Frost and Slater

[2016] FamCA 154

FAMILY COURT OF AUSTRALIA

FROST & SLATER [2016] FamCA 154

FAMILY LAW – PROPERTY – de facto relationship – proceedings issued out of time – parties agree a refusal would cause hardship – order for leave granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Frost

RESPONDENT: Mr Slater

FILE NUMBER: MLC 11234 of 2015

DATE DELIVERED: 1 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Puszkar

SOLICITOR FOR THE APPLICANT: Macedon Ranges Family Law

COUNSEL FOR THE RESPONDENT: Mr Bartram

SOLICITOR FOR THE RESPONDENT: Robinson Gill

Orders

1. That pursuant to s 44(6) of the Family Law Act 1975 (Cth), the applicant have leave to proceed with her application out of time.

2. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

3. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frost & Slater has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11234 of 2015

Ms Frost

Applicant

And

Mr Slater

Respondent

REASONS FOR JUDGMENT

1. There are two issues for the Court to determine in this particular case. One is the question of whether leave should be granted to the applicant to bring the initiating application out of time bearing in mind that the relationship came to a conclusion in 2010 and therefore the statutory limitation expired in January 2012. It is therefore some four years now out of time. It is common ground between the parties that if leave was not granted, the applicant would suffer hardship, and that is the test in this case for granting leave. On that basis an order should be made under s44(6) to permit the application to proceed nunc pro tunc.

2. The second issue relates to the question of the settlement itself.  The parties have been before Registrar Field today and have come up with a very sensible solution under which a property is sold, and from the net proceeds of about $700,00 the applicant is being paid $170,000.  It is said that amounts to 24 per cent.  Percentages are largely irrelevant in these proceedings because it is the underlying value that must be just and equitable rather than the percentages themselves.  There is a concession by the applicant that there was a very significant contribution at the commencement of the relationship and the respondent does not dispute the facts of the applicant’s contribution.

3. The court only has to be satisfied that the outcome for both parties is fair, which is another way to describe what is just and equitable.  In my view, this is a case with which both parties are happy and it does not offend fairness sensibilities; it is therefore a just and equitable outcome for both parties.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 March 2016.

Associate: 

Date:  16 March 2016