Caine & Falzon
[2024] FedCFamC2F 130
•7 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Caine & Falzon [2024] FedCFamC2F 130
File number(s): PAC 1626 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 7 February 2024 Catchwords: FAMILY LAW – PROPERTY – Threshold hearing – application for leave to institute s 79 property proceedings out of time Legislation: Family Law Act 1975 (Cth) s 44 Cases cited: Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216 Division: Division 2 Family Law Number of paragraphs: 67 Date of hearing: 22 January 2024 Place: Parramatta Counsel for the Applicant: Mr Bateman Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: McInnes Wilson Lawyers ORDERS
PAC 1626 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CAINE
Applicant
AND: MS FALZON
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), leave is granted to the applicant wife to make an application for Orders under s 79 of the Act out of time.
2.The proceedings are adjourned for mention to 20 February 2024 at 11.30 am before a Judicial Registrar to enable preparation for conciliation.
AND THE COURT NOTES THAT:
A.The applicant wife commenced proceedings on 31 March 2023. There is no need for her to file a fresh Initiating Application pursuant to the above Order granting leave.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These reasons for judgment relate to the applicant wife’s application, pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), seeking leave to commence property adjustment proceedings under s 79 of the Act out of time.
In these Reasons, for ease of reference, the applicant wife shall be referred to as the wife and the respondent, now named Ms Falzon, shall be referred to as the respondent.
The wife was born in 1964, and is now aged 59 years.
The respondent was born in 1959, and is now aged 64 years.
The parties commenced living together in 1989. They had married in 1993.
The parties had 3 children, now aged 18, 20, and 23 years.
A divorce order absolute was made in 2020. Accordingly, the wife should have commenced property adjustment proceedings by 29 June 2021. The wife commenced these proceedings on 31 March 2023. Thus she was about 1 year and 9 months out of time.
MATERIAL RELIED UPON
The wife relied upon:
(a)Her Amended Initiating Application filed 22 December 2023;
(b)Her affidavit filed 31 March 2023;
(c)Affidavit of Ms B filed 15 January 2024;
(d)Her Financial Statement filed 31 March 2023;
(e)Affidavit of Ms C filed 19 January 2024;
(f)Case Outline filed 18 January 2024.
The respondent relied upon:
(a)Response to Initiating Application filed 7 August 2023;
(b)Her affidavit filed 7 August 2023;
(c)Her Financial Statement filed 7 August 2023;
(d)Case Outline filed 18 January 2024.
The following exhibits became evidence in the proceedings:
(a)Exhibit A: Reporting Letter from Dr E; Section 50 schedules; Historical balance sheets;
(b)Exhibit B: Correspondence from applicant to respondent dated 5 August 2021;
(c)Exhibit C: Correspondence from respondent to applicant dated 6 February 2022;
(d)Exhibit D: Email from respondent to applicant dated 16 February 2019;
(e)Exhibit E: Notice to admit and Notice disputing fact or document;
(f)Exhibit F: Respondent’s section 50 schedule.
LEGAL PRINCIPLES
In Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216 at [23]–[31], the Full Court stated:
23The decision as to whether leave should be granted to commence or continue proceedings pursuant to Pt VIII of the Act essentially involves balancing two competing principles of public policy. The first is that the Commonwealth Parliament has stated that, ordinarily, such proceedings should be commenced within 12 months of the date of the divorce. The second is that relief from the operation of s 44 of the Act should nonetheless be granted out of time in order to avoid hardship to a spouse or a child of the relationship.
24In respect to that second consideration, s 44(4)(a) of the Act provides that an extension of time should not be granted under s 44(3) of the Act unless the Court is satisfied “that hardship would be caused to a party to the relevant marriage… if leave were not granted”.
25 In Whitford & Whitford (1979) FLC 90-612 at 78,145, the Full Court said:
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.
26We observe that in Family Law (2022, 7th ed) at [36.120], Riethmuller and Smith note that what constitutes appreciable detriment necessarily depends upon the circumstances of each case, stating that:
In many cases the substantial detriment is the inability of a spouse to pursue a claim for maintenance or an alteration or property interests where the resulting loss is significant in the light of his or her financial circumstances.
