Ashe & Ashe
[2021] FCCA 1605
•16 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ashe & Ashe [2021] FCCA 1605
File number(s): PAC 3179 of 2016 Judgment of: JUDGE MONAHAN Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – property – application for leave to proceed under s.44(3) of the Family Law Act 1975 (Cth) – delay – hardship – leave not granted – divorce proceedings commenced by the Respondent – divorce order granted by a Registrar in 2016 – whether Applicant be granted leave to file an Application for Review of Divorce Order – where the Applicant alleges he was not served in accordance with the applicable rules – application dismissed. Legislation: Family Law Act 1975 ss 44, 79
Federal Circuit Court of Australia Act 1999 (Cth) ss 103, 104
Federal Circuit Court Rules 2001 rr 6.07, 13.03, 20.00, 20.01, 20.02, 20.03
Cases cited: Edmunds & Edmunds [2018] FamCAFC 121
Jacenko and Jacenko (1986) FLC 91-776
L & L [2011] FMCAfam 39 (unreported)
Montano & Kinross [2014] FamCAFC 231
Slocomb & Hedgwood [2015] FamCAFC 219
Sharp & Sharp [2011] FamCAFC 150
Whitford& Whitford (1979) FLC 90-612
Number of paragraphs: 101 Date of last submission/s: 7 December 2020 Date of hearing: 7 December 2020 Place: Sydney Counsel for the First Applicant: Mr Burns Solicitor for the First Respondent: Ms McDonald ORDERS
PAC 3179 of 2016 BETWEEN: MR ASHE
Applicant
AND: MS ASHE
Respondent
ORDER MADE BY:
JUDGE MONAHAN
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed 7 February 2020 be dismissed.
2.Paragraph 2 of the Orders made on 7 December 2020 be discharged.
3.All extant applications be otherwise dismissed.
Section 121 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 under the pseudonym Ashe & Ashe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
This decision arises from the breakdown of the marriage between MR ASHE (“the applicant”) and MS ASHE (“the respondent”).[1]
[1] I note that the applicant’s middle name is sometimes spelt “…” and that the respondent now uses the family name … which is her birth family name.
The issues for determination in this decision are:
·Whether the applicant should be granted leave to commence property proceedings ‘out of time’ for ‘hardship’ reasons; and if not
·Whether the husband should be granted leave to seek a review of a Registrar’s decision to make a divorce order on 7 September 2016 (that became final on 8 October 2016).
The respondent opposes the applicant’s leave applications.
There is no dispute that the parties married in 1985 and that the respondent filed a divorce application on 11 July 2016. The applicant disputes, however, that he was properly served and argues that, as a consequence, had no knowledge that the divorce application had been filed and subsequently determined. The applicant asserts that he only became aware of the divorce order being made in or about October or November 2016. This is disputed by the respondent who argues that, even if there were deficiencies in the service of the divorce application, there is evidence that the applicant was aware before the divorce order was made that the application was before the Court.
Both parties were legally represented at the hearing that occurred before me on 7 December 2020; the Applicant by Mr Burns of counsel and the wife by Ms McDonald of NSW Women’s Legal Services.
Any statutory references I make in these reasons are to the Family Law Act 1975 (“the Act”) and the Federal Circuit Court Rules 2001 (“the FCC Rules”).
BACKGROUND
The applicant was born in 1963 and is currently 58 years of age. The respondent was born in 1964 and is currently 57 years of age.
The applicant asserts that the parties commenced cohabitation in 1984.
The parties were married in 1985.
The applicant asserts there are four children of the marriage; Ms B born in 1985, Ms C born in 1988, Mr D born in 1990 and Mr E born in 1991. This is not disputed by the respondent.
The applicant asserts that the parties separated in approximately October 2016. During the hearing the respondent gave evidence that the parties finally separated in 2014 and that she had communicated this to the applicant around Easter 2014.[2] That said, I note that in paragraph 14 of her divorce application filed on 11 July 2016, the respondent asserted that the parties separated on 1 December 1990. Moreover:
·in paragraph 16a of the divorce application the respondent indicated that the parties had not lived in the same home as husband and wife since the date of separation; and
·in paragraph 17a of the divorce application the respondent indicated that the parties had not lived together as husband and wife since the date of separation.
[2] Transcript, 7 December 2020, pages 19 and 20.
I also note that the respondent’s divorce application was verified by her affidavit sworn “20/01/2016”, that is, approximately six months before the application was filed.
As stated, the respondent filed a divorce application at the Parramatta Registry on 11 July 2016. It came before a Deputy Registrar of this Court on 7 September 2016. On that occasion the Deputy Registrar made the following findings, declaration and orders:
THE COURT FINDS:
1. The marriage is proved.
2. The wife was at all material times domiciled in Australia.
3. The ground for the application for the divorce order – namely that the marriage has broken down irretrievably – is proved.
THE COURT, BY ORDER, DECLARES THAT IT IS SATISFIED:
4. There is/are no child/ren of the marriage to whom Section 55A(3) of the Act applies
THE COURT ORDERS:
5. A divorce order be made, such divorce order to take effect and thereby terminate the marriage on the eighth day of October 2016
On 9 August 2019 the applicant filed an ‘Application in an Appeal’ in the Parramatta Registry of this Court seeking the following orders:
1. THAT there be an extension of time for the filing of the Notice of Appeal against any divorce granted on 7 September 2016 to acquire full and proper documentation as to procedures followed by the Court and the Judgements and Orders made.
I note that the application is signed and dated “7/2/2019”.
This application came before His Honour Judge Harman in a duty list on 17 October 2019 who, at paragraph 2 of the Orders made that day, stated:
2. Note: These proceedings purport to be commenced by an Application in an appeal, whereas clearly what is intended is an Application for review of a Registrar’s decision and an Application to apply out of time and to extend the period in which review might be sought.
