SANDERSON & OLIVER

[2016] FCCA 2134

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDERSON & OLIVER [2016] FCCA 2134

Catchwords:
FAMILY LAW – Application for an extension of time to commence proceedings out of time – where the refusal of an extension of time may work an injustice to the applicant  – leave granted – costs reserved.

Legislation:

Family Law Act 1975, ss.44, 90SM

Cases cited:

Hall & Hall (1979) FLC 90-679
Whitford & Whitford (1979) FLC 90-612
Riordan & Riordan [2012] FMCAfam 1297

Stanford v Stanford (2012) 247 CLR 108

Applicant: MR SANDERSON

Respondent: MS OLIVER

File Number: MLC 2447 of 2015

Judgment of: Judge McNab

Hearing date: 22 July 2016

Date of Last Submission: 22 July 2016

Delivered at: Melbourne

Delivered on: 19 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Carlile

Solicitors for the Applicant: Sutherland Lawyers

Counsel for the Respondent: Mr Glick QC with Ms Mariole of Counsel

Solicitors for the Respondent: Simon Nixon & Associates

ORDERS

1. That the applicant be granted an extension of time to commence proceedings to the date of the filing of this application.

2. The costs be reserved to final hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2447 of 2015

MR SANDERSON

Applicant

And

MS OLIVER

Respondent

REASONS FOR JUDGMENT

1. By an application filed on 26 March 2016, the applicant seeks an extension of time to commence proceedings pursuant to s.44 of the Family Law Act 1975 (“the Act”).

2. On 6 April 2016, Judge Bender dismissed an application made by the respondent to strike out the applicant’s initiating application.

3. s.44(3)(a) to (d) of the Act provides:

   (3)  Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:

   (a)  a divorce order has taken effect; or

   (b)  a decree of nullity of marriage has been made;

   proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:

   (c)  in a case referred to in paragraph (a)--the date on which the divorce order took effect; or

   (d)  in a case referred to in paragraph (b)--the date of the making of the decree.

   The court may grant such leave at any time, even if the proceedings have already been instituted.

4. s.44(4) of the Act provides:

   (4)  The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:

   (a)  that hardship would be caused to a party to the relevant marriage or a…