Slocomb and Hedgewood

[2013] FCCA 1949

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLOCOMB & HEDGEWOOD [2013] FCCA 1949

Catchwords:
FAMILY LAW – Property proceedings – leave to proceed out of time – significant delay in commencing proceedings.

Legislation:

Family Law Act 1975 (Cth) s.44(3)

Whitford and Whitford (1979) FLC 90-612
McDonald and McDonald (1977) FLC 90-317

Applicant: MS SLOCOMB

Respondent: MR HEDGEWOOD

File Number: PAC 886 of 2013

Judgment of: Judge Donald

Hearing date: 19 September 2013

Date of Last Submission: 19 September 2013

Delivered at: Parramatta

Delivered on: 25 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Schroder

Solicitors for the Applicant: Matthews Dooley & Gibson

Counsel for the Respondent: Mr O'Connor

Solicitors for the Respondent: A J & Associates

ORDERS

1. That the Wife’s Initiating Application is dismissed.

2. That the Wife’s Application in a Case is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 886 of 2013

MS SLOCOMB

Applicant

And

MR HEDGEWOOD

Respondent

REASONS FOR JUDGMENT

Applications

1. This is a matter in which the applicant wife has sought leave pursuant to s.44(3) of the Family Law Act 1975 to institute proceedings for property orders out of time.  The husband has opposed the granting of such leave and has sought that both the Initiating Application and the Application in a Case filed by the wife be dismissed.[1]

   [1] Response of the Husband filed 9 April 2013

2. If such leave was granted, the wife then seeks orders whereby the former matrimonial home would be sold and whereby she would receive 70% of the net proceeds after payment of costs of sale, mortgage and outstanding school fees in relation to the children of the marriage.[2]

   [2] Application filed by the Wife 6 March 2013 and Wife’s Application in a Case of the same date

Background

1. The applicant wife was born in (omitted) 1964 and is aged 49 years.  The respondent husband was born in (omitted) 1963 and is aged 50 years.

2. The parties commenced cohabitation in 1987 and married in (omitted) 1989.  The parties had three children who are now aged 24 years, 22 years and 21 years respectively.  The parties separated in January 1994.  They were divorced in September 1995.  Accordingly, 18 years has now passed since the date of the parties divorce.

3. It seems common between the parties, and I accept, that the only substantial asset of the parties was and is the former matrimonial home located at Property O in the State of New South Wales.  That property is now valued at between $320,000 (as submitted by the husband) and $350,000 (as submitted by the wife).  The balance secured by mortgage over that home as at 24 June 2013 was approximately $43,000.[3]

   [3] Affidavit of the Wife sworn 5 September 2013 para.3

4. Upon separation, the wife left the former matrimonial home with the children.  On two occasions she and the children moved back into that home but only…