BELLFIELD & BELLFIELD
[2020] FCCA 2871
•21 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELLFIELD & BELLFIELD | [2020] FCCA 2871 |
| Catchwords: FAMILY LAW – Property proceedings – application to proceed out of time – matters to be considered – balance of hardship – prima facie case – explanation for delay – prospective costs of pursuing application – whether claim is considered uncommercial – consideration of respective contributions – explanation for delay inadequate – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 39, 44, 75, 79, 90XZB |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541 Edmunds & Edmunds [2018] FamCAFC 121 Gadzen & Simkin [2018] FamCAFC 218 Hall, K A and Hall, J C (1979) FLC 90-679 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Jacenko & Jacenko (1986) FLC 91-776 Milas v GM Holden Limited [2015] FCCA 1311 Pierce & Pierce [1998] FamCA 74 Sharp & Sharp [2011] FamCAFC 150 Slocomb & Hedgewood (2015) FLC 93-678 Stanford v Stanford [2012] HCA 52 Waters & Jurek (1995) FLC 92-635 Whitford & Whitford (1979) FLC 90-612 |
| Applicant: | MS BELLFIELD |
| Respondent: | MR BELLFIELD |
| File Number: | ADC 4100 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 20 April 2020 |
| Date of Last Submission: | 20 April 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 21 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Roberts |
| Solicitors for the Applicant: | Adelaide Family Law |
| Counsel for the Respondent: | Ms Horvat |
| Solicitors for the Respondent: | Culshaw Miller Lawyers |
ORDERS
The application for leave to proceed with the application for property settlement out of time, pursuant to section 44(4) of the Family Law Act 1975, is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bellfield & Bellfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4100 of 2016
| MS BELLFIELD |
Applicant
And
| MR BELLFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Bellfield “the wife” and Mr Bellfield “the husband”. The proceedings are concerned with matrimonial property proceedings, particularly whether the wife should be granted leave to proceed out of time.
The parties married in 1983. There is no controversy that they finally separated in mid-2010. They divorced on 2 May 2017, with the relevant divorce order having full effect from 3 June 2017.
Pursuant to the provisions of section 44(3) of the Family Law Act 1975 (“the Act”), any application for matrimonial property settlement must be commenced within a period of twelve months from the date of any applicable divorce order coming into effect, unless the court grants leave to proceed.
Pursuant to section 44(4) of the Act, the court is prohibited from granting such leave, unless it is satisfied hardship would be caused to a party to the relevant marriage if leave were not granted.
The wife commenced matrimonial property proceedings on 7 November 2019, approximately 18 months out of time and nearly a decade after she and the husband ceased to live together.
These reasons for judgment are directed towards resolution of the wife’s application for leave to proceed out of time, which the husband opposes. The parties have agreed that this issue can be determined, on the papers, without the need for any oral evidence or cross-examination.
By necessary implication, the parties acknowledge that there are no significant factual controversies between them and, as a consequence, this is not a case, which turns on the court’s assessment of their respective credibility.
Such an assessment could only occur if each of them entered the witness box and was subject to cross-examination. Each party acknowledges this will not be necessary as, by necessary implication, they each accept the court can resolve the controversy arising between them by considering their respective affidavits.
As such, it will be necessary for the court to consider the application of legal principles to a factual situation, which is essentially agreed, and so determine whether the considerations relevant to section 44(4) have been satisfied.
Background
Mr Bellfield was born in 1958. Ms Bellfield was born in 1960. The parties began their relationship, as young adults, in 1975. They are the parents of two children, Ms C born in 1990 and Ms D born in 1993. Accordingly, at separation, Ms C was nineteen and a half years of age; whilst Ms D was sixteen and a half.
The parties were each in full-time employment for the entirety of their relationship. Initially, the husband was employed as a technician but commenced employment, at the Employer E, in 1983. His starting salary was approximately $56,000.00, but currently he is a supervisor, earning approximately $85,072.00 per annum.
Ms Bellfield commenced full-time employment at the Employer F, in 1983, originally in an administrative capacity. She has remained employed by the Employer F ever since and is currently a health care worker. Her current salary is approximately $105,820.00 gross per annum.
Although Ms Bellfield took maternity leave, following the births of each of the children concerned, she continued to work, at the Employer F on weekends and public holidays. Mr Bellfield took on a labouring job to provide extra money for the family. It is axiomatic that each of them made significant financial contributions during their marriage.
In addition, there is no evidence available to me to indicate anything other than that the parties jointly contributed, in a variety of ways, to their marriage, as parents and homemakers, and pooled their financial resources. In this context, the husband has deposed that the parties shared the care of their children and divided home duties.[1]
[1] See husband’s affidavit filed 21 January 2020 at [38] – [41]
Given the parties’ respective ages, at the commencement of their relationship, neither asserts that he or she was in a position to bring significant assets into their marriage. However, it is the husband’s position that the parties received considerable financial assistance from his parents, which enabled them to acquire their most significant financial asset, namely their former matrimonial home located at G Street, Suburb H.
In his affidavit, the husband has deposed as to the circumstances surrounding the parties’ acquisition of this property.[2] The wife has not elected to dispute this evidence. Mr Bellfield deposes that his parents purchased the property in or around 1993 for the sum of $162,000.00, providing a deposit of $60,000.00, with the balance being provided by mortgage finance.
[2] Ibid at [33] – [35]
The parties moved into the property, after its acquisition, and, to all intents and purposes treated it as their family home, ensuring that it was kept in a good state of repair and meeting the mortgage payments as they fell due.
Thereafter, in around 2000, after the death of Mr Bellfield’s father, the property was transferred into the joint names of the husband and his mother. Later again, around 2008, Mr Bellfield’s mother gifted her interest in the property to him, at no cost.
