Yule and Manners - [2016] FCCA 2050

FEDERAL CIRCUIT COURT OF AUSTRALIA

YULE & MANNERS

[2016] FCCA 2050

Catchwords:
FAMILY LAW – Application for leave to bring application for property settlement out of time – considerations of hardship and exercise of discretion – leave granted – ex tempore reasons.

Legislation:

Family Law Act 1975, s.90SM

Cases cited:
Whitford & Whitford (1979) FLC 90-612
G & G [1999] FamCA 240
Althaus & Althaus (1982) FLC90-233
Montano & Kinross [2014] FamCAFC 231

Applicant:

MS YULE

Respondent:

MR MANNERS

File Number:

HBC 315 of 2016

Judgment of:

Judge McGuire

Hearing date:

28 July 2016

Date of Last Submission:

28 July 2016

Delivered at:

Hobart

Delivered on:

28 July 2016

REPRESENTATION

Counsel for the Applicant:

Ms Rofe

Solicitors for the Applicant:

Wallace Wilkinson & Webster

Counsel for the Respondent:

Mr Bugg

Solicitors for the Respondent:

Lander & Rogers

ORDERS

That pursuant to Section 44 (6) of the Family Law Act 1975 the applicant have leave to bring an Application for property interests out of time.
That the respondent make, file and serve a Response, responsive Affidavit and Financial Statement if necessary within 21 days.
That the matter is listed before Judge Baker in the Federal Circuit Court at Hobart on Thursday 8 September 2016 at 10.00 a.m. in respect of children’s matters and for mention, directions and if necessary interim hearing with leave granted for the respondent’s solicitor to attend by telephone.
That the applicant’s application for the costs of the Application for paternity testing procedure be listed before her Honour on 8 September 2016 at 10.00 a.m.
That the parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Hobart Registry on Friday 16 September 2016 at 2.15 p.m.
That unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $370 in accordance with the Family Law (Fees) Regulation 2012 28 days prior to the Conciliation Conference.
That the parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation to conduct the conciliation conference, at least 7 days before the conciliation conference, copies of:
(a)an outline of case document in the form set out below in the trial directions;
(b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(c)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(d)written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
That in the event that the matter does not settle at the conference and the parties have not complied with orders (no.7) (a) to (d), the Registrar is directed to contact the chambers of Judge McGuire, prior to the end of the Conciliation Conference, in order to urgently list…

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 Yule and Manners

Details

AGLC: Yule and Manners [2016] FCCA 2050
Case: [2016] FCCA 2050
Decision Date: 28 July 2016

CaseChat Overview and Summary

This matter concerned an application by the applicant for leave to bring an application for property interests out of time, heard by Judge McGuire. The respondent was ordered to file and serve responsive documents within 21 days.

The court was required to determine whether to grant the applicant leave to proceed with her property application notwithstanding the usual time limits. The court also made directions regarding the future conduct of the proceedings, including the listing of children's matters, a mention, and potential interim hearing.

The court granted the applicant leave to bring her application out of time pursuant to section 44(6) of the *Family Law Act 1975*. The court then set out a detailed timetable for the progression of the case, including the filing of further documents by the respondent, the attendance of the parties at a conciliation conference, and the exchange of specific documents prior to that conference. The court also made provision for the costs of a paternity testing procedure. In the event the matter did not settle at the conciliation conference and parties failed to comply with the disclosure orders, the Registrar was directed to arrange for the matter to be urgently listed before Judge McGuire for further directions and submissions regarding costs.

Orders

Orders of the court

That pursuant to Section 44 (6) of the Family Law Act 1975 the applicant have leave to bring an Application for property interests out of time.

That the respondent make, file and serve a Response, responsive Affidavit and Financial Statement if necessary within 21 days.

That the matter is listed before Judge Baker in the Federal Circuit Court at Hobart on Thursday 8 September 2016 at 10.00 a.m. in respect of children’s matters and for mention, directions and if necessary interim hearing with leave granted for the respondent’s solicitor to attend by telephone.

That the applicant’s application for the costs of the Application for paternity testing procedure be listed before her Honour on 8 September 2016 at 10.00 a.m.

That the parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Hobart Registry on Friday 16 September 2016 at 2.15 p.m.

That unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $370 in accordance with the Family Law (Fees) Regulation 2012 28 days prior to the Conciliation Conference.

That the parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation to conduct the conciliation conference, at least 7 days before the conciliation conference, copies of:

(a) an outline of case document in the form set out below in the trial directions;

(b) a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

(d) written confirmation by each party or their solicitor that:

(i) all relevant documents have been exchanged between the parties; and

(ii) the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

That in the event that the matter does not settle at the conference and the parties have not complied with orders (no.7) (a) to (d), the Registrar is directed to contact the chambers of Judge McGuire, prior to the end of the Conciliation Conference, in order to urgently list the matter before Judge McGuire for further directions and submissions with respect to costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.