Garrett and Dickinson

[2016] FCCA 1653

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARRETT & DICKINSON [2016] FCCA 1653

Catchwords:
FAMILY LAW – Practice And Procedure – Application by the
de facto Husband for a property settlement out of time pursuant to s.44(6) of the Family Law Act 1975 (Cth) – the application is filed more than two years after the expiration of the standard application period – given there is no satisfactory explanation for the delay in bringing the application – the behaviour of the Applicant after separation – the hardship to the Respondent if leave is granted and the current divisions of assets between the parties is just to both parties – leave to apply out of time not granted.

Legislation:

Family Law Act 1975, ss.44(5), (6), 90SM

Cases cited:

Whitford & Whitford (1979) FLC 90-612

Kennon & Kennon [1997] FamCA 27
Montano & Kinross [2004] FamCAFC 231

Hedley & Hedley [2009] FamCAFC 179
Tamaniego & Tamanieago [2010] FamCAFC 254
Sharp & Sharp [2011] FamCAFC 150
Stanford & Stanford [2012] HCA 52

Applicant: MR GARRETT

Respondent: MS DICKINSON

File Number: MLC 9896 of 2015

Judgment of: Judge Bender

Hearing date: 5 May 2016

Date of Last Submission: 5 May 2016

Delivered at: Melbourne

Delivered on: 5 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Swann

Solicitors for the Applicant: Nevett Ford

Counsel for the Respondent: Mr Dudderidge

Solicitors for the Respondent: Nevile & Co

ORDERS

1. The application by the Applicant pursuant to section 44(6) of the

   
   Family Law Act 1975

   (Cth) for leave to issue an application out of time for alteration of the parties property interests is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9896 of 2015

MR GARRETT

Applicant

And

MS DICKINSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The threshold issue for determination in this matter is whether the Applicant should be granted leave pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”) to issue an application out of time for alteration of the parties’ property interests pursuant to section 90SM of the Act.

Background

1. It is the Applicant’s evidence the parties commenced a de facto relationship in May 2004 and separated on 30 January 2012.

2. It is the Respondent’s evidence the parties commenced a de facto relationship in early 2003 and separated under the one roof in November 2010. It is the Respondent’s evidence she and the Applicant physically separated on 31 January 2012 when she moved out.

1. At the commencement of the relationship (whether it be 2003 or 2004) the Applicant owned the property at Property T (“Property T”) which was then valued at approximately $250,000 and subject to a mortgage of $83,000. The Applicant also had superannuation of $31,000 and a motor vehicle. The Respondent had savings of $50,000, and a motor vehicle valued at approximately $12,000.

2. The Applicant, who is now aged 43, was employed as an (occupation…