Balsom & Decks
[2023] FedCFamC2F 563
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balsom & Decks [2023] FedCFamC2F 563
File number(s): DGC 1676 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 18 May 2023 Catchwords: FAMILY LAW – PROPERTY- Application to review a Registrar’s decision summarily dismissing the application for leave to commence proceedings out of time – where it was agreed that the review be upheld and the application for leave to commence proceedings out of time pursuant to s44(6) of the Family Law Act1975 be determined – application nine years out of time – where court not satisfied that the applicant would suffer hardship if leave were not granted – application dismissed. Legislation: Family Law Act 1975 (Cth) ss 44, 44(3), 44(5), 44(6), 90SM, 90SM(4)
Federal Circuit and Family Court of Australia Act 2021 s190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13, 14.05, 15.06(1), 15.06(2)
Cases cited: Carlon & Carlon [1982] FamCA 72
Gallo v Dawson [1990] HCA 30
Hall & Hall [1979] FamCA 50
In the Marriage of Mackenzie (1978) 34 FLR 56
In the Marriage of Whitford (1979) 24 ALR 424
Neocleous & Neocleous [1993] FamCA 44
Sharp v Sharp [2011] 50 FamFACF 150
Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 27 April 2023 Place: Parramatta The Applicant: Litigant in person Solicitor for the Respondent Ms Ebejer, Ebejer and Associates ORDERS
DGC 1676 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BALSOM
ApplicantAND: MR DECKS
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
18 May 2023
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 18 May 2023.
THE COURT ORDERS THAT:
1.The time for filing an Application for Review of Orders made by this Court on 10 August 2022 is extended to 4:00pm 30 November 2022.
2.By consent, the Application for Review filed by the Applicant on 5 September 2022 is upheld and the Orders of 10 August 2022 are discharged.
3.The application for leave to extend the time in which to file proceedings for property adjustment pursuant to section 44(6)of the Family Law Act1975 (Cth) is refused.
4.The Initiating Application filed on 31 May 2022 is dismissed.
5.Within 14 days the Respondent de facto Husband is to file and serve any application for costs by way of a Minute of Order sought, together with written submissions of no more than five pages and three annexures.
6.Within 14 days thereafter the Applicant de facto Wife is to file and serve any response to such application for costs by way of a Minute of Order sought, together with written submissions of no more than five pages and three annexures.
7.That within two days thereafter the Respondent de facto Husband has liberty to file further written submissions in reply of no more than one page.
8.That unless a party formally objects by way of their Minute of Order, any application for costs will thereafter be determined in Chambers.
9.Orders 3 and 5 sought by the respondent in the Amended Response to Final Orders filed 9 February 2023 are referred to the Registrar of the Dandenong Registry for further Directions and Case Management.
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).
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 by this Court under a pseudonym Balsom & Decks has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
The applicant de facto wife seeks leave pursuant to s 44 of the Family Law Act 1975 (Cth) by way of an Initiating Application filed on 31 May 2022 to commence proceedings for property adjustment out of time. The respondent de facto husband opposes the application.
The parties commenced a de facto relationship in 2000/2001. That de facto relationship terminated upon the separation of the parties in 2013. There are no children of the relationship.
For the reasons that follow the application for leave is refused and the Initiating Application will be dismissed.
BACKGROUND
The applicant was born in 1984 and the respondent was born in 1984.
It is unclear from the parties’ evidence when they commenced living together. The applicant deposes that the parties met in approximately 2000 and began dating shortly thereafter, with the respondent moving into the applicant’s home upon his family relocating at an unknown time. The respondent’s affidavit merely states that the parties commenced a relationship in 2001.
Both parties agree that their final separation occurred in 2013, some ten years ago. The applicant asserts that the separation occurred in March 2013 whilst the respondent merely asserts that the parties separated sometime in 2013.
In May 2013 the applicant relocated to New Zealand. She returned to Australia in 2021 and has resided on Region B since such time.
On 31 May 2022 the applicant filed an Initiating Application seeking the following orders on a final basis:-
1.That there be a just and equitable distribution of the parties’ property.
2.Any other orders as this Honourable Court deems appropriate.
