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
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.
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.
The wife was born in 1964, and is now aged 59 years.
The respondent was born in 1959, and is now aged 64 years.
The parties commenced living together in 1989. They had married in 1993.
The parties had 3 children, now aged 18, 20, and 23 years.
A…
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- AGLC
- Caine & Falzon [2024] FedCFamC2F 130
- Case
- [2024] FedCFamC2F 130
- Decision Date
CaseChat Overview and Summary
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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