His Honour also made orders and directions for the matter to be adjourned to 11 February 2020 and:
3. The Applicant, Mr Ashe, shall, by close of business 20 December 2019, file and serve an Application initiating proceedings setting out the relief that he in fact seeks (understood, as above, to be an extension of time in which to seek a review of a Registrar’s decision pursuant to Rule 20.01 of the Federal Circuit Court Rules 2001) together with all Affidavit material upon which he proposes to rely and seeking both review and extensions of time, noting that:
a. The decision that is sought to be reviewed is a decision by a Registrar to grant a Divorce Order.
b. The Divorce Order was granted 7 September 2016.
c. Mr Ashe alleges that at that time, he and Ms Ashe lived together and had not separated.
d. Mr Ashe alleges that his first knowledge of the divorce order was in October 2016 (the Order having become effective 8 October 2016) and, accordingly, the purported Application for review filed 9 August 2019 is nearly three years out of time and, accordingly, Mr Ashe will need to explain that delay by reference to hardship which he alleges he has or will experience and hardship that Ms Ashe has or may experience if the relief he seeks is granted.
4. Ms Ashe shall, no later than close of business 31 January 2020, file and serve any Affidavit material upon which she proposes to rely in opposing the relief sought by Mr Ashe.
I also note that His Honour made the following comments on his bench sheet:
*ISSUE wrong affidavit of service divorce was in this file – same matter number but wrong name. Cause of issues. Notified … after the Court event who took the document.
There was no affidavit of service that was in the file at the time of the hearing before me. The respondent indicated through her solicitor that she concedes that she never filed an affidavit of service.[3] Moreover, the respondent admitted during her evidence in chief that she personally served the applicant with the divorce application and was not informed that she needed to organise someone else to serve.[4]
[3] Transcript, 7 December 2020, page 11.
[4] Transcript, 7 December 2020, page 20.
The applicant filed an Application in a Case on 7 February 2020. In that application the applicant sought orders seeking leave to file a Review of the Registrar’s Decision and, should leave be granted, to set aside the divorce order on the basis that it is invalid. In addition, and in the alternative, the applicant sought orders for leave to proceed out of time with an application seeking property orders and, should it be granted, an order for the respondent to pay him the sum of $80,000 “with such sum to be characterised upon the conclusion of these proceedings”.
The respondent filed a Response on 10 February 2020 seeking the summary dismissal of the application.
The proceedings returned before Judge Harman on 11 February 2020 and the Court made orders inter alia listing the application:
“… for trial with respect to the Application for review of Registrar’s decision and any consequential or associated orders relating to jurisdiction before Judge Harman at 9.30am on 16 September 2020.”
The final hearing did not proceed on 16 September 2020 due to His Honour’s unavailability.
The proceedings thereafter came before His Honour Judge Dunkley on 23 September 2020 where His Honour listed the matter for hearing before me on 7 December 2020 as a “Not Reached matter”.
As stated, the hearing proceeded before me on 7 December 2020 following which judgment was reserved. Both parties were legally represented at the hearing; the applicant by Mr Burns of counsel and the respondent by her solicitor, Ms McDonald.
ORDERS SOUGHT
Applicant
In summary, the applicant is seeking leave to Review a Registrar’s Decision and, should leave be granted, to set aside the divorce order made on 7 September 2016 on the basis that it is invalid. In addition, and in the alternative, the applicant seeks orders for leave to proceed out of time with an application seeking property orders and, should it be granted, an order for the respondent to pay him the sum of $80,000 “with such sum to be characterised upon the conclusion of these proceedings”.
The precise orders sought are reproduced in Schedule 1 to these reasons.
Respondent
In her formal Response, the respondent seeks the dismissal of the applicant’s application. She argues:
·Firstly, the application should be dismissed because the applicant failed to comply with rules 13.03(1)(a) and 13.03(1)(c) of the FCC Rules because he did not comply with the Orders made by Judge Harman on 17 October 2019 to file “by close of business 20 December 2019” the required application “to seek a review of a Registrar’s decision pursuant to Rule 20.01” of the FCC Rules “together with all Affidavit material upon which he proposes to rely and seeking both review and extensions of time”. As stated, the applicant filed the required documents on 7 February 2020.
·Secondly, the applicant should be summarily dismissed pursuant to rule 13.10 of the FCC Rules.
The precise orders sought are reproduced in Schedule 1 to these reasons.
That said, during the hearing, the respondent did not press for the above-mentioned dismissal(s) of the applications, but rather argued that leave should not be granted for hardship reasons and because the applicant had not adequately explained why he delayed the filing of the relevant applications.
ISSUES
The issues for determination in this decision are:
·First, whether the applicant should be granted leave to commence property proceedings ‘out of time’ for ‘hardship’ reasons; and if not
·Second, whether the husband should be granted leave to seek a review of a Registrar’s decision to make a divorce order on 7 September 2016 (that became final on 8 October 2016).
EVIDENCE
Both parties were cross-examined. Both parties spoke well and appeared sincere in their evidence to the Court.
Applicant
The applicant relies on the following documents:
·His Application in a Case filed on 7 February 2020;
·His Affidavit filed on 21 August 2020;
·His Financial Statement filed on 6 February 2020;
·Affidavit of Mr F filed on 21 August 2020;
·Affidavit of Mr E (parties’ son) filed on 21 August 2020;
·Affidavit of Mr D (parties’ son) filed on 21 August 2020;
·Affidavit of Ms G filed on 21 August 2020; and
·Affidavit of Ms H filed on 21 August 2020.
The applicant did not tender any documents.
I note that the applicant asserts the following:[5]
·In 1985 or thereabouts, the parties rented a granny flat at J Street, Suburb K;
·In 1986 the parties moved to a three bedroom rented house in L Street, Suburb M;
·In 1989 the parties moved into Department of Housing accommodation at N Street, Suburb O; and
·In 2007 the parties moved into Department of Housing accommodation at P Street, Suburb Q (where the respondent still resides).