Orders were sought by the applicant on an interlocutory basis that:-
1.Pursuant to s44 (3) of the Family Law Act 1975 (Cth) the Applicant be granted leave to extend the time for the filing of an Application for a Property and Financial Distribution to 7 days following the date of filing this Initiating Application.
2.That the parties provide financial discovery within 21 days of written request.
3.That the parties (and their legal representatives) attend a conciliation conference at the Federal Circuit & Family Court of Australia on a date to be determined.
4.Any other orders as this Honourable Court deems appropriate.
The Response filed on 7 July 2022 seeks orders on a final and interlocutory basis broadly that:-
·The application filed by the applicant on 31 May 2022 be dismissed.
·The applicant pay the respondent’s costs on an indemnity basis.
·The respondent be excused from filing a Financial Statement and Questionnaire until such time as the Court deems fit there is a case to be heard.
The matter came before a Judicial Registrar on 12 July 2022. Orders were made listing the matter for an interim hearing on 10 August 2022 and further directions were made for the filing and serving of the parties’ evidence to ground the relief sought by either party. At this time it was noted that:-
·The issue to be determined at the hearing on 10 August 2022 was the respondent’s application for the summary dismissal of the Initiating Application filed 31 May 2022 pursuant to rule 10.09 (c) and/or rule 10.09(d) of the Rules; and
·the court encouraged the applicant to obtain independent legal advice.
The sealed orders issued from the court record that the applicant appeared in person and the respondent was represented by Counsel when the matter was listed before the Senior Judicial Registrar on 10 August 2022 and orders were made:-
1.That pursuant to rule 10.09 and 15.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2022 the applicant’s applications dated 31 May 2020 are to be dismissed.
2.That the applicant pay the respondents costs fixed in the sum of $13,800.
3.That order 2 be stayed pursuant to any further application in this matter.
On 30 November 2022 the applicant filed an Application for Review of the Orders of 10 August 2022 (“the Review Application”). Whilst the Review Application is difficult to read in circumstances where it is handwritten, it appears that all of the orders made on 10 August 2022 are sought to be reviewed and according to the Review Application the applicant seeks:
•A full and fair hearing needs to take place, in order for myself being present in the room for starters. I have already supplied the documents in which unlawful practices have occurred and have impacted me severely.
On 9 February 2023 an Amended Response was filed seeking additional orders that:-
3.Pursuant to s118(1)(c) of the Family Law Act 1975 (Cth) the Applicant be deemed a vexatious litigant.
5.Pursuant to s102QB(2)(b) an order prohibiting the applicant from instituting proceedings, or proceedings or a particular type, under the family Law act 1975 (the Act) in a court having jurisdiction under this act.
6.The applicant pay the respondent’s costs pursuant to Orders made on 10 August 2022, paragraph two and indemnity costs of $2,500 for the hearing on 20 February 2023.
The matter proceeded to hearing before me on 27 April 2023 for hearing of the Review Application.
This is the judgment of the Review Application.
THE CONDUCT OF THE HEARING
The hearing on 27 April 2023 was conducted via Microsoft Teams. An email was sent from my chambers to the parties on 21 April 2023 at 3:26pm providing the dial-in details to the Microsoft Teams event.
Prior to the hearing the applicant had advised Chambers on an ex parte basis that she would have difficulty in appearing at the hearing via video link and requested that such attendance be by way of telephone only.
Arrangements were made by my chambers for the applicant to be able to use the facilities of a computer with video capability at the Dandenong Registry and an email was sent to the applicant on 21 April 2023 at 4:30pm advising her of such arrangements. The applicant did not avail herself of this opportunity and advised Chambers on 24 April 2023 at 3:56pm that she had made alternative arrangements “I have found a way… a lot more money, but a stronger internet connection.”
There was no appearance by the applicant when the matter was first called at 10:03am. The matter was stood in the list to allow the applicant some further time to attend. There being no appearance when the matter was re-called at 10:17am, the matter proceeded on an undefended basis as against the applicant. The respondent was not granted leave to amend the relief sought by them at the hearing of the Review Application so as to have the applicant declared a vexatious litigant. The respondent is at liberty to press the relief sought by way of the Amended Response filed on 9 February 2023 at a later time as they may be advised.