27The applicant for relief’s prospects of success in the proceedings, if leave is granted, is relevant to both the question of hardship and the second task undertaken by the Court, which is to consider matters going to the exercise of discretion generally. This is because “[if] the probable result of the hearing on the merits is that hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant would suffer hardship if leave were not granted”: V and S [2006] FCWA 2 (“V and S”), per Thackray J at [6].
28As recently noted by Austin J in Skelton and Lindop (2022) 64 Fam LR 617 (“Skelton and Lindop”) at [16]–[21], there is differing authority as to the test to be applied in determining the prospects of success. Those tests range from the need to establish “prima facie claim” to the need to establish “a real probability of success.” We respectfully acknowledge and adopt the reasoning of Austin J that the appropriate test to apply is whether the applicant for relief had “sufficient likelihood of success” to prove hardship.
29In the event of the trial judge finding that the applicant for relief would suffer hardship if an extension of time was not granted, it is then necessary for the trial judge to consider those matters going to the exercise of discretion. In V and S, Thackray J noted at [7] that, in addition to prospects of success, other potentially relevant considerations to the exercise of discretion may include the following:
•The extent of the delay and the reasons (or absence of reasons) for the delay: Althaus & Althaus (1982) FLC 91-233;
•The extent of the hardship the applicant would experience if leave were not granted: Carlon & Carlon (1982) FLC 91-272; and
•The extent of the prejudice that would be caused to the respondent if leave were granted.
30In Frost & Nicholson (1981) FLC 91-051 (“Frost & Nicholson”) at 76,425, Nygh J said that prejudice, in this context, “means that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought”. However, in Atwill & Atwill (1981) FLC 91-107 (“Atwill & Atwill”) at 76,794, Nygh J stated that the relevant prejudice would need to be “distinctly observable hardship, such as financial commitments made on the basis that no liability existed”. It appears to us that the extent of any prejudice is simply one of the relevant factors to consider and that Nygh J’s comments in these two cases should be read as descriptive of circumstances where prejudice is likely to be a weighty factor, not a test for the relevance of evidence of prejudice. Additionally, in Atwill & Atwill, his Honour also pointed out that the fact that the respondent will suffer prejudice does not necessarily mean that the discretion will be exercised in their favour.
…
31Applications seeking an interlocutory order under s 44(3) of the Act are generally dealt with on the basis that the applicant’s evidence is presumed to be correct “unless it is inherently unbelievable or contradictory” (Jacenko & Jacenko (1986) FLC 91-776 at [14]; Skelton & Lindop at [36]). It is important to appreciate that it is only in the event of leave being granted that the Court, at final hearing, will make a determination in respect to the accuracy or otherwise of the parties’ competing factual contentions.
In Skelton & Lindop (2022) 64 Fam LR 617 (see above), Austin J had stated inter alia:
21 It may be in this case the primary judge was saying no more than that the appellant did not demonstrate her case had “sufficient likelihood of success” to prove hardship, which would be the correct test, but his Honour’s reference in the reasons for judgment to not being satisfied “on the balance of probabilities” (at [82]), nor that the appellant’s claim has “a real probability of success” (at [87]), has the flavour of demanding more from the appellant than she needed to give. She certainly did not have to prove it was more probable than not that her claim for property settlement relief would succeed if allowed to proceed.
…
37 It is true the appellant did not lead evidence to explain why she omitted to bring her claim with the two-year limitation period, which is of course usually an influential factor, but it is not of itself necessarily fatal (Emerald & Emerald [2018] FamCAFC 217; (2018) FLC 93-870 at [128]; Carlon & Carlon [1982] FamCA 60; (1982) FLC 91-272 at 77,533). Significantly, the appellant sent a letter to the respondent in March 2018 (just before the limitation period expired) foreshadowing her intention to bring a claim, so he was on notice. The primary judge was satisfied the further eight months which then elapsed before the claim was actually filed in November 2018 was “not substantial” (at [94]). Moreover, the primary judge found the only prejudice the respondent would suffer if the appellant’s claim was allowed to proceed out of time would be the legal costs he would bear in defending her claim – but he would have been put to that expense anyway if the appellant’s claim was brought within time.
DISCUSSION
Does the wife have a “sufficient likelihood of success” to prove hardship?
