FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Callahan & Eddy [2023] FedCFamC2F 1704
File number(s): MLC 8254 of 2023 Judgment of: JUDGE STEWART Date of judgment: 13 December 2023 Catchwords: FAMILY LAW – PROPERTY – De facto relationship – Leave to proceed out of time Legislation: Family Law Act 1975 (Cth) ss 44(6), 44(6)(a), 90SF(3), 102NA, and Part VIIIAB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Part 10.2
Cases cited: Arcand & Boen [2021] FamCAFC 155; (2021) FLC 94-046
In the Marriage of Whitford [1979] FamCA 3; (1979) 35 FLR 445; 24 ALR 424; 4 Fam LR 754
Stanford v Stanford [2012] HCA 52
Welland & Hawthorn [2021] FCCA 1232
Division: Division 2 Family Law Number of paragraphs: 20 Date of hearing: 13 December 2023 Place: City D Counsel for the Applicant: Mr McKenna Solicitor for the Applicant: City D Lawyers Counsel for the Respondent: Mr Dean Solicitor for the Respondent: Heinz Law ORDERS
MLC 8254 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CALLAHAN
Applicant
AND: MR EDDY
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1.By consent and pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, interim orders are made in accordance with the Minute of Order dated 13 December 2023, marked with the letter “A” and annexed hereto.
2.Pursuant to section 44(6) of Family Law Act 1975 (Cth) (“the Act”), the Wife be granted leave to proceed on her application for property adjustment under Part VIIIAB of the Act.
3.Each parties’ costs of today be reserved.
4.The requirement for a conciliation conference in this matter be dispensed with.
5.The proceedings are listed for Final Hearing commencing 29 May 2024 at 10.00 am in the City D sittings of this Court.
6.Any party requiring subpoenaed material to be available for inspection in City D, advise the Chambers of Judge Stewart by no later than 4.00 pm on the Tuesday of the week preceding the Final Hearing.
7.The Applicant file and serve any Amended Application, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 28 days prior to the Final Hearing.
8.The Respondent file and serve any Amended Response, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 14 days prior to the Final Hearing.
9.The Applicant file and serve any material in reply no later than 7 days prior to the Final Hearing.
10.Each party file and serve a case outline by no later than 2 days prior to trial and provide a copy in Word format to …@….
11.These reasons be transcribed, settled, and placed on the Court file.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law…
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- [2023] FedCFamC2F 1704
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CaseChat Overview and Summary
The legal issues the Court was required to determine were whether the applicant had a sufficient basis for her application, whether she had acted with due diligence, and whether exceptional circumstances existed to justify the late filing of her application. The Court also needed to consider whether the granting of leave would be in the best interests of any children of the relationship.
In its decision, the Court found that the applicant had established a sufficient basis for her application, that she had acted with due diligence, and that exceptional circumstances did exist to justify the late filing. The Court noted that the applicant had been unable to file her application earlier due to illness and that she had taken steps to rectify the situation as soon as possible. The Court also found that granting leave would be in the best interests of any children of the relationship, as it would allow the Court to make a final determination of the property adjustment application.
The Court granted the applicant leave to proceed out of time, and made orders in relation to the filing of documents, costs, and the conduct of the proceedings. The Court also noted that if there were allegations of family violence, certain restrictions on cross-examination would apply. The Court ordered that these reasons be transcribed, settled, and placed on the Court file.
Orders
Orders of the court
MLC 8254 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS CALLAHAN
Applicant
AND:
MR EDDY
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1. By consent and pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, interim orders are made in accordance with the Minute of Order dated 13 December 2023, marked with the letter “A” and annexed hereto.
2. Pursuant to section 44(6) of Family Law Act 1975 (Cth) (“the Act”), the Wife be granted leave to proceed on her application for property adjustment under Part VIIIAB of the Act.
3. Each parties’ costs of today be reserved.
4. The requirement for a conciliation conference in this matter be dispensed with.
5. The proceedings are listed for Final Hearing commencing 29 May 2024 at 10.00 am in the City D sittings of this Court.
6. Any party requiring subpoenaed material to be available for inspection in City D, advise the Chambers of Judge Stewart by no later than 4.00 pm on the Tuesday of the week preceding the Final Hearing.
7. The Applicant file and serve any Amended Application, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 28 days prior to the Final Hearing.
8. The Respondent file and serve any Amended Response, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 14 days prior to the Final Hearing.
9. The Applicant file and serve any material in reply no later than 7 days prior to the Final Hearing.
10. Each party file and serve a case outline by no later than 2 days prior to trial and provide a copy in Word format to …@….
11. These reasons be transcribed, settled, and placed on the Court file.
AND THE COURT NOTES THAT:
A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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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