Kearney & Ormond

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kearney & Ormond [2021] FCCA 1632

File number(s):

SYC 6853 of 2017

Judgment of:

JUDGE TERRY

Date of judgment:

3 August 2021

Catchwords:

FAMILY LAW – Property – application for leave to file an application for a property settlement out of time - where the wife received in excess of 50% of the non-superannuation assets at the time of separation - where on the information currently available the most the wife could hope to obtain would be a superannuation splitting order – where the wife is 47 and a modest income earner – where the wife does not have the means to pay the legal fees which would be involved – where allowing the wife to proceed would cause her hardship, not alleviate it – where the wife provided no explanation at all for her failure to file within time –- leave to institute proceedings out of time refused.

Legislation:

Family Law Act 1975 (Cth) ss 44, 75, 79

Cases cited:

Carlon & Carlon [1982] FamCA 60
Edmunds & Edmunds (2018) FamCAFC 121
Gadzen & Simpkin (2018) FLC 93-871
Sharp & Sharp (2011) 50 FamLR 567

Whitford & Whitford (1982) FLC 91-233

Number of paragraphs:

91

Date of last submission/s:

3 May 2021

Date of hearing:

3 May 2021

Place:

Newcastle

Solicitor for the Applicant:

Catalyst Family Lawyers

The Respondent:

Self Represented

ORDERS

SYC 6853 of 2017

BETWEEN:

MS KEARNEY

Applicant

AND:

MR ORMOND

Respondent

ORDER MADE BY:	JUDGE TERRY
DATE OF ORDER:	3 AUGUST 2021

THE COURT ORDERS THAT:

1. The Initiating Application filed on 4 March 2020 is dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE TERRY

Introduction

1. Ms Kearney (“the wife”) has applied to the court for property settlement orders. She seeks orders that Mr Ormond (“the husband”) pay her $150,000.00 and that a splitting order be made transferring to her 100% of the husband’s interest in the Super Fund B.

2. The parties are divorced and their divorce order took effect on 13 January 2018. The wife had 12 months from that date to file an application for property settlements orders. She did not file until 4 March 2020 and she needs leave to proceed with her application, and in her Initiating Application she asked the court to make an order granting her that leave.

3. The husband filed a Response on 22 April 2020 seeking that leave be denied.

4. The dispute about whether leave should be granted was originally listed for hearing on 3 September 2020. The hearing did not proceed on that day and was adjourned to 3 May 2021 when it was heard.

The evidence

1. The wife relied on her Initiating Application, Financial Statement and…