At the outset the Court recognises that there are numerous factual disputes between the parties. The Court, consistent with legal authority, inter alia, will take the evidence of the wife at its highest where in conflict with the respondent’s evidence.
The parties purchased a property together in City D which they resided in and together met the outgoings to purchase and repay the mortgage owing for that property. They moved to Sydney in 2013 and commenced living in rental accommodation at Suburb F. They rented the property in City D. The parties separated under the one roof in February 2019. The respondent, in late 2019, moved to City G where she lived in her mother’s home. The respondent’s mother died in 2022 and the respondent resided in her home until that home was sold.
The wife asserts that she was the primary caregiver for each of the children throughout their lives and they continue to live with her in rental accommodation Suburb F. She has also been primarily responsible for obtaining all items necessary for the children including medication, clothing, and doctors’ appointments.
The wife works as a casually employed educator.
The parties purchased in 1997 a property at H Street in City D using jointly acquired savings and a mortgage loan with both parties contributing to all expenses and payments in relation to this property. The wife was working full-time as an educator. The property was then sold. In late 2002 the parties purchased a property in J Street, City D using the net proceeds of sale from the previous property to purchase this new property with the balance being acquired by way of mortgage. Several years later a property situated in K Street, City L was transferred into the sole name of the respondent. This property was an outcome of the project that the respondent had spent 2 to 3 years working on as a property investor. During that period the respondent did not earn income and the wife’s income and the parties’ savings were applied towards the mortgage repayments of the J Street property and the living expenses of the family. From 2013 to 2020 the latter property was tenanted, and the rental income received was applied to the mortgage repayments.
During the parties’ relationship, the wife would receive money from her mother from time to time which was applied to day-to-day living expenses of the family; the mother gave the wife a few hundred pounds every few weeks.
The wife contributed all her earnings throughout the relationship to support the family and towards the acquisition, conservation improvements of the marital assets. The wife’s income was also applied to meet the outgoings for herself and the respondent and the children’s expenses.
During the relationship the wife was primarily responsible for homemaker chores including shopping, cooking, cleaning, and washing. She contributed to landscaping and gardening of the H Street and J Street properties.
Following the birth of the parties’ two daughters, the wife stopped work to care for all three children and attend to all non-financial and homemaking responsibilities of the family. She returned to work on a casual basis when the children were at school. She returned to work as an educator in late 2014.
An allowance that was paid by the respondent to the wife at the beginning of the parties’ relationship for day-to-day living expenses eventually dwindled to nothing and the respondent relied upon the wife to pay for all expenses and attend to all the running around with the children.
Post separation, the wife has been solely responsible for and meets almost all the costs of herself and the children, including but not limited to the children’s food, clothes, healthcare and sports activities. However, the respondent paid the rent for the Suburb F home until early 2022 and thereafter paid half the rent. She also paid for utilities, some streaming payments and some school fees.
In about early 2020 the property at J Street was sold and the parties received net proceeds of sale in the sum of £388,700 which was divided equally.
Since separation the wife had no assistance from the respondent in the care of the children. In late 2022 the wife paid the outstanding school fees of the daughter M in the sum of $14,000.
The respondent asserts that in about mid-2021, when the 12 months from the divorce Order passed, she had been paying the wife “child support in the form of paying expenses, being rent and all of the utilities.” The respondent asserted having contributed to the expenses of the children “by way of paying rent.” The respondent asserted that after the final separation she decided that she would continue to pay the rent “and considered that was the child support [she] would pay for the children”. The Court also observes that the rental home in Suburb F was formally leased to the respondent.
The respondent’s mother died in about 2022 and the respondent received an inheritance from the estate.
Following separation the respondent spent no time with the children. Since 2013 the parties’ son suffered from anxiety and depression. The wife had no assistance from the respondent and she attended to all payments and attendances upon a psychologist for this child. The child Ms M has suffered mental health problems. The wife had no assistance from the respondent and she has met all costs in relation to her treatment.
The wife earns about $51,000 per annum.
The wife’s financial statement filed 31 March 2023 asserts, inter alia, cash funds with Westpac in the sum of $265,391; and personal property in the sum of $35,513. It asserts superannuation $39,369. It asserts average weekly income of $1,079, expenses and average weekly expenses of about $2,000 including income tax of $200 and rental of $485.
