Montano and Kinross

[2014] FCCA 843

FEDERAL CIRCUIT COURT OF AUSTRALIA

MONTANO & KINROSS [2014] FCCA 843

Catchwords:
FAMILY LAW – De-facto property proceedings – initiate within two years of end of relationship – extension of time – tests – whether must give an explanation for whole period of delay – leave to issue out of time denied.

Legislation:

Family Law Act 1975, s.44

Property Law Act 1958 (Vic)

Frost & Nicholson (1981) FLC 91-051
Harris & Harris (1997) DFC 95-192
Sharp & Sharp [2011] FamCAFC 150
Star & Star [2013] FamCA 91
Tamaniego & Tamaniego [2010] FamCAFC 254

Applicant: MS MONTANO

Respondent: MR KINROSS

File Number: MLC 8860 of 2013

Judgment of: Judge F. Turner

Hearing date: 26 March 2014

Date of Last Submission: 26 March 2014

Delivered at: Melbourne

Delivered on: 30 April 2014

REPRESENTATION

Counsel for the Applicant: Ms Wheeler

Solicitors for the Applicant: Jane M Curtis & Associates

Counsel for the Respondent: Mr Hannan

Solicitors for the Respondent: Westminster Lawyers Pty Ltd

ORDERS

1. The wife’s application seeking leave to issue proceedings out of time is dismissed.

2. The Initiating Application filed 14 October 2013 is dismissed.

3. All extant applications are dismissed and the matter is removed from the list of pending cases.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8860 of 2013

MS MONTANO

Applicant

And

MR KINROSS

Respondent

REASONS FOR JUDGMENT

1. This decision deals with an application by the de-facto wife to institute property proceedings out of time. (For convenience, the Court will refer to the de-facto wife as “wife” and the de-facto husband as “husband”). It is not disputed that the parties commenced cohabitation in 1992 and separated on a final basis on 23 November 2009, and that they were in a de-facto relationship for 17 years. There are no children of the relationship.

2. Section 44(5) of the Family Law Act 1975 (the “Act”) provides:

   (5)Subject to subsection (6), a party to a de facto relationship may apply for:

   (a)an order under section 90SE, 90SG or 90SM; or

   (b)a declaration under section 90SL;

   only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period ).

   (6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

   (a)hardship would be caused to the party or a child if leave were not granted; or

   (b)in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

3. To be made within the “standard application period”, the application had to be made on or before by 23 November 2011. The…