HENDRICKS & HENDRICKS

[2013] FamCA 1155

FAMILY COURT OF AUSTRALIA

HENDRICKS & HENDRICKS [2013] FamCA 1155

FAMILY LAW – PRACTICE AND PROCEDURE

APPLICANT: Ms Hendricks

RESPONDENT: Mr Hendricks

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1964 of 2012

DATE DELIVERED: Thursday, 19 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 19 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schetzer

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That pursuant to s 44(3) of the Family Law Act 1975 the wife have leave to institute proceedings.

2. That all extant applications be adjourned to a directions hearing at 10.00am on 7 March 2014.

3. That on or before 31 January 2014 the husband file and serve:-

   (a)Notice of Address for Service;

   (b)Any response to Initiating Application; and

   (c)A financial statement.

4. That on or before 4.00pm on 23 December 2013 the wife’s solicitors cause a sealed copy of these orders to be served on the husband by email at … and by registered post to the husband at B Street, Suburb C.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hendricks & Hendricks 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 1964 of 2012

Ms Hendricks

Applicant

And

Mr Hendricks

Respondent

REASONS FOR JUDGMENT

1. Today is the adjourned hearing date of the wife’s Initiating Application filed 1 August 2013. In that application, the wife seeks an order that she be granted leave pursuant to s 44(3) of the Family Law Act to institute proceedings out of time. 

2. The background to the matter is as follows.  The parties married on 17 December 1994 and separated in November 2009.  A divorce order was made in May 2012.  Accordingly, the Initiating Application filed on 1 August 2013 seeking final orders for a property settlement is almost three months out of time.

3. The wife has sworn two affidavits in support of her application, her first affidavit being sworn on 3 July 2013 and filed 1 August 2013, and a further affidavit sworn this day.  Those affidavits set out the background to the matter.  In essence, the position is that the parties have been undertaking negotiations with the assistance of their lawyers since their separation.  However, to date those negotiations have not been able to resolve the outstanding financial issues.  In the process of those negotiations, the necessary timeline for the filing of the application was overlooked.

4. The parties have significant property interests which include the former matrimonial home in Suburb C.  If the matters were unable to proceed in this Court, I am satisfied that significant hardship would be visited on the parties who are tied together financially.  There would also be hardship to the three children of the marriage:  D, who is aged 15, E, who is 13, and F, who is aged nine years. 

5. Although it is the wife’s application, it is evident from the most recently filed affidavit of the wife that the husband is consenting to this process, that is, that the parties seek a finalisation of their financial affairs by the Court.

6. The wife’s affidavit of 19 December 2013 sets out the history of communication between the parties through their lawyers.  It is evident from that history that the husband had solicitors acting on his behalf until approximately August of this year.  Thereafter, the husband has been communicating directly with the wife’s lawyers.  He has confirmed in those communications his agreement and consent to the wife’s application for leave to commence proceedings.

7. That agreement is evident, firstly, in his email communication to the wife dated 6 November 2013, which is annexure KMH1 to the wife’s affidavit of 19 December. Further, there is confirmation in another email dated 8 December 2013, which is KMH2 of the wife’s second affidavit. The husband has also signed a minute of consent order in relation to the order for leave to institute proceedings pursuant to s 44(3). That minute is annexure KMH4 to the wife’s affidavit. Further, he has signed a Notice of Address for Service, which again is annexed to the wife’s affidavit, at KMH3.

8. In light of all of the above matters, I am satisfied that it is appropriate to grant the leave sought pursuant to s 44(3) of the Family Law Act.  Accordingly, I will make orders in the following terms.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 December 2013.

Associate: 

Date:  19 December 2013