The respondent’s financial statement filed 7 August 2023 asserts, inter alia, that the respondent’s property at Suburb K has an estimated value of $533,061 and related mortgage loan of $179,501, leaving net $353,560. It asserts that the respondent’s total average weekly income is $20 with average weekly personal expenditure of $2,037. It asserts superannuation in the total sum of $95,794.
Taking the wife’s evidence at its highest, and taking into account the above discussed evidence, she probably has a “sufficient likelihood of success” to prove hardship. The Court finds that the wife would likely suffer hardship if she was not permitted to pursue her claim for property adjustment Orders. The Court will now briefly explain these findings.
The parties had minimal assets and liabilities at cohabitation commencement.
The parties’ marital relationship was a long one: some 30 years from 1989 to 2019 wherein 3 children were born and raised. Both parties worked in gainful employment during their relationship for differing periods. When the wife was not working in employment she was caring for the children and performing the household chores. Both parties’ efforts in this regard contributed, whether directly or indirectly, towards the creation and preservation of their assets accumulated during the relationship. Significantly, after separation, the wife assumed sole care of the children and paid significant regular expenses on their behalf; a period to date of almost 5 years.
The respondent paid the rental on the former matrimonial home up to early 2022 when she reduced her payment to half the rental. The respondent asserts that she paid such rental as child support. Post separation the respondent was otherwise paying no formal child support to the wife.
As to the likely property pool, the parties’ J Street property was sold (post separation and prior to the divorce order made absolute in mid-2020) and the net proceeds of sale, AU$699,000, were divided equally.
The respondent asserts in her affidavit filed 7 August 2023 that property she has that she considers remains from the marriage includes: the net value of the Suburb K property, $353,560 ($533,061 less $179,501), cash N Company $37,000, superannuation/pensions $95,801, share portfolio $65,000, Loan O Company $28,000, and life assurance $54,748. The total of these sums is $633,819. She asserts matrimonial debt totalling about $209,409 which includes an alleged loan payable to her mother of $92,000; however, this alleged loan is not referred to in her sworn Financial Statement filed 7 August 2023 and further, in her affidavit filed 7 August 2023, she asserts that there is a dispute in relation to “loans and addbacks” between the beneficiaries of her late mother’s estate. For present purposes, the alleged loan payable to the mother shall be disregarded; thus one is left with debt of $117,409. If such debt of $117,409 is deducted from $633,819 one is left with a figure of $516,410.
Again taking the wife’s evidence at its highest, the Court would assess that the wife’s contributions may well be assessed at least in the range from 50 to 55 per cent, with the Court observing again, inter alia, that the wife has solely cared for the children for about the last 5 years.
Turning to s 75(2), the wife is aged 59 years. She is working casually as an educator earning $1,079 gross per week. She appears to be in reasonable health.
The respondent, aged 64 years, asserts she is in good health.
The respondent asserts that she is presently not working albeit she refers to her current occupation as a professional. In her affidavit she asserts that she does not have a fixed income. She asserts that after separation she has had a few business endeavours earning minimal income. Yet she asserts that she has received an income tax estimate of $100,000 for the financial years 2019 to 2023. The respondent does not assert any incapacity for gainful employment. She does not assert ill-health or disability. During the marriage the respondent earnt income and worked, inter alia, as a property investor.
The Court’s impression of the above matters relating to work capacity is that the parties’ respective work capacities would appear to be at least comparable to each other.
The respondent’s financial resources, separate to matrimonial related assets, appear to be greater compared to the wife. The wife’s matrimonial related assets would appear to comprise her cash assets of $265,391 (probably significantly accumulated from her share of the sale proceeds of the J Street property), and superannuation of $39,369. Otherwise she only has personal property of about $36,000.
On the other hand, the respondent has property, separate to the above net matrimonial related assets totalling $516,410, as referred to in the Financial Statement filed 7 August 2023, in the sum of about $383,398; in her affidavit, the respondent refers to a post separation inheritance of about $510,000 of which she has spent some monies. It appears that she receives income from investments in this context. And further, the respondent asserts that there remains a balance in her late mother’s estate of $1.5m to be divided between the respondent and her 2 sisters subject to the resolution of present disputation between beneficiaries as to “loans and addbacks”.
