BENSON & BENSON

[2018] FamCA 29

FAMILY COURT OF AUSTRALIA

BENSON & BENSON [2018] FamCA 29

FAMILY LAW – SPOUSAL MAINTENANCE – Leave to commence spousal maintenance out of time – failure of respondent to raise leave question in a timely manner

Family Law Act 1975 (Cth)

APPLICANT: Ms Benson

RESPONDENT: Mr Benson

FILE NUMBER: CAC 599 of 2013

DATE DELIVERED: 25 January 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 25 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Mr Routh, Farrar Gesini Dunn

Orders

I grant leave to the wife to conduct spousal maintenance proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Benson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 599 of 2013

Ms Benson

Applicant

And

Mr Benson

Respondent

REASONS FOR JUDGMENT

1. In this matter issue has been taken with the wife’s failure to apply for leave or to obtain leave in respect of a spousal maintenance application. The history of the matter has been helpfully set out by the lawyer for the respondent, Mr Routh who has indicated that the wife’s initiating application was filed on 13 October 2014 and there sought property orders including orders in respect of superannuation. The parties had obtained their final divorce order on 14 October 2013 meaning that the wife’s initiating application was filed one day within time that is one day before the 12 month period had lapsed. The wife by an amended application on 20 October 2015 first made application in respect of spousal maintenance then for interim spousal maintenance. That application was made out of time as required by s 44(2) of the Family Law Act 1975.  There was an obligation for leave to be obtained again as set out in that same section.

2. The proceedings moved through the Circuit Court to an allotted final hearing of the matter.  The final hearing did not take place although final property orders were resolved at the date of the final hearing on 11 May 2016.  There were remaining extant proceedings for the spousal maintenance application that had been made by the wife.  Those matters were not resolved and on 12 July 2016 the Circuit Court matter was transferred to the Family Court of Australia. Following that transfer there was some agitation as to whether or not there remained property orders to be dealt with and whether there was a jurisdiction in this Court to do that. That was dealt with by me on 29 May 2017 where I determined that the property power had been exhausted but that there remained spousal maintenance proceedings on foot.  Orders were subsequently made to enable those spousal maintenance proceedings to be finalised along with an application made by the wife for enforcement in respect of the orders made by Judge Neville in respect of a self-managed superannuation fund.  Trial directions were given and the matter was set down for its final hearing today.

3. It was today that the issue of leave first appears to have been raised.  The wife explains that she did not file an application for spousal maintenance in time because she was not aware of any capacity to apply for spousal maintenance.  She says that she first learnt of that capacity through a friend.  The wife engaged lawyers at the commencement of her proceedings in the Federal Circuit Court and engaged lawyers to assist her in the drafting of orders for the final hearing that was to take place before Judge Neville.  She however says that she received no proper advice from those lawyers and was not challenged about her lack of awareness of a capacity to apply for spousal maintenance.

4. In relation to the question of hardship should leave not be granted two broad matters are identified.  The first is the wife points to her current circumstances which as described in her affidavit mean that she is currently impoverished.  She points to the circumstances that she asserts have lead up to that particular position.  Against that the husband points to a concession made on the part of the wife at the commencement of today’s proceedings that if she were not responsible for the payment of a particular mortgage than she would be able to support herself.  The husband points to this as being a matter that will result in the failure of the wife’s application and undermines the notion of hardship.  It appears likely that this contentious matter is a matter that will need to be resolved within the substantive hearing if it is to go ahead.  It may be a matter which leads to the defeat of the wife’s spousal maintenance application however it may also be accepted that she does currently have extreme financial circumstances and is currently in a position of hardship.  What is not clear is whether or not the spousal maintenance application will resolve that.  That is not a matter that would become clear unless the spousal maintenance application is heard.

5. What is particularly compelling in relation to this application is that the spousal maintenance application has been on foot since 2015.  It was the only initially outstanding matter on the transfer of the matter from the Federal Circuit Court in May 2016 and since May 2017 the whole procedure in relation to this matter has been geared towards dealing with that matter and also dealing with enforcement matters arising from the Federal Circuit Court proceedings.  Trial directions have been made, the parties have directed their material towards the spousal maintenance application which has been listed for final trial today.  This appears to be the first occasion on which the question of leave has been raised.

6. Where a party has allowed another party to continue in the proceedings based upon primarily spousal maintenance and left the question of leave which is a matter properly to be answered by the wife, but where it has been left until the trial date on the particular history of the matter from the point of transfer forward then that is a compelling reason in the interests of justice to grant leave and to allow the matter to continue to final trial today.

7. Accordingly I grant leave to the wife to conduct spousal maintenance proceedings.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 25 January 2018.

Associate:

Date: 30 January 2018