Lundon & Lundon

Case [2021] FedCFamC1F 330

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lundon & Lundon [2021] FedCFamC1F 330

File number(s): SYC 6228 of 2021
Judgment of: CHRISTIE J
Date of judgment: 21 December 2021
Catchwords: FAMILY LAW – INTERIM ORDERS – Where the husband seeks leave to apply for property adjustment orders out of time – where an informal agreement exists and has been partially implemented
Legislation: Family Law Act 1975 (Cth) ss 44(3), 44(4), 79
Cases cited: Althaus and Althaus (1982) FLC 91, Edmunds & Edmunds (2018) FLC 93, Gadzen & Simkin (2018) FLC 93, Kowaliw and Kowaliw (1981) 7 Fam LR 13; [1981] FLC 91, Welland & Hawthorn [2021] FedCFamC1A 43.
Division: Division 1 First Instance
Number of paragraphs: 69
Date of hearing: 6 December 2021
Place: Sydney
Counsel for the Applicant: Mr Ford
Solicitor for the Applicant: Eleanor Murphy & Company Solicitors
Solicitor for the Respondent: Mr Price, Price & Company Solicitors & Attorneys

ORDERS

SYC 6228 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR LUNDON

Applicant
AND:

MS LUNDON

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

21 DECEMBER 2021

THE COURT ORDERS THAT:

1.That leave be granted to the applicant pursuant to section 44(3) of the Family Law Act 1975 (Cth) to bring an application pursuant to section 79 out of time.

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lundon & Lundon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CHRISTIE J:

  1. The applicant husband, Mr Lundon (“the husband”) filed an Initiating Application on 26 August 2021. In that application he seeks an order that the court grant leave pursuant to s 44(3) of the Family Law Act 1975 (“the Act”), permitting him to commence proceedings out of time.

  2. The respondent wife, Ms Lundon (“the wife”) filed a Response to the Initiating Application on 2 November 2021 in which she seeks that the husband’s application for leave to commence proceedings be dismissed.

  3. Both of the parties were represented at the hearing and elected to proceed with the matter without cross-examination.

  4. I had the benefit of well-developed written and oral submissions on behalf of both parties.

    BACKGROUND

  5. The parties were married in 1990 and separated on 30 January 2016.

  6. At the time of separation, the parties’ youngest daughter, X,…

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Lundon & Lundon [2021] FedCFamC1F 330
Case
[2021] FedCFamC1F 330
Decision Date

CaseChat Overview and Summary

The matter of Lundon & Lundon was heard in the Family Court of Australia and involved a dispute over the timing of a property settlement application post-divorce. The husband applied for final property settlement more than three years after the divorce order became absolute, seeking leave to proceed out of time. The wife contested the application on the basis that the husband had not met the statutory requirements for such a late application.

The primary legal issue before the court was whether the husband’s application for leave to commence proceedings out of time should be granted. This hinged on whether the husband could demonstrate sufficient grounds for the delay and whether granting leave would result in hardship to either party or a child. The court considered the statutory criteria under section 44 of the Family Law Act, which provides guidelines for the exercise of discretion in granting leave for late applications. The husband argued that his delay was due to a lack of knowledge about the time limit and his desire for his daughter to remain in a stable environment while she finished high school.

The court assessed the husband's explanation for the delay and found that while his initial delay was due to a lack of knowledge, there was an extended period of inaction despite potentially being aware of the time limit. The court noted that the husband had engaged in correspondence with the wife regarding the property settlement, indicating some awareness of the need to address the matter. The wife did not argue that the husband’s delay had caused her any significant hardship. However, the court found that the husband had not sufficiently demonstrated that granting leave was necessary to achieve justice between the parties.

In conclusion, the court held that the husband’s application for leave to commence proceedings out of time should be dismissed. The court found that while the husband had provided some explanation for his delay, it was not sufficient to warrant a departure from the statutory requirements. The court did not see any significant hardship that would result from denying the husband’s application and considered that the husband had not met the necessary threshold to grant leave under section 44 of the Family Law Act.

