Bedder and Bedder

[2009] FamCA 1180

FAMILY COURT OF AUSTRALIA

BEDDER & BEDDER [2009] FamCA 1180

FAMILY LAW – PRACTICE AND PROCEDURE – Application to bring property proceedings out of time

Family Law Act 1975 (Cth)

Whitford and Whitford (1979) FLC 90-612

APPLICANT: Mr Bedder

RESPONDENT: Ms Bedder

FILE NUMBER: DGC 126 of 2008

DATE DELIVERED: 20 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ham

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Ms Naidoo

SOLICITOR FOR THE RESPONDENT: R D Martin & Co

Orders

1. That the husband have leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings under Part VIII of the Act nunc pro tunc.

2. That the wife pay the husband’s costs fixed in the sum of $2000 within one month.

3. That the case assessment conference fixed for 15 December 2009 is vacated.

4. That the parties attend a conciliation conference on 17 February 2010 at 11.00am.

5. That the husband file and serve an amended application for final orders setting out with particularity what orders he is now seeking by 4.00pm on 21 December 2009.

6. That the wife file and serve a response to the husband’s application by 4.00pm on 29 January 2010.

7. That by 4.00pm on 4 December 2009, any party seeking the production of documents for inspection from the other shall send a letter with a list of documents required for production and subject to objection on the grounds of privilege, those documents in the possession or control of the other parties shall be provided for inspection by 4.00pm on 15 January 2010.

8. For the purposes of paragraph 7, inspection may be provided by the provision of photocopies of the documents. The copies shall be so provided at the expense of the requesting party at the cost set out in the schedule to the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Bedder & Bedder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 126 of 2008

MR BEDDER

Applicant

And

MS BEDDER

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Bedder for an order that he be permitted to proceed with a property division application, notwithstanding that he is out of time.  Ms Bedder opposes the husband being granted that leave.  Throughout these reasons I shall refer to the parties as husband and wife, notwithstanding they are no longer married to one another.

2. The parties were married in 2002, although the husband's affidavit seems to refer to 2004.  The certificate of marriage on the file shows 2002.  The parties cohabited from 1999 up until their marriage.  After separation, a divorce was granted on 12 March 2008.  On that basis the application of the husband for financial orders is about seven months out of time.

3. Section 44(3) of the Family Law Act 1975 (Cth) (“the Act”) provides that where a divorce has taken effect proceedings of the kind referred in paragraphs (c), (caa), (ca), or (cb) of the definition of matrimonial cause in s 4 shall not be instituted except by leave of the court in which the proceedings are to be instituted or with the consent of both parties after the expiration of 12 months after the date upon which the divorce took effect.

4. Section 44(4) says the court shall not grant leave pursuant to subsection 3 unless hardship would be caused to a party.  It is the hardship to the husband that is relied upon here for the purposes of s 44(4). 

5. The husband relied upon an affidavit filed on 26 October 2009. 

6. The wife's position was a little more confusing.  Initially she filed an affidavit on 13 November 2009 through her lawyers.  There was a letter sent to the court on 18 November indicating that the solicitors were not going to represent the wife any longer and they indicated that they had received instructions that she was going to represent herself by telephone.  Accordingly, they filed a note of ceasing to act.

7. This morning Ms Naidoo, on behalf of the wife, has indicated that she has received instructions to go back on the record and a notice of address for service has been filed.  That is also on the understanding that beyond today the solicitor will file a notice of ceasing to act again.

8. In any event it seems that the material upon which the wife relies is that set out in her affidavit of 13 November 2009.  I have been invited by Mr Ham of counsel, on behalf of the husband, to read that material and I have done so.  The question is not whether there should be a full hearing of the merits of the husband's claim but rather whether there is a reasonable claim to be heard.  Normally one would rely on the husband's evidence and that evidence should be accepted unless it is inherently unbelievable or contradictory.

9. I have the benefit of the wife's evidence which is a response to the husband's affidavit material.  In addition to the question of hardship to the husband I should consider the impact upon the wife of permitting the husband the leave that he seeks. 

