FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tripp & Allison (No 2) [2024] FedCFamC2F 1523
File number(s): CRC 289 of 2023 Judgment of: JUDGE CARTY Date of judgment: 16 October 2024 Catchwords: FAMILY LAW – PROPERTY – interlocutory – application for leave to commence proceedings for property adjustment out of time – consideration of respondent’s jurisdictional objection – consideration of prima facie case for relief – whether the applicant has demonstrated sufficient likelihood of success – where claim is not trifling – consideration of hardship – exercise of discretion – consideration of delay – consideration of prejudice to the respondent – leave granted Legislation: Family Law Act 1975 (Cth) ss 4, 44, 39, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 2.19, 6.06, Chapter 6
Cases cited: Jacenko & Jacenko (1986) FLC 91-766
Sharp & Sharp (2011) 50 Fam LR 567
Skelton & Lindop [2022] FedCFamC1A 47
Voth & Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Weir & Weir (1993) FLC 92-338, [2009] FamCA 451
Whitford & Whitford (1979) FLC 90-612
Division: Division 2 Family Law Number of paragraphs: 77 Date of last submission/s: 25 July 2024 Date of hearing: 25 July 2024 Place: Newcastle Counsel for the Applicant: Mr Guyder Solicitor for the Applicant: Tribe Family Lawyers The Respondent: Self Represented ORDERS
CRC 289 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TRIPP
Applicant
AND: MR ALLISON
Respondent
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
16 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to section 44(3) of the Family Law Act 1975 (Cth) leave is granted to the applicant wife Ms Tripp to apply after the end of the standard application period for an order under s.79 of the Family Law Act 1975 (Cth).
2.The interlocutory orders sought in the Response to Initiating Application filed on 3 October 2023 are dismissed.
3.The respondent husband is directed to file and serve written submissions addressing the applicant wife's costs application filed on 27 April 2024 by no later than 4.00pm on 25 October 2024.
4.The applicant wife is directed to file and serve any short submissions in reply to the husband’s written submissions by no later than 4.00pm on 1 November 2024.
THE COURT ORDERS BY CONSENT THAT:
5.Pursuant to Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the property proceedings are transferred to the Sydney Registry of the Federal Circuit and Family Court of Australia and are adjourned to 9.30am on 4 December 2024 for first return before Judicial Registrar Reeman of the Federal Circuit and Family Court of Australia.
THE COURT FURTHER ORDERS THAT:
6.The respondent husband is directed to file and serve an Amended Response to Initiating Application and a Financial Statement setting out the precise final property orders that he seeks by no later than 4.00pm on 12 November 2024.
NOTATIONS:
A.The application by the wife for the husband to…
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CaseChat Overview and Summary
The court examined whether Ms Tripp had demonstrated a sufficient likelihood of success on the merits of her claim, considering the evidence presented. It was noted that the claim was not trifling and that the applicant had made a prima facie case for relief. The court also assessed the extent of any hardship that might result if leave was not granted, as well as the delay in bringing the application and the potential prejudice to the respondent if leave was granted. The court found that the factors in favour of granting leave outweighed those against it, particularly given the applicant's demonstrated likelihood of success and the absence of significant prejudice to the respondent.
In granting leave, the court emphasised that the decision was based on the evidence and arguments presented. The respondent was directed to file written submissions addressing the applicant’s costs application, and the applicant was given time to respond. The court also ordered the transfer and adjournment of the property proceedings to allow for further submissions and the hearing of the costs application. The respondent was further directed to provide an amended response to the initiating application and a financial statement outlining the property orders he sought.
The final orders included granting leave to Ms Tripp to apply for property adjustment out of time, dismissing the interlocutory orders sought by Mr Allison, and directing the parties to file specific documents by set dates. The application for costs by Ms Tripp was reserved for a later date, and the respondent’s extant application in a proceeding was noted to remain before the court. The form of the orders was subject to minor corrections and variations as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
CRC 289 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS TRIPP
Applicant
AND:
MR ALLISON
Respondent
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
16 OCTOBER 2024
THE COURT ORDERS THAT:
1. Pursuant to section 44(3) of the Family Law Act 1975 (Cth) leave is granted to the applicant wife Ms Tripp to apply after the end of the standard application period for an order under s.79 of the Family Law Act 1975 (Cth).
2. The interlocutory orders sought in the Response to Initiating Application filed on 3 October 2023 are dismissed.
3. The respondent husband is directed to file and serve written submissions addressing the applicant wife's costs application filed on 27 April 2024 by no later than 4.00pm on 25 October 2024.
4. The applicant wife is directed to file and serve any short submissions in reply to the husband’s written submissions by no later than 4.00pm on 1 November 2024.
THE COURT ORDERS BY CONSENT THAT:
5. Pursuant to Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the property proceedings are transferred to the Sydney Registry of the Federal Circuit and Family Court of Australia and are adjourned to 9.30am on 4 December 2024 for first return before Judicial Registrar Reeman of the Federal Circuit and Family Court of Australia.
THE COURT FURTHER ORDERS THAT:
6. The respondent husband is directed to file and serve an Amended Response to Initiating Application and a Financial Statement setting out the precise final property orders that he seeks by no later than 4.00pm on 12 November 2024.
NOTATIONS:
A. The application by the wife for the husband to pay her costs of the leave application has not yet been determined. After 1 November 2024 the decision in the wife’s costs application will be reserved and the parties will be advised of a date for the delivery of reserved Judgment.
B. The respondent husband informs the Court that he presses his Application in a Proceeding which was filed on 28 August 2024, and sealed on 17 September 2024, and that application remains extant and has not yet been heard or determined.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
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