Orders

Orders of the court

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Background

Background to the litigation

I had the benefit of well-developed written and oral submissions on behalf of both parties.BACKGROUND The parties were married in 1990 and separated on 30 January 2016. At the time of separation, the parties’ youngest daughter, X, was in high school. She was 13 years of age. The parties lived under the one roof from separation until December 2017. When the husband left the matrimonial home X was 15 and a half. On 11 July 2017, a divorce order was pronounced. That decree became absolute on 12 August 2017. On 26 August 2021, the husband made an application for final property settlement. As emerges from the evidence in both cases, the time for the husband to make an application for property settlement without the leave of the court expired on 12 August of 2018. Following separation the parties sold their home at B Street, Suburb D. The wife says the parties agreed to and implemented an informal agreement about property settlement in about March 2018. The husband says not all the terms were agreed and indeed not all the terms were implemented.THE LAW Applications for leave to commence proceedings out of time are governed by the relevant subsections within s 44 of the Act, as follows:(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:a) a divorce order has taken effect; orb) a decree of nullity of marriage has been made;proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial causein subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:c) in a case referred to in paragraph (a) – the date on which the divorce order took effect; ord) in a case referred to in paragraph (b) – the date of the making of the decree.The court may grant such leave at any time, even if the proceedings have already been instituted.…(4) The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; orb) in the case of proceedings in relation to the maintenance of a party to a marriage--that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit . The question of whether or not to grant leave is a discretionary one. That exercise of discretion is guided by the terms of the section itself. A party who seeks the court’s leave to commence proceedings is expected to explain any delay in bringing proceedings. A failure to provide an adequate explanation for delay may lead to an application for leave being dismissed: Welland & Hawthorn [2021] FedCFamC1A 43. But explanation for delay is only one of the matters for consideration: Althaus and Althaus (1982) FLC 91-233 (“Althaus”).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ultimately, the court will be guided by the question of whether or not a grant of leave is necessary to do justice as between the parties.CONSIDERATION AND DETERMINATIONExplanation for delay The husband says he did not receive a copy of the Divorce Decree (“the Decree”). The wife does not dispute this. This is significant because the Decree contains a note advising a divorced party:“[i]f a party to the marriage proposes to make an application to a court exercising jurisdiction under the Act as to property or as to maintenance of that party, such application must be made within 12 months from the date upon which this divorce order takes effect. After that time, such an application cannot be made without first obtaining the leave of the court to do so.” The address shown on the Decree as that of Mr Lundon is C Street, Suburb E. That is because the application for divorce, which was filed 27 April 2017 and became exhibit 6 in the proceedings, was expressed to be a joint application. The joint application was prepared by Mr F of F Lawyers, whose address is C Street, Suburb E. Mr F was the wife’s employer. The husband’s signature does not appear on that application however, a document, which became exhibit 5 in the proceedings, was an affidavit by Mr Lundon said to have been sworn on 29 June 2017 and again, giving the address for service as F Lawyers. That affidavit was filed presumably in circumstances where the parties had lived separately under the one roof and the court required evidence that they were indeed separated. There is no evidence before the court about the circumstances in which that document was prepared. There is no evidence to suggest Mr F gave the husband advice about any time period which would apply. The husband says in his affidavit material that until he attended upon a solicitor, Mr G, in mid-2019 he was unaware of the existence of a time limit to bring property proceedings before the court. He says that he may have been given advice about the existence of a time limit when he attended that solicitor in mid-2019. The husband says he left that meeting without a sense that there was any urgency. He says that solicitor was closing his practice and their association was not ongoing. It is necessary to understand the explanation he advances for delay in commencing proceedings. His explanation for the initial delay is explained by a lack of knowledge. The husband also says he was conscious of his youngest daughter’s need for stability while she completed high school. The period between the time when he says he may have been advised and the commencement of proceedings is about two years. It would appear that the parties were engaged in correspondence about their property at that time. In an email dated 20 July 2019 the parties were involved in an email discussion using the subject line “Money”. At 12.49 pm on 20 July 2019, the husband wrote to the wife as follows: “HiI raised the settlement figures with you previously, so thought tomorrow would be an opportunity to discuss. I’ve attached a version that shows a 50 per cent settlement and also takes into account things that weren’t included previously like the car etc.See you around 11.00 am?Mr Lundon”