[5] Applicant’s affidavit filed 21 August 2020, paragraph 19.
The applicant also asserts that in 2015 the respondent’s mother passed away and she inherited her mother’s home at R Street, Suburb O.
The applicant further confirmed that during the marriage he:[6]
“… relied on Ms Ashe’s mother’s address for my driver’s licence because there were issues with Ms Ashe’s and my mail being delivered. Ms Ashe suspected that it was being stolen by local kids, and so she arranged to have it diverted to her mother’s address. This is why I am unable to produce documents indicating I lived in the properties set out in paragraph 19 of this affidavit.”
[6] Applicant’s affidavit filed 21 August 2020, paragraph 21.
I note that the respondent listed the respondent’s address on the divorce application as “R Street, Suburb O”, which also would have been the address that the Court posted a sealed copy of the divorce decree (final divorce order) to.
The applicant also gave the following evidence as to his current circumstances:[7]
·Although he was historically employed as a transport worker, the applicant is presently unemployed and unable to work because of various injuries he has sustained in a road accident that occurred in late 2018;
·The applicant is fully reliant on the Jobseeker Centrelink benefit and he is engaged with a disability employment agency;
·At the date of his Financial Statement (6 February 2020), he had savings of $250 and superannuation benefits of approximately $6,700; and
·He is currently homeless and living in his car (although I note he provides no details of his car and its value in his Financial Statement).
[7] Transcript, 7 December 2020, page 36; also see Applicant’s Financial Statement filed 6 February 2020.
The applicant denied that the following events occurred:[8]
·First, that the respondent had told him during Easter 2014 that she considered the marriage was over;
·Second, that the respondent served him on 16 July 2016 with the divorce application documents and advised him that the divorce hearing was on 7 September 2016; and
·Third, that in October 2016 the respondent handed him a copy of the divorce order. That said, in paragraph 10 of his affidavit filed on 21 August 2020, the applicant states that “Sometime in October of that year Ms Ashe approached me at our home. She had a copy of the divorce order in her hand and she said words to the effect: “We’re divorced”.
[8] Transcript, 7 December 2020, page 39.
The applicant then goes on to state the following in paragraphs 11 to 16 of his affidavit filed on 21 August 2020:
“11. Ms Ashe’s remarks caused me to seek legal advice, as I had no knowledge of a pending divorce case.
12. I approached various solicitors after Ms Ashe remarked that we were divorced, but each of them asked me to deposit funds into a trust account. The lowest amount I was requested to transfer was $10,000, and the highest was $30,000. I did not have enough funds to transfer these amounts.
13. Since I was unable to hire a private solicitor, I approached Law Access NSW. The recommendation I received was to approach Legal Aid.
14. When I approached Legal Aid, I was advised that the organisation ordinarily does not provide funding for family law property disputes.
15. I approached a few other private solicitors after Legal Aid, but, unfortunately, I experienced more of the same. They all wanted money upfront, and I did not have any money to give.
16. At no point do I remember any of the solicitors I approached mentioning anything about a time limit for filing an application for property orders.”
Under cross-examination, the applicant maintained that he was not advised by any of the lawyers he consulted after October 2016 that there was a time limit for the filing of property proceedings save for one lawyer that may have told him “with only a few weeks to go”.[9]
[9] Transcript, 7 December 2020, page 40.
I note the following exchange between the respondent’s solicitor and the applicant under cross-examination:[10]
[10] Transcript, 7 December 2020, pages 40 – 42.
“… you say that there’s nothing that you could have done but then, in 2019, you file an application without representation; isn’t that right?
Yes, I did.
All right. So you could have done something. You could have filed an application within the relevant time limits without representation; isn’t that right?
Well … I could have if I had known but that was after I had found out what I could do. I was just trying to get time and get things rolling and get things happening. But everywhere before that told me I had to have thousands of dollars up front and I can’t understand why I had to have thousands of dollars just to get – just to have justice.
But you were aware, at the time that you sought that advice, that there were time limits to file those applications and you chose to do nothing for three years; isn’t that right?
I have done something for three years. There’s a dozen solicitors I can give you names to and you can ring up and ask them. They will tell you exactly what I’m telling you. I didn’t have the money to give them.
But, Mr Ashe?
On … two occasions, the solicitors drew me out for four or five months before telling me they couldn’t do nothing. I thought they were actually doing something because we come to an agreement where I could pay them later on or pay them off and then they said, no, we need the money up front. Well, why didn’t you tell me earlier? When the time come that I found out there was time limitations, it was virtually too late.
But that didn’t stop you from filing an application without representation in August 2019?
No, it didn’t, because I believed I had a right to.
Right. But you didn’t believe, at the time that you got the legal advice, that you had the right to; is that right?
I did believe, that’s why I tried to get advice and get someone to act on my behalf. I went to a number of solicitors and told them the fact that I had no money and they said we will see. And they said, no, we need money up front. This all took minutes and days and weeks for them to get back to me and tell me. You will have to ask them why they took their time doing it but that’s what happened.
... Well ... ran out of time and just let her walk away with doing what she done to me.
They didn’t take three years to get back to you though. You say that they got back to you within a few months but you didn’t file for almost three years?
One took – one took six months so there’s half a year gone. The other one took four months; there’s a year gone. The other one took another eight months. So I didn’t wait three years, that’s how long the process took of going to different solicitors.
And you didn’t think it would be a good idea just to file on your own? … To make sure … that you were within time?
I know nothing about the law whatsoever and I met somebody who said I can do that for you and you will just have to seek legal advice and let’s just get the ball rolling in the court and get it wound back. Well, I got the ball rolling. I’m not a solicitor, I’m a transport worker. I’ve got no idea how it works. I can only go on what people tell me.
And you did rely – and you did get some advice from people who do know about the law and you still didn’t take their advice. You didn’t file an application?
I did. … I did not have that advice that straightaway. Like, I met this chap a bit further down the road after I had already seen other solicitors. You’re trying to make it sound like I just knew this person and waited for three years before I done something. That’s not correct.