In these circumstances, it is Mr Bellfield’s estimate that his parents, particularly his mother, provided financial support in an amount of around $90,000.00, to enable him to acquire the former matrimonial home. It is his case that this should be regarded as a financial contribution requiring special recognition.[3]
[3] See Pierce & Pierce [1998] FamCA 74
It is common ground between the parties that the G Street, Suburb H property was sold on 24 July 2013 for the sum of $651,000.00. This occurred following their separation, in circumstances where neither of them was in position to or wished to retain the property by acquiring the interest of the other.
After discharge of the mortgage secured against the property and payment of other liabilities, the net proceeds came to $285,429.42, which was divided equally between the parties, netting each of them the sum of $142,714.71.
In addition, there is no great controversy that other items of personal property, particularly the contents of the home, were also divided equally between the parties, on the property’s sale.
In the context of the current proceedings, the parties disagree as to who of them received the lion’s share of these items – the wife asserting the division was equal, the husband asserting that it favoured the wife.
Given the nature of the current proceedings, it is neither possible nor necessary to resolve this issue, which obviously arises many years later and in circumstances where it will serve no useful purpose for any strict assessment to be made in respect who of them has which particular item of property, given these items, though important, are not likely to have any great residual value now.
Accordingly, it is apparent that the parties were aware, in general terms at least, that it was necessary for them to substantially alter their financial relationship, with one another, because of the practical end of their marriage together and they did so in an informal way, informed by some form of agreement between them.
At this stage, for self-apparent reasons, they focussed on what physical property was available and what needed immediate attention. There was a pressing need to sell the home and divide furniture, so that each could move on with their lives in a financial sense and make a fresh start.
At the time, neither party saw the need to seek legal advice given there was not a great deal of property to divide and how it was held was not unduly complicated. In addition, from the husband’s perspective, he had agreed to what he considered to be a generous division, given the contributions his parents had made to the acquisition of the G Street, Suburb H property.
However, no formal arrangements were made in respect of any alteration of the parties’ respective superannuation interests around the time of this informal property settlement, which centred on the division of tangible assets. As the parties are aware, superannuation is a different type of asset to other more conventional assets, such as real property or chattels.
For one thing, in technical terms it is not actually owned by the party in whose name it is held, being controlled by the trustee of the superannuation fund concerned. As such, its release to the relevant party being dependent on the satisfaction of conditions, most usually retiring from the permanent workforce or reaching a designated age.
In its essence, superannuation is a form of compulsory and deferred saving, intended to enable its ultimate recipient to be able to achieve some modicum of financial independence in older age or, in the case of physical impairment, for employment.
In this context, the husband has deposed that he had presumed that the parties’ superannuation was likely to have been of similar magnitude given each had started their employment around the same time and their work history and level of remuneration were broadly similar.[4]
[4] Ibid at [14]
This has not proved to be the case. Mr Bellfield is a member of a defined benefit fund. In addition, he is currently accessing a transition to retirement pension and is accumulating superannuation in another fund. He estimates the gross value of his superannuation, as at early 2020, in an amount of $579,660.00.
On the other hand, Ms Bellfield is a member of an industry accumulation superannuation fund. She estimates the gross value of her superannuation in an amount of $209,000.00, as at November of 2019. This disparity, which is agreed, is the central issue in the case.
If granted leave to proceed, Ms Bellfield seeks that the parties’ current superannuation holdings should be equalised. In addition, she seeks that the parties’ other matrimonial assets be divided 60/40% in her favour. Her application is silent as to what this means in practical terms.
From Mr Bellfield’s perspective, any alteration of either superannuation or other proprietorial interests affecting the parties would be highly artificial and potentially unfair to him.
It is his case that, in the ten years since the parties’ separation, they have lived financially independent lives, during which period he has made significant contributions to his own superannuation, including voluntary payments through a salary sacrifice scheme.
In addition, it is his position that the earlier informal property settlement agreed upon by the parties favoured Ms Bellfield given the weighting which must be accorded to contributions referable to his mother, which allowed the parties to acquire their former matrimonial home.
In essence, it is Mr Bellfield’s case that much water has flowed under the bridge, since the parties separated. In this period, he has elected to concentrate on preparing for his retirement, whilst the wife has made other financial decisions, independently of him.
As such, he asserts that the parties’ financial affairs have now completely and irretrievably diverged and disinvested, so no just and equitable accounting can be considered feasible.
Finally, it is his case that the potential cost of litigating this issue, given the sum of money involved and the period of time which has elapsed since the parties actually ended their relationship cannot be justified and, of itself, would represent a great hardship to him.
The wife does not agree. Her counsel, Mr Roberts, submits that the husband’s membership of a defined benefit scheme, a state of affairs which pre-dated the parties separation, was a significant factor of advantage to Mr Bellfield, which has never been addressed in any property settlement between the parties, which he submits is fundamentally unfair to Ms Bellfield and, if not addressed, would result in her suffering significant hardship.
Background to the litigation
Time began to run on the wife’s entitlement to commence proceedings, in respect of matrimonial property proceedings, as of right, on 3 June 2017. This legal fact is specifically noted on the relevant divorce order.[5]
[5] See annexure 2 to the husband’s affidavit filed 21 January 2020
By 25 August 2017, it is apparent that the wife was desirous of achieving some further settlement of property, specifically in respect of superannuation, from the husband, for on this date, she instructed her solicitor to write to Mr Bellfield advising him that she wished to negotiate a consent order to this effect.
Specifically, her solicitor, Ms Murray wrote to Mr Bellfield as follows:
“Notwithstanding the sale of the former matrimonial home and the division of the household contents the issue of the split of superannuation assets has not been addressed.
In order to finally resolve property settlement on a full and final basis the superannuation entitlements of each of you will need to be disclosed.
Our client owns superannuation entitlements with J Super Fund of approximately $167,000.
