MALVARD & CAUDLE

[2020] FCCA 364

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALVARD & CAUDLE [2020] FCCA 364

Catchwords:
FAMILY LAW – Property – Application for leave to apply for a property settlement out of time – relationship of 34 years – parties reached informal property settlement – Applicant Husband received significantly larger sum in the informal settlement – Applicant Husband made representations he would not pursue a formal settlement in light of parties’ informal agreement – where the Respondent Wife made significant financial decisions post-separation in reliance of the informal agreement – where the Applicant Husband does not establish any hardship – where allowing the Application to proceed would likely cause hardship to the Respondent – Application dismissed with costs.

Legislation:

Family Law Act 1975 (Cth), ss.44(3) & (4).

Cases cited:

MacKenzie v MacKenzie (1978) 4 Fam LR 374

McDonald v McDonald (1977) FLC 90-317

In the Marriage of Whitford (1979) 4 Fam LR 754; (1979) 24 ALR 424

Sharp v Sharp (2014) 50 Fam LR 567

Applicant: MR MALVARD

Respondent: MS CAUDLE

File Number: CAC 727 of 2019

Judgment of: Judge Neville

Hearing date: 22 August 2019

Date of Last Submission: 27 September 2019

Delivered at: Canberra

Delivered on: 27 February 2020

REPRESENTATION

Counsel for the Applicant: Ms M Davis

Solicitors for the Applicant: Farrell Lusher Solicitors, Town A

Counsel for the Respondent: Mr M Hassall

Solicitors for the Respondent: Meade Robson Steele, Adelaide

ORDERS

1. The Applicant’s Initiating Application filed on 23^rd April 2019 be dismissed.

2. The Applicant is to pay the Respondent’s costs of and incidental to these proceedings as agreed or taxed.

3. All extant Applications be dismissed, the matter finalised and removed immediately from the docket.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 727 of 2019

MR MALVARD

Applicant

And

MS CAUDLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Initiating Application, filed 23^rd April 2019, pursuant to s.44(3) of the Family Law Act 1975 (“the Act”), the Applicant seeks to bring property proceedings out of time.  If leave is granted, he further seeks that there be a 50% split to him of the Wife’s superannuation.  In general terms this may amount to approximately $200,000.

2. The parties married in 1982.  They separated in mid-2016.  A divorce Order was made on 29^th August 2017.  There are two adult children of the relationship. 

3. When the parties separated, they divided their non-superannuation assets informally on a 50/50 basis.

4. The Applicant Husband is now in his late 60s, while the Respondent Wife is in her early 60s.

5. The Wife resists the Application and seeks that it be dismissed with costs.  She does so primarily because she says that (a) in fact the informal property settlement between the parties was weighted in the Applicant’s favour, (b) she agreed to the informal settlement because it allowed her to keep her superannuation intact, and (c) she has relied upon the informal…