Thank you, Mr Ashe. That’s all for now?
Thank you.”
In relation to the family violence allegations made by the respondent, the applicant gives the following evidence:[11]
“33. On 18 August 2020, Ms Ashe and I attended Suburb S Local Court in relation to ADVO and criminal proceedings that had been brought against me. I remember Ms Ashe being in the witness box and saying words to the following effect: “We separated in 1990 and then separated once again in 2014”.”
[11] Applicant’s affidavit filed 21 August 2020, paragraph 33.
I also note that during the hearing, the respondent gave evidence that the applicant was placed on a “three year AVO” and was convicted of assault and placed on “a two year good behaviour order” and that the applicant’s counsel informed the Court that this outcome was “on appeal”.[12]
[12] Transcript, 7 December 2020, page 34.
Lastly, I note the evidence of the support witnesses (including the two sons of the parties) who support the applicant’s assertion that the parties were still in a relationship into 2016. None of the supporting witnesses were required for cross-examination.
Respondent
The respondent relies on the following documents:
·Her Response to the Application in a Case filed 10 February 2020; and
·Her Affidavit filed on 10 August 2020.
The respondent did not tender any documents.
I note that I granted the respondent leave to adduce certain evidence in chief as to relevant matters including her current financial circumstances.
The respondent gave evidence in chief[13] that:
·her sole income source is a Centrelink carer’s benefit (being a carer for her brother who has intellectual difficulties) and that the benefit received is “something” over $900 a fortnight;
·she has savings of approximately “something” over $300;
·she pays approximately $377 a fortnight to the Department of Housing for accommodation;
·she owns a car purchased in 2007 that she estimates is valued at $2,500 for insurance purposes (for which she pays $400 a year) and, in addition, she has access to a car that was owned by her late father; and that
·she has no superannuation.
[13] See Transcript, 7 December 2020, pages 19 – 22.
In relation to the property at Suburb O, the respondent confirmed in her examination in chief[14] that she does have an interest in her late mother’s estate together with her brother. That said, she later clarified that the property was now registered in her sole name and that it was allegedly given to her on the condition that she continues to look after her brother. She stated that it is a three bedroom house that is “not liveable”, is in poor condition and that it is “hoarded really badly” (because of her late mother’s dementia). She understands that it may have a value of $600,000. She also gave evidence that as the Department of Housing is aware that she has inherited an interest in the Suburb O property they have indicated that she will be required to leave her current accommodation and move into that property to live.
[14] Transcript, 7 December 2020, page 21.
In relation to her health, the respondent confirmed in her examination in chief[15] that:
I have a medical condition, which is rare and requires regular infusions, and I have a medical condition – my muscles are wasting away and it’s also metabolic. I have diabetes.
[15] Transcript, 7 December 2020, pages 21 - 22.
The respondent then went on to confirm that she has ongoing medical expenses including prescribed medicines and injections.
In relation to family violence, the respondent gives the following evidence:[16]
11. Mr Ashe has become more abusive towards me since the divorce. On or about 18 November 2019 I reported the violence to the Police. In January 2020 Mr Ashe was arrested, charged with two assaults against me and served with a provisional apprehended domestic violence order (ADVO) protecting me. Annexed and marked Annexure B is a copy of the provisional ADVO which sets out some of Mr Ashe’s violent behaviour towards me.
12. On 14 January 2020 Suburb S Court made an interim ADVO to protect me. The interim ADVO is annexed and marked Annexure C. The matter is next in Court on 18 August 2020.
13. I believe Mr Ashe is using these proceedings to harass and intimidate me.
[16] Respondent’s affidavit filed 10 August 2020, paragraphs 11 – 13.
As previously stated, the respondent was asked about the family violence and criminal proceedings and she gave evidence that they were heard in August 2020 and that the applicant was convicted of assaulting her and placed on a two year good behaviour bond and is subject to a three year “AVO”.[17] I note again that the applicant’s counsel informed the Court that this outcome was on appeal.
[17] Transcript, 7 December 2020, page 34.
Lastly, I note that in her oral evidence[18] the respondent stated that she had prepared several divorce applications during the period August 2015 to July 2016. She had assumed that the Registrar had dealt with her application that she asserts was executed in July 2016 and she did not know how the application she executed in January 2016 was the one that was filed with the Court on 11 July 2016. Regardless, the respondent gave evidence that:[19]
On 11 July, when the lady gave me some papers and said Mr Ashe has to have these … they’re the only ones that I’ve ever had – been given for him.
… She didn’t say serve Mr Ashe. She said Mr Ashe has to have these papers. I was not told that I had to get someone to serve him.
[18] Transcript, 7 December 2020, pages 30 – 33.
[19] Transcript, 7 December 2020, page 32.
RELEVANT LAW
The Court will consider the issue of leave being granted leave to commence property proceedings ‘out of time’ before separately considering leave being granted to review a Registrar’s decision also ‘out of time’.
Leave to commence property proceedings ‘out of time’
Part V of the Act deals with the “Jurisdiction of Courts”. Section 44 deals with the institution of proceedings. Section 44(3) of the Act states (emphasis added in bold text):
(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983 :
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a)--the date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b)--the date of the making of the decree.
The court may grant such leave at any time, even if the proceedings have already been instituted.
Section 44(4) of the Act goes on to provide the criteria that the Court must be satisfied exists prior to exercising the discretion to grant leave under section 44(3). Section 44(4) states:
(4) The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b) in the case of proceedings in relation to the maintenance of a party to a marriage--that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
The relevant legal principles applicable to the granting of leave under the relevant provisions have been discussed in a large number of cases including Whitford& Whitford (1979) FLC 90-612; (1979) 24 ALR 424; (1979) 4 FamLR 754; (1979) 35 FLR 445 (“Whitford”).