We understand that you own superannuation entitlements from your employment at the Employer E which is a defined benefit scheme.
Our client has instructed us to negotiate Consent Orders and an Application for Consent Orders in order to finalise property settlement matters.
In order to negotiate a full and final settlement the superannuation entitlements of each party are to be taken into account.
In order to establish the equalisation of superannuation entitlements we require a copy of your most recent superannuation statement. We attach* hereto a copy of our client's most recent superannuation statement from J Super Fund.
We understand that your fund may be a defined benefits scheme and therefore an actuarial valuation of the fund will be necessary.”[6]
[6] See annexure A of the wife’s affidavit filed 7 November 2019
At this stage, Ms Murray provided a statement from Ms Bellfield’s superannuation fund indicating a balance, as at 30 June 2017, of $160,969.00. In all these circumstances, it is axiomatic that the wife had received legal advice and had told her solicitor of the informal property settlement.
I am not aware of the specific advice provided to Ms Bellfield but it seems unlikely that the date of the parties’ separation was not canvassed and the issue of whether they were divorced was not touched upon. If the solicitor concerned had not sought such information, in my view, it would have been a serious oversight.
It is Ms Bellfield’s evidence that Ms Murray’s letter of 25 August 2017 was returned to sender on 21 November 2017. This resulted in a further letter, in similar terms, being sent to Mr Bellfield, at another address in suburban Adelaide, which was also returned marked not at this address.
In early April of 2018, the wife provided Ms Murray with a further address, in suburban Adelaide, at which she believed Mr Bellfield was living. Once again, a letter in the same terms was dispatched to him at this address. The letter was not returned, but no response was received in respect of it. As a consequence, Ms Murray arranged for the letter to be personally delivered to Mr Bellfield, which occurred on 2 May 2018.
Mr Bellfield responded on 29 May 2018 in an email to Ms Murray. Inter alia, he indicated a view that, as the parties had begun their employment at approximately the same time, it appeared the information provided to him, regarding the wife’s superannuation, appeared to be inadequate. In addition, he asserted that he had provided support for both the wife and children, in the period between separation and the sale of the former matrimonial home.
On 7 June 2018, Ms Murray responded to Mr Bellfield’s correspondence by way of a letter addressed to him care of his employment at the Employer E. In this correspondence, Ms Murray indicated that there was no error in the amount attributed to the value of Ms Bellfield’s superannuation entitlements.
In addition, Ms Murray requested of Mr Bellfield that he provide details of his own superannuation entitlements to her. In closing, Ms Murray wrote as follows:
“Our client has proposed that the equalisation of superannuation entitlements be effected (sic) by way of a consent order and application for consent orders. We repeat that offer.”[7]
[7] See annexure C to the wife’s affidavit filed 7 November 2019
By the date of this letter, Ms Bellfield was out of time to bring her application. She is critical that the husband did not respond to the letter more expeditiously. The document trail indicates that, on 13 September 2018, Mr Bellfield wrote to Ms Murray’s firm, in the following terms:
“In regards to the latest correspondence, I have now contacted a lawyer to look into this matter and will follow up from there.”[8]
[8] Ibid at annexure D
The wife has deposed that she had assumed that Mr Bellfield would respond through a solicitor and thereafter “his lawyer would contact mine and we could negotiate a settlement comprising a superannuation splitting arrangement by consent”. Mr Bellfield did not do what had been expected of him and Ms Bellfield has provided no basis for her assumption.
Although Mr Bellfield can be criticised for a lack of courtesy in not responding more expeditiously, he was under no legal obligation to do so. Nor can he be penalised on the basis that he was not readily contactable by those advising Ms Bellfield or for not accepting the offer made. He was a free agent in this regard.
Ms Murray wrote to the husband again on 17 October 2018 requesting details of superannuation. No response was received. She wrote again on 30 January 2019 threatening to institute proceedings within 14 days.
As previously indicated, it was a further nine months before this threat was realised, by which stage the application was around eighteen months out of time. It was also at least twenty six months after Ms Bellfield had contacted Ms Murray in respect of the superannuation issue.
Ms Bellfield has deposed as follows:
“I have been significantly affected by the obvious reluctance of the husband to provide information regarding his superannuation and his failure to respond to my lawyer’s correspondence.”[9]
[9] Ibid at [19]
I have been provided with full details of Mr Bellfield’s superannuation at various relevant dates. He has been a member of the J Super Fund since 1983 and continues to be so. As previously indicated, a greater proportion of his superannuation is held in a defined benefit scheme.
As I understand matters this fund is one which is backed by the Government of South Australia and provides for Local Government Employees in that state pursuant to the Local Government (Superannuation Scheme) Amendment Act 2008 SA.
In general terms, a defined benefit scheme provides its member with a pension for life, which is calculated by reference to the individual salary when leaving permanent employment; length of service; and age when leaving employment; in addition to the amount contributed by the employee concerned.
Essentially, the amount of the pension does not depend on the amount of money contributed into the fund alone but also on when particular specified events occur. The payment of the resulting pension is usually for the remainder of the recipient’s life, which obviously cannot be known with any degree of certainty.
Accordingly, in distinction to accumulation superannuation funds, it is impossible to accurately assess the value of such funds at any given time. Rather, applicable regulations [Family Law (Superannuation) Regulations 2001] provide various formulae, pursuant to which defined benefit superannuation funds can be valued for the purpose of proceedings under the Family Law Act 1975.
Part of each such formulae has reference to actuarial principles – particularly life expectancy. In the current matter, it appears to be the case that a specific valuation formula has been approved for the calculation of the value of superannuation in the applicable fund, of which Mr Bellfield has been a long term member.
In the present matter, the relevant superannuation fund has provided, to Mr Bellfield, its calculation of his superannuation entitlement at a variety of salient dates pursuant to the relevant formula. The various valuations provided to me indicate that he has a defined benefit fund (Salary Link SLDB); an accumulation fund (Employer Sponsored SWAC); and more recently has begun a transition to retirement fund (ABRP). This last fund was commenced after the parties separated.
