TSO & TSHIEN

[2014] FamCA 146

FAMILY COURT OF AUSTRALIA

TSO & TSHIEN [2014] FamCA 146

FAMILY LAW – PRACTICE AND PROCEDURE – Section 44(b) order – Leave granted to bring proceedings out of time

Family Law Act 1975 (Cth)

APPLICANT: Mr Tso

RESPONDENT: Ms Tshien

FILE NUMBER: MLC 11093 of 2013

DATE DELIVERED: 5 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Katzen

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Mr Ellis

SOLICITOR FOR THE RESPONDENT: Marguerite Picard Family Lawyer

Orders

1. That the parties have leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) to bring proceedings out of time.

2. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

3. That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tso & Tshien has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11093 of 2013

Mr Tso

Applicant

And

Ms Tshien

Respondent

REASONS FOR JUDGMENT

1. This is a matter in which the parties were in a de facto relationship, which they both agree ended in July 2011. The requirement in the legislation is that parties have to institute proceedings within two years of the ending of the relationship. That expired in July 2013 and some six months later they resolved the matter and sought consent orders. The legislation for de facto relationship parties has never been amended to include a consent provision relating to leave out of time, as it has for married couples, and on that basis the parties have to, unfortunately, come before the court and justify their positions. Each of the parties has agreed that the hardship provisions would have been favourable to the other, and on that basis I am satisfied that it is appropriate to grant leave under s 44(6) of the Act.

2. The settlement may seem to favour the respondent in these proceedings somewhat more than usual, but both parties are represented, it seems to me to be a commercial decision;  each of them understands what they are doing,  each of them has sworn an affidavit setting out that they understand the respective parts of the legislation that governs the determination.  On that basis, I am satisfied that this is within the range of what might have been the outcome and it is therefore a just and equitable result.  I will ask the solicitor for the applicant to engross the minute and email it to my associate in word format. 

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 February 2014.

Associate: 

Date:  14 March 2014