Drummond and Drummond

[2016] FCCA 3324

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRUMMOND & DRUMMOND [2016] FCCA 3324

Catchwords:
FAMILY LAW – Property proceeding brought out of time – extension sought pursuant to s.44 Family Law Act 1975.

Legislation:

Family Law Act 1975, ss.44, 75, 79

Family Law Amendment Act 1983, sub-s. 44(3)

Cases cited:

Stanford v Stanford (2013)  247 CLR 108
Bevan & Bevan (2012) FLC 93-545
Chancellor & McCoy [2016] FamCAFC 256
Whitford and Whitford (1979) FLC 90-612
Sharp & Sharp [2011] FamCAFC 150
Tamaniego & Tamaniego [2010] FamCAFC 254
Gallo v Dawson (1990) 93 ALR 479
Althaus & Althaus (1982) FLC 91-233

Applicant: MR DRUMMOND

Respondent: MS DRUMMOND

File Number: ADC 2076 of 2011

Judgment of: Judge Young

Hearing dates: 17 & 18 August 2016

Date of Last Submission: 29 September 2016

Delivered at: Adelaide

Delivered on: 20 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Bowler

Solicitors for the Applicant: Marciano Lawyers

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Old Port Chambers

ORDERS

1. The application for an extension of time is dismissed.

2. All outstanding applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2076 of 2011

MR DRUMMOND

Applicant

And

MS DRUMMOND

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks leave pursuant to section 44 of the Family Law Act1975 to bring property proceedings against his former wife. Leave is necessary because the parties’ divorce order took effect on 7 October 2011 and the applicant did not apply to the court until 17 July 2015. The proceedings were thus commenced outside the 12 months period allowed by subsection 44(3) of the Act from the time the divorce order took effect.

2. I shall refer to the applicant as “the husband” and the respondent as “the wife”.

Credibility

1. Each of the parties was shown to be unreliable in some aspects of their evidence, particularly evidence about events many years ago. Generally, I thought the wife was endeavouring to be truthful although she was not always a reliable historian. The husband was guarded in his evidence and often attempted to cast his evidence in a way that was favourable to him. I found parts of his evidence implausible. I feel unable, therefore, to accept unreservedly the evidence of either party. I have attempted to determine, on the balance of probabilities, the most likely course of events rather than simply accept one version or the other.

Background

1. The husband is 52 years old. The wife is 54 years old. They married and began to cohabit in 1984. 

2. The parties’ first child was born in 1988. He is now 28 years old. He lives at home with the mother. At the time of trial he was unemployed and receives a Newstart allowance. The parties’ second child was born in 1995. She is now 21 and is a university student. She receives a Centrelink…