At relevant times, the value of these funds is as follows:
Date
Defined Benefit
Accumulation Fund
Transition to Retirement
31/05/2010
$217,605.00
$42,536.00
N/A
30/06/2013
$305,876.00
$76,807.00
N/A
17/01/2020
$442,292.00
$26,714.00
$109,290.00
25/03/2020
$459,596.35
$23,826.00
$94,441.96
In general terms, it is advantageous for the husband, whilst he is in employment to access some of his superannuation in the form of an income stream due to the rate of tax it will attract. The pension can then be contributed back into superannuation. Clearly, this arrangement long post-dates the parties’ separation.
In his affidavit evidence, Mr Bellfield has deposed that “since about the time of separation [he has] been salary sacrificing in order to bolster [his] superannuation entitlements”.[10] This assertion founds his contention that it would be prejudicial to him for the court to undertake any equalisation of the parties’ superannuation, given the absence of any ongoing financial relationship between them and the fact that each has chosen to take a different approach in respect of the funding of their respective retirements.
[10] See husband’s affidavit filed 21 June 2019 at [52]
The most significant difference between them is how each has elected to provide for their on-going accommodation. The wife purchased a property in Suburb K, which is subject to a mortgage in an amount of approximately $370,600.00. She estimates the value of the property to be around $565,000.00.
Ms Bellfield has not provided evidence as to what was the property’s purchase price or date of purchase. Mr Bellfield believes that it was purchased shortly after the sale of the former family home in G Street, Suburb H utilising her share of its sale proceeds.
In her financial statement, the wife indicates that her mortgage payments are around $1,800.00 per month. The wife also concedes that she has utilised a modest inheritance to reduce the mortgage on the property. Apart from the property, Ms Bellfield has few assets of significant value. She has a car worth $6,000.00; the contents of her home valued at $10,000.00; but no savings.
Mr Bellfield has not elected to purchase some form of housing for himself. He has rented and is currently paying around $200.00 per week in rent. He has also re-partnered. He owns a more recent model motor vehicle, which he values at $26,000.00; household contents estimated to be worth $1,000.00; but in contrast to the wife, savings of $48,500.00.
The parties’ respective financial statements summarise this discrepancy in asset backing. In net terms the husband has assets of $75,500.00 and a modest credit card debt. Whilst the wife has equity in her home valued at $194,364.00. She has, however, much more significant credit card debt than the husband.
In this context, it the tenor of the husband’s case that he is pre-disposed to be financially conservative; whilst the wife is less financially disciplined. As a consequence, it is his case that he has orientated his financial management to ensuring that he has as large a source of retirement savings as possible, at the cost of not having a house; whilst the wife has taken a different approach.
In addition, it is the husband’s case that he has continued to provide financial assistance to the parties’ now adult children, particularly Ms D. He provides her private health insurance and motor vehicle insurance. It is his evidence that he also purchased a car for Ms D in 2014, from his share of the sale proceeds of the G Street, Suburb H home, for the sum of $17,000.00, which the wife was also able to use.
In this context, when Ms D moved out and took the car with her, in late 2014, he purchased another car, which cost $10,000.00, which he gave to Ms Bellfield for her use. This car was traded in on the vehicle Ms Bellfield currently uses. Mr Bellfield points to these further factors to support his contention that he has not been ungenerous or unreasonable so far as financial issues are concerned in respect of the wife.
There can be no doubt that there is a significant discrepancy in the value of the superannuation held by each of the parties at the present time. In total, Mr Bellfield’s amounts to $577,854.31; whilst Ms Bellfield’s totals around $200,000.00. It is held in an accumulation fund. Accordingly, it does not comprise any potential unfunded component, unlike the husband’s fund.
In purely arithmetical terms, at the present time, if the parties’ tangential property holdings are added together and the same task is completed in respect of their superannuation, the husband would have 27% of the total property pool and the wife would have 25% of the total superannuation pool.
However, the quantum of the two pools is different – total property comes to $269,364.00; whereas, in total, the superannuation pool comes to $777,854.31. What is less certain is how the superannuation holdings have changed over time and what specific factors have led to the increases, particularly given the nature of the husband’s defined benefit account.
What is known is that, at separation in 2010, the husband held $260,141.00 in superannuation. Accordingly, over a period of around ten years, his holding has more than doubled in value. As a consequence, he has access to a financial resource which he can access as he prepares for his retirement from the workforce. However, he has no other significant sources of capital.
I have not been provided with any arithmetical analysis as to how this growth has occurred other than the husband has deposed that both he and his employer have made regular contributions to it and the corpus of the fund has been subject to compound interest, which Albert Einstein reputedly called the eighth wonder of the world.[11]
[11] The quotation attributed to him is as follows: “Compound interest is the eighth wonder of the world. He who understands it, earns it. He who doesn't, pays it”.
From my perspective, what is significant is the period of time during which the superannuation has grown, after the parties’ final separation, and the fact that it is decisions attributable only to the husband – his salary sacrifice and remaining in employment – along with the forces of the economy and compound interest, which have led to the growth. The wife has played no part in the growth of the fund.
In addition, the evidence is clear that the parties have largely led financial lives independent of each other. They have not mingled their funds or provided recurrent financial support to the other. Essentially, each has continued to work full time and receive an income roughly comparable, which has funded in full each of their recurrent financial needs.
In this situation, each has been able to make independent decisions as to what they will do with their respective incomes. In this context, the wife elected to purchase a piece of real property to provide the security of a roof over her head, which of course is a readily understandable impulse, given the importance many in Australian society place on owning a home. The husband decided to keep his capital in liquid form.