10. The background of the case is not particularly relevant, save that in both affidavits, the financial position is clear.  There are joint assets still and the wife's position seems to be, as set out in paragraph 42 of her affidavit, that there is no hardship to the husband and as such, the assets could remain as they are at the moment.  That is untenable.

11. Whitford and Whitford (1979) FLC 90-612 is still the major authority in relation to s 44(3) cases and how they are dealt with. The Full Court there spoke of two broad questions that had to be determined on an application. The first was whether the court was satisfied that hardship would be caused to the applicant if leave was not granted and only if so satisfied then the second question arose as to whether the exercise of the discretion should be granted to enable the applicant to file the relevant proceedings.

12. It is important to say, as was pointed out in Whitford, that the hardship under consideration is not a reference to the loss of a right to institute the proceedings but rather a loss of that opportunity and I quote the Full Court where they said:

    The applicant would probably succeed if the substantive application were heard on the merits.  If there is no real probability of success then the court cannot be satisfied that hardship would be caused if leave were not granted.  Further, the matter with which the court is concerned is not whether the applicant or a child is suffering hardship but the question is whether the applicant or a child would suffer hardship if leave were not granted.  If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated then the court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.

13. There have been a number of authorities since that time but this case fits squarely within the principles set out in Whitford's case. 

14. The material upon which the husband relies is set out in his affidavit.  He says that following the granting of the divorce he commenced negotiations.  Some of those negotiations were conducted by correspondence, some by telephone, and some by email and face-to-face meetings.  As is not surprising, he set out that he was optimistic and believed that he would be successful in his endeavours to resolve the matter but by May 2009 that did not occur.  As a consequence he issued these proceedings.

15. In terms of the delay I am satisfied that they have been adequately explained.  In the scheme of things a period of seven months is not all that significant and, having regard to the fact that he began the trail towards the court door in May 2009, I am not at all troubled about the delay issue. 

16. The question then remains as to hardship.  The husband's material is set out in his affidavit, paragraphs 19 to 23.  In paragraph 19 the husband sets out that subsequent to separation the wife drew a significant sum of money from the joint savings account.  That was money that he says he had deposited after separation.  He said that the wife had not made any deposits into the joint account and had only used the account to withdraw his money.  He made requests of the wife to repay the money but she refused.

17. He then went on to say that there were credit card facilities which, between January 2007 and October 2007, the wife used and incurred an expenditure totally approximately $12,800.  Again, despite a request to pay the portion that she had expended, the wife refused.  The husband therefore paid the bill. 

18. The husband set out that at the time of separation, the wife left the M Street home in which they had been living together.  In September 2008 she moved back into that home as she had been having difficulties with her boyfriend.  He said the parties lived separately under the one roof for approximately two months and then he moved out of that property into a property at S Street.  The wife then moved interstate, arranged to rent out the property that she was living in without his knowledge or consent and she arranged the rental payments to be paid into her personal account.

19. There were some discussions between the parties and an agreement was made that they would equally share the mortgage repayments in respect of M Street and S Street.  The arrangement did not last for more than a couple of months because the wife stopped making her share of the payments and that meant that she had failed, according to the husband, to pay $23,000 in mortgage repayments.

20. The wife's material upon which she relied really does not address the fundamental issues that I have to deal with.  The wife said in respect of the delay issue that the husband chose not to consult a lawyer until May 2009 and even then he chose not to apply to the court until August, some 17 months after the application for divorce was granted.  As I have already pointed out, it is clear that his intention was to begin proceedings in May 2009, notwithstanding they were not begun until August, and the intention is something that I take into account.

21. In respect of the other matters relating to the financial issues to which I have just referred, the wife has a slightly different version, although some of the questions are not answered in detail.  Those matters really do not assist me very much.  Importantly, what the wife does say is the following:

    If the applicant husband's application for leave were refused by this honourable court the applicant husband would not suffer any hardship.  He would still be able to reside in the [S Street] property and as he has reached retirement age he would be able to access his considerable superannuation entitlements. 

22. The difficulty is that on the issue of hardship there is no material in which the wife says that if leave were granted she would suffer any hardship.  I presume, therefore, that she will not be suffering any hardship.  It is a question for me to decide whether the husband would suffer any hardship.

