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WORTH & RILEY

WORTH & RILEY

Case [2017] FamCA 393 7 June 2017

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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

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

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.
All extant applications, other than any applications for costs, are dismissed.
Any costs application/s shall be made in accordance with the Family Law Rules 2004 (Cth).
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

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…

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 WORTH & RILEY

Details

AGLC: WORTH & RILEY [2017] FamCA 393
Case: [2017] FamCA 393
Decision Date: 7 June 2017

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

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.

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

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

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

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

WORTH & RILEY [2017] FamCA 393

Cases Citing This Decision

No citing cases yet.

Cases Cited

Onslow & Onslow [2016] FamCAFC 7
Citation 1 (Para 11)

…whether a de facto relationship has broken down or ended and deciding whether a de facto relationship existed in the first place. In Onslow & Onslow [2016] FamCAFC 7 at 97 Murphy J said:- The question of whether an admitted pre-existing de facto relationship broke down finally after 1 March 2009 is a question answ…
Montano & Kinross [2014] FamCAFC 231
Citation 2 (Para 9)

…This approach was confirmed by the Full Court in Montano & Kinross [2014] FamCAFC 231 where Murphy J said:- 11. An application pursuant to s 44(6) of the Act involves two distinct but related questions. The first is, relevantly, whether “hardship” would be caused to the application (the parties have no children in th…
Norton & Locke [2013] FamCAFC 202
Citation 3 (Para 5)

…and obligation to determine jurisdiction in terms of whether there is a relationship within the meaning of the Act. The Full Court in Norton v Locke [2013] FamCAFC 202 said in relation to the question of jurisdiction under Part VIIIAB of the Act:- 43.This court, does, however, plainly have jurisdiction to determine…
VOLEN & BACKSTROM [2013] FamCA 40
Citation 4 (Para 15)

…This approach was accepted and repeated (in part) by O’Reilly J in Volen & Backstrom [2013] FamCA 40. At paragraph 27 her Honour referred to and quoted the decision of Clisbey & Viges [2011] FamCA 611. This was a matter concerning the defacto provisions of the Act where Stevenson J, at [47] – [53] considered vario…
Stanford v Stanford [2012] HCA 52
Citation 5 (Para 2)

…It was submitted by counsel for the respondent that the applicant did not have a reasonable claim to be heard. She submitted that in Stanford v Stanford (2012) 247 CLR 108 the High Court required the identification of the existing legal and equitable interests in property of the parties and that thereafter the Court must det…
Clisbey & Vas [2011] FamCA 611
Citation 6 (Para 15)

…ted (in part) by O’Reilly J in Volen & Backstrom [2013] FamCA 40. At paragraph 27 her Honour referred to and quoted the decision of Clisbey & Viges [2011] FamCA 611. This was a matter concerning the defacto provisions of the Act where Stevenson J, at [47] – [53] considered various authorities as to the date of part…
Vaughan & Bele [2011] FamCA 436
Citation 7 (Para 16)

…ved of the approach adopted by McGuire FM (as he was then) in Aitken & Deakin (supra) and went on in paragraph 34 to quote Cronin J in Vaughan & Bele [2011] FamCA 436 where his Honour said:- 13.… Termination has a distinct finality about it but it must be that both parties acknowledge but not necessarily accept, th…
Aitken & Deakin [2010] FMCAfam 35
Citation 8 (Para 14)

…Counsel for the applicant took me to a number of authorities. The first was that of Aitken & Deakin [2010] FMCAfam 35 where Judge McGuire said:- 9. Those authorities make it clear that there are three elements of separation in a legal sense. They are: a)The development of an intention to separate. That intention nee…
Jackson v Sterling Industries Ltd [1987] HCA 23
Citation 9 (Para 5)

…pose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect […] its function as a court”. 44.Within that jurisd…
Lynam v Director-General of Social Security [1983] FCA 274
Citation 10 (Para 10)

…the tests set out in Sinclair & Wittaker (2013) FLC 93,551 which, at paragraph 55, quoted this passage from Lynam Director General of Social Security (1983) 52 ALR 128:- 131. Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and som…
[2011] FAMCAFC 150 [2011] FAMCAFC 150
Citation 11 (Para 9)

…dship is established, the Court’s discretion to grant leave is enlivened, see, for example, Hedley & Hedley (2009) FLC 93-413 and Sharp & Sharp [2011] FamCAFC 150.…
Cocker v Tempest (1841) 151 ER 864
Citation 12 (Para 5)

…; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to…

Legislation Cited

Family Law Act 1975 (Cth) 44(5), 4AA
3 mentions (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 5)
Family Law Rules 2004 (Cth)
1 mention (from Para 3)