In considering the question of whether the applicant has demonstrated hardship, the Court is required to consider if the applicant has a prima facie claim worth pursuing or a ‘real’ probability of success.[20] If there is no reasonable claim to be heard then the Court cannot be satisfied that hardship would be caused if leave was not granted.
[20] See for example Whitford (1979) FLC 90-612 (per Asche & Pawley S.JJ, Strauss J) at 78,144; Hall & Hall (1979) FLC 90-679 (per Evatt CJ, Fogarty & Yuill JJ) at 78,627; Sharp & Sharp [2011] FamCAFC 150 (per May & Ainslie-Wallace JJ) at [17] to [18].
If the applicant establishes hardship, the Court is then required to consider whether in the exercise of its discretion leave should be granted under section 44(3) of the Act. It is only if hardship is established that the Court’s discretion to grant leave is enlivened.[21]
[21] See Whitford at 78,145 to 78,146; Sharp (per May & Ainslie-Wallace JJ) at [22]; Montano & Kinross [2014] FamCAFC 231 (per Ainslie-Wallace, Murphy & Tree JJ) at [11].
As to the discretionary exercise, the Full Court stated the following in Whitford at 78,146:
… Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date of the decree nisi, and the general policy of the Act which appears from s 44(3) and s 81 that financial relationships between the spouses should, wherever possible be brought to finality within a reasonable time after the dissolution of the marriage. Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength on the merits of the applicant's case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones.
The Court further observed in Whitford that while the relevant provision intends to confer power to grant leave to avoid hardship, the “… power should be exercised liberally in order to avoid hardship”,[22] albeit in a manner, which would not render nugatory the requirement that proceedings should be instituted within a statutory period.
[22] Whitford at 78,146.
In Montano & Kinross [2014] FamCAFC 231 the Full Court (Ainslie-Wallace, Murphy & Tree JJ) reiterated the broad nature of the Court’s discretion, and the principles of justice that ultimately underpin the exercise of that discretion, when at paragraphs 12 and 14 to 15 it said:
12. In Whitford & Whitford (1979) FLC 90-612, this court set out a number of matters which may be relevant to the exercise of the relevant discretion in a particular case once hardship is established. Those criteria are frequently referred to. It must be understood, however, that, as might be expected where factors relevant to a broad discretion are enumerated, they are but illustrative of the sorts of issues that might inform the broad discretion in the circumstances of a particular case.
…
14. Like many applications for indulgence, an application for leave to apply after the end of the standard application period requires the Court to exercise its discretion in a manner that, ultimately, is consistent with justice being done to both parties. The potential for injustice to the applicant being unable to pursue the remedy precluded by the refusal to grant leave must be compared to the prejudice to the respondent in the granting of leave. So, too, good or legitimate reasons for failing to do that which the Act requires must be compared with wilful blindness or recalcitrance. Equally, a desire to pursue a remedy out of time must be compared to the necessity for parties to proceed with their post separation lives free of the spectre of prospective litigation, (see, for example, Gallo v Dawson (1990) 93 ALR 479, and the statutory requirements in section 81 of the Act).
15. This Full Court spoke in Whitford of “such matters as” the “length of delay, the reasons for the delay and prejudice occasioned the respondent by reason of the delay and the strength of the applicant’s case and the degree of hardship which would be suffered unless leave were granted”. All of those matters were said by the Court to be “matters which affect the exercise of the discretion”. Yet, this Court was at pains there to point out that those considerations were not exclusive of the matters to be considered in the exercise of the broad discretion; an overall requirement to do justice between the parties is the ultimate criterion. The strength or weakness of, or the relative weight to be attached to, those various matters in the exercise of the discretion must necessarily depend on the facts of the particular case. This court said explicitly in Whitford that “these matters are not necessarily the only ones”.
In the subsequent decision of Slocomb & Hedgwood [2015] FamCAFC 219 (“Slocomb”), the Full Court (May, Ainslie-Wallace & Johnston JJ) allowed an appeal from the trial judge’s decision to dismiss the wife’s application seeking property orders which was 18 years ‘out of time.’ The Full Court in Slocomb confirmed the principles set out in Whitford relating to a finding of hardship and the exercise of discretion and in referring to the case of Carlon & Carlon (1982) FLC 91-272 also restated the principle that “an inadequate explanation for a delay in commencing proceedings is only one factor to be considered in determining an application for leave pursuant to s. 44(3).”[23]
[23] At [42].
The Full Court in Slocomb also referred to the earlier decision of Jacenko and Jacenko (1986) FLC 91-776 where the Full Court (per Nygh J; Walsh and Fogarty JJ agreeing) stated at 75,644:
The issues then before his Honour were those which have been established in this Court as long ago as 1977 in McDonald and McDonald (1977) FLC ¶90-317; (1977) 3 Fam. L.R. 426. The applicant must establish three principal matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time; secondly, that denial of the wife's claim would cause her hardship; and thirdly, an adequate explanation as to her delay.
That third requirement must now be read, subject to the decisions of the Full Court in Althaus and Althaus (1982) FLC ¶91-233; (1979) 8 Fam LR 169, and Howard and Howard (1982) FLC ¶91-234; (1979) 8 Fam LR 178 which indicate that in appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay.
If those three elements are satisfied, the Court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice which the respondent would suffer by reason of the delay in bringing the application.
In considering the issue if hardship, the Court is also required to consider the likely costs of any proposed proceedings. The Full Court in Edmunds & Edmunds [2018] FamCAFC 121 (“Edmunds”) (and citing with approval the judgment of Sharp & Sharp [2011] FamCAFC 150) and stated at paragraph 47 and 48:
47. As the Full Court pointed out in Sharp at [18], “the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
48. That involves a consideration, but not a final determination, of the nature of the applicant’s claim. In doing so, the Court must weigh the applicant’s case against that of the respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.
