Backus & Abano (No 4)

The case of Backus & Abano (No 4) involves a dispute between Ms Backus, the applicant, and Mr Abano, the respondent, regarding property interests and the length of their de facto relationship. The proceedings were initiated by the applicant in December 2020, but have been subject to a stay since March 2022 due to the respondent's ongoing criminal proceedings. The central issue before the court was whether to discharge the stay and proceed with the family law proceedings or maintain the stay pending the finalisation of the criminal charges against the respondent, who is accused of sexually assaulting the applicant's twin daughters. The court had to weigh the potential prejudice to the respondent if the family law proceedings were to proceed against the prejudice to the applicant of further delay.

The court found that the respondent had acted in a manner inconsistent with the maintenance of the privilege against self-incrimination by filing an affidavit in the family law proceedings that addressed matters relevant to the criminal charges. The court also considered the significant prejudice to the applicant, who had been unable to progress her application for over four years due to the stay. The court held that discharging the stay and proceeding with the family law proceedings would not occasion prejudice to the respondent and would, in fact, cause undue prejudice to the applicant. Therefore, the court discharged the orders that had placed a stay on the family law proceedings.

The court ordered that the stay previously imposed on 14 March 2022 be discharged. The trial was set to commence on 7 April 2025, with five days allocated for the proceedings to be conducted in person at the Parramatta Registry. The issues to be determined at the trial included the length of any de facto relationship between the parties and whether the applicant should be granted an extension of time within which to institute the proceedings. The parties were also directed to exchange documents relevant to the trial and to prepare a joint trial chronology. Additionally, the court mandated the preparation and filing of a court book, a tender bundle, and an outline of the case, all in accordance with specific directions provided. Objections to evidence were to be limited to material that was forensically significant to the outcome of the trial. The court further outlined the procedures for subpoenas and the handling of documents produced in response to subpoenas.