FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kerry & Calloway [2023] FedCFamC2F 1497
File number(s): ADC 1068 of 2023 Judgment of: JUDGE DICKSON Date of judgment: 24 November 2023 Catchwords: FAMILY LAW – PROPERTY – out of time application – de facto relationship – de facto wife’s application for leave to issue property settlement proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 – Application filed two years and seven months out of time – exercise of Court’s discretion to grant leave for the Application to proceed out of time. Legislation: Family Law Act 1975 (Cth) ss 44, 90SM, 90SF.
Real Property Act 1988 (SA) s 191.
Cases cited: Althaus & Althaus (1982) FLC 91-233,
Arcand & Boen [2021] FamCAFC 155,
Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541,
Candlish & Pratt (1980) FLC 90-819,
Carlon & Carlon [1982] FamCA 60,
Edmunds & Edmunds [2018] FamCAFC 121,
Gallo v Dawson (1990) 93 ALR 479,
Hall & Hall [1979] FamCA 50,
Hines & Easton [2023] FedCFamC2F 311,
Jacenko & Jacenko (1986) FLC 91-776,
Lambertson & Lambertson [2021] FamCAFC 48,
Milas v GM Holden Limited [2015] FCCA 1311,
Montano & Kinross [2014] FamCAFC 231,
Sharp & Sharp [2011] 50 FamCAFC 150,
Slocomb & Hedgewood (2015) FLC 93-678,
Tamaniego& Tamaniego [2010] FamCAFC 254,
Whitford & Whitford (1979) FLC 90-612.Division: Division 2 Family Law Number of paragraphs: 67 Date of last submissions: 25 October 2023 Date of hearing: 23 May 2023 and 29 August 2023 Place: Adelaide Counsel for the Applicant: Mr Lindsay Solicitor for the Applicant: Randle & Taylor Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Nicholas Boswell & Co Lawyers ORDERS
ADC 1068 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KERRY
Applicant
AND: MR CALLOWAY
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
24 NOVEMBER 2023
UPON NOTING THAT:
A.All issues as to valuation and any outstanding disclosure will be attended prior to the Conciliation Conference. The parties are hereby advised that costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders.
B.Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
a.the total costs and disbursements incurred by the party in the proceeding to date;
b.an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
c.an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.
C.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference…
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- Kerry & Calloway [2023] FedCFamC2F 1497
- Case
- [2023] FedCFamC2F 1497
- Decision Date
CaseChat Overview and Summary
In determining whether to grant the application, the court considered various factors, including the reasons for the delay, the likelihood of prejudice to the respondent, and the merits of the applicant's case. The court found that while the delay was significant, the applicant had provided a reasonable explanation for the delay and there was no evidence of prejudice to the respondent. Additionally, the court was satisfied that the applicant had a strong case in relation to the property settlement. Based on these considerations, the court exercised its discretion to grant the application and allowed the proceedings to proceed out of time.
The court ordered that the applicant be granted leave to proceed with her application for settlement of de facto property out of time, with time extended to 10 March 2023. The applicant was required to file and serve any Amended Initiating Application within twenty-one days, and the respondent had to file and serve any Response within forty-two days. The parties were also required to attend a Conciliation Conference and to exchange various documents and information in relation to the proceedings. The court reserved the applicant’s costs of and incidental to the application for leave to proceed out of time.
Orders
Orders of the court
ADC 1068 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KERRY
Applicant
AND:
MR CALLOWAY
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
24 NOVEMBER 2023
UPON NOTING THAT:
A. All issues as to valuation and any outstanding disclosure will be attended prior to the Conciliation Conference. The parties are hereby advised that costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders.
B. Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
a. the total costs and disbursements incurred by the party in the proceeding to date;
b. an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
c. an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.
C. The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the conference.
THE COURT ORDERS THAT:
1. Pursuant to section 44(6) of the Family Law Act 1975 (Cth) the applicant is granted leave to proceed with her application for settlement of de facto property out of time and time is extended to 10 March 2023.
2. Within twenty-one (21) days the applicant do file and serve any Amended Initiating Application as to final orders sought.
3. Within forty-two (42) days the respondent do file and serve any Response to Initiating Application as to final orders sought.
4. The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Judicial Registrar on 1 March 2024 a 9:00am.
5. The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person, by Microsoft Teams or by telephone.
6. The applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 no less that fourteen (14) days prior to the Conciliation Conference unless otherwise exempted from payment.
7. With respect to any asset the value of which is not agreed, the parties do obtain a joint written valuation at their joint equal expense to be obtained and made available fourteen (14) days before the Conciliation Conference.
8. Not later than 23 February 2024, each party must:
(a) ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b) ensure that any private expert report that is relevant to the proceedings has been filed;
(c) provide to the Court (by email to …@...) and to the other party a single collated bundle of documents comprising:
(i) a Confidential Outline of Case (Dispute Resolution)
(ii) a detailed minute of Orders Sought;
(iii) details of any previous or current family violence orders;
(iv) a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v) particulars of any financial resource;
(vi) a valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii) statements for, and where applicable, valuations of any superannuation interest; and
(viii) written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
9. Within twenty-eight (28) days of the date of these Orders, each party must exchange with each other party a copy of each of the following documents (to the extent such documents have not already been provided):
(a) the documents mentioned in Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
(b) statements for all bank or credit union accounts (including loan, mortgage and credit card accounts) in which the party has an interest for the period from twelve (12) months before the date of separation to the date of these Orders;
(c) any documents which:
(i) support the information contained in the party’s Financial Statement / Financial Summary;
(ii) estimate the value of any vehicle in the party’s possession;
(iii) confirm the date of receipt and amount of any inheritance, gift, redundancy or compensation payment received by the party from the date of cohabitation to the date of these Orders;
(iv) detail the party’s acquisition or disposal of property for the period from twelve (12) months prior to the date of separation to the date of these Orders;
(v) evidence any increase or reduction in the liabilities of the party for the period from twelve (12) months prior to the date of separation to the date of these Orders; and
(vi) confirm the value of any superannuation fund in which the party has an interest at the date of cohabitation, the date of separation and the date of these Orders.
10. All interim applications are dismissed.
11. The applicant’s costs of and incidental to the application for leave to proceed out of time are hereby reserved.
12. Liberty to reinstate the question costs as set out in paragraph 11 herein by way of joint correspondence to the Chambers of Judge Dickson.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
Background
Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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