Camillo & Camillo
[2021] FCCA 1252
•8 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Camillo & Camillo [2021] FCCA 1252
File number(s): MLC 9806 of 2020 Judgment of: JUDGE MCNAB Date of judgment: 8 June 2021 Catchwords: FAMILY LAW – application pursuant to section 44 of the Family Law Act 1975 (Cth) for leave to commence proceedings out of time – application fifteen months out of time – applicant has a prima facie case – reasonable explanation for delay – applicant would suffer hardship and prejudice if leave not granted – leave granted. Legislation: Family Law Act 1975 (Cth) ss 44 Cases cited: Edmunds & Edmunds [2018] FamCAFC 121
Hall & Hall [1979] FamCA 50
Riordan & Riordan [2012] FMCAfam 1297
Whitford & Whitford [1979] FamCA 3
Number of paragraphs: 45 Date of last submission/s: 19 May 2021 Date of hearing: 19 May 2021 Place: Melbourne Counsel for the Applicant: Ms D Isaacson Solicitor for the Applicant: L.N. Christie & Co The Respondent: Appearing in Person ORDERS
MLC 9806 of 2020 BETWEEN: MS CAMILLO
Applicant
AND: MR CAMILLO
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
8 JUNE 2021
THE COURT ORDERS THAT:
1.The Applicant be granted an extension of time to commence proceedings to the date of the filing of this application.
2.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 19 October 2021 at 9.30am for Mention.
3.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 31 January 2022 at 10.00am for Final Hearing with an estimated hearing time of 2 days (“the Final Hearing”).
4.The parties have leave to amend their application and response PROVIDED the amended application or response is electronically filed and served no later than 14 days before the trial.
5.The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:
(a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial; and
(b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial,
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(c)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(d)the party has first obtained leave of the court.
6.Where each party has legal representation, not later than 2 days prior to the commencement of the trial the parties file a properly prepared document setting out:
(a)an agreed list of issues required to be determined by the court; and
(b)a statement of agreed facts relevant to the agreed list of issues.
7.Not later than two business days prior to the trial all parties do electronically file and serve an Outline of Case Document including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(d)main contentions on disputes as to:
(i)inclusion of items in the pool; and
(ii)the value of items where the value is in dispute;
(e)list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(f)list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;
(g)other contentions relevant to determining a ‘just and equitable’ division of property; and
(h)the actual orders sought.
8.Each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.
9.No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the Court.
10.Each party must have available for their witnesses’ copies of all affidavits and all of their documents that those witnesses shall be referring to at the hearing.
11.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 under the pseudonym Camillo & Camillo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab:
INTRODUCTION
By an application filed on 9 September 2020, the Applicant Wife seeks orders granting her leave to institute proceedings out of time pursuant to s44(3) of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Wife will ultimately be seeking final property orders as against the Respondent Husband. By way of a response filed on 15 October 2020, the Husband seeks orders that the Wife’s application be dismissed.
On 9 December 2020, the matter came before Registrar Matthews who made orders for the parties to attend a Conciliation Conference on 16 April 2021, and for the matter to be listed before me on 19 May 2021, solely in respect of the issue of whether leave to proceed out of time should be granted to the Applicant.
On 16 April 2021, the parties attended a Conciliation Conference.
On 4 May 2021, the parties attended a Directions Hearing before Registrar Matthews, who made orders for the matter to remain listed before me on 19 May 2021.
On 19 May 2021, the matter came before me for hearing. The Applicant had Counsel appear on her behalf and the Respondent appeared in person with an interpreter (although he only required the interpreter’s assistance on one occasion). At the conclusion of the hearing, I reserved judgment in respect of the issue of whether to grant an extension of time, and informed the parties I would deliver reasons in short course. These are those reasons.
BACKGROUND
Factual Background
Counsel for the Wife prepared a statement of agreed facts which was provided to the Court on 18 May 2021. The statement of facts is understood to be agreed by the parties, having regard to the affidavit evidence filed by each of the parties. Having read the affidavits and statement of facts, I agree that document represents an accurate record of the matters of fact arising in this application and I have regard to that document.
The parties met in the late 1980s, and commenced cohabitation in 1989 in Country B. The parties were married in 1989. At the commencement of cohabitation, neither party had significant assets or liabilities.
In 1989, the parties’ son was born.
In 1993, the parties and their son migrated to Melbourne, Australia. The parties resided in government housing prior to renting in the Melbourne metropolitan area. Both parties obtained employment once they settled in Melbourne.
In 1994, the parties’ daughter was born.
In 2000, the parties purchased a property in Suburb C, Victoria. The property was purchased in the Mother’s name.
In 2006, the Wife suffered a workplace injury and ceased employment. From 2006 to 2008, the Wife received WorkCover payments, and has since been in receipt of a Disability Support Pension.
In 2008, the Husband suffered a workplace injury and ceased employment.
In 2011, the parties separated, but continued to reside under the one roof at the Suburb C property. Following separation, the Wife received the sum of $15,000 from her Father’s estate. The parties subsequently sold the Suburb C property in 2011 and moved into a rental property in Suburb D.
In 2015, the Wife was assaulted at Suburb D Hotel by a third party and as a result received a compensation payment of $26,000 in 2016.
