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WEMPLE & DAUTRY

WEMPLE & DAUTRY

Case [2017] FCCA 408 16 March 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WEMPLE & DAUTRY

[2017] FCCA 408

Catchwords:
FAMILY LAW – Property – Application for leave to proceed out of time pursuant to section 44 of the Family Law Act1975 – parties commenced de facto relationship April 2007 – parties separated in September 2010 – proceedings commenced in March 2014 – application out of time for filing by 18 months – whether hardship established – whether respondent to the application prejudiced by exercise of discretion in applicant’s favour – interests of third parties – leave to extend time refused.

FAMILY LAW – Children – Application for parenting orders – consideration of the rule in Rice and Asplund – final parenting orders made – review of those orders dismissed on appeal – consideration of whether there has been a change of circumstances justifying further litigation – no material change found – application dismissed.

FAMILY LAW – Application for stay of contravention applications– where applicant has failed to comply with Court orders – where orders had been made in the same proceedings – Court’s discretion to stay the proceedings – stay granted.

ADMINISTRATIVE LAW – Section 44 of the Administrative Appeals Tribunal Act1975 (Cth) – appeal to the Federal Circuit Court from decision of the Tribunal – child support first review pursuant to section 44AAA(1) of the Administrative Appeals Tribunal Act1975 (Cth) – oral application for leave to amend grounds of appeal – leave to amend granted – order made for security for costs.

Legislation:

Family Law Act 1975 Pt VIII, ss.44, 44(5), 44(6), 90SM

Administrative Appeals Tribunal Act 1975 ss.44, 44AAA

Cases cited:

Sharp & Sharp [2011] FamCAFC 150

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Whitford & Whitford (1979) FLC 90-612

Cox & Cox (1981) FLC 91-068

Walker & Walker (1984) FLC 91-564

Hedley & Hedley [2009] FamCAFC 179 (2009) FLC 93-413

Tamaniego & Tamaniego [2010] FamCAFC 254
Ramadam v Holdings [2001] NSWCA 41

Hall & Hall (1979) FLC 90-679

Althaus & Althaus (1982) FLC 91-233

Rice v Asplund (1979) FLC 90-725
King v Finneran (2001) FLC 93-363
Wemple & Dautry (No.2) [2014] FCCA 2847
Fahmi & Fahmi [1995] FLC 92-637

Applicant:

MR WEMPLE

Respondent:

MS DAUTRY

File Number:

CAC 1472 of 2013

Judgment of:

Judge Tonkin

Hearing date:

20 February 2017

Date of Last Submission:

20 February 2017

Delivered at:

Canberra

Delivered on:

16 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr James

Solicitors for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Mr Stretton SC

Solicitors for the Respondent:

Legal Aid ACT

ORDERS

The application for leave to extend time in which to file a property application is refused and the application dismissed.
The application to re-open the parenting proceedings is dismissed.
The hearing of the contravention applications is stayed pending payment of the costs order made by Registrar McNamara on 11 November 2015.
Leave is granted to the respondent to amend her grounds of appeal of the decision of the Administrative Appeals Tribunal in accordance…

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: WEMPLE & DAUTRY [2017] FCCA 408
Case: [2017] FCCA 408
Decision Date: 16 March 2017

CaseChat Overview and Summary

The case of Wemple & Dautry involved multiple applications before Judge Tonkin. The primary dispute concerned an application for leave to extend time to file property adjustment proceedings under section 44 of the *Family Law Act 1975*, where the parties had separated in September 2010 and proceedings were commenced in March 2014, significantly outside the 18-month statutory limit. Additionally, there was an application to re-open parenting proceedings, a request to stay contravention applications due to non-compliance with court orders, and an administrative law matter concerning an appeal from a decision of the Administrative Appeals Tribunal.

The court was required to determine whether to grant leave to extend time for the property application, considering the principles of hardship and prejudice to the respondent and any third parties. It also needed to assess whether there had been a material change in circumstances justifying the re-opening of final parenting orders, and whether to grant a stay of contravention applications. Finally, the court had to consider an application to amend grounds of appeal in an administrative law matter and make orders regarding security for costs and the listing of the appeal.

Regarding the property application, the court refused leave to extend time, finding that the applicant had not established sufficient hardship to warrant the exercise of discretion in her favour, and that the respondent would be prejudiced by such an extension. The application to re-open parenting proceedings was dismissed as no material change in circumstances was found to justify further litigation, adhering to the principles established in *Rice* and *Asplund*. A stay was granted on the contravention applications pending payment of a prior costs order. Leave to amend the grounds of appeal in the administrative law matter was granted, and the appeal was listed for hearing.

Orders

Orders of the court

The application for leave to extend time in which to file a property application is refused and the application dismissed.

The application to re-open the parenting proceedings is dismissed.

The hearing of the contravention applications is stayed pending payment of the costs order made by Registrar McNamara on 11 November 2015.