The wife’s weekly expenditure for herself and the adult children totals about $2,000 with only weekly income of about $1,079. And further, the weekly rental for her residence is at least $970 but the wife has been, since early 2022, reliant on the respondent paying half of that amount which may well not continue. Any weekly shortfall may well lead to the wife resorting regularly to her cash asset.
The Court’s impression of the above matters relating to s 75(2) is that there is a real possibility that the wife may well receive a s75(2) adjustment in her favour.
The wife only received an equal share of the net proceeds of sale of the J Street property. Had the wife received 55% of those proceeds she would have received a further $34,900.
As to the above figure of $516,410 representing matrimonial related assets now held by the respondent, were the wife to receive 55% of that sum she would receive $284,025. Adding $34,990 to $284,025 one arrives at $319,015.
Even assuming the wife ultimately only establishes an equality of contributions, then taking the above sum of $516,410, without any s75(2) adjustment, one arrives at $258,205.
Turning to the wife’s legal costs in prosecuting her proposed property adjustment claim, her costs notice filed 19 January 2024 refers to past and future estimated costs totalling $176,591. The above figures of $258,205 and $319,015 clearly exceeds this costs figure and suggest that if the wife is permitted to prosecute her claim she will be significantly better off than at present.
The Court will now discuss relevant matters going to discretion.
The parties separated under the one roof in about February 2019 with the respondent finally leaving the parties’ residence in late 2019. The wife’s friend Ms C asserts that the wife related to her that the respondent had informed the wife in about early 2019 that she wanted a divorce and was transitioning to female and was leaving the wife. Ms C observed a significant deterioration in the wife’s emotional and physical well-being at around this time. The wife communicated to her that she was experiencing immense stress as the primary caregiver for the children, who were also struggling with the challenges of the marital breakdown and the respondent’s gender reassignment. In this context, the wife asserts that separation and the changes with the respondent have been extremely hard for herself and the children. She asserts that throughout 2020, the child Ms M suffered with significant mental health issues which consumed much of the wife’s attention. In about late 2020 this child had self-harmed resulting in hospitalisation. In about mid-2021 there was another incident where this child had self-harmed resulting in further hospitalisation. The Court refers to Dr E’s report of 18 September 2021 relating to Ms M’s psychiatric issues and treatment in 2021. The wife asserts that Ms M’s psychiatric difficulties impacted the wife’s ability to work as she had to be there for Ms M. She asserts that the costs for Ms M to see a psychologist during the Covid 19 pandemic put a large amount of stress and anxiety on herself.
In early 2019 the respondent sent to the wife an email stating, inter alia, that enquiries had been made regarding getting divorced and that applications for property adjustment must be made within 12 months of a divorce becoming final. (The Court interpolates at this point that this was the only occasion on which the wife was informed of this limitation period being a time when the wife was experiencing significant stress). The respondent asserted a desire to get a divorce, that “assets, liabilities, income and expenses” should be identified, and that the parties should agree to “a settlement (along with the court). Split stuff 50/50. I continue to support until Ms M turns 18, amount tbc, but not at the current level.” The wife asserts that she understood that this email was about the respondent itemising what she wanted to happen.
In early 2020, the wife was served with, inter alia, an application for divorce. The wife asserts that she put the documents down and did not view them as she was concerned that they may have been contaminated with the Covid 19 virus. However, the wife admits receiving an email from the respondent in early 2020 which stated, inter alia, that the respondent had submitted an application for divorce with a hearing set for mid-2020. The wife asserted, in this context, that she expected that the parties would both have to take steps towards achieving the divorce to separate their property and provide for the children. She asserted that she did not know what address/email was supplied by the respondent to the Court for contacting her and she did not receive notice from the Courts about the process or that the divorce had been granted. She asserted that she expected that she would receive some notice from the Courts about the process, and as she did not, she did not think she needed to take any steps.
On 10 June 2021 the respondent sent an email to the wife stating, inter alia, that the parties had been divorced in mid-2020. In this context the wife asserts that she received this email but could not confirm that she read it. She said she asserts that at this time the child Ms M’s mental health was her overriding concern; in this context the Court again refers to Dr E’s report regarding Ms M of 18 September 2021.
