BALMORE & NADEEM
[2020] FCCA 1798
•3 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALMORE & NADEEM | [2020] FCCA 1798 |
| Catchwords: FAMILY LAW – Property – de facto relationship – application for extension of time to institute proceedings pursuant to section 44 of the Family Law Act – applicant mother commenced proceedings five years after the expiry of time limit – allegations of family violence – respondent father suffers from extremely ill-health – mother is primary carer for the children – mother has a prima facie case – reasonable claim that requires hearing – adequate explanation for delay – mother would suffer hardship if leave was not granted – no prejudice to the respondent father for allowing the application – application allowed. |
| Legislation: Family Law Act 1975 (Cth), ss.44, 90SF, 90SM |
| Cases cited: Hall & Hall (1979) FLC 90-679 Riordan & Riordan [2012] FMCAfam 1297 Whitford & Whitford (1979) FLC 90-612 |
| Applicant: | MS BALMORE |
| Respondent: | MR NADEEM |
| File Number: | MLC 7206 of 2019 |
| Judgment of: | Judge McNab |
| Hearing date: | 7 May 2020 |
| Date of Last Submission: | 7 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 3 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hall |
| Solicitors for the Applicant: | Keogh & Co |
| The Respondent in person |
ORDERS
The applicant be granted an extension of time to commence proceedings to the date of the filing of this application.
The costs of this application be reserved.
Within 14 days the parties advise the court whether they consent to the matter being referred to mediation/conciliation before a registrar of the Court.
If there is no agreement to having the matter referred as outlined in Order 3 above, the Court will make Orders that:
(a)the matter be adjourned to Federal Circuit Court of Australia on 19 October 2020 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).
(b)the evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:
(i) the applicant electronically file and serve one trial affidavit upon which she intends to rely and one affidavit of each witness upon which she intends to rely not later than 35 days prior to the trial; and
(ii) the respondent electronically file and serve one trial affidavit upon which he intends to rely and one affidavit of each witness upon which he intends to rely not later than 14 days prior to the trial;
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(i) the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(ii) the party has first obtained leave of the court,
(c)not later than two business days prior to the trial all parties do electronically file and serve an Outline of Case Document including the following:
(i) a list of the material relied upon;
(ii)a brief chronology listing significant events;
(iii)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(iv)main contentions on disputes as to inclusion of items in the pool and the value of items where the value is in dispute;
(v)list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(vi)list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;
(vii)other contentions relevant to determining a ‘just and equitable’ division of property; and
(viii)the actual orders sought,
(d)each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing;
(e)no party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court;
(f)each party must have available for their witnesses copies of all affidavits and all of their documents that those witnesses shall be referring to at the hearing; and
(g)the party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
IT IS NOTED that publication of this judgment under the pseudonym Balmore & Nadeem is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7206 of 2019
| MS BALMORE |
Applicant
And
| MR NADEEM |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed 28 June 2019, the applicant mother seeks an extension of time to institute proceedings pursuant to s 44 of the Family Law Act 1975 (Cth) (‘the Act’) for Orders under s 90SM and s 90SF of the Act. The parties separated in about September 2011.
On 30 October 2019, the matter came before her Honour Judge Stewart and the parties consented to attend mediation. The matter was not resolved at mediation.
On 7 May 2020 the application came before me for hearing.
Background
The parties met online in 2002, with the applicant mother living in the United Kingdom and the respondent father living in Melbourne. At that time, the mother had one daughter Ms B to a previous relationship who was born in the United Kingdom in 1996 (‘Ms B’).
The mother travelled to Melbourne to meet the father in about 2002.
In 2003, the parties began cohabitation in a rental property at C Street, Suburb D.
In approximately 2004, the parties and Ms B moved from the Suburb D property into a house on E Street, Suburb F (‘the E Street, Suburb F property’) where they remained living until separation.
During the relationship, the parties had two sons together, X born in 2005 and Y born in 2007 (together, ‘the children’).
At the time of separation in 2011, the father remained living in the matrimonial E Street, Suburb F property and the mother and the children moved into a rental property in Suburb F.