23. The wife's response in paragraph 42 is unrealistic.  Apart from anything else, sooner or later the question of the ownership of joint property has to be addressed and, having regard to the fact that the parties did make efforts to sort those matters out and failed, I can only envisage that there will be an ongoing dispute.  That is something that is important to take into account in a hardship matter.

24. Having regard to the two questions to which I have earlier referred I am satisfied that the husband would suffer hardship if leave were not granted.  It is then only a question of whether or not I ought to exercise the discretion in his favour.  Having regard to the fact that the wife has really not assisted me much with material as to why the discretion ought not be granted I propose to rely upon what the husband says in his affidavit material to indicate that he has not really been out of time by all that much and I can see some considerable problems for he, let alone the wife, in the future. 

25. In those circumstances I think the discretion ought to be exercised in his favour and I propose to grant leave under s 44(3) of the Act.

26. I have before me, having granted leave to the husband under s 44(3) of the Act, an application by both parties for costs. The provisions of s 117 of the Act apply in respect of costs and that is that each party should bear their own costs unless the court finds that there are circumstances which warrant the justification to depart from that rule. If the court decides that there are justifiable circumstances then the provisions of s 117(2A) apply.

27. In this case the application was filed for the orders under s 44(3) in August 2009 and a hearing was fixed for 12 October 2009. That hearing was before a registrar and the wife did not appear as a consequence of which the matter was transferred to the judicial duty list before me today.

28. I am not at all clear on why the wife did not attend and had she done so then there might have been a reasonable discussion about the problems that she was facing having regard to the state of the argument, notwithstanding at that stage that her evidence was not in affidavit form.  Mr Ham on behalf of the husband put to me that instructions given by the wife are nonsense and cost-wasting in terms of the way they have been done. 

29. I always work on the presumption that although lawyers prepare documents and put arguments, they are put on instructions and I agree entirely with Mr Ham in this case that the position adopted by the wife is not much short of nonsense.  It would have been abundantly clear that the joint properties would have had to have been addressed in some form or other in the future and the husband was clearly setting out in his material that he was going to be facing a hardship problem if the application were not granted. 

30. In addition, the question of delay was not all that significant.  It seems to me that there are circumstances therefore where I could say the court is justified from departing from the normal rule. 

31. Ms Naidoo, on behalf of the wife, not only opposes the husband's cost application but seeks costs from him on behalf of the wife.  She has no details about what those costs will be.  There is very little that I can find in the position adopted by the wife which would justify the court departing from the rule that she and the husband should pay their own costs.  There is no material that justifies making an order against the husband.

32. If I then turn to the provisions of s 117(2A) I have the material from both parties in terms of a financial statement as well as the affidavit material setting out their property interests. I am familiar with each party's financial circumstances. I am not told of any grant of legal aid so that issue is irrelevant.

33. One of the issues to be considered is the question of conduct in terms of the approach to the proceedings and, as I have already indicated, I agree with Mr Ham that the position adopted by the wife was bordering on nonsense.  The other matters are whether or not a party to the proceedings has been wholly unsuccessful. 

34. In a s 44(3) application there is little doubt that the applicant is seeking an indulgence. It is a significant indulgence but, having regard to the fact that there was dialogue going on and the wife was represented by lawyers, I can only presume that the wife had said that the husband was to be made to run the gauntlet. If that is the case then I am entitled to presume that the wife has been wholly unsuccessful in these proceedings.

35. I am not aware of any offers in writing between the parties and presumably there were none having regard to the fact that the husband was obliged to proceed to run his case.  In those circumstances it is appropriate to make an order for costs. 

36. Mr Ham on behalf of the husband seeks costs totalling $2000.  The breakup of that probably does not matter, save that he says his brief is marked at $1430 and then to take the balance up to $2000 the costs would be $570 for the legal practitioner who has briefed him.  On the scale attached to the rules, Mr Ham's brief fee would be around about $925 and the costs for the solicitor would certainly be somewhere in the vicinity of probably $1200.  I am satisfied that the sum of $2000 in all of the circumstances is probably well within the ultimate scale and is reasonable in the circumstances.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 December 2009