Salmar and Bark - [2018] FCCA 2460

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALMAR & BARK

[2018] FCCA 2460

Catchwords:
FAMILY LAW – Application for leave to proceed out of time s 44(3) – husband has cashed in joint funds and kept proceeds for his own use, husband and wife have continued to negotiate for the years between divorce in 2010 and filing in 2018; parties have had a variety of issues about which they disagree – parties had agreement not to object to the other party filing proceedings out of time for a period, however, by their conduct the parties continued on with that agreement and no express statement was made by the husband that his period had come to an end – the wife has acted to her detriment – husband refused to pay half the rates on their joint block of land and prefers to let the Council sell up the block – long marriage – significant contributions by the wife to both child rearing and financial contributions including superannuation – husband and wife both (occupations omitted) – Court satisfied that hardship will be caused to the wife – and explanation for delay – Any detriment to the husband finite and amounts to alleged payment of higher interest on his own mortgage, however, husband makes no allowance for his own receipt and use of joint funds during the post separation years.

Legislation:

Family Law Act 1975, s.44(3)

Cases cited:

Whitford and Whitford (1979) FLC 09-612

Carlon and Carlon (1982) FLC 91-272

Gallo & Dawson (1990) 93 ALR 479

Althaus and Althaus (1982) FLC 91-233

Applicant:

MS SALMAR

Respondent:

MR BARK

File Number:

CSC 253 of 2018

Judgment of:

Judge Willis

Hearing date:

16 May 2018

Date of Last Submission:

16 May 2018

Delivered at:

Cairns

Delivered on:

5 September 2018

REPRESENTATION

Solicitors for the Applicant:

Vandeleur & Todd Solicitors

Solicitors for the Respondent:

Self-represented

ORDERS

That pursuant to section 44 (3) of the Family Law Act 1975 (“the Act”), leave be granted to the Applicant Wife to institute property and/ or maintenance proceedings under the Act.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 253 of 2018

MS SALMAR

Applicant

And

MR BARK

Respondent

REASONS FOR JUDGMENT

This is an application of Ms Salmar (the wife) seeking leave of the court pursuant to section 44 (3) of the Family Law Act1975 (Cth) (the Act) to proceed out of time in relation to instituting proceedings with respect to the property of the parties arising out of her marriage to Mr A (the husband).
The husband is opposed to the Court granting such leave.
The parties married on 1992. They have one child of the marriage ([X]) born on 2001 and who turns 17 in 2018. The wife was born on 1969 and is currently aged 49. The husband was born on 1966 and turns 52 in 2018.…

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 Salmar and Bark

Details

AGLC: Salmar and Bark [2018] FCCA 2460
Case: [2018] FCCA 2460
Decision Date: 5 September 2018

CaseChat Overview and Summary

In *Salmar and Bark*, the Applicant Wife sought leave from the Federal Circuit and Family Court of Australia to institute property and/or maintenance proceedings under the *Family Law Act 1975* (Cth). The specific nature of the dispute between the parties, beyond the need for the wife to obtain leave to commence proceedings, is not detailed in the provided text.

The central legal issue before Judge Willis was whether to grant the Applicant Wife leave to commence proceedings pursuant to section 44(3) of the *Family Law Act 1975*. This section typically requires a party to obtain the court's permission to institute proceedings after a specified period has elapsed since the breakdown of the marriage or the finalisation of previous proceedings.

The court's reasoning and the legal principles applied in granting leave are not elaborated upon in the provided text. However, the order itself indicates that the court was satisfied that the criteria for granting leave under section 44(3) were met.

Consequently, the court ordered that pursuant to section 44(3) of the *Family Law Act 1975*, leave be granted to the Applicant Wife to institute property and/or maintenance proceedings under the Act.

Orders

Orders of the court

That pursuant to section 44 (3) of the Family Law Act 1975 (“the Act”), leave be granted to the Applicant Wife to institute property and/ or maintenance proceedings under the Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.