Saso & Saso (No 5) [2025] FedCFamC2F 692 (24 April 2025)

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 proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to section 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.

1. This is the application for review of orders made by Judicial Registrar Dore on 21 February 2025 filed by Ms Saso ("the wife"). Those orders concerned the enforcement of final orders made on 8 February 2024 ("the final orders") which provided for the wife to deliver to the husband, Mr Saso ("the husband") vacant possession of a property at C Street, Suburb D, Queensland ("the Suburb D property") within 60 days so that it could be sold by the husband and the proceeds, after certain payments, divided between the parties.
2. On 21 February 2025 orders were made extending the time for the wife to deliver the Suburb D property to 21 March 2025 and, if she failed to comply, for the issuing of a warrant for possession. The wife seeks to review of those orders. I note those orders have been stayed pending this application for review.
3. The wife filed her application for review on 24 March 2025, about 10 days out of time. As such, the wife requires leave to be able to proceed with this review.
4. Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules") sets a time limit of 21 days in which a party must file an application for review. However, rule 15.06 of the Rules, gives discretion to the Court to shorten or extend that time.
5. The case law relevant to application for reviews is the general case law with respect to leave out of time. Authorities such as the Full Court decision of OP & HM [2002] FamCA 454, set out the matters that the Court is to consider when exercising its discretion. Those matters include:
   • the reasons for the delay;
   • whether there is a substantial issue to be tried;
   • prejudice to the other party; and,
   • whether granting leave to proceed out of time should be allowed to do justice between the parties.
6. The onus is therefore on the wife to establish that the Court should exercise its discretion.
7. In terms of delay, it is not a substantial one. The husband takes issue with reasons given by the wife, including her medical issues and lack of electrical power, but the delay is not so substantial that it is a matter that significantly impacts my decision in this case.
8. The real question in this matter is whether there is a substantial issue to be tried. In this case, Her Honour, Judge Spelleken made final orders following a contested final hearing. The wife appealed those final orders. Those orders were stayed pending the appeal which was ultimately unsuccessful.
9. Thereafter, the husband, through his solicitors, provided the wife a slight extension of time to vacate the Suburb D property. When the wife did not leave the Suburb D property, the husband filed an application for enforcement on 29 July 2024. This application was ultimately heard by Judicial Registrar Dore on 12 February 2025, with judgment delivered on 21 February 2025.
10. The relevance of all of this history is that the wife has known about the enforcement application since the middle of 2024, and she has had since that time to get her affairs in order so that she is in a position to be able to leave the Suburb D property.
11. The wife argues that she is unable to vacate the property for various reasons, including financial hardship and that she has health issues. She also has issues concerning her adult daughter who as I understand it has some special needs. The wife has not however filed a financial statement, despite being given an opportunity to do so. She did not file a financial statement for the hearing before Judicial Registrar Dore and has not done so for this hearing before me today. I therefore have no current evidence about the wife's financial position, other than what she asserts in her affidavit material. Although I accept that it may well be that she does have some significant financial problems.
12. The wife also tells the court that she is awaiting an outcome of an application for spousal maintenance and adult child maintenance which has been reserved for judgment by her Honour Judge McArdle. I do not know what the outcome of that will be. It may well assist her, I do not know. However, the main point is that the wife has known about the need to leave the home for a significant period of time. She has had the benefit of living in the home for some 14 additional months or thereabouts, rent-free and not paying the mortgage of the Suburb D property.
13. On the other hand, the husband has on his evidence, his own financial issues because he has a substantial debt to the Australian Tax Office from which he requires his share of the proceeds of sale of the Suburb D property. As I understand it, there is a risk that if the husband does not meet his obligations, there may be a threat to his ability to work as a professional and ultimately the husband is entitled to the benefit of the judgment from 8 February 2024.

1. The irony in a sense is that, upon the Suburb D property being sold, the wife will retain a significant sum, some $950,000 and more if the house sells for higher given the way the orders were constructed. This would substantially relieve her financial situation.
2. In short, the wife has failed to satisfy me that there is a substantive matter to be tried, or that she would suffer an injustice greater than that to be suffered by the husband. The wife will not be granted leave to proceed with her review application out of time and the application for review will be dismissed.

1. The husband seeks costs pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth), of this hearing in the amount of $4,396.19 and of the stay application of $6,281.40, being a total of $10,677.59. This is made up as follows:

Application for review - Interim Defended Hearing

1. I am aware that costs are ordinarily borne by the parties in a family law proceeding, but there is discretion under section 117(2A) of the Family Law Act 1975 (Cth) to order costs. I have taken those matters into consideration when deciding whether to exercise that discretion, in particular that the wife has been wholly unsuccessful in her application for review.
2. I propose to make the costs order sought fixed in the sum of $10,677.59, and that will be paid from the wife's share of the proceeds of sale of the Suburb D property before those funds are released to the wife.
3. For all of these reasons, I propose to dismiss the application for review, which leaves the orders of the Judicial Registrar in place, and otherwise make the cost orders as set out above.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex Tempore Reasons for Judgment of Judge Jenkins.