Morphett and Surnam

[2019] FamCA 50

FAMILY COURT OF AUSTRALIA

MORPHETT & SURNAM [2019] FamCA 50

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to commence out of time – Where applicant wife seeks leave to commence property proceedings out of time – Where consideration of applicable principles – Where leave granted.

Family Law Act 1975 (Cth) ss 44(3), 44(4), 79

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Edmunds & Edmunds [2018] FamCAFC 121
Jacenko and Jacenko (1986) FLC 91-776
McDonald and McDonald (1977) FLC 90-317
Sharp & Sharp [2011] FamCAFC 150

APPLICANT: Ms Morphett

RESPONDENT: Mr Surnam

FILE NUMBER: PAC 1805 of 2018

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner

SOLICITOR FOR THE APPLICANT: Robertson Saxton Osborne

RESPONDENT – SELF-REPRESENTED LITIGANT: Mr Surnam in person

Orders

1. That the applicant wife be granted leave to commence section 79 proceedings out of time pursuant to section 44(3) of the Act.

2. That the wife’s application initiating proceedings filed 27 April 2018 (as amended) be deemed to be her Initiating Application pursuant to such leave.

3. That the husband file and serve a Response setting out with particularity orders sought by him as to property adjustment or otherwise, together with a Financial Statement within 14 days from the date of these orders.

4. That proceedings be listed before a Registrar on a date to be fixed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morphett & Surnam has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1805 of 2018

Ms Morphett

Applicant

And

Mr Surnam

Respondent

REASONS FOR JUDGMENT

1. By Further Amended Initiating Application filed 10 July 2018 the applicant wife seeks leave to commence property proceedings although out of time: s 44(3) of the Family Law Act 1975 (Cth) (“the Act”).

2. In support of her application the wife relies on:

   a)her Affidavit filed 19 October 2018;

   b)her Financial Statement filed 19 October 2018.

3. The husband filed a Response on 4 November 2018 and relies on his affidavit filed 9 November 2018.

The Law

1. Section 44(3) provides:

   44 Institution of proceedings

   …

   (3)Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:

   (a)a divorce order has taken effect; or

   (b)a decree of nullity of marriage has been made;

   proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1)…