The mother by her initiating application seeks an adjustment of the property interests of the parties under Part VIIIAB of the Act, in particular pursuant to s 90SM.
The period in which the application ought to have been commenced without leave concluded in September 2013. The mother commenced proceedings on 28 June 2018, a little less than six years after the expiry of the two-year statutory time limit within which an application for a de facto relationship final property settlement must be filed.
In support of the application the mother filed three affidavits sworn 31 May 2019, 6 April 2020 and 5 May 2020. The father relied upon two affidavits filed on 16 October 2019 and 23 April 2020.
Legislation
Section 44(3)(a) to (d) of the Act provides:
(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.
Section 44(4) of the Act provides:
(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.
Section 44(6) of the Act provides:
(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted; or […]
Matters to be considered in determining the application
The matters that ought to be considered by the Court in determining this application are established by a line of authority including: Hall & Hall (1979) FLC 90-679; Whitford & Whitford (1979) FLC 90-612 and Riordan & Riordan [2012] FMCAfam 1297.
The matters which are to be considered by the Court in determining this matter are:
(a)whether the mother has a prima facie case being a reasonable claim that requires a hearing;
(b)whether the mother would suffer hardship if her application to proceed out of time were not granted;
(c)whether the mother has adequately explained her delay; and
(d)whether prejudice would be occasioned to the father if the application was allowed.
In Whitford v Whitford, the Full Court at [761] said in relation to ss.43(3) and 43(4):
[…] Having regard to the nature of the jurisdiction which this court exercises, this power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.
Applicant’s evidence
The mother attributes her delay to, inter alia:
(a)her limited funds;
(b)her belief that upon the passage of two years her rights had expired absolutely; and
(c)the father’s medical conditions which are discussed in greater detail below.
It is an accepted fact that the mother had no significant property, assets or liabilities before her relationship with the father.
By [19]–[21] of her affidavit sworn 31 May 2019, the mother deposed that after falling pregnant with their first child, she left her customer service job and ‘adopted the role of mother and homemaker’. She gives evidence of the non-financial contributions made by her including:
(a)preparing the family’s meals;
(b)performing all washing and ironing tasks;
(c)household chores including vacuuming, dusting and cleaning;
(d)caring for the children as infants and children;
(e)grocery shopping;
(f)organising and contributing to the renovation of the E Street, Suburb F property; and
(g)before and after separation, tending to the father when he was in hospital and recovering from hospital, spending nights at the hospital with him, treating his wounds, helping him shower and ensuring he was comfortable and fed properly.
By her affidavit sworn 6 April 2020, the mother details allegations of family violence at [32]-[63]. The incidents she recounts included being subjected to name-calling, threatening behaviour, incidents where the father lost his temper in front of the mother and daughter and behaving intimidatingly, all of which were said to have caused the mother to look for ways to leave him in 2009.
The mother gave evidence that in 2008 she applied for a rental property as an unemployed, single mother of three children. The father became ill in about 2009. At that time, she asked the father for funds to assist her to move out and he told her not to leave the family home and that she and the children should stay there and that he would leave. The father did not leave and the mother remained in the house with the children.
In about 2010, the father suffered further illness and needed major vascular surgery. At that time, the mother remained in the house waiting for the surgery to occur. The father underwent major surgery in about 2011 and the mother remained in the house, looked after the children and assisted the father in his recovery. She gives evidence that she attended the hospital every day and night and would also look after the children. The father stayed in hospital for approximately six weeks.
In about 2011, shortly prior to the father’s release from hospital, the mother was accepted as a tenant of a rental property. The mother says that she received a vicious and disrespectful text message from the father whilst he was in hospital which appears to have confirmed her resolve to separate from him.
About two weeks after the father returned home from hospital, the mother moved out of the family home but says that she remained focused on the father’s recovery. The mother says that she did not consider taking legal action as she did not have any funds and did not want wish to place the father under further pressure for the sake of his recovery. She also gave evidence that she was repeatedly informed by the father that she owed him money. This included money owed which was said to have arisen from her living expenses during the relationship and for money that she had taken when she needed to get out of the family home (which was in the sum of about $4,000 and taken without the father’s knowledge).
