QUATTRO & GASPAR - [2018] FCCA 3405

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUATTRO & GASPAR

[2018] FCCA 3405

Catchwords:
FAMILY LAW – Application pursuant to s.44(6) for leave to commence proceedings out of time – application two years out of time – de-facto relationship – hardship – leave granted.

Legislation:

Family Law Act 1975, ss.44, 90

Cases cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gallo & Dawson (1990) HCA 30
Jacenko & Jacenko (1986) FLC 91-776
Robb & Robb (1995) FLC 92-555
Sharp & Sharp (2011) 50 FamLR 567
Slocomb & Hedgewood [2015] FamCAFC 219

Whitford & Whitford (1979) FLC 90-612

Applicant:

MR QUATTRO

Respondent:

MR GASPAR

File Number:

PAC 2940 of 2016

Judgment of:

Judge Obradovic

Hearing date:

23 May 2018

Date of Last Submission:

23 May 2018

Delivered at:

Parramatta

Delivered on:

30 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms Haughton

Solicitors for the Applicant:

Aaron Legal

Counsel for the Respondent:

Ms Hamilton

Solicitors for the Respondent:

Glenn R Walters & Co

ORDERS

Pursuant to section 44(6) of the Family Law Act 1975 leave is granted to the Applicant to commence property settlement proceedings out of time.
The matter is listed for directions at 9.30am on 1 March 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2940 of 2016

MS QUATTRO

Applicant

And

MR GASPAR

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment relate to the application brought by the de-facto wife, Ms Quattro, that she be granted leave to commence property proceedings out of time.
The Respondent de-facto husband, Mr Gaspar, opposes such leave being granted.
The proceedings were commenced on 27 June 2016 in the Family Court of Australia. They were transferred to this Court by order dated 12 September 2016, and listed for the first time before this Court on 14 November 2016. On that date, the matter was readied for hearing in respect of the leave application and was to be listed for compliance check and allocation of a hearing date on 21 December 2016.
By consent on 28 November 2016, the 21 December 2016 listing was vacated and the matter was listed for directions to allow the parties’ time to attend mediation. There were further administrative adjournments on the parties’ joint application to allow time for negotiations and mediation. On 12 September 2017, the Court was advised that a mediation was to occur on 26 October 2017. The matter did not resolve. On 1 February 2018, the leave application was listed for hearing at 10am on 23 May 2018, when it was heard.

Documents relied on

The Applicant relied on the following documents.
a)Initiating Application filed 27 June 2016;
b)Financial Statement of Ms Quattro Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476, 476filed 27 June 2016;
c)Affidavit of Ms Quattro sworn 14 October 2016 and filed on 24 October 2016; and
d)Affidavit of Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading QUATTRO & GASPAR

Details

AGLC: QUATTRO & GASPAR [2018] FCCA 3405
Case: [2018] FCCA 3405
Decision Date: 30 November 2018

CaseChat Overview and Summary

In the matter of *Quattro & Gaspar*, heard before Judge Obradovic, the applicant sought leave pursuant to section 44(6) of the *Family Law Act 1975* to commence property settlement proceedings out of time. The application was made approximately two years after the expiry of the usual time limit for commencing such proceedings, following the breakdown of a de facto relationship.

The central legal issue before the court was whether to grant the applicant leave to proceed with her property settlement claim notwithstanding the significant delay. This required the court to consider the factors relevant to an application for leave under section 44(6), particularly the concept of hardship.

Judge Obradovic granted the applicant leave to commence proceedings out of time. While the specific reasoning is not detailed in the provided text, the decision indicates that the court found sufficient grounds, likely related to hardship, to permit the application to proceed despite the two-year delay. The court then made orders for the matter to be listed for directions.

Orders

Orders of the court

Pursuant to section 44(6) of the Family Law Act 1975 leave is granted to the Applicant to commence property settlement proceedings out of time.

The matter is listed for directions at 9.30am on 1 March 2019.

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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