SALAZAR & SALAZAR - [2020] FCCA 330

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALAZAR & SALAZAR

[2020] FCCA 330

Catchwords:
FAMILY LAW – PROPERTY – Leave to commence property settlement proceedings eight months out of time – summary dismissal – initiating application and response dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.44(3), 44(4)(a), 79(2), 75(2)

Cases cited:

Whitford and Whitford (1979) FLC 90-612
Gadzen & Simkin [2018] FamCAFC 218
Stanford & Stanford [2011] FamCAFC 208
Calvin & McTier [2017] FamCAFC 125
Holland & Holland [2017] FamCAFC 166

Applicant:

MS SALAZAR

Respondent:

MR SALAZAR

File Number:

ADC 3802 of 2017

Judgment of:

Judge Kari

Hearing date:

10 February 2020

Date of Last Submission:

10 February 2020

Delivered at:

Adelaide

Delivered on:

19 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Dillon

Solicitors for the Applicant:

Andrew Hill & Co

Counsel for the Respondent:

Ms Dickson

Solicitors for the Respondent:

AM Legal

ORDERS

That the Initiating Application filed 12 August 2019 and the Response filed 4 October 2019 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3802 of 2017

MS SALAZAR

Applicant

And

MR SALAZAR

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to an application made by the wife for leave to commence a property settlement claim some 8 months out of time.
The application for leave is opposed by the husband. In the alternative and in the event that leave is granted to proceed out of time, the husband asks that the court summarily dismiss the application for property settlement. A significant thread of the husband’s position is his assertion that the wife’s property settlement claim is without merit.

Background

The relevant relationship history is as follows:
a)The wife was born on … 1953 and she is 66 years of age.
b)The husband was born on … 1948 and he is 71 years of age.
c)The parties began living together in a de facto relationship in or about September 2004.
d)The parties married on … 2005.
e)The parties separated according to the wife in December 2010 and according to the husband some time in 2008 when they began living separately and apart under the same roof.
f)The parties were divorced on 28 November 2017 with the divorce becoming final on 29 December 2017.
g)The time limit for the wife to bring proceedings for settlement of property expired on 30 December 2018.
h)The Initiating Application of the wife for leave to commence the proceedings out of time was filed on 12 August 2019 (some nine years post separation on the wife’s case, and some 11 years post separation on the husband’s case).
While the parties do not agree the length of the relationship (on the wife’s case it is six years and on the husband’s case it is four years), there is much that they do agree, significantly as follows:
a)There are no children of the relationship.
b)Both parties are…

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 SALAZAR & SALAZAR

Details

AGLC: SALAZAR & SALAZAR [2020] FCCA 330
Case: [2020] FCCA 330
Decision Date: 19 February 2020

CaseChat Overview and Summary

In *Salazar & Salazar*, the parties sought to resolve their property settlement. The applicant sought leave to commence property settlement proceedings out of time, approximately eight months after the expiry of the statutory time limit. The respondent opposed this application. The matter came before Judge Kari in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether to grant the applicant leave to commence property settlement proceedings out of time. This required the court to consider the relevant provisions of the *Family Law Act 1975* (Cth) and the principles governing the exercise of discretion in such matters, including the applicant's reasons for the delay and the potential prejudice to the respondent.

Judge Kari dismissed the application for leave to commence proceedings out of time. The court found that the applicant had not provided sufficient grounds to justify the significant delay in filing the application. The court applied the principles that require a party seeking an extension of time to demonstrate a compelling reason for the delay and that the court must balance the interests of both parties. In this instance, the court concluded that the applicant had failed to meet the threshold for granting an extension, leading to the dismissal of the initiating application and the respondent's response.

Orders

Orders of the court

That the Initiating Application filed 12 August 2019 and the Response filed 4 October 2019 be dismissed.

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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