Bau & Algren - [2021] FCCA 365

FEDERAL CIRCUIT COURT OF AUSTRALIA
Bau & Algren [2021] FCCA 365

File number(s): BRC 13384 of 2020

Judgment of: JUDGE MIDDLETON

Date of judgment: 2 March 2021

Catchwords: FAMILY LAW – property – interlocutory application – where the applicant has filed property proceedings out of time - whether the applicant will suffer hardship if leave is not granted - if hardship is established whether the discretion should be exercised.

Legislation: Family Law Act1975 (Cth) s 44

Cases cited:
Althaus & Althaus (1982) FLC 91-233

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

Sharp & Sharp [2011] FamCAFC

Stanford v Stanford [2012] HCA 52

Tamaniego & Tamaniego [2010] FamCAFC 254

Whitford & Whitford (1979) FLC 90-612

Number of paragraphs: 50

Date of last submission/s: 4 February 2021

Date of hearing: 29 January 2021

Place: Brisbane

Counsel for the Applicant: Ms Gover

Solicitor for the Applicant: Ae & Associates

Counsel for the Respondent: Mr Campbell

Solicitor for the Respondent: Simmons & McCartney Lawyers
ORDERS

BRC 13384 of 2020

BETWEEN:
MS BAU

Applicant

AND:
MR ALGREN

Respondent

ORDER MADE BY:

JUDGE MIDDLETON

DATE OF ORDER:

2 MARCH 2021

THE COURT ORDERS:
1.That pursuant to s. 44(3) of the Family Law Act 1975 (Cth) the applicant be granted leave to institute proceedings out of time.

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.
REASONS FOR JUDGMENT
JUDGE MIDDLETON
BACKGROUND

The applicant wife commenced proceedings against the respondent husband on 25 September 2020, some four months out of time. (s. 44(3) Family Law Act 1975 (Cth) (the Act.)
By way of amended initiating application filed on 11 December 2020 the applicant seeks leave to commence out of time.
The respondent opposes the granting of such leave.
The parties’ commenced cohabitation in 2006, married in 2008 and divorced on 17 April 2019, with the divorce coming into effect on 18 May 2019. A relationship of approximately 13 years.
The parties are in dispute as to when they separated on a final basis. The wife says that they separated on 28 November 2015 and the husband says the parties separated shortly after their marriage.
It is not in dispute that the parties lived separately for the majority of their marriage, the wife lived in Queensland and the husband lived in a property in New South Wales… (the former matrimonial property).
The parties purchased the former matrimonial property in November 2007 and although the property is in the husband’s sole name the parties are jointly liable for the mortgage over the property. The property was purchased for the sum of $299,000 with each party contributing $40,000 towards the deposit and the remainder of the purchase price being by way of mortgage.[1]
[1] Affidavit of Ms Bau filed 25 September 2020,[16],[25]; affidavit of Mr Algren filed 30 November 2020,[11],[52].
It is also not in dispute that the former matrimonial home represents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCCA 365
Decision Date: 2 March 2021

CaseChat Overview and Summary

In *Bau & Algren*, Middleton J of the Federal Court of Australia considered an application for leave to proceed with a property adjustment claim out of time. The wife sought this leave, asserting hardship if it were not granted and a prima facie case for success in her substantive claim. The husband opposed the application, arguing, among other things, that the wife had not provided sufficient evidence of hardship and that she had proprietary and/or equitable rights she could pursue in a separate jurisdiction.

The central legal issues before the court were whether hardship would be caused to the wife if leave were not granted, and whether the court should exercise its discretion to grant leave. In determining the latter, the court was required to consider several factors, including whether the wife had a prima facie case or a real probability of success, the likely costs of litigation compared to the potential award, the length and reasons for any delay in bringing the claim, the prejudice to the respondent caused by the delay, a brief assessment of the probable outcome of the substantive claim, whether the wife had taken all reasonable steps to pursue her claim, and whether there was any evidence suggesting the wife might abandon her case.