Home ownership is not without its costs and perils. It is not inevitable that house price will always rise and there are significant costs, in the form of interest, in borrowing on mortgage. Notwithstanding these issues, many prefer to borrow and buy rather than to rent ad infinitum. It is an idiosyncratic decision, which in the present case, the wife clearly made independently of the husband.
The one distinction between the parties, which cannot be the product of choice or preference, is the fact that the husband is a member of a defined benefit scheme, rather than an accumulation fund. The benefit falling to the husband, but not to the wife, being that the husband’s employer will potentially bear the open ended responsibility of providing financial support to Mr Bellfield long after the monies directly attributable to him have been expended.
Clearly, this is a significant advantage, which he enjoys but Ms Bellfield does not. However, there is no evidence to indicate that the parties decided, as a mutual financial strategy adopted in the early 1980’s, that the husband should seek employment which provided such a benefit. Rather, both he and the wife sought employment which suit them and their qualifications at the time. In simple terms, the fact that the husband is in a defined benefit fund and the wife is not is a matter of happenstance, not planning.
As indicated above, it is a significant element of the wife’s case that the husband has been manipulative in respect of his superannuation holdings and has actively tried to conceal them from her. In my view, this is something of a simplification.
The evidence is clear that Mr Bellfield has been a member of the same fund for many years and it is the fund applicable to employees. As such, there is nothing to indicate that he has tried to hide funds from her or has moved them into a different account once he became aware of the wife’s interest in his superannuation.
This is relevant because the applicable legislation authorises separated spouses to obtain information from the other spouse’s superannuation trustee in respect of funds held by that spouse [see section 90XZB]. In addition, it would not represent any bar to the wife commencing proceedings that she was unaware of the details pertaining to Mr Bellfield’s superannuation. It is now clear the wife has full details of the husband’s holdings.
For reasons, which are not clear to me, I have not been provided with any analysis of the wife’s holdings as at the date of separation. Accordingly, I am not in a position to make a comparison of what has occurred to her funds, in the decade which has followed, during which period the parties have implicitly elected to take different approaches to retirement planning.
It is necessary for the court to analyse the explanation provided by the wife for not instituting the proceedings within time. In this context, I note that the wife instructed her solicitor to write to Mr Bellfield, in respect of property proceedings, well within the limitation period.
In these circumstances, it does not seem an unreasonable inference that Ms Murray was well aware of the limitation period, given her legal qualification. Whether Ms Murray explicitly informed Ms Bellfield of the limitation period, at this stage, is unknown to me.
Ms Bellfield has provided various inter-related explanations as to why she did not bring the proceedings within the time limit, none of which includes the fact that she was unaware of the time limit, particularly that her solicitor had failed to inform her of it. The explanations can be summarised as follows:
·She was “significantly affected by the obvious reluctance of the husband to provide information regarding his superannuation and his failure” to respond to Ms Murray;
·The fact that Ms D was living with her at relevant times and presumably she did not want to upset Ms D or involve her in her parents’ affairs;
·She was “profoundly affected by the circumstance” of the parties’ separation and the resulting change in their financial circumstances;
·She became “despondent” as a consequence of the husband’s failure to agree to an equalisation of the parties’ superannuation;
·She was “reluctant to open correspondence from [her] lawyer or instruct them to proceed to court, despite the time limit having expired”;
·It was difficult to obtain leave from her work to attend her lawyer’s office;
·Ms Murray was unwell during the latter part of 2018 and mid-2019 and underwent surgery in October 2019.
The wife may have been disappointed that the husband did not readily accede to her request for equalisation. He was under no obligation to do so. In addition, the wife had avenues available to her to ascertain the extent of the husband’s superannuation entitlements. I do not consider that these can be regarded as adequate explanations for the delay.
They were not actually impediments to the wife bringing proceedings within time. In addition, the wife’s assertion that she was upset by the parties’ separation must be examined in the context of the length of the parties’ separation and the fact that their major asset – the family home, the realisation of which I accept had the potential to be emotionally wrenching for the wife – occurred many years ago.
Similarly, I do not consider that the wife’s concern regarding causing emotional disturbance to Ms D, given her age and the length of the parties’ separation, can be considered an acceptable explanation for the delay. It is regrettable that Ms Murray fell ill. I do not know what ramifications her illness had for the professional management of her firm.
Time limits are a significant incident of legal practice. In general terms, it is the responsibility of a legal practitioner to diarise time limits. Whether this occurred in the present case is unclear to me as is whether Ms Bellfield was told of the time limit. What is clear is that the failure to institute proceedings in time cannot be attributable to the husband and the wife instructed a solicitor within the relevant time frame.
In any objective sense, notwithstanding her work commitments and any incapacity on Ms Murray’s part, it was open to the wife to instruct Ms Murray’s firm to institute proceedings via a telephone call or email. I do not know what was the content of the letters sent to Ms Bellfield, which she was reluctant to open – whether at all or tardily is unclear to me.
However, clearly, in my view, it is an act of irresponsibility to fail to attend to one’s personal correspondence and this is not a state of affairs likely to influence the positive exercise of such a significant discretion as that regarding the extension of time.
Mr Bellfield has re-partnered. It is the wife’s position that Mr Bellfield and his current partner are able to share expenses and this is a considerable advantage, which he has and she does not. It is Mr Bellfield’s evidence that he has been in the relationship concerned for about four years. However, he deposes that his partner is in poor health and is not working. Accordingly, she does not provide him with any financial assistance.
More significantly, Mr Bellfield points to the fact that the wife earns around $20,000.00 per annum more than him. As such, it is axiomatic that she is currently in a better financial positon than him and ipso facto able to make a greater provision for her retirement security from her recurrent income.
Applicable legal provisions
Pursuant to section 39 of the Act, this court has jurisdiction conferred upon it in respect of what are termed matrimonial causes. This expression is defined by section 4(1)(ca), to include proceedings in respect to the property of the parties to a marriage…arising out of their marital relationship.