Following separation, an arrangement was made for the father to give the mother $400 per week for child support. The mother says that the Child Support Agency was informed of this fact and there was no contact from the Child Support Agency for the next six years.
The mother gives evidence that, after a period, the father reduced the amount of child support by deducting monies that he had spent on the children whilst they were in his care. She says that each time she raised notifying the Child Support Agency so that things could be assessed and managed she was threatened by the father who said that she would end up owing him money and ‘receiving nothing financial from him again’.
The mother deposed that since separation she has worked as a part-time sales assistant, earning a net amount of $700 per week. Her financial contributions post-separation include paying for the children’s schooling fees, camp payments, food and shelter. She notes that COVID-19 has significantly affected her employment and that, at the time of deposition, she did not qualify for jobseeker allowance.
Ms B also gave evidence by way of affidavit sworn 5 May 2020 in support of her mother’s evidence that, inter alia, this application was delayed due to a lack of funds to pay for legal fees and the mother’s concern for the respondent’s health.
Respondent’s evidence
The father also deposes as to the history of his significant poor health and the impact that it has had on his life. He deposes that he suffers from acute heart conditions including an irregular heartbeat which has necessitated multiple major surgeries, including major open heart surgery in 2011 and two major vascular surgeries, the most recent being in 2017. He says that he has had two toes amputated as a result of his condition and continues to suffer the effects of same. The father is currently unemployed but is actively seeking employment and it appears that he has been in employment most of his adult life.
At the time that he commenced a relationship with the mother he owned a property in G Street, Suburb H (‘the G Street, Suburb H property’) and an apartment in J Street, Suburb K (‘the J Street, Suburb K property’). He gives evidence that at the time of the commencement of the relationship he had net non-superannuation assets in the sum of $520,000 and superannuation assets in the sum of $125,000.
The mother had nominal assets throughout the relationship, and the father gives evidence that he was solely responsible for payment of the mortgages, management fees where a property was rented, rates, taxes and maintenance.
He says the mother ceased work after their first child was born in 2005 and that she assumed the role of primary care giver and homemaker. He has paid child support in the sum of $400 per week since separation.
He objects to the mother’s application for an extension of time to file because he says that since separation:
(a)the mother has acted in a manner consistent with the father’s sole ownership of the G Street, Suburb H property and the J Street, Suburb K property;
(b)the parties have treated their respective assets, liabilities and superannuation separately;
(c)there has been no suggestion or indication by the mother of a future claim by her;
(d)the mother made no contribution to the payment of his liabilities;
(e)he made no contribution to the payment of the mother’s liabilities; and
(f)there had been no discussion between the parties as to their financial circumstances or decisions.
In his affidavit material, the father deposes that he relied on the assumption that the mother would not bring an application for property settlement and has ‘resultantly made significant financial decisions in the post separation period in reliance of this belief’, including child support payments and the provision of a motor vehicle to the mother.
The father describes the financial contributions he has made since separation, including:
(a)child support of $380 per week, occasionally in excess of the administrative assessment and continuously despite periods of unemployment;
(b)cash payments to the mother of approximately $100 extra per week; and
(c)payments for the children’s various extracurricular activities including soccer, football and cricket.
The father further addresses financial contributions at [15]–[37] of his affidavit sworn 16 October 2019. In summary, he deposes that:
(a)he is the sole registered proprietor of the G Street, Suburb H property, having purchased it in 1994 and having met mortgage repayments from rent or his personal savings;
(b)he was the sole registered proprietor of the J Street, Suburb K property, having bought it in 1996 and having met mortgage repayments from his income;
(c)he is the sole registered proprietor of the E Street, Suburb F property, having purchased it in 2005 and a mortgage in favour of the Commonwealth Bank of Australia;
(d)in 2011 he sold the J Street, Suburb K property, and the net proceeds of the sale of $180,000 were applied in full to the E Street, Suburb F property mortgage;
(e)during the relationship, all rental income from the G Street, Suburb H property after expenses was applied in full to service the mortgages of the G Street, Suburb H, J Street, Suburb K and E Street, Suburb F properties;
(f)in 2011 he provided the mother with a fully paid and insured motor vehicle worth approximately $30,000;
(g)since separation he has been solely responsible for the payment of all costs of and incidental to the G Street, Suburb H and E Street, Suburb F properties; and
(h)the mother has not made any direct or indirect financial or non-financial contributions to the G Street, Suburb H or E Street, Suburb F properties since separation.
