property settlement.

Orders