Part VIII of the Family Law Act 1975 deals with financial matters relating to parties who are or have been married to one another. In particular, section 79(1) authorises the court to alter the property interests of the parties to a marriage. Part VIIIB provides specific provisions enabling the splitting of superannuation between spouses, including de facto partners.
However, time limits are imposed in respect of such applications. Pursuant to section 44(3) where a divorce order has taken effect proceedings of the kind referred to in paragraph 4(1)(ca) shall not be instituted, except by leave of the court … after the expiration of 12 months.
As indicated at the outset, the court has a discretion provided by section 44(4) to grant leave if it is satisfied:
“that hardship would be caused to a party to the relevant marriage or a child if leave were not granted.”
It is appropriate, at this stage, for me to outline what are the principles which are to be applied, in respect of any alteration of the property interests of the parties concerned, if leave is granted. This is because the applicable authorities require the court to make some sort of prospective assessment of what a party will forego, if leave is not granted. This is the essence of hardship.
In this context, it is essentially the husband’s position that the wife will not lose a great deal and, even at its highest, the costs which will be incurred in pursing her prospective case do not justify its instigation. On top of this, he also asserts that it would be fundamentally unfair to him, in all the circumstances, to grant leave.
The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of Part VIII of the Act. Pursuant to section 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
Pursuant to section 79(2) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a court is to make an order altering marital property interests. It provides seven matters [in paragraphs (a) – (g)] to be considered, as relevant.
Paragraphs (a); (b); and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the court to take into account the effect of any order upon the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the court to consider a list of matters contained in section 75(2), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.
Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until recently, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled, as it required the application of a preferred approach. This approach entailed a four step process, described by the Full Court as follows:
· identification and valuation of the property of the parties;
· identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – section 79(4) (a) to (c);
· identification and assessment of the various matters in section 79(4)(d) to (g) including to the extent they are relevant, the matters in section 75(2) – the prospective needs phase;
· considerations of justice and equity.[12]
[12] See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60]
The general applicability of this four step process has been recast, to some extent, in the light of what has been said recently by the High Court in the matter of Stanford v Stanford.[13] In the case, the majority stated that:
“It will be recalled that s 79(2) provides that ‘[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [14]
[13] Stanford v Stanford [2012] HCA 52
[14] Ibid at [35] – [36]
Accordingly, considerations of what is just and equitable flavour all applications pertaining to property settlement. What is fair is impossible to define with certitude and must depend on the prevailing circumstances.
The “overriding requirement” of section 79 is that considerations of justice and equity should inform the process envisaged therein. The exercise I must undertake is not a “process of social engineering”[15] or of equalisation of assets or financial resources.
[15] See Waters & Jurek (1995) FLC 92-635
Considerations of this type inform the so-called fourth step, as well as providing the determination as to how the court should approach issues such as notional property. The court must make the orders it considers just and equitable.
As I understand Mr Bellfield’s case, he asserts that it would not be just and equitable for there to be any splitting of his superannuation given the period which has elapsed since the parties separated and given the different approaches each party has adopted to financial matters in that period.
The authorities are clear that limitation periods, imposed by the legislature, are not empty shibboleths. Their rationale is that it is in the interests of society, as a whole, that litigation between individuals be commenced within fixed and well understood temporal parameters so that once those parameters have been reached, all concerned can carry on with their lives in the certitude that they will not be subject to litigation in respect of events which occurred in their past.
In Brisbane South Regional Health Authority v Taylor McHugh J (with whom Dawson J agreed) pointed out that
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’.”[16]
[16] Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541 at 551
Later in the case, his Honour said as follows:
“A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. ... A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”
In the same case, Toohey and Gummow JJ said as follows:
“The discretion ... is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.”
The Family Court has enumerated the individual considerations which inform the discretion to ameliorate the limitation period, in appropriate circumstances, where the interests of justice require that it be extended. Essentially, it is a discretion to be exercised judicially by identifying matters relevant to the discretion, in the particular case and weighing those matters against one another.[17] The discretion is to be exercised primarily within considerations of the hardship which would be occasioned to the relevant applicant.
[17] See Milas v GM Holden Limited [2015] FCCA 1311 per Judge Sullivan
In Whitford & Whitford the Full Court of the Family Court, in a case concerned with the twelve month limitation period arising as a consequence of section 44(3) and the granting of a divorce order, stipulated that 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.” [18]
[18] See Whitford & Whitford (1979) FLC 90-612 at 78,146
Accordingly, this court is not in a position to overlook the legislature’s intention that, ordinarily, property proceedings arising in respect of a marriage should be commenced within one year of the court formally dissolving the marriage concerned.
Unlike parties to a de facto relationship, the process of divorce involves a formal application to the court, which in turn produces written evidence of the dissolution of the marriage concerned. On the relevant divorce order is a notice informing the relevant parties of the applicable time limit. Accordingly, the wife is not in a position to assert that she was wholly ignorant of the time limit.
The chief rationale informing the legislature’s intention, in this regard, being that former parties to a marriage are entitled to a sense of finality in respect of issues arising from their previous relationship and that delay, of itself, has the potential to lead to injustice.
In this particular case, in my view, it is significant that the parties separated a significant period of time prior to their divorce and engaged in an informal division of their property. This is not a case where it can be said that one party has had a cavalier disregard of the interests of the other.
Equally significantly, it is Mr Bellfield’s position that he made decisions in respect of how he would invest in superannuation in the light of the informal property settlement, which he considered to be fair to all concerned, particularly at the time as the wife did not assert otherwise.
However, in order to temper any potential hardship, the legislature has also provided a discretion to the court to extend time. This discretion must be exercised judiciously and advisedly. In Whitford, the Full Court determined that the manner in which this discretion is to be exercised must depend on the facts of the particular case. It is an idiosyncratic decision.
