WORTH & RILEY

Case [2017] FamCA 393


FAMILY COURT OF AUSTRALIA

WORTH & RILEY [2017] FamCA 393

FAMILY LAW – DE FACTO RELATIONSHIP – Application to extend time to apply for a property settlement pursuant to s 44(6) of the Family Law Act 1975 (Cth) – Where there was an issue as to the date of separation and a finding was made on the facts – Where it was found that the applicant had an arguable case and would suffer hardship such as would enliven the power of the Court to consider if leave ought to be granted – Where it was found in the determination of exercise of the discretion that in the context of the circumstances of these parties (including prejudice to the respondent) was such that leave to extend the standard application period should not be granted.

Family Law Act 1975 (Cth) ss 4AA, 44(5)

Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth) s 4

Norton v Locke [2013] FamCAFC 202
Sinclair & Wittaker (2013) FLC 93,551
Onslow & Onslow [2016] FamCAFC 7
Aitken & Deakin [2010] FMCAfam 35
Volen & Backstrom [2013] FamCA 40
Hedley & Hedley [2009] Fam CAFC 179
Montano & Kinross [2014] FamCAFC 231

APPLICANT: Ms Worth
RESPONDENT: Mr Riley
FILE NUMBER: HBC 840 of 2016
DATE DELIVERED: 7 June 2017
PLACE DELIVERED: Hobart
PLACE HEARD: Hobart
JUDGMENT OF: Benjamin J
HEARING DATE: 20 and 21 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trezise
SOLICITOR FOR THE APPLICANT: Dobson Mitchell & Allport
COUNSEL FOR THE RESPONDENT: Mrs Mooney
SOLICITOR FOR THE RESPONDENT: Ogilvie Jennings

Orders

  1. The application by Ms Worth against Mr Riley for an order granting leave pursuant to s 44(6) of the Family Law Act1975 (Cth) (‘the Act’) to commence proceedings under Part VIIIAB of the Act is declined and consequently her application is dismissed.

  2. All extant applications, other than any applications for costs, are dismissed.

  3. Any costs application/s shall be made in accordance with the Family Law Rules 2004 (Cth).

  4. At the end of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

  1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Worth & Riley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 840 of…

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WORTH & RILEY [2017] FamCA 393
Case
[2017] FamCA 393
Decision Date

CaseChat Overview and Summary

In the matter of *Worth & Riley*, Benjamin J of the Family Court of Australia considered an application by Ms Worth for leave to commence proceedings under Part VIIIAB of the *Family Law Act 1975* (Cth) against Mr Riley.

The central legal issue before the court was whether Ms Worth had satisfied the requirements of section 44(6) of the Act to be granted leave to commence proceedings. This section typically requires a party to demonstrate that there are substantial reasons for the delay in commencing proceedings and that it would be just and equitable to grant leave.

Benjamin J declined Ms Worth's application for leave, finding that she had not established sufficient grounds to permit the commencement of proceedings under Part VIIIAB of the Act. Consequently, Ms Worth's application was dismissed. All other extant applications, save for any relating to costs, were also dismissed. The court further certified that it was reasonable to engage counsel to attend the proceedings.

Orders

Orders of the court

1.

The application by Ms Worth against Mr Riley for an order granting leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) (‘the Act’) to commence proceedings under Part VIIIAB of the Act is declined and consequently her application is dismissed.

2.

All extant applications, other than any applications for costs, are dismissed.

3.

Any costs application/s shall be made in accordance with the Family Law Rules 2004 (Cth).

4.

At the end of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

5.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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