On an undefended basis orders were made dismissing the Application for Review and discharging the order staying the costs order made on 10 August 2022. An order was made that the applicant was to pay the respondent’s costs of the Review Application in the sum of $2,435.81.
Oral reasons had been delivered when, just prior to the court rising, the applicant appeared and advised the court that “we need to start again” as her “internet did not work.” When the applicant was questioned as to why she did not attend the Dandenong Registry as advised she asserted that she did not receive the email from the court advising her that arrangements had been made at the Dandenong Registry for her to attend for the purposes of utilising their computer, notwithstanding that she had responded to such email on 24 April 2023 at 3:56pm.
The respondent opposed the orders being set aside and each party was afforded the opportunity to make submissions.
Despite finding that the applicant had received the correspondence from Chambers providing the dial in details and that she had responded to such correspondence, short oral reasons were provided granting leave to the applicant to make an oral application pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to set aside the orders. Such application was successful.
So as to comply with the mandatory obligation pursuant to s190 of the Federal Circuit and Family Court of Australia Act 2021 to deal with matters according to law and as quickly, inexpensively and efficiently as possible, both parties consented to the court’s suggestion that, rather than determining the application to review the orders made summarily dismissing the application for property adjustment, the court would determine the substantive issue – that being the application to commence proceedings for property adjustment out of time.
Thus:-
·In circumstances where the Application for Review was filed 91 days out of time, although not formally seeking such relief, leave was granted to the applicant to extend the time of the filing of the Application for Review. [1]
·By agreement between the parties the orders of 10 August 2022 made by the Senior Judicial Registrar summarily dismissing the application for property adjustment and costs were discharged and the Application for Review upheld.
·For determination therefore is the application for leave to extend the time for the filing of an application for property adjustment.
·As the costs issue is therefore again on foot, directions will be made to determine this issue subsequent to the determination of the application for leave.
·The orders sought by the respondent in the Amended Response filed on 9 February 2023 seeking that the applicant be declared a vexatious litigant will be referred back to the appropriate Registry for further case management and determination in the normal course.
[1] Pursuant to r 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Application for Review was to be filed within 21 days; that is by 31 August 2022. The court is given express power to extend or shorten any time fixed by the Rules by making a procedural order (rule 15.06(1)) This power may be exercised even though the time fixed by the rules has expired (rule 15.06(2)).
All parties agreed that cross examination was not required and the matter was heard on the material filed and oral submissions of the parties’.[2]
[2] This approach aligns with that adopted by the Full Court of the Family Court of Australia (as it was then known) in Neocleous & Neocleous (1993) 113 FLR 451; [1993] FamCA 44 where it was stated that applications to commence proceedings out of time should be summary in character and cross-examination is therefore often undesirable.
THE STATUTORY REGIME
Whilst the applicant formally seeks leave pursuant to s44 of the Act in her application to commence proceedings out of time, she submitted to the court on several occasions during the course of oral submissions that leave was not required as all of her claims arise from “domestic violence, victimisation, domestic terrorism, domestic abuse and finally defamation of character accumulated especially over the last two years.”
Section 44(5) of the Act provides, relevantly, that an application for property adjustment arising out of a de facto relationship (pursuant to s. 90SM) shall not be instituted more than 2 years after the date of the termination of the de facto relationship between the parties. It is clear that the date of separation is the relevant factor and not any alleged behaviour post separation. Accepting the applicant’s evidence as to the date of separation, the application has been filed 7 years out of time.
Section 44(6) provides that the court may grant leave to the applicant to apply for property adjustment out of time if the court is satisfied that hardship would be caused to the applicant if leave were not granted. As is evident from the terms of the section, the applicant bears the onus of so satisfying the Court.
Whilst the applicant erroneously seeks leave to commence proceedings pursuant to s44(3) of the Act and not s44(6), no submissions were made by the respondent in this regard and in circumstances where the applicant is a litigant in person I will proceed with the application pursuant to s44(6).
