SLADE & CASTLE

[2012] FamCA 80

FAMILY COURT OF AUSTRALIA

SLADE & CASTLE [2012] FamCA 80

FAMILY LAW - PRACTICE AND PROCEDURE - Judicial Registrar - Review of decision – Leave to review out of time – Matter adjourned.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Slade

RESPONDENT: Mr Castle

FILE NUMBER: MLC 5078 of 2011

DATE DELIVERED: 23 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 23 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. The applicant’s Application filed 7 December 2011 be adjourned for hearing in the Judicial Duty List at 10:00am on 28 February 2012.

2. By 4:00pm on 3 February 2012 the applicant file and serve on the respondent:

   a.      an amended Application setting out with precision the orders to be sought; and

   b.      any affidavit in support of the Application.

3. By 4:00pm on 17 February 2012 the respondent file and serve upon the applicant:

   a.      any amended Response setting out with precision the orders to be sought; and

   b.      any affidavit in support of that Response.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5078 of 2011

Ms Slade

Applicant

And

Mr Castle

Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed by the applicant on 7 December 2011, in which she seeks a review of the order made on 20 June 2011, which those orders being final property orders made by consent by a Registrar of this Court.

2. That application for review is out of time.  The Family Court Rules require that that application be made within seven days of the date of the orders.  The applicant now seeks leave to amend that application to seek leave to review out of time.  That is opposed by the respondent.  The reasons why the applicant seeks that leave out of time are in essence the same reasons for which she seeks a review of the orders.

3. It is the applicant’s case that at the time of the separation she and the respondent agreed that the two children of the relationship, R, born in April 2002 and J, born in March 1996 would remain in what was then the family home at C Street, Suburb H, until the new home which she proposed to build was ready to move into as that would cause less disruption for the children.

4. The orders were framed on the basis that the applicant mother and the children would remain in the property at Suburb H until 31 December 2011.  By 31 December 2011 the building of the applicant’s new home had not been completed.  The applicant’s evidence is that she estimated that it would take approximately nine months to have a new home built, that a date was nominated and that as soon as she received the money from the property settlement pursuant to the orders, she immediately signed a contract to have a new home built. The contract stated that the house would be completed within nine months from the building commencement, but that building did not commence until the last week of October 2011.

5. The respondent agrees in his affidavit, that it had been intended that the building of the applicant’s new home would be completed no later than 31 December 2011.  At paragraph 8 of his affidavit he says:

   At the time of coming to this agreement the applicant asked me if she could continue to live in the matrimonial home until her property was constructed so as not to disrupt the children.  I agreed with the provision that the applicant move out of the matrimonial home no later than 31 December 2011.

6. That is now not possible.  The respondent wants the orders to be enforced.  He wants the applicant to move out.  He says for a number of reasons, they include the fact that his mother is extremely ill and he needs to assist in her care and needs the home to do that.  He says he needs the home so that he can maintain a proper relationship with the children.  He doesn’t have room where he presently lives to have his daughter stay overnight, and he also refers to the fact that he is now paying a mortgage in relation to the monies borrowed to pay out the applicant by way of property settlement.

7. These are significant issues for him, however it is also clear that the parties had intended that the disruption to the children would be as little as possible, and therefore I do propose to adjourn the matter, to make orders that the applicant have leave to amend her application and to seek leave to review the application out of time.  I am keen for the parties to obtain some advice in relation to this course because they would appear to both be viewing it from a limited position, which is that this related solely to the issue of when the applicant is required to move out of the property.

8. Accordingly, I propose to adjourn the matter to 28 February 2012 in the Judicial Duty List.  I have taken into account the matters raised, but I am also mindful of the fact that if the applicant were to move out now there would be a significant disruption for the children, and particularly at a time that may be difficult for the child who is starting VCE.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 23 January 2012.

Associate: 

Date:  28 February 2012