The Full Court in Edmunds went further to say at paragraph 93 and 95:
93. … one would ordinarily expect that on an application for leave the applicant, at the least, would adduce some evidence as to the likely costs of the proceedings so as to demonstrate that there was likely to be a benefit in bringing the proceedings. It is obvious that if the proceedings do not result in a net benefit they are not going to alleviate any hardship.
…
95. … However, the likely costs of the proceedings was a relevant factor to take into account, whether or not a figure was put on them. Of course, the absence of a figure must reduce the weight that could be given to this consideration.
Leave to file an Application for Review of Divorce Order
Section 104(2) of the Federal Circuit Court of Australia Act 1999 (Cth) allows a party to proceedings in which a Registrar has exercised any of the powers of the Court delegated under section 103(1) of the Federal Circuit Court of Australia Act 1999 (Cth), to apply for review of that exercise of power.
Rule 20.00A of the FCC Rules particularises the delegation of powers to registrars and I note that it includes the power “to make a divorce order” under section 48 of the Act “in undefended proceedings”.
Rule 20.01 of the FCC Rules (at the time applicable to the facts of this case) provides that an application for review of the exercise of a power by a Registrar under the Family Law Act 1975 (Cth) mentioned in paragraph 20.00A(1)(b) must be made “within 28 days”.[24]
[24] The rule has since been amended to reduce the time limit to “21 days”.
Rule 20.01(2) of the FCC Rules states this time may be extended by the Court on any terms the Court thinks fit or with the consent of the parties to the proceeding. The decision to extend time to seek a review of a Registrar’s decision is clearly a discretionary one.
Rule 22.02 of the FCC Rules states:
“(1) An application for review of an exercise of power by a Registrar must be in accordance with the approved form.
(2) An application must be listed for a hearing as soon as possible and, unless impractical to do so, within 14 days after the date of filing.
(3) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.
(4) Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of power under review.”
Rule 20.03 of the FCC Rules provides that the review of an exercise of power by a Registrar must proceed by way of a hearing de novo.
SUBMISSIONS
I will now consider the parties’ submissions.
Applicant’s submissions
The applicant argues that he has been denied natural justice. At paragraphs 20 to 30 of his case outline the applicant states:
“20. The husband has inspected the court file that relates to these proceedings, and it appears that the wife filed an application for divorce on 11 July 2016. The husband, however, was never served with a copy of this application and had no opportunity to file a response.
21. The wife also filed an affidavit on 11 July 2016, but it says nothing about serving her application for divorce.
22. Deputy Registrar Kimmorley granted the wife’s application for divorce on 7 September 2016. There is nothing in the file to indicate that Registrar Kimmorley made orders dispensing with service or allowing substituted service.
23. Sometime in October of that year, the wife approached the husband in their home. She had a copy of the divorce order in her hand and said words to the following effect: “We’re divorced.”
24. The wife’s remarks caused the husband to seek legal advice, as he had no knowledge of a pending divorce case.
25. The husband approached various solicitors after the wife remarked that the parties were divorced, but each of them asked him to deposit funds into a trust account. The lowest amount he was requested to transfer was $10,000, and the highest was $30,000. However, he did not have enough funds to transfer these amounts.
26. Since the husband was unable to hire a private solicitor, he approached Law Access NSW. The recommendation he received was to approach Legal Aid.
27. When the husband approached Legal Aid, he was advised that the organisation ordinarily does not provide funding for family law property disputes.
28. The husband approached a few other private solicitors after Legal Aid, but, unfortunately, he experienced more of the same. They all wanted money upfront, and he did not have any money to give.
29. At no point does the husband remember any of the solicitors he approached mentioning anything about a time limit for filing an application for property orders.
30. In late 2018, the husband was involved in a car accident, and he has been unable to work since then due to the injuries he sustained.”
Later, at paragraphs 52 to 54 of his case outline the applicant submits:
“52. There is an absence of an element fundamental to granting the divorce. The element in question is the irretrievable breakdown of the parties’ relationship. That is, the parties had not separated for a continuous period of not less than 12 months immediately preceding
the date of the filing of the wife’s application for a divorce order. This inference is supported by the following facts which held true until October 2016, or thereabouts:
a. The parties lived together under the same roof, and slept in the same bed.
b. The wife rendered household services to the husband.
c. The husband financially supported the wife.
d. The parties were perceived to be a married couple by their family and friends until October 2016.
e. The parties nurtured and supported their children.
53. There has been a procedural irregularity which has caused a denial of natural justice. The husband was not served with the wife’s application, and there was no order dispensing with service.
54. For these reasons, the husband submits that the Divorce Order should be set aside.”
In his oral submissions, Mr Burns for the applicant stated:[25]
Well, your Honour, essentially, this is pretty much who is to be believed. My client doesn’t deny that, you know, it took some time for him to get things done but for the wife to contend he just lagged and did nothing about it, particularly considering his circumstances, I would say that’s not true. As for the credibility of the wife, it’s my respectful submission she does lack a lot of credibility.
The stories she has – the evidence she gave about filing documents, how they came about, is totally inconsistent with the document on file and this should be noted. That’s just – that’s the one that’s date stamped. There’s not an earlier document at all.
It’s almost unbelievable the court – a member of the court staff would tear up previous documents and say they’re not required. And also, it’s unbelievable that, in fact – if anything, she is a product of her own refusal to pay attention because, in her own admissions, she admitted she didn’t read instructions that – she did get them but didn’t read the instructions that came with the application for divorce. Had she done so and complied properly, then we wouldn’t be here today. This is all on her own doing, your Honour. That’s all I can say. Thank you.
[25] Transcript, 7 December 2020, pages 42 – 43.
Respondent’s submissions
The main contentions of the respondent (as set out in paragraphs 17 to 26 of her case outline document) were as follows:
“17. If the Court does not dismiss the applicant’s application because he is in default, the respondent submits that when deciding whether to exercise its discretion to extend time for the applicant to seek a review of the Registrar’s decision, the Court should consider whether the applicant had adequate reasons for filing his application for review almost three years out of time.
