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 |
| 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…
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- SALAZAR & SALAZAR [2020] FCCA 330
- Case
- [2020] FCCA 330
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CaseChat Overview and Summary
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
1.
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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