Ashe & Ashe

[2021] FCCA 1605

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ashe & Ashe [2021] FCCA 1605

File number(s):

PAC 3179 of 2016

Judgment of:

JUDGE MONAHAN

Date of judgment:

16 July 2021

Catchwords:

 FAMILY LAW – property – application for leave to proceed under s.44(3) of the Family Law Act 1975 (Cth) – delay – hardship – leave not granted – divorce proceedings commenced by the Respondent – divorce order granted by a Registrar in 2016 – whether Applicant be granted leave to file an Application for Review of Divorce Order – where the Applicant alleges he was not served in accordance with the applicable rules – application dismissed.

Legislation:

Family Law Act 1975 ss 44, 79

Federal Circuit Court of Australia Act 1999 (Cth) ss 103, 104

Federal Circuit Court Rules 2001 rr 6.07, 13.03, 20.00, 20.01, 20.02, 20.03

Cases cited:

Edmunds & Edmunds [2018] FamCAFC 121

Jacenko and Jacenko (1986) FLC 91-776

L & L [2011] FMCAfam 39 (unreported)

Montano & Kinross [2014] FamCAFC 231

Slocomb & Hedgwood [2015] FamCAFC 219

Sharp & Sharp [2011] FamCAFC 150

Whitford& Whitford (1979) FLC 90-612

Number of paragraphs:

101

Date of last submission/s:

7 December 2020

Date of hearing:

7 December 2020

Place:

Sydney

Counsel for the First Applicant:

Mr Burns

Solicitor for the First Respondent:

Ms McDonald

ORDERS

PAC 3179 of 2016

BETWEEN:

MR ASHE

Applicant

AND:

MS ASHE

Respondent

ORDER MADE BY:	JUDGE MONAHAN
DATE OF ORDER:	16 JULY 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed 7 February 2020 be dismissed.

2.Paragraph 2 of the Orders made on 7 December 2020 be discharged.

3.All extant applications be otherwise dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Ashe & Ashe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. This decision arises from the breakdown of the marriage between MR ASHE (“the applicant”) and MS ASHE (“the respondent”).[1]

   [1] I note that the applicant’s middle name is sometimes spelt “…” and that the respondent now uses the family name … which is her birth family name.

2. The issues for determination in this decision are:

   ·Whether the applicant should be granted leave to commence property proceedings ‘out of time’ for ‘hardship’ reasons; and if not

   ·Whether the husband should be granted leave to seek a review of a Registrar’s decision to make a divorce order on 7 September 2016 (that became final on 8 October 2016).

3. The respondent opposes the applicant’s leave applications.

4. There is no dispute that the parties married in 1985 and that the respondent filed a divorce application on 11 July 2016. The applicant disputes, however, that he was properly served and argues that, as a consequence, had no knowledge that the divorce application had been filed and subsequently determined. The applicant asserts that…