18. The respondent submits that the applicant’s right to procedural fairness must be weighed against the respondent’s right to efficient resolution of proceedings.
19. The applicant acknowledges the divorce order was made in October 2016 and that he sought legal advice in relation to it shortly after the respondent advised him the Order had been made [LFA, Annexure A; KFA, p 10-11]. The respondent submits that it is reasonable to assume that the applicant received legal advice about the time limit to file an application for a review of a Registrar’s decision.
20. While the applicant says he could not afford to pay a solicitor to represent him around the time the divorce order was made, he ended up filing an application for an appeal of the divorce order without representation on 9 August 2019.
21. The applicant provides no explanation as to why, after obtaining legal advice, he did not file an application for a review of the Registrar’s decision himself, within 28 days of the decision.
22. The respondent submits that the Court should not exercise its discretion to allow the applicant to seek a review of the Registrar’s decision out of time because he has not provided adequate reasons for his delay in filing his application.
…
24. The respondent submits that as the applicant has not provided adequate reasons for his delay in filing his application, that his application for an extension of time to seek a review, has no reasonable prospects of succeeding and is frivolous and vexatious.
25. The applicant has been increasingly violent and aggressive towards the respondent since the divorce order was made, resulting in the Police applying for an ADVO to protect the respondent and charging the applicant with assault.
26. The respondent submits that these proceedings are an abuse of the process of the Court because they are being used as a means to continue to coerce and control her.”
In her oral submissions, Ms McDonald for the respondent stated:[26]
Your Honour, I would say that my client gave frank evidence about her troubles in attempting to get divorced. She made a sensible decision after the second application was rejected to go to the court. She relied on the advice provided by court staff and she should – and she acted accordingly. She, on her evidence, gave the husband an opportunity to file a response. He chose not to. She made him aware of the divorce order. He took some attempts to get legal advice immediately after and then chose not to take any further action for three years. Your Honour, I think that my client should – you know, we have to balance up the applicant’s right to procedural fairness versus my client’s right to efficient justice and I think that the applicant didn’t act promptly to resolve the issue that he saw with the courts.
And the courts shouldn’t exercise their discretion to give him an extension of time in relation to the review of the registrar’s decision or in relation to the – to property division. He admits he got advice at the time and he chose not to act on it. So I don’t think the court should exercise that discretion because … he doesn’t have a reasonable excuse. Thank you, your Honour.
[26] Transcript, 7 December 2020, page 43.
Applicant’s reply
Mr Burns for the applicant made the following reply comments:[27]
“Just, your Honour, that literally on the face of it, the divorce order should never have been made on the papers on the first instance and … it would appear, from what the wife has said, her application wasn’t the application she was meant to make. On that basis alone, I would submit that the matter should be – in fact, the original order should be set aside. As I say, it doesn’t comply with rules, doesn’t appear to comply with what the wife intended to put before the court. And if that were the case, then the fact that my client may have believed he was divorced – and ..... only divorce is pretty irrelevant because it would have been void ab initio. Thank you, your Honour. That’s all I can say. Thank you.”
[27] Transcript, 7 December 2020, page 43.
DISCUSSION AND FINDINGS
I will now consider the issues in light of the relevant law, available evidence and the parties’ submissions.
Leave to commence property proceedings ‘out of time’
Regardless of the issue of whether a divorce order should have been made by the Registrar on 7 September 2016, the fact is that such an order was made and it became final on 8 October 2016. The consequence is that property proceedings should have been commenced by the husband within the following 12 months. As he did not do so, section 44(3) of the Act prevents proceedings being instituted unless leave is granted.
If leave was granted for property proceedings to be commenced then the only property of relevance appears to be the Suburb O property that the respondent inherited from her late mother a year or so before the parties finally separated (on the applicant’s evidence) or around the time or shortly after the parties finally separated (on the respondent’s evidence). The only other property appears to be a small amount of superannuation held by the applicant, the applicant’s car, the respondent’s home contents and their very modest mutual savings. In relation to the Suburb O property, the Court is not able to make a finding as to its worth as there is no valuation evidence before the Court, apart from the respondent’s view that it may be worth $600,000.
Given that reality, one of the obvious issues in any property determination would be whether the applicant made any direct or indirect financial or non-financial contribution to the Suburb O property. Regardless, I note that the applicant is proposing that he receive the sum of $80,000 by way of property adjustment. While the particularisation as to how such a claim is justified is not clear, it would appear that the applicant will be advancing an argument that regardless of his contributions pursuant to section 79(4)(a) to (c), an adjustment would be warranted pursuant to section 79(4)(e) of the Act. The evidence would suggest that the applicant is financially challenged and unable to work because of factors including his health (that was impacted by a motor vehicle accident in late 2018) and his age. The respondent would appear to be similarly challenged by being unable to work given her health and age. That said, I note there is evidence that she either worked or operated a business from 2012 to 2015.[28] The respondent, like the applicant, is reliant on Centrelink benefits and is a carer for her intellectually challenged brother. She also resides in public housing with one of the sons of the marriage and has given evidence that she may be required to move into the Suburb O property once it is habitable.
[28] Transcript, 7 December 2020, pages 28 – 29.
The applicant admits that he became aware that a divorce order was made, or may have been made, in October 2016. He also admits seeking legal advice about family law matters from numerous lawyers but asserts that he was unaware of the limitation rule, although one lawyer that may have told him about it “with only a few weeks to go”. That would imply he was aware prior to October 2017. While the Court appreciates that his car accident in late 2018 may explain his difficulty to focus on the family law matters in the immediate period that followed, it does not explain why he failed to act just prior to October 2017, when he was aware that he needed to do something, or in the near period that followed. Consequently, it is clear that by mid to late October 2016:
·the applicant knew he was separated;
·the respondent believed they had divorced; and
·the respondent had inherited the Suburb O property.
Another three years would thereafter elapse before the applicant commenced these proceedings.
