Wiltshire and Ford

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILTSHIRE & FORD [2017] FCCA 1313

Catchwords:
FAMILY LAW – Property – application for leave to institute proceedings pursuant to section 44(3) refused – restraint on bringing further proceedings pursuant to section 79 – considerable delay in bringing proceedings – applicant may have claim against solicitor in respect to delay – respondent solely contributing to mortgage, maintaining the property and renovations since separation – intermingling of respondent and new husband’s assets – direct and indirect contributions of the respondent’s parents.

Legislation:

Family Law Act 1975 (Cth), Part V

Cases cited:

Althaus & Althaus (1982) FLC 91–233

Brisbane South Regional Health Authority v Taylor [1996] HCA 25

Kennon & Kennon [1997] FamCA 27

McDonald and McDonald (1977) FLC 90–317

Robb & Robb (1995) FLC 92-555

Sharp & Sharp [2011] FamCAFC 150

Tamaniego & Tamaniego [2010] FamCAFC 254
Whitford & Whitford (1979) FLC 90–612

Applicant: MR WILTSHIRE

Respondent: MS FORD

File Number: NCC 3502 of 2016

Judgment of: Judge Middleton

Hearing date: 1 June 2017

Date of Last Submission: 1 June 2017

Delivered at: Newcastle

Delivered on: 29 June 2017

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Byrnes Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: Coastal Law and Conveyancing

ORDERS

1. That the initiating application of Mr Wiltshire filed 21 December 2016 be dismissed.

2. That leave be refused to the applicant to institute these proceedings pursuant to section 44(3) of the Family Law Act 1975 (Cth).

3. That the applicant do all acts and things necessary at the applicant’s sole cost, to remove the caveat (AM17485) over the property situated at Property M, New South Wales being all of the land in folio identifier (omitted).

4. That the applicant be restrained from bringing any future proceedings against the respondent pursuant to section 79 the Family Law Act 1975 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3502 of 2016

MR WILTSHIRE

Applicant

And

MS FORD

Respondent

REASONS FOR JUDGMENT

Introduction

1. The matter is before me by way of an interim hearing. The issue for determination is whether leave is granted for the applicant to bring the proceedings out of time pursuant to section 44(3), (4) and (6) of the Family Law Act 1975 (Cth).

Background

1. The parties married on (omitted) 2004, separated on 19 January 2012 and were divorced effective on 21 September 2013. The relationship spanned approximately sixteen and a half years. The parties agree that there was a separation of approximately sixteen months during that time.

2. The applicant filed his initiating application on 21 December 2016, some 3 years and 3 months after the divorce, and therefore 2 years and 3 months out of time.

Material

1. The applicant relies upon the following documents:

   a)Initiating application filed on 21 December 2016;

   b)Affidavit of Kevin Byrnes filed 21 December 2016;

   c)Affidavits of himself filed 21 December 2016…