Leave is granted to the respondent to amend her grounds of appeal of the decision of the Administrative Appeals Tribunal in accordance with Order 3 of the orders made on 20 February 2017.

The appeal of the decision of the Administrative Appeals Tribunal is listed for hearing for one day on 15 November 2017.

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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Citations

WEMPLE & DAUTRY [2017] FCCA 408

Most Recent Citation

DAUTRY & WEMPLE [2018] FamCAFC 237

Cases Citing This Decision

DAUTRY & WEMPLE [2018] FamCAFC 237
Citation 1 (Para 4)

…the Act, the mother took the opportunity to apply for fresh parenting orders, but her application was dismissed on 16 March 2017 ( Wemple & Dautry [2017] FCCA 408 at [106]-[123]). She applied to reverse the existing care arrangements for the child or, alternatively, expand the time the child would spend with her,…
Shorland and Rich [2018] FCCA 1928
Citation 2 (Para 5)

…ed to and applied in the context of parties to a de facto relationship.[1] [1] See for example, McCoy v Chancellor [2014[ FamCAFC 62; Wemble v Dautry [2017] FCCA 408; Montano v Kinross [2014] FAMCAFC 231.…

See all citing cases →

Cases Cited

Wemple & Dautry (No.2) [2014] FCCA 2847
Citation 1 (Para 14)

…The Court notes the careful analysis of his Honour Judge Neville’s reasoning in Wemple & Dautry (No 2) [2014] FCCA 2847 regarding the competing parenting applications in particular the mother’s application that X live with her which is repeated in her application for the “ orders to be reversed .” He determined at…
Tamaniego & Tamaniego [2010] FamCAFC 254
Citation 2 (Para 3)

…e more recent decisions regarding discretionary considerations in Sharp (supra) at [75] to [97] including the following:- “In Tamaniego & Tamaniego [2010] FamCAFC 254 O’Ryan J said at paragraph 162:- ‘As to the second part of the exercise, the fundamental issue in any application for extension of time is whether this…
McLean v Sydney Water Corporation [2001] NSWCA 122
Citation 3 (Para 4)

…nces of the case, it is just and reasonable to grant the extension sought. The New South Wales Court of Appeal in McLean v Sydney Water Corporation [2001] NSWCA 122 , per Giles JA (Hodgson and Stein JA agreeing) said at 22 that: ‘... Prejudice engendered by delay and unlikelihood of a fair trial will be highly mate…
Ramadam v Leda Holdings [2001] NSWCA 41
Citation 4 (Para 3)

…lodged and whether those proceedings are attributable to default on the part of the applicant. (our emphasis)’ In Ramadam v Leda Holdings [2001] NSWCA 41 at paragraph 6 Meagher JA observed:- ‘It is the prejudice to the defendant as at the date of the filing of the statement of claim which must be examined, no matt…
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Citation 5

…Cases cited: Sharp & Sharp [2011] FamCAFC 150 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Whitford & Whitford (1979) FLC 90-612 Cox & Cox (1981) FLC 91-068 Walker & Walker (1984) FLC 91-564 Hedley & Hedley [2009] FamCAFC 179 (2009) FLC 93-413 Tamaniego & Tamaniego [2010] FamCAFC 254 Ramadam v Holdings [2001] NSWCA 41 Hall & Hall…
Gallo v Dawson [1990] HCA 30
Citation 6 (Para 3)

…ntal issue in any application for extension of time is whether this will enable the court to do justice between the parties: see Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479. In Gallo v Dawson McHugh J referred to the need to have regard to the history of the proceedings, the conduct of the parties, the natu…
[2009] FAMCAFC 179 [2009] FAMCAFC 179
Citation 7 (Para 2)

…he discretion (See in particular Whitford (supra) at 78,145; Cox & Cox (1981) FLC 91-068; Walker & Walker (1984) FLC 91-564. See also Hedley & Hedley [2009] FamCAFC 179; (2009) FLC 93-413 per Boland J at [132] and Cronin J at [218]).…
[2011] FAMCAFC 150 [2011] FAMCAFC 150
Citation 8 (Para 3)

…In Sharp & Sharp [2011] FamCAFC 150, their Honours May and Ainslie-Wallace JJ discussed the importance of the time limits applicable in section 44 of the Act being observed and noted that “a limitation provision is the general rule; an extension provision is the exception to it ...” . The Court said at [12] to [13]:-…
Rice v Asplund 220 FLR 300
Citation 9 (Para 3)

…In Rice v Asplund (1979) FLC 90 – 725 Evatt CJ said at 78,906:- “The principles which should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody o…

Legislation Cited

Administrative Appeals Tribunal Act 1975 (Cth) 44, 44AAA
5 mentions (from Para 5)
Family Law Act 1975 (Cth)
1 mention (from Para 2)
Limitation Act 1969 (NSW)
1 mention (from Para 3)