The case law relating to leave to parties to a marriage under s 44(3) of the Act have been referred to and applied in the context of parties to a de facto relationship under s44(6).
The Full Court held in Whitford & Whitford (1979) FLC 90-612 that:
[O]n an application for leave under s 44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings…
Hardship has been defined as meaning “substantial detriment.” [3] The authorities are clear that in determining whether the applicant has established the necessary hardship the court will consider whether the applicant has a prima facie case, or a real probability of success, that would be alleviated by leave being granted. [4] If hardship is not likely to be alleviated by a substantive hearing then the court could not be satisfied that hardship would be suffered by the applicant or a child. Hardship is not established by showing that the applicant would be marginally better off if leave were granted, rather the applicant must show a “substantial detriment.” [5] The mere loss of a right to litigate is not hardship; the consequence of that loss is the relevant matter. [6]
[3] Hall & Hall (1979) FLC 90-679; [1979] FamCA 50.
[4] Sharp v Sharp (2011) 50 Fam LR 567; [2011] 50 FamFACF 150
[5] In the Marriage of Whitford (1979) 24 ALR 424; (1978) 35 FLR 445; (1979)
[6] In the Marriage of Mackenzie (1978) 34 FLR 56;
Only upon the court being satisfied as to hardship must it then consider, in its discretion, whether leave should be granted. The court has a broad discretion, including as to the facts and circumstances to be taken into account. [7] The court’s ultimate concern is whether the granting of leave will do justice between the parties. [8] The court’s considerations may include:-
·The length of the delay in commencing proceedings; that is, the period from the time the limitation period started to the date of the filing of the application.
·The explanation for the delay. The applicant’s explanation (or lack thereof) for the delay is no more than one factor whose weight depends on all the circumstances.
·The prejudice that may be caused to the respondent if leave were granted. Such prejudice is particularly likely to arise where the respondent has organised their affairs on the reasonable expectation that proceedings would not be commenced by the applicant.
[7] Carlon & Carlon (1982) FLC 92-272; [1982] FamCA 72.
[8] Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30.
It is a clear principle that parties should, where possible, finalise any adjustment of property proceedings between them in a timely manner; being the usual limitation period. Having regard to the nature of this jurisdiction however, the power to extend time should be exercised liberally to avoid hardship. [9]
[9] Whitford (supra).
EVIDENCE AND SUBMISSIONS
I have read the following material filed by the applicant:-
·Initiating Application filed 31 May 2022;
·Application for Review filed 30 November 2022;
·Affidavit of the applicant filed 17 April 2023;
·Financial Statement filed 31 May 2022; and
·Outline of Case filed 17 April 2023.
The applicant made various allegations against the respondent in language not appropriate of a court room which have no relevance at all to my determination and they will therefore not be repeated in these reasons. During the course of oral submissions the applicant submitted that:
·The financial contributions made by her were over $150,000 made during the 13 years of the parties’ relationship.
·The financial compensation of damage to humiliation, loss of dignity and injury to feelings should be “more” given the fact that she has had to move from New Zealand, sell her assets and cut off her investments due to the 10-year Intervention Order made in protection of the respondent.
·She refuses to pay the legal fees of the respondent in circumstances where it was submitted by her that a victim does not pay the perpetrator according to s117 of the Family Law Act.
·She continues to be a victim of the respondent’s family violence and it has had a significant impact on her to date and will continue to have a significant impact on her in the future.
·She had recently had her occupation licence revoked and submits this was another form of domestic violence perpetrated against her by the respondent and her sister.
·She had originally drafted her Application some five years ago in New Zealand.
·She intended to visit Region B (her current place of residence) on a holiday with her mother, and since such time, the respondent and her sister had conspired to “ruin my life.” She was handcuffed by the Police at one stage in her attempt to return to New Zealand and thus has not been able to return to New Zealand to date.
I have read the following documents filed by the respondent:
·Response to Final orders filed 7 July 2022;
·Affidavit of the respondent filed 13 April 2023; and
·Outline of Case Document (Interim Hearing) filed 18 April 2023.
It was submitted on behalf of the respondent, broadly that:
·The applicant has not addressed the issue of seeking leave to proceed out of time pursuant to s44(6) of the Act.