On 5 August 2021 the wife emailed the respondent stating, inter alia, that she had “heard about the divorce from you in a text message only recently. I find it odd that I have received no formal notification of this.” She had further stated that she had received a letter from the respondent’s solicitors regarding the respondent terminating the lease “on our home”. She stated that, “Can you please let me know under what advice have you come up with the figures and actions that you are proposing?” She stated, “as we are in full lock down and P is trying to complete Year 12 in very difficult circumstances I do not understand your timing… I am responsible not only for all of the children’s financial needs, but their emotional well-being too. This has necessitated the involvement of psychologists, psychiatrists and medication at no insignificant cost. I am paying for issues, that you unfortunately have contributed to, but have no responsibility for.”
On 11 March 2022 the wife’s then solicitors wrote to the respondent’s solicitors stating, inter alia, that the wife wished to resolve outstanding financial and maintenance matters without the need for litigation and sought financial disclosure from the respondent. As at 27 June 2022 and 2 August 2022 this correspondence and further correspondence from the wife dated 29 April 2022 had not been responded to by the respondent. On 27 June 2022 the wife provided certain financial disclosure to the respondent’s solicitors.
In April 2022 the respondent reduced her rental contribution for the former matrimonial home from 100 per cent to 50 per cent of such rent.
On 16 April 2022 the respondent emailed the wife and referred to the divorce having taken place in mid-2020. This is the date that the wife asserts that she became aware of the divorce having been granted by the Court (see paragraph 11 of her affidavit).
On 29 April 2022 the wife’s solicitors requested from the respondent’s solicitors a sealed copy of the divorce order and stated their instructions that the wife was unaware that a divorce had been granted between the parties. On 11 August 2022 a sealed copy of a divorce order dated mid-2020 was provided to the wife’s solicitors.
A previous solicitor for the wife, Ms B, asserts that she was on annual leave for a month in late 2022 and did not work for four weeks between late 2022 and early 2023.
In this case, in the Court’s view, there is a reasonable explanation for delay whilst acknowledging that the explanation is not uniformly fulsome.
Again, inter alia, the wife asserts that whilst the respondent had sent emails to her advising of the divorce application fixture, and later of the making of a divorce order, she had concerns that the divorce order had not been formally communicated to her by the Court. Consistent with that position, she had sought a formal copy of the divorce order from the respondent’s solicitors which was eventually supplied by them to her solicitors. The wife’s solicitors had requested disclosure from the respondent to which there was delay from the respondent’s side. Further, the wife’s overriding concerns for her children’s emotional well-being including the child Ms M’s mental health and their related health professional attendances was a significant factor in her delay. And the wife has adduced evidence from her lawyers as to their time constraints and own delays. But in any event and importantly, in the Court’s view, the wife had only been informed once by the respondent (in an email to the wife), at about the time of the separation in February 2019, being a very stressful time for the wife, that applications for property adjustment must be made within 12 months of a divorce becoming final. This information about the limitation period was contained within the body of a 2 page email referring to numerous other matters, with the wife having asserted that she “understood that this email was about (the respondent) itemising what (the respondent) wanted to happen, not a communication that the divorce had happened.”
Even if the Court is incorrect in finding that the wife has provided a reasonable explanation for delay, the extent of her delay is not particularly substantial in the context of a lengthy marriage; about 30 years. And finally, in this case the degree of hardship to be suffered by the wife, if not permitted to proceed with her property adjustment claim, would, in the Court’s view, outweigh any found inadequate delay explanation.
As to prejudice to the respondent if the wife is granted leave to prosecute her property adjustment proceedings, in the view of the Court there is no significant actual prejudice to the respondent if the wife’s application is granted. The respondent did receive an inheritance from her late mother’s estate post separation, however at the hearing of the wife’s application no submission was made by either party that the wife had made any significant contribution to it, and further, the Court observes that there remains about $1.5m in the estate undistributed. Again, the respondent has already received some $515,000 from that estate. The Court further observes that the respondent would have been put to the expense of legal costs anyway if the wife’s claim was brought within time.
Taking into account the above matters, it will be in the interests of justice that the Court exercise its discretion to grant leave to the wife under s 44(3) of the Act to make an application for Orders under s 79 of the Act out of time. The Court will make Orders accordingly.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 7 February 2024
0
3
1