Overall, I find the applicant’s reasons for not filing within the required time limit, or within a short period thereafter, unconvincing.
The respondent, of course, advances the theory that the applicant has only commenced these proceedings as a controlling response to family violence allegations. While there is evidence that an incident or incidents occurred that resulted in the applicant being convicted of assault and placed on an extended family violence order, I note that the respondent reported the incident or incidents to police after the applicant’s initial application came before this Court.
While both parties advance hardship arguments, having considered the evidence in light of the relevant law, I find that the respondent would suffer the greater hardship if the application for leave was granted.
Consequently, I decline the Court’s discretion to allow the property proceedings to be instituted.
The Court finds accordingly.
Leave to file an Application for Review of Divorce Order
In relation to the relevant facts, the Court is satisfied as follows:
·The divorce application was executed by the respondent on 20 January 2016.
·The divorce application stated that the date of separation was “1/12/1990” and made no reference to the parties having separated under the one roof or finally separating in 2014 as the respondent now asserts.
·The respondent filed a divorce application on 11 July 2016.
·The application came before a Registrar on 7 September 2016:
oBy that time an error had occurred whereby an affidavit of service in a different matter was before the Registrar at the time the divorce order was made.
oAfter considering the documentation the Registrar made a divorce order finding inter alia “that ground for the application for the divorce order – namely that the marriage has broken down irretrievably – is proved”.
·The divorce order became final on 8 October 2016.
·The applicant filed an ‘Application in an Appeal’ on 9 August 2016 that came before a Judge of this Court for a first return date on 17 October 2019. The applicant was ordered to file an application seeking leave to review the Registrar’s decision by 20 December 2019.
·The applicant filed the application seeking inter alia leave to review the Registrar’s decision on 7 February 2020.
In relation to the disputed evidence, the Court is able to make the following findings:
·In 2014, being around the time of her inheritance, the respondent formed the view that her marriage to the applicant was over.
·It is not clear when the respondent communicated her intention to separate and/or whether her conduct was sufficient for the applicant to be aware. That said, the applicant would have been aware that the parties had separation by no later than when he was served with the divorce application.
·The respondent personally served the applicant with the divorce application (in contravention of rule 6.07 of the FCC Rules) prior to the return date of the application.
·There is no evidence that the respondent filed an Affidavit of Service or that the Registrar considered any application for dispensing with service.
·Had the Registrar realised that an error had been made in relation to the wrong Affidavit of Service being in the Court file a divorce order may not have been made on that day.
·The final divorce order was posted by the Court to the applicant at the address provided by the respondent, R Street, Suburb O, being an address the applicant admits he had used for postal purposes.
·There was a conversation between the parties in mid-October 2016 about the divorce order having been made.
·Prior to 8 October 2017 the applicant consulted a number of lawyers seeking advice about family law matters and he was aware, at least by the relevant date, that he needed to initiate property proceedings.
There is little case law to assist the Court with this issue and I note that no specific case on point was referred to by the parties’ legal representatives. That said, I note that in an unreported decision in 2011,[29] Federal Magistrate Scarlett (as His Honour then was) declined leave for a late filed application to review a Registrar’s decision because the divorce had become final.
[29] L & L [2011] FMCAfam 39 (unreported).
Overall, having considered the evidence the Court declines to exercise its discretion to allow leave to hear the review of the Registrar’s decision. The Court is satisfied that the applicant knew, or should have known, by mid-October 2016 that the divorce order had been made. Moreover, nearly three years elapsed before the applicant filed proceedings with the intention of reviewing the relevant decision.
The Court finds accordingly.
CONCLUSION
The Court’s findings have now been stated.
The Court has:
·declined leave being granted for the applicant to pursue late filed property proceedings against the respondent; and
·declined leave being granted to extend the time for a review the Registrar’s divorce order made on 7 September 2016.
There will be Orders of the Court to reflect these reasons.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Monahan. Associate:
Dated: 16 July 2021
SCHEDULE 1
Orders sought by Applicant
Review of Registrar’s Decision
1. Pursuant to r 20.01(2)(a) of the Federal Circuit Court Rules 2001, the time for the husband to file an application for review of the exercise of power by Registrar shall be extended accordingly.
2. Pursuant to r 20.02, the husband’s application to review Deputy Registrar Kimmorely’s decision to grant a divorce order in relation to the marriage of Mr Ashe and Ms Ashe, and which took effect on 8 October 2016, (Divorce Order) is allowed.
Declaration to Set Aside Divorce Order
3. Pursuant to s 113 of the Family Law Act, the court declares that the Divorce Order made by Deputy Registrar Kimmorely is invalid.
4. The Divorce Order is set aside.
Leave to Proceed out of Time
5. In the alternative to Orders 1-4 hereof: pursuant to s 44(3) of the Family Law Act, leave is granted to the husband to proceed with his application for final orders under s 79 of the Family Law Act
6. Pursuant to ss 79 and 80(1)(h), the wife pay, or cause to be paid, the sum of $80,000 to the husband, with such sum to be characterised upon the conclusion of these proceedings.
Deferral of Filing Fees
7. Within 7 days of these orders, the husband shall file an Initiating Application and, in accordance with r 4.02 of the Federal Circuit Court Rules, precisely and briefly state the orders sought.8. Pursuant to r 2.10 of the Family Law (Fees) Regulation, payment of the filing fee for the purpose of paragraph 7 hereof shall be deferred for a period of 60 days.
9. Leave is granted to the husband to file an application under r 2.04 of the Family Law (Fees) Regulation for a fee exemption, with such application to be heard in chambers.
NOTATION
A. The husband is in the process of obtaining a health care card and, once he receives his health care card, intends to apply for a filing fee exemption.
Orders sought by Respondent
1. That the applicant’s amended application in a case filed 7 February 2020 be dismissed pursuant to rules 13.03(1)(a), 13.03(1)(c) and/or 13.10 of the Federal Circuit Court Rules 2001 (Cth).
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