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…
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- AGLC
- Mendez & Navarro [2022] FedCFamC2F 1149
- Case
- [2022] FedCFamC2F 1149
- Decision Date
CaseChat Overview and Summary
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.
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Background
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