MULLIS & QUIMBY

[2019] FCCA 1516

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLIS & QUIMBY [2019] FCCA 1516

Catchwords:
FAMILY LAW – De facto relationship – date of commencement of cohabitation in dispute – application for leave to proceed out of time – whether hardship to the Applicant outweighs prejudice to the Respondent – application granted.

Legislation:

Family Law Act 1975 (Cth), ss.44(6), 78, 90SL, 90SM, 117C

Cases cited:

Whitford & Whitford (1979) FLC 90-612

In the Marriage of Pearce (1982) FLC 91-276

In the Marriage of Aldred (1984) FLC 91-510

In the Marriage of Aldred (No 2) (1985) 91-602

In the Marriage of Jacenko (1986) 11 Fam LR 341

Sharp v Sharp (2011) 50 Fam LR 567

Slocomb v Hedgewood [2015] FamCAFC 219

Edmunds & Edmunds [2018] FamCAFC 121

Gadzen & Simkins [2018] FamCAFC 218

Applicant: MR MULLIS

Respondent: MS QUIMBY

File Number: SYC 5033 of 2013

Judgment of: Judge Morley

Hearing date: 18 April 2019

Date of Last Submission: 18 April 2019

Delivered at: Sydney

Delivered on: 7 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Jackson

Solicitors for the Applicant: Anne Day & Associates

Solicitors for the Respondent: Mr Miller of Willis & Bowring Solicitors

ORDERS

1. That pursuant to section 44(6) of the Family Law Act 1975 (“the Act”) leave is granted to the Applicant de facto husband to apply for orders under section 90SM of the Act after the end of the standard application period by extending the time for him to apply to 14 May 2015, the date he filed his Amended Initiating Application.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5033 of 2013

MR MULLIS

Applicant

And

MS QUIMBY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the Application by Mr Mullis as Applicant de facto husband (‘the Applicant’) for an order pursuant to section 44(6) of the Family Law Act 1975 (‘the Act’) granting him leave to commence proceedings for property settlement orders under section 90SM of the Act out of time. The Respondent de facto wife (‘the Respondent’) is Ms Quimby.

2. The Applicant asserts that the parties commenced cohabitation in 1988.  The Respondent asserts that the parties commenced cohabitation in 1992.  The parties agree that they separated in September 2012.  The parties never married.

3. There are two children of the relationship; [X] born … 2004, currently aged 14 years, and [Y] born … 2005, currently aged 13 years.  Both children have lived with the Respondent since separation and have spent time, though not always consistently, with the Applicant.

4. The Applicant commenced proceedings by filing an Initiating Application on 29 August 2013 in which he sought only parenting orders. 

5. The Respondent filed her response on 31 October 2013, also seeking only parenting orders.

6. On 3 March 2014, Her Honour Judge Walker made an order granting leave to the Applicant to file an Amended Application seeking property orders within 6 weeks. The Applicant…