At [39] of his affidavit the father notes that in 2019 the G Street, Suburb H property was damaged by tenants and that he does not have the funds to pay for the required repairs estimated at $20,000 and not covered by insurance.
Regarding non-financial contributions, the father says that throughout the relationship he regularly worked from home which meant he was able to meaningfully assist and take an active role in caring for the children.
With respect to family violence, in his affidavit sworn 23 April 2020 the father deposes that:
(a)he denies the mother’s allegations against him;
(b)the mother was verbally abusive and threatening on many occasions, including threatening that ‘if [the father] didn’t give [the mother] significant money she would “do everything to discredit me to family and friends’; and
(c)the mother hit the children at least six times.
Consideration
In my view the mother has provided an adequate explanation for the delay in this case.
Whilst the father denies the serious allegations of family violence and those allegations have not been tested, it is plain from each of the parties’ perspective that they were in an unhappy relationship from at least 2009.
The father has experienced very significant ill-health and the parties have had to contend with that whilst looking after three children. The mother’s explanation for not taking action is explicable and reasonable. I accept her evidence that she had genuine concerns about the father’s health and did not seek advice about taking any action because of that concern. I also accept her evidence that she failed to seek legal advice because she had been told by the father that she would receive nothing and perhaps end up in a worse position if she did take action.
The mother has demonstrated by her evidence that she has a prima facie case. The parties lived together, had two children together and the mother was the primary carer and homemaker whilst the children were young. The mother has raised a prima facie case that it would be just and equitable to make orders adjusting the property interests of the parties because the parties previously enjoyed property but, due to the separation, will no longer continue to do so.
The mother gave evidence of her direct and indirect financial contributions throughout the de facto relationship, including contributions to the children. I also accept that the mother made contributions to the welfare of the father which is a relevant consideration pursuant to s 90SM(4)(c).
Otherwise the Court has regard to:
(a)the income disparity between the parties and the father’s property and financial resources compared to those of the mother: s 90SF(3)(b);
(b)the mother’s primary care for the children aged 12 and 14 and, on her account, less than adequate financial assistance from the father;
(c)in relation to the commitments of the parties to support any other person, neither of the parents have re-partnered and the mother supports the children of the relationship; and
(d)the fact that this relationship lasted eight years.
For these reasons the mother has demonstrated by her evidence that there is a reasonable explanation for the delay in bringing these proceedings and the mother would suffer hardship if leave was not granted for her to pursue a claim.
I am also satisfied that the father has not suffered any significant prejudice because he has not undertaken any particular steps on the basis of assuming that no claim will be made by the mother.
I am mindful of the father’s health and the stress that arises from this kind of proceeding, particularly in circumstances where, from his perspective, he has continued to financially support the mother and children.
The claim as it is now brought by the mother (and not the very scant claim that was outlined in the affidavit accompanying the application) does evidence a prima facie claim. Counsel for the mother made submissions that the quantum of that claim may be up to 25% of the asset pool. I make no comment about that but I do urge the parties to behave reasonably in the way that this application proceeds particularly because of the very poor health of the father.
The parties appear to have been able to provide loving support to their children notwithstanding the separation and differences. It is hoped that now that the relevant evidence has been given the parties might be able to resolve this proceeding in an efficient way without recourse to ambit claims and further damaging personal allegations and counter-allegations.
To that end, I will refer the proceeding to a registrar of the Court for conciliation and/or mediation in order to negotiate final orders if that is possible.
If the parties believe that is unlikely to be productive, I will fix the matter for final hearing and make orders for the filing of trial affidavits.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 3 July 2020
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