·The parties separated in 2013 and thus the applicant has had nine years to bring an application.
·The applicant possesses the skills to have brought an application prior to 31 May 2022.
·The applicant lost her occupation licence as a result of a drink-driving charge and the respondent has had no involvement in same.
·The applicant has not provided any details about property of the parties nor any hardship she would experience within the meaning of s44 of the Act.
CONSIDERATION AND DETERMINATION
It is agreed the parties were in a de-facto relationship for a period of 12 to 13 years and there are no children of the relationship.
Neither of the parties’ affidavit material was particularly informative or relevant to the issues the court must consider in determining the current application.
There is no evidence as to the parties’ current existing legal and equitable interests in property. The Financial Statement filed by the applicant on 31 May 2022 deposes only as to the applicant receiving Government Benefits in the sum of $320 per week. The type of benefit is not particularised. The balance of the Financial Statement is blank save for a diagonal line or lines drawn across the length of each page, I assume by the applicant. The affidavit filed by the applicant does not depose as to her current financial circumstances. The only references to the existing legal and equitable interests of the parties deposed to by the applicant are oblique:-
To refuse my application would significantly prejudice me, as [Mr Decks] has walked away from our relationship with a career and significant assets which were as a result of the significant financial and non-financial support I provided, whereas I only left with trauma as a result of significant family violence.
…..
Regardless of the situation at hand, all my monies is tied up in trust funds and are unable to be assessable.
In submissions the applicant stated that:
I have more money than [Mr Decks], I’ve got three times more than [Mr Decks] has.
The respondent deposes that he has been employed as a Manager with the same company since 2017. He has not filed a Financial Statement. He deposes that at the time of separation:
..we had little in the way of assets, the applicant had a block of land in Tasmania and I had a car which I had financed and owed roughly $3000 and around $5000 worth of tools that I had paid for or had received as presents from friends and family.
He later deposes that:
At the time of our relationship ending, we had no assets therefore, there was no requirement for a property settlement.
And that:
Since separation we have not cohabited or shared any financial resources.
The applicant does not depose as to her legal or equitable interests in any property at the commencement of the relationship. The only evidence of the respondent is that at the commencement of the de facto relationship
I already had a car which my mother and father had purchased for me from my grandfather..
The applicant’s limited evidence as to the financial contributions made by her during the course of the de-facto relationship is largely contested by the respondent.
The applicant alleges that for the first six months of the parties’ de-facto relationship the respondent commenced living with the applicant in her rental property and she continued to be responsible for all rental payments. The respondent asserts that the parties rented a home in 2004 and whilst living there shared the expenses equally, save that the respondent paid for all the groceries. It is unclear as to the living arrangements the respondent asserts prior to this time.
The applicant deposes that the parties then lived with the applicant’s mother. The parties paid board, although the sum paid is not particularised. The applicant asserts that the respondent often missed paying his share which was subsequently paid for by her. The respondent denies living with the applicant’s mother during this time and deposes that when the parties’ lease ended in early 2005 the respondent commenced living with his father for approximately 6 months, then moved to live with “Ms C” until he relocated interstate with his mother in early 2007 to follow a job opportunity. He did not live with the applicant during this time. The respondent concedes that the parties did live with the applicant’s mother from 2008 – 2013 but that during this period he paid an agreed board amount of $150 per week and undertook building maintenance of the property including rebuilding the front deck.
The applicant alleges that the respondent would often spend his money on “frivolous items and drugs instead of contributing to our relationship or to his own career.” The respondent deposes that his money was applied towards living expenses and purchasing tools to enable him to work.
The applicant submitted during the course of submissions that she contributed “over $150,000 to the relationship”. There is no evidence to ground this submission.
There is no evidence as to the non-financial contributions asserted by the applicant.
The applicant deposes that whilst living with the respondent she would attend to all the household duties for the respondent, including washing and mending his clothes, cleaning after him and cooking his meals.