Relevant matters for consideration include the length of the delay; the reasons for the delay; any prejudice occasioned to the respondent by reason of the delay; the strengths, on the merits, of the applicant’s case; and the degree of the hardship, which would be suffered unless leave was granted. These are all matters relevant to the exercise of the discretion, but not necessarily the only ones.[19]
[19] Ibid at 78,146
In Jacenko & Jacenko[20] Nygh J referred to the relevant principles applicable to an application pursuant to section 44(3) [the equivalent of section 44(6) applicable to divorce orders] and said as follows:
[20] See Jacenko & Jacenko (1986) FLC 91-776 at page 75,644
“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.
…
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.”
Nygh J also considered that relevant binding authority also provided that, in “appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay.” Accordingly, it seems apparent that one of these factors is not to be regarded as preeminent over the other nor must all be satisfied. Rather it is a question of them each being weighed and considered so that the interests of justice are served in the individual case concerned.
In Jacenko the court considered the matters to be considered in determining whether an applicant for leave to proceed out of time had or had not established a prima facie case for relief in respect of matrimonial property settlement orders.
These considerations are relevant given the leave issue must most usually be determined as a preliminary matter, as in the current case, at an interlocutory stage, prior to a more detailed examination of all relevant evidence by the court. The court held as follows:
“… the general principle is that on the issue of the establishment of a prima facie case the Court proceeds on the basis that the evidence of the applicant, unless it is inherently unbelievable or contradictory, should be accepted, and the Court should therefore decide whether or not on that basis a prima facie case has been made out. If leave is granted, then it is for the Court conducting the ultimate hearing to determine whether the prima facie case can be established.”
In Hall and Hall[21] the Full Court of the Family Court reviewed a number of earlier cases which had addressed the issue of the required strength of the prima facie case in s 44(3) applications. The Full Court said:
“These varying phrases may tend to suggest different shades of meaning whereas in reality they are directed to the same fundamental enquiry which basically is in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the Court.”
[21] See Hall, K A and Hall, J C (1979) FLC 90-679 at 78,626
In Sharp & Sharp[22] the Full Court considered that, in the context of section 44(4), hardship involved more than the loss of a right to commence proceedings. It was what followed from the loss of that right, which was central. This was the basis of the test that an applicant must have a prima facie claim worth pursuing or a real probability of success.
[22] See Sharp & Sharp [2011] FamCAFC 150
In Sharp the Full Court summarised the relevant test in the following terms:
“[T]he 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”.[23]
[23] Ibid at [18]
In Edmunds & Edmunds[24] the Full Court indicated that the assessment of such a prima facie case involved:
“… 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.”
[24] Edmunds & Edmunds [2018] FamCAFC 121 at [48]
A further gloss was placed more recently, on this statement of principle, by the Full Court in Gadzen & Simkin[25] which indicated that the assessment of prospective costs was a part of the exercise of assessing a prima facie case. The Full Court said as follows:
[25] Gadzen & Simkin [2018] FamCAFC 218 at [37] & [42]
“…the starting point in determining an application for leave is to consider the question of hardship which requires for its existence a conclusion that an applicant has a prima facie or arguable case of substance having regard to all of the circumstances of the case. That must take into account the costs or likely costs to be incurred in pursuing the claim.
…
An analysis of the potential claim of the de facto wife was necessary to determine whether or not hardship would be occasioned to the de facto wife if she were not granted leave to pursue that claim. Further, as the authorities to which reference has been made demonstrate, an essential element is to consider the prospective legal costs of pursuing the identified or identifiable claim. Obviously, the prospective costs may render the conclusion that no hardship would be occasioned to an applicant to pursue an uncommercial claim.”
Consideration must also be given as to the reasons why there has been a delay in the institution of proceedings. In Slocomb & Hedgewood[26] the Full Court was dealing with an application for leave to proceed which was eighteen years out of time.
[26] Slocomb & Hedgewood (2015) FLC 93-678
Slocomb involved a married couple, who had been divorced in 1995. At first instance, the trial judge refused leave to proceed and noted that attention was drawn to the applicable time limits in the Decree Nisi document which was forwarded to each party following divorce.
In the case, the Full Court approved the passage of Nygh J from Jacenko to which I have already referred at [79] and said as follows:
“In appropriate cases the interests of justice might overcome long delay and on occasions an inadequate explanation for the delay, which is only one factor to be considered in determining an application for leave pursuant to s 44(3) of the Act.”[27]
[27] Ibid at 80,548 [42]
In my view, Slocomb was a case which significantly turned upon its facts. The trial judge, who refused leave accepted hardship would be accorded to the applicant concerned but found her explanation for the delay to be unacceptable.
The case itself concerned a potentially very small asset pool, which chiefly consisted of the former family home, which was held as joint tenants by the parties, one of whom had left the home at separation to the other, who had retained all the benefits of ownership.
The hardship occasioned centred on issues to do with the consequences flowing from this situation, which left one party in ipso facto control of all marital assets, whilst the other was left with nothing. This inherent level of hardship outweighed the inadequacy of the explanation for delay in instituting proceedings.
