Michael Brian Johnston v Louise Morna Hazel

MICHAEL BRIAN JOHNSTON v LOUISE MORNA HAZEL
[2003] ACTSC 46 (6 JUNE 2003)

DOMESTIC RELATONSHIPS ACT 1994 – adjustment of property interests – ex parte application – contributions prior to and after separation – just and equitable.

Domestic Relationships Act 1994 (ACT), ss 11, 12, 13(1), 13(2), 14

Green v Robinson (1995) 36 NSWR 96

No. SC 85 of 2002

Judge:          Higgins CJ
Supreme Court of the ACT
Date:           6 June 2003

IN THE SUPREME COURT OF THE     )
  )          No. SC 85 of 2002
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:MICHAEL BRIAN JOHNSTON

Plaintiff

AND:LOUISE MORNA HAZEL

Defendant

ORDER

Judge:  Higgins CJ
Date:  6 June 2003
Place:  Canberra

THE COURT ORDERS THAT:

1. The equity of the plaintiff in the property interests divided under the Domestic Relationships Act 1994 (ACT) is declared to be $162,083 and that of the defendant is $107,917.

1. This was an application pursuant to the Domestic Relationships Act 1994 (ACT) (the DR Act) for orders adjusting the property interests of the parties.

1. The claim was heard on 23 April 2003.  The defendant did not appear despite being served with due notice of the application.  Accordingly, the matter proceeded ex parte.

1. I am satisfied, on the uncontested evidence before me, that the plaintiff and defendant are each over the age of eighteen years.  Between December 1996 and February 2000 the parties lived together in the Australian Capital Territory in a bona fide domestic relationship.  The application was made on 15 February 2002.  On that date, and since, the plaintiff was a bona fide resident of the Australian Capital Territory.

1. Between February 2000 and the date of the commencement of proceedings, the parties had negotiated with a view to settling their affairs.  However, from September 2001 it appears that the defendant failed to cooperate, not replying to correspondence or attending conferences, (the most recent such conference having been scheduled for 14 June 2002).

1. I am satisfied that the necessary prerequisites for relief under s 11 of the DR Act (as to residence) and under s 12, (length of relationship) have been met.

1. However, there is no positive evidence that s 13(1) has been satisfied. That provides:

“1.An application for an order under this part by a party to a domestic relationship that has ended shall not be made more than two years after the day on which the relationship ended.”

1. The evidence is that the relationship ended in February 2000.  If that date was, in fact, before 15 February 2000 then more than two years elapsed before the application was first made.

1. However, if the application was out of time, it was only marginally so.  Further, the material contained in the affidavit of the plaintiff and his oral evidence satisfies me that it would cause significant hardship to the plaintiff to strike out this cause.

1. Section 13(2) provides:

“A court may grant leave to a person to apply for an order under this part after the end of the period referred to in subsection (1) if it…