Jeffries and Jeffries

[2016] FCCA 454

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFRIES & JEFFRIES [2016] FCCA 454

Catchwords:
FAMILY LAW – Property – application for leave to proceed out of time – significant delay – prejudice to the respondent – application refused.

Legislation:

Family Law Act 1975, ss.44(3), 117

Jacenko & Jacenko (1986) FLC 91-776
McDonald & McDonald (1977) FLC 90-317
Whitford & Whitford (1979) FLC 90-612
Sharp & Sharp [2011] FamCAFC 150
Mackrell & Mackrell (2015) FCCA 1996
Richardson & Richardson (2000) FLC 93-012

Applicant: MR JEFFRIES

Respondent: MS JEFFRIES

File Number: MLC 11356 of 2015

Judgment of: Judge Harland

Hearing date: 24 February 2016

Date of Last Submission: 24 February 2016

Delivered at: Melbourne

Delivered on: 25 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Mellas

Solicitors for the Applicant: Alpass & Associates

Counsel for the Respondent: Mr Whitchurch

Solicitors for the Respondent: Barry Kenna & Co

ORDERS

1. The husband’s application for leave to proceed out of time is dismissed.

2. The husband is to pay the wife’s costs in the sum of $3,211 within 30 days.

3. The husband is to do all acts and things within 7 days to remove caveat number (omitted) lodged over the property volume (omitted), folio (omitted) being the property at Property I, Victoria (omitted).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11356 of 2015

MR JEFFRIES

Applicant

And

MS JEFFRIES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the husband for leave to commence property proceedings out of time.  The respondent wife opposes that application.

3. To provide a brief background, the husband filed his application on 3 December 2015.  The final order sought is simply that the assets of the parties be divided between the parties in such proportions as this honourable Court deems just and necessary. I made comments at the hearing of this matter yesterday that the order sought is completely inadequate as it does not inform either the Court or the respondent the terms of the husband’s case in any way.

4. What it does indicate is that the husband is seeking to revisit the entirety of the property issues and is not simply seeking a superannuation split.  He does seek, as an interim order, a flagging order, which is in effect an injunction to prevent the wife from accessing her superannuation entitlements. 

5. The background facts are as follows.  The husband and wife are both aged 65 years. They were married on (omitted) 1973 and separated on 22 August 2004. They were divorced on 20 November 2005 and thus the time limit for filing an application would have been 12 months after the divorce became final. This means that the husband is almost…