ARSHAD & MIATA

Case [2020] FCCA 3527

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARSHAD & MIATA [2020] FCCA 3527

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application pursuant to s.44(6) for leave to commence proceedings out of time – application eight years out of time – relevant considerations.

FAMILY LAW – PROPERTY – Undefended hearing – de facto relationship – application pursuant to s.90SM for property adjustment – family violence – Kennon & Kennon claim.

Legislation:

Family Law Act 1975 (Cth), ss.44, 90SF, 90SM, 106A, 121

Cases cited:

Baghti & Baghti and Ors [2015] FamCAFC 71

Bevan & Bevan [2014] FamCAFC 19

Black & Kellner [1992] FamCA 2

Brisbane South Regional Health Authority v Taylor [1996] HCA 25

Britt & Britt [2017] FamCAFC 27

Chapman & Chapman [2014] FamCAFC 91

Gallo v Dawson [1990] HCA 30

Horrigan & Horrigan (No.2) [2018] FamCA 937

In the Marriage of Weir [1992] FamCA 69

Jacenko & Jacenko [1986] FamCA 25

Kennon & Kennon[1997] FamCA 27

Peters & Walker [2015] FamCA 732

Russell & Russell [1999] FamCA 1875

Scott & Danton [2014] FamCAFC 203

Sharp & Sharp [2011] FamCAFC 150

Slocomb & Hedgewood [2015] FamCAFC 219

S & S [2003] FamCA 905

Stanford v Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

Whitford & Whitford [1979] FamCA 3
Applicant: MS ARSHAD
Respondent: MR MIATA
File Number: PAC 2006 of 2019
Judgment of: Judge Obradovic
Hearing date: 30 October 2020
Delivered at: Parramatta
Delivered on: 24 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Schroder
Solicitors for the Applicant: Jaqueline Kyle Family Law
Appearing for the Respondent: No appearance

THE COURT ORDERS THAT:

  1. Pursuant to section 44(6)(a) of the Family Law Act1975 (Cth) the applicant is granted leave to commence these proceedings out of time.

  2. The respondent forthwith do and say all things and sign all documents necessary to transfer to the applicant all his right, title and interest in the property situated at and known as B Street, Suburb C in the State of New South Wales (‘the B Street, Suburb C property’) being more fully described in the Certificate of Title Folio Identifier ....

  3. Within 90 days of the transfer in Order 2 being effected the applicant shall refinance registered mortgage ...56 to the Westpac Banking Corporation secured upon the said property into her sole name and shall indemnify the respondent in relation to the said mortgage.

  4. The respondent retain and the applicant shall have no right, entitlement nor interest to the following:

    (a)All bank and investment accounts and stocks and shares standing in his sole name;

    (b)All superannuation benefits belonging to or earned by him;

    (c)All goods and chattels in his possession as at the date of the making of these Orders; and

    (d)All real property standing in his sole name.

  5. The applicant retain and the respondent shall have no right, entitlement nor interest to the following:

    (a)All bank and investment accounts and stocks and shares standing in her sole name;

    (b)All superannuation benefits belonging to or earned by her;

    (c)All goods and chattels…

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ARSHAD & MIATA [2020] FCCA 3527
Case
[2020] FCCA 3527
Decision Date

CaseChat Overview and Summary

In the matter of ARSHAD & MIATA, heard before Judge Obradovic, the applicant sought leave to commence property adjustment proceedings out of time, approximately eight years after the cessation of the parties' de facto relationship. The dispute also involved an application for property adjustment under s 90SM of the *Family Law Act 1975* (Cth), with allegations of family violence and a potential *Kennon v Kennon* claim.

The court was required to determine two primary legal issues: firstly, whether to grant the applicant leave to commence proceedings out of time pursuant to s 44(6) of the *Family Law Act 1975* (Cth), considering the significant delay; and secondly, if leave was granted, to make orders for the adjustment of property between the parties, taking into account the alleged family violence.

Judge Obradovic granted the applicant leave to commence proceedings out of time, acknowledging the circumstances presented. The court then proceeded to make property adjustment orders. The respondent was ordered to transfer his interest in the B Street, Suburb C property to the applicant, who was subsequently required to refinance the associated mortgage into her sole name and indemnify the respondent. The remaining assets, including bank accounts, superannuation, chattels, and other real property, were to be retained by each party respectively, with no claim by the other. The court also made provision under s 106A of the *Family Law Act 1975* (Cth) for the Registrar to execute documents if either party refused to comply with the orders.

Orders

Orders of the court

1.

Pursuant to section 44(6)(a) of the Family Law Act 1975 (Cth) the applicant is granted leave to commence these proceedings out of time.

2.

The respondent forthwith do and say all things and sign all documents necessary to transfer to the applicant all his right, title and interest in the property situated at and known as B Street, Suburb C in the State of New South Wales (‘the B Street, Suburb C property’) being more fully described in the Certificate of Title Folio Identifier ....

3.

Within 90 days of the transfer in Order 2 being effected the applicant shall refinance registered mortgage ...56 to the Westpac Banking Corporation secured upon the said property into her sole name and shall indemnify the respondent in relation to the said mortgage.

4.

The respondent retain and the applicant shall have no right, entitlement nor interest to the following:

(a) All bank and investment accounts and stocks and shares standing in his sole name;

(b) All superannuation benefits belonging to or earned by him;

(c) All goods and chattels in his possession as at the date of the making of these Orders; and

(d) All real property standing in his sole name.

5.

The applicant retain and the respondent shall have no right, entitlement nor interest to the following:

(a) All bank and investment accounts and stocks and shares standing in her sole name;

(b) All superannuation benefits belonging to or earned by her;

(c) All goods and chattels in her possession; and

(d) All real property standing in her sole name.

6.

In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of the orders made herein, then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation of the said deed, document or instrument, upon the Registrar being satisfied of such refusal or failure, verified by way of Affidavit.

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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