From these various authorities, in my view, the following principles may be distilled in respect of the exercise of the discretion to extend time:
·limitation periods are significant as they are created by the legislature to safeguard legitimate public interests. As such, they should not be arbitrarily over-ruled;
·however, the discretion to extend time is to be liberally exercised in order to avoid hardship;
·hardship is more than the loss of an entitlement to bring proceedings. Rather the court must look at what are the consequences, for the applicant concerned, of not being able to institute proceedings;
·the applicant must establish a reasonable prima facie case for the relief sought, if the proceedings had been brought in time. What this means is whether, on the material available, the applicant has a reasonable claim;
·this process of assessment must involve the likely strengths and merits of the claim sought to be advanced, including prospective costs;
·there must be a real possibility of success. Hardship will not arise if leave is not granted to pursue a claim which is assessed as being uncommercial;
·in assessing what is a reasonable prima facie case, the court should accept the evidence of the applicant concerned, at its highest, unless it is patently absurd or contradictory;
·the applicant must establish that he or she would suffer hardship if an extension is not granted;
·the discretion to extend time must be exercised judicially;
·as such, a reasonable explanation for the delay must be provided;
·also relevant, in this context, are the following:
o the length of the delay;
o the prejudice to the respondent if leave is granted;
o any other relevant consideration;
·however, an explanation for delay is but one factor amongst several and the overall interests of justice may overcome what is to be regarded as an inadequate explanation.
Discussion
In my view, the length of the delay, given when the parties finally separated and what transpired in that interval, must be considered significant. Essentially the parties divided their most significant tangible assets and then, to all intents and purposes, went their separate financial ways.
This involved the wife purchasing a home for herself and utilising an inheritance to reduce a mortgage. At the same time the husband elected not to purchase a home but to remain in his defined benefit superannuation scheme and contribute additional portions of his income to it. As such, in my view, there would be significant prejudice accorded to Mr Bellfield if the wife is granted the leave she seeks.
This is not a case in which it can be established that there has been a vast discrepancy in the financial circumstances of the parties concerned, either before or after their separation. The chief distinction between them being that the husband has the significant advantage of being a member of a defined benefit scheme rather than an accumulation scheme.
In my view, it is difficult for the wife to assert that any contributions, referrable to her, led to this state of affairs. Rather it was an incident of the husband’s employment. The fact that the husband was in such a scheme does not denote that the wife was placed in a more arduous situation as a consequence of the nature of her former spouse’s employment such as might be conceivable in the case of the partner of a member of the defence forces or a police officer.
The evidence indicates that the parties’ direct financial contributions, during their marriage, are likely to fall within similar parameters. The distinction being what the husband asserts are the greater contributions referrable to his family in providing the seed money, which enabled the parties ultimately to acquire the G Street, Suburb H property.
There is no presumption that superannuation entitlements are to be equalised. Whether a superannuation splitting order is, or is not, made must depend on the overall equity of the circumstances prevailing. As such, issues relating to the earlier informal property settlement between the parties remain germane to the issue of superannuation.
It is the husband’s case that the informal settlement favoured the wife. For her part the wife does not seek to re-agitate that settlement. She utilised her share of it to purchase her current home. Rather, she seeks to be allocated up to one half of the husband’s superannuation entitlements.
It is unknown to me what was the discrepancy, if any, between the parties’ superannuation, as at the date of their separation. It is a significant factor that, at the time they had each been in full time paid employment and had earned similar salaries. Accordingly, in financial terms, their respective contributions to superannuation must be regarded as relatively equal.
The distinction now apparent between their superannuation levels being the nature of their respective funds and, in the period since separation, salary sacrifice. Accordingly, in my view, it is difficult to conceive that the wife has a strong claim to the orders which she proposes.
This is particularly so when one considers their prospective needs and likely future circumstances. Each of them has been in employment for the majority of their working lives. Their incomes have been similar. As such, each has been in a position to make similar preparations for retirement, in terms of their individual contributions to superannuation.
The wife has the benefit of a home; the husband of having a guaranteed income stream for the retirement phase of his life. I do not consider that just because the husband is a member of a superior scheme, considerations of justice and equity dictate that the wife would achieve an equalisation of superannuation.
In this context, I must consider what level of hardship is likely to be occasioned to the wife if she is not granted leave. As a corollary of this consideration, I must consider the level of costs likely to be incurred in pursuing her best possible outcome.
I am concerned that the wife approaches the case subject to a level of misconception. Just because the proceeds of the G Street, Suburb H property were divided equally, it does not follow that there will be (or should be) an equalisation of superannuation. If granted leave to proceed, the court will attempt to construct a composite pool of assets, including the proceeds of sale of the G Street, Suburb H property and items of property into which those proceeds can be traced, and examine disparate contributions in this context.
Accordingly, the husband’s contention that the initial informal property settlement favoured the wife and did not properly recognise the special level of contribution stemming from his parents providing capital would be a factor in any further proceedings. As would the circumstances surrounding the wife’s acquisition of her current property.
Of equal significance would be issues relating to the fact that in the decade or so since the parties separated notwithstanding their similar levels of income, they have very distinct levels of superannuation, on the one hand, and asset backing, on the other.
In all these circumstances, it cannot be taken as a given that there will be any great split of superannuation made in the wife’s favour out of the husband’s defined benefit fund merely because it is larger than that of the wife.
In this context, more significantly, I am gravely concerned that the legal costs associated with litigating these various abstruse and potentially vexed legal and factual issues would be out of proportion to the extent of any split, if any at all, which would be granted to the wife, given the other factors of contribution which are in play.
In all these circumstances, I do not accept that the wife has established that she would suffer hardship in the sense envisaged by the applicable authorities. In addition, as I have indicated above, the reasons provided for the delay in instituting proceedings within time are inadequate.
Finally, as with any discretion provided to a court, the decision as to whether to extend time is one which is to be exercised judicially. In this context, any potential prejudice to Mr Bellfield must be carefully considered.
In my view this is not a case in which his conduct towards Ms Bellfield can be impugned. It is not a case, such as Slocomb were one party has retained all assets whilst the other has sat upon her rights. Rather it is one characterised by the parties concerned electing to take different financial pathways over the extended period of time during which they have severed their relationship as spouses. As such, it would be unfair to Mr Bellfield to grant the leave sought by Ms Bellfield.
In these circumstances, the application for leave to proceed out of time is dismissed. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty nine (169) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 21 October 2020
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