In 2016, a property in Suburb E was purchased in the names of the Husband and the parties’ daughter, and the parties commenced residing at that property. The Suburb E property was subject to a mortgage in the amount of $91,500 which was required for living expenses as the Husband was not able to claim a Disability Support Pension until 2018 and was not otherwise in receipt of income. During this time, the Husband received the sum of $450,000 in compensation as a result of a personal injury claim arising from his workplace injury in 2008.
From 2016 to 2018, the Husband was in a ‘preclusion period’, and was unable to receive WorkCover payments or the Disability Support Pension. On that basis, the Husband was not receiving an income during this period.
On 25 May 2018, orders were made by this Court divorcing the parties. The parties continued to reside together at the Suburb E property after the divorce order was made.
In May 2019, the Suburb E property was sold and a property was purchased in Suburb F, South Australia, to which the parties subsequently relocated. The Suburb F property was purchased in the Husband’s name.
In November 2019, the Wife received a payment from her Mother from the sale of a property in Country G. Although the parties do not agree on the amount the Wife received, the parties agree that a portion of the sum received by the Wife was used to purchase furniture which is currently in the possession of the Husband at the Suburb F property.
In March 2020, the parties separated on a final basis when the Wife left the Suburb F property. The Wife now resides in Suburb C and the Husband resides at the Suburb F property.
In or around July 2020, the Husband transferred a Motor Vehicle 1 into the Wife’s name.
On 25 January 2021, the Wife says that she settled a common law personal injury claim and received compensation in the sum of $71,586.58.
As at the time of the hearing of this matter, both the Wife and the Husband are in receipt of a Disability Support Pension and are unable to work.
Procedural Background
By her initiating application, the Wife seeks final property orders dividing the net asset pool equally between the parties. By way of a case summary document filed on 18 May 2021, the Mother asserts that there is an asset pool with a value of approximately $505,691.56, and that her current share of that asset pool is approximately $79,691.56.
The period in which the Wife’s initiating application ought to have been commenced without leave concluded on 25 May 2019. The Wife commenced proceedings on 9 September 2020, approximately fifteen months after the expiry of the 12-month statutory time limit within which an application must be filed pursuant to s44(3) of the Family Law Act.
In support of the application, the Wife filed three affidavits on 9 September 2020, 4 March 2021 and 17 May 2021, as well the case summary document filed on 18 May 2021. In support of his response, by which he seeks the Mother’s application to be dismissed, the Husband filed five affidavits on 15 October 2020, 31 March 2021, 3 May 2021 and two affidavits on 10 May 2021.
The Court must now determine whether to grant the Wife an extension of time to initiate proceedings out of time, pursuant to s44 of the Family Law Act.
LEGISLATION
Subsection 44(3)(a) to (d) of the Family Law Act provides:
(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
Proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a)--the date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b)--the date of the making of the decree.
In respect of circumstances in which the Court has the discretion to grant leave, subsection 44(4) of the Family Law Act provides:
(4) The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b) in the case of proceedings in relation to the maintenance of a party to a marriage--that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
MATTERS TO BE CONIDERED IN DETERMINING THE APPLICATION
The matters that ought to be considered by the Court in determining this application are established by a body of authority including Hall & Hall [1979] FamCA 50; Whitford & Whitford [1979] FamCA 3 (“Whitford”) and Riordan & Riordan [2012] FMCAfam 1297.
The matters which are to be considered by the Court in determining this matter are:
(1)whether the Wife has a prima facie case being a reasonable claim that requires a hearing;
(2)whether the Wife would suffer hardship if her application to proceed out of time were not granted;
(3)whether the Wife has adequately explained her delay; and
(4)whether prejudice would be occasioned to the Husband if the application was allowed.
In Whitford, the Full Court of the Family Court of Australia stated at [41] that:
41. […] sec. 44(3) and 44(4) point to the conclusion that the legislature intended to confer power on the Court to grant leave to institute proceedings in order to avoid hardship. Having regard to the nature of the jurisdiction which this court exercises, 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.
CONSIDERATION
Prima Facie Case
As the Full Court of the Family Court set out in Edmunds & Edmunds [2018] FamCAFC 121 at [48]:
48. [The Court’s task] involves 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.
The parties had a relationship for 22 years, and cohabitated for a further nine years. The parties’ have two adult children. On the affidavit evidence of the Wife and Husband, both parties made financial and non-financial contributions to the relationship, including to the children and their upbringing. On that basis, the Wife has demonstrated by her evidence that she a prima facie case that it would be just and equitable to make orders adjusting the property interests of the parties.
Hardship
The Court has regard to the financial resources of the Wife, particularly when compared to the Husband, in the context of a 22 year relationship and a 31 year period of ‘shared life’. Following final separation, the Wife says that she has been left with assets of the Motor Vehicle 1 valued at approximately $10,000 and a compensation payment of $71,586.58. In relation to the compensation payment, by her affidavit filed on 17 May 2021, the Wife says that she currently has $10,000 remaining in her savings, following the repayment of loans in the total sum of $25,000, financial gifts and assistance to the children of the marriage in the sum of $4,500, and her general living expenses. This is compared to the Husband, who retained the Suburb F property (which has an approximate value of $395,000), furniture with an estimated value of $20,000 and a car with an estimated value of $10,000. The Wife submits that her hardship is even higher in circumstances where she has “considerable health problems and has significant future needs.”
The Husband asserts by his evidence that the Wife has received whatever share of the matrimonial assets that she is entitled to and has wasted those assets, or their equivalent value, through gambling. He also asserts that the Wife has not