Mendez & Navarro - [2022] FedCFamC2F 1149

Federal Circuit and Family Court of Australia
(DIVISION 2)
Mendez & Navarro [2022] FedCFamC2F 1149

File number(s): MLC 2394 of 2022

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 4 August 2022

Catchwords: FAMILY LAW – defended threshold hearing – leave to issue property proceedings after time limit – dispute as to length of the relationship – de facto partnership – ex tempore judgment.

Legislation: Family Law Act1975 (Cth) ss 44, 90SF, 90SM, 117

Cases cited:
Arcand & Boen (2021) FLC 94-046

Gadzen & Simkin [2018] FamCAFC 218

Hall and Hall (1979) FLC 90-679

In the Marriage of Jacenko (1986) 11 Fam LR 314

Sharp & Sharp [2011] FamCAFC 150

Tamaniego & Tamaniego [2010] FamCAFC 254

Whitford& Whitford (1979) FLC 90-612

Division: Division 2 Family Law

Number of paragraphs: 67

Date of hearing: 4 August 2022

Place: Melbourne

Counsel for the Applicant: Mr G. Combes

Solicitor for the Applicant: Hicks Oakley Chessell Williams

Counsel for the Respondent: Mr D. James
ORDERS

MLC 2394 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MENDEZ

Applicant

AND:
MS NAVARRO

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

4 AUGUST 2022

THE COURT ORDERS THAT:
1.Pursuant to section 44(6) of the Family Law Act 1975 (Cth) leave be and is granted to the Applicant De Facto Husband to bring proceedings out of time.
2.The Applicant’s Initiating Application filed 9 March 2022 stand as his Initiating Application seeking property settlement orders.
3.The Respondent’s Response filed 6 April 2022 stand as her Response to the Applicant’s Initiating Application.

Conciliation Conference:
4.The parties and any lawyers on the record shall personally attend a Conciliation Conference on 30 November 2023 and 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.At least 14 days prior to the conference date, 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 the relevant case manager at …@fcfcoa.gov.au 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;
(viii)written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.

Adjournment:
7.The matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mendez & Navarro

Details

AGLC: Mendez & Navarro [2022] FedCFamC2F 1149
Case: [2022] FedCFamC2F 1149
Decision Date

CaseChat Overview and Summary

The case of Mendez & Navarro involved a defended threshold hearing where the court was required to decide whether the applicant, Mr Mendez, should be granted leave to institute property settlement proceedings under sections 44(5) and (6) of the Family Law Act 1975. The applicant and the respondent, Ms Navarro, were in a de facto relationship from about 1986 until separation in either 2012 or 2014. The applicant filed his initiating application on 9 March 2022, which was outside the standard two-year application period. The primary issue before the court was whether the applicant should be granted leave to proceed with his claim, despite being outside the standard application period.

The court examined the principles of applications for leave to proceed in property or maintenance proceedings and noted that the Full Court has applied the principles applicable to 44(3) cases to 44(6) cases. The court considered the asset pool, the contributions made by both parties, and the length of the relationship. The court also took into account the delay in instituting proceedings, the explanation for the delay, and the prejudice to the respondent.

The court found that the applicant had made a partially sufficient or satisfactory explanation for the delay. Although the applicant had been able to pay legal fees and save money over time, the court was not convinced that he could not afford legal fees for the entire period from 2014 until 2022. The court also acknowledged that there would be some prejudice to the respondent due to the delay in bringing the proceedings. However, the court concluded that the significant contributions made by both parties over many years, as well as the strength of the merits of the applicant's case, outweighed the delay and prejudice considerations. Therefore, the court granted leave to the applicant to proceed with his claim.

In conclusion, the court granted leave to the applicant to institute property settlement proceedings, despite being outside the standard two-year application period. The court found that the applicant had made partially satisfactory explanations for the delay and that the significant contributions made by both parties, as well as the strength of the merits of the applicant's case, outweighed the delay and prejudice considerations.

Orders