STUART & LAWSON

[2015] FCCA 3299

FEDERAL CIRCUIT COURT OF AUSTRALIA

STUART & LAWSON [2015] FCCA 3299

Catchwords:
FAMILY LAW – Property – Application for leave to institute property proceedings out of time – long delay in commencing proceedings – hardship established – leave granted.

Legislation:

Family Law Act 1975, ss.44(3), 44, 75, 79, 90D

In the Marriage of Hall (1979) 5 Fam LR 411
In the Marriage of Whitford (1979) FLC 90-612
Montano & Kinross [2014] FamCAFC 231
Sharp & Sharp [2011] FamCAFC 150
Slocomb & Hedgewood [2015] FamCAFC 219

Applicant: MS STUART

Respondent: MR LAWSON

File Number: SYC 2742 of 2015

Judgment of: Judge Sexton

Hearing date: 12 November 2015

Date of Last Submission: 12 November 2015

Delivered at: Sydney

Delivered on: 10 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Blackah

Solicitors for the Applicant: McDermott and Associates

Counsel for the Respondent: Ms Sproston

Solicitors for the Respondent: Alexanders Lawyers

ORDERS

1. The Wife be granted leave to institute property proceedings out of time.

2. The Applicant’s legal representative forthwith advise the Registrar of the Supreme Court of these orders.

3. The matter be adjourned for mention before me at 9.30a.m. on 11 March 2016.

4. Each party respond promptly to any request for financial information.

5. By no later than 28 January 2016, the parties engage an accredited real estate valuer to prepare a joint valuation of the Property A property and share equally the costs of such valuation.

6. By no later than 28 January 2016, the parties exchange Superannuation Information Forms in relation to all superannuation entitlements held by each of them.

7. The Applicant’s solicitor provide the Court with a collaboratively prepared balance sheet on the adjourned date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2742 of 2015

MS STUART

Applicant

And

MR LAWSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Wife has filed an application for leave to institute property proceedings over 7 years out of time pursuant to section 44(3) of the Family Law Act 1975. The Husband opposes the application and seeks costs. 

2. Each party was represented by counsel at the hearing.

Background

1. The Wife is 46 years of age. The Husband is 49 years of age. Both were born in (country omitted). They married on (omitted) 1998, and migrated to Australia in the same year. They separated under the one roof in 2003 and lived in separate residences from February 2004. The parties’ divorce became final on 13 November 2006.

2. There are three Children of the marriage, X aged 16 years, Y aged 15 years and Z aged 11 years.

3. After separation, the Children remained living with the Wife, initially in rented accommodation in (omitted). The Husband remained living in the former matrimonial home in Property A. In June 2004, the Children and the Mother relocated to (country omitted) and remained living there until December 2013, when the Mother, her second husband, their child together,…