Caine & Falzon

Case [2024] FedCFamC2F 130


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Caine & Falzon [2024] FedCFamC2F 130  

File number(s): PAC 1626 of 2023
Judgment of: JUDGE NEWBRUN
Date of judgment: 7 February 2024
Catchwords: FAMILY LAW – PROPERTY – Threshold hearing – application for leave to institute s 79 property proceedings out of time
Legislation: Family Law Act 1975 (Cth) s 44
Cases cited: Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216
Division: Division 2 Family Law
Number of paragraphs: 67
Date of hearing: 22 January 2024
Place: Parramatta
Counsel for the Applicant: Mr Bateman
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel for the Respondent: Ms Murphy
Solicitor for the Respondent: McInnes Wilson Lawyers

ORDERS

PAC 1626 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CAINE

Applicant

AND:

MS FALZON

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

7 FEBRUARY 2024

THE COURT ORDERS THAT:

1.Pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), leave is granted to the applicant wife to make an application for Orders under s 79 of the Act out of time.

2.The proceedings are adjourned for mention to 20 February 2024 at 11.30 am before a Judicial Registrar to enable preparation for conciliation.

AND THE COURT NOTES THAT:

A.The applicant wife commenced proceedings on 31 March 2023. There is no need for her to file a fresh Initiating Application pursuant to the above Order granting leave.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE NEWBRUN:

INTRODUCTION

  1. These reasons for judgment relate to the applicant wife’s application, pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), seeking leave to commence property adjustment proceedings under s 79 of the Act out of time.

  2. In these Reasons, for ease of reference, the applicant wife shall be referred to as the wife and the respondent, now named Ms Falzon, shall be referred to as the respondent.

  3. The wife was born in 1964, and is now aged 59 years.

  4. The respondent was born in 1959, and is now aged 64 years.

  5. The parties commenced living together in 1989. They had married in 1993.

  6. The parties had 3 children, now aged 18, 20, and 23 years.

  7. A…

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AGLC
Caine & Falzon [2024] FedCFamC2F 130
Case
[2024] FedCFamC2F 130
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) was presented with an application by Ms Caine, seeking leave to institute property proceedings under section 79 of the Family Law Act 1975 (Cth) out of time. The respondent to the application was Ms Falzon, who had been married to the applicant. The primary dispute revolved around the timing of the application for property settlement, which was initiated beyond the statutory period allowed by the Act. Ms Caine argued that exceptional circumstances warranted an extension of time for the application.

The legal issues before the court involved interpreting section 44(3) of the Act, which pertains to the extension of time limits for making applications. The court had to determine whether the exceptional circumstances outlined by Ms Caine justified granting leave to proceed with her application for property settlement. Additionally, the court needed to consider the implications of the delay on the fairness of the proceedings and the rights of the respondent.

In delivering the judgment, Judge Newbrun found that the applicant had indeed demonstrated exceptional circumstances that warranted an extension of time. The court acknowledged the applicant's delay in filing the application but recognised the significant personal and emotional factors that contributed to this delay. The judge concluded that it was in the interests of justice to grant the application for leave, allowing Ms Caine to proceed with her property settlement application. The proceedings were adjourned to enable preparation for conciliation.

Orders

Orders of the court

PAC 1626 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CAINE

Applicant

AND:

MS FALZON

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

7 FEBRUARY 2024

THE COURT ORDERS THAT:

1. Pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), leave is granted to the applicant wife to make an application for Orders under s 79 of the Act out of time.

2. The proceedings are adjourned for mention to 20 February 2024 at 11.30 am before a Judicial Registrar to enable preparation for conciliation.

AND THE COURT NOTES THAT:

A. The applicant wife commenced proceedings on 31 March 2023. There is no need for her to file a fresh Initiating Application pursuant to the above Order granting leave.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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.

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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