Whilst not expressly stated, it appears that the applicant may argue that her contributions were made more difficult as a result of the respondent’s conduct. The applicant deposes that throughout the relationship the respondent was “often verbally and occasionally physically violent towards me.” The respondent denies ever occasioning physical violence upon the applicant and asserts that he would sometimes verbally defend himself from abuse occasioned by the applicant.
Apart from broad assertions, the applicant deposes as to two alleged incidents of family violence occasioned upon her by the respondent during the parties’ de-facto relationship. She deposes that in July 2012 the respondent put his hands around the applicant’s throat and threatened her and in March 2013 the respondent put his hands around the respondent’s throat and strangled her.
Both allegations are denied by the respondent. He concedes that an incident occurred between the parties in 2013 and not July 2012 as asserted by the applicant. The respondent deposes that he verbally threatened the applicant after she said to him whilst intoxicated: “Who, your slut mother who had 3 different children to 3 different men.” The respondent asserts that it was at this time that he packed up some of his belongings and ended the relationship. The respondent denies that an incident occurred in March 2013.
Even taking the applicant’s evidence at its highest and accepting the allegations of family violence as alleged by her, the applicant’s evidence as to any discernible impacts such conduct had upon her so as to make her contributions significantly more arduous was minimal and broad brush in its approach At its highest, the applicant’s evidence was that:-
·The respondent’s conduct had a significant impact on her mental and physical health.[10]
·Given the history of the family violence between the parties, the applicant was not in a position to bring an application to settle their financial relationship as doing so would have caused further harm to her “already damaged wellbeing.”[11]
·Post-separation she has been left with “trauma as a result of significant family violence.”[12]
[10] Affidavit of Ms Balsom filed 17 April 2023, paragraph 15.
[11] Affidavit of Ms Balsom, paragraph 21.
[12] Affidavit of Ms Balsom, paragraph 29.
The applicant has not filed evidence to support a finding being made, either direct or by implication, that the contended conduct of the respondent has made her contributions significantly more onerous than they should have been.
The respondent alleges that he was the victim of physical violence occasioned by the applicant. He deposes as to three alleged incidents on unspecified dates during the parties’ de facto relationship. The respondent does not provide any evidence as to the discernible impacts the alleged incidents of family violence had upon him.
There is limited evidence as to the household financial circumstances or arrangements between the parties during the course of the relationship.
Both parties allege that post separation the other has engaged in inappropriate and harassing behaviour.
There is no evidence as to the property of the parties at the conclusion of the relationship save for the unchallenged assertion of the respondent that the applicant owned a block of land in Tasmania. The applicant has an obligation to disclose all her relevant financial circumstances. She failed to do so.
It is difficult to accept the applicant’s contention that she will suffer hardship when she made admissions against interest that:-
·She has three times as much money as the respondent; and
·In her submissions in reply she stated “there is no hardship, I’m not asking for hardship… I have more money than Mr Decks. That’s not the circumstance. I’ve got three times more than what that Mr Decks has… I launched him.”
The applicant does not particularise the specific relief she seeks by way of an adjustment to the property held by each of the parties.
The evidence of the applicant leads to a conclusion that there was little material distinction between the s 90SM (4) factors contributed by each party over the period of the relationship. At the conclusion of the relationship any adjustment to the considered contribution assessment would not be likely – there appears to be nothing arising from the circumstances of the relationship that has presented the parties from moving on with their lives, which they have now done so for the past 10 years.
Accepting the applicant’s evidence at its highest, it is difficult to conceive of a different result having been arrived at the time of the parties’ separation in 2013 than that of either party retaining the limited property held respectively by them. Cast against that circumstance, whatever be their current circumstances, they are not a product of, and have no nexus to that which existed at separation.
As the party seeking relief from the court, the applicant bears the evidentiary onus to establish she will suffer hardship if leave were not granted to commence proceedings for property adjustment out of time. I find having regard to the forgoing reasons that there is no warrant, even on a prima facie basis, for any order pursuant to s90SM in favour of the applicant. As she has failed to establish that she has a real probability of success in obtaining orders adjusting the property of the parties, I am not satisfied that the applicant has discharged the onus that she will suffer hardship if the application for leave were not granted. Accordingly the Initiating Application filed 31 May 2022 will be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 18 May 2023
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