Middleton J applied the principles established in *Sharp & Sharp* [2011] FamCAFC 150, which require the applicant to demonstrate a "prima facie claim worth pursuing or a real probability of success." The wife's affidavit provided evidence that she was the major contributor to the former matrimonial home and had continued to meet some mortgage payments after separation, a proposition seemingly supported by the husband's own affidavit. The court also noted the High Court's decision in *Stanford v Stanford* [2012] HCA 52, which underscored that a property adjustment order can only be made if the court is satisfied it would be just and equitable to do so, thereby highlighting the jurisdictional prerequisite for such orders. The court found that the respondent's argument regarding alternative avenues for the wife was not the correct test for determining hardship in this context.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In considering those authorities and distilling the relevant principles I am of the view that I must consider and determine the following matters:(a)whether hardship would be caused to the wife if leave were not granted;(b)whether I am persuaded that the discretion should be exercised and in that determination consider:(i)whether the wife has a prima facie case a real probability of success;(ii)whether the costs of litigation will be as much or more than the wife is likely to be awarded;(iii)what is the length of delay;(iv)what are the reasons for the delay;(v)what is the prejudice to the respondent due to the delay;(vi)a brief assessment of the probable outcome of the wife’s substantive claim;(vii)whether the wife took all reasonable steps to pursue her claim; and(viii)whether there is any evidence to suggest that the applicant at some stage abandon her case.THE EVIDENCE AND DETERMINATION The wife sets out the material she relies upon on page 1 of her written submissions filed on 29 January 2021. The husband sets out the material he relies upon on page 1 of his written submissions filed on 4 February 2021. Both parties also rely upon their respective written submissions. It should be noted that although the wife filed an amended initiating application on 11 December 2020 she did not file a further affidavit, this is despite an order having been made on 8 December 2020 for her to do so. In the circumstances the wife simply relies upon her initial affidavit filed on 25 September 2020. The wife in her evidence asserts that she is jointly liable for the mortgage over the former matrimonial property. Furthermore she provides evidence that as a result of the husband’s failure to meet the ongoing payments both she and the husband have a bad credit rating. (See paragraph 39 of the wife’s affidavit filed 25 September 2020.) It is asserted by the respondent’s counsel that the wife has provided no evidence as to the hardship she will be caused if leave were not granted. He points to the fact that if leave were not granted she would have proprietary and/or equitable rights to pursue in a separate jurisdiction. With respect to the respondent’s counsel I do not accept that this is the test which I must apply. The test was well set out in Sharp & Sharp [2011] FamCAFC 150 at paragraph 18 by the full court as I have previously set out. The test is that the applicant must have a “Prima facie claim worth pursuing or a real probability of success”. The wife’s affidavit sets out evidence that she, prima facie, was the major contributor to the former matrimonial home. Her evidence is that she continued to meet some of the mortgage payments after the date of separation that she asserts. Indeed the husband seems to agree with that proposition where he says at paragraph 21 of his affidavit “since at least 2016 I have made all the payments on the mortgage”. In Stanford v Stanford [2012] HCA 52 the High Court made it very clear that unless the court is satisfied that it would be just and equitable to make a property adjustment order then the court has no jurisdiction.[5] [5] Stanford v Stanford at [2].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	BRC 13384 of 2020
Judgment of:	JUDGE MIDDLETON
Date of judgment:	2 March 2021
Catchwords:	FAMILY LAW – property – interlocutory application – where the applicant has filed property proceedings out of time - whether the applicant will suffer hardship if leave is not granted - if hardship is established whether the discretion should be exercised.
Legislation:	Family Law Act1975 (Cth) s 44
Cases cited:	Althaus & Althaus (1982) FLC 91-233 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 Sharp & Sharp [2011] FamCAFC Stanford v Stanford [2012] HCA 52 Tamaniego & Tamaniego [2010] FamCAFC 254 Whitford & Whitford (1979) FLC 90-612
Number of paragraphs:	50
Date of last submission/s:	4 February 2021
Date of hearing:	29 January 2021
Place:	Brisbane
Counsel for the Applicant:	Ms Gover
Solicitor for the Applicant:	Ae & Associates
Counsel for the Respondent:	Mr Campbell
Solicitor for the Respondent:	Simmons & McCartney Lawyers

ORDER MADE BY:	JUDGE MIDDLETON
DATE OF ORDER:	2 MARCH 2021