FEDERAL CIRCUIT COURT OF AUSTRALIA
| MICHELSON & WALTAS | [2020] FCCA 2038 |
| Catchwords: FAMILY LAW – Application for extension of time to file property proceedings under s.79 of the Family Law Act 1975 – leave to institute proceedings granted. |
| Legislation: Family Law Act 1975 (Cth), ss.44, 79 |
| Cases cited: Hall & Hall (1979) FLC 90-679 Whitford & Whitford (1979) FLC 90-612 Edmunds & Edmunds [2018] FamCAFC 121 Gadzen v Simkin [2018] FamCAFC 218 Emerald & Emerald [2018] FamCAFC 217 Sharp & Sharp [2011] FamCAFC 150 Jacenko & Jacenko [1986] FamCA 25 Montano & Kinross [2014] FamCAFC 231 Frost and Nicholson [1981] FamCA 45 |
| Applicant: | MS MICHELSON |
| Respondent: | MR WALTAS |
| File Number: | DGC 439 of 2020 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 8 July 2020 |
| Date of Last Submission: | 8 July 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 28 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ng |
| Solicitors for the Applicant: | Pentana Stanton Lawyers |
| Counsel for the Respondent: | Mr Stanley |
| Solicitors for the Respondent: | Wheeler Family Lawyer |
ORDERS
The applicant is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) to commence property proceedings against the respondent under s.79 of the Act.
IT IS NOTED that publication of this judgment under the pseudonym Michelson & Waltas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 439 of 2020
| MS MICHELSON |
Applicant
And
| MR WALTAS |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons concern an application by Ms Michelson (“the applicant”) for leave to bring property settlement proceedings out of time. The application is opposed by Mr Waltas (“the respondent”).
For the reasons that follow the applicant will be granted leave to proceed out of time with her application for property settlement.
Background facts
The applicant is 51 years old and lives in Town B. The respondent is 52 years old and also lives in Town B.
The parties commenced a relationship in the late 1980s, married in 1991, separated in November 2013 and there was a divorce order in June 2015. There were three children of the 22 year marriage who are now all over 18 years old.
When the parties separated the children remained living with the respondent in the former matrimonial home at C Street, Town B (“the former matrimonial home”).
The respondent, the sole registered proprietor of the former matrimonial home remains living there (as he has since separation) and continues to meet the mortgage repayments (as he has also done since separation).
The applicant, for who it was agreed the separation was traumatic, remarried in 2018, and prior to that had reconciled with at least one of the adult children who now lives with her.
Finally its uncontroversial that prior to the divorce order taking effect the applicant had legal advice and had notice, when it was made, of the time limit within which to bring proceedings under s.79 of the Family Law Act 1975 (Cth) (“the Act”).
The applicant began attending counselling in 2015,…
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- AGLC
- MICHELSON & WALTAS [2020] FCCA 2038
- Case
- [2020] FCCA 2038
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether to grant the applicant leave to institute property proceedings out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). This required the court to consider the relevant factors for granting such an extension.
Judge O'Sullivan granted the applicant leave to commence property proceedings against the respondent under section 79 of the Act.
Orders
Orders of the court
1.
The applicant is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) to commence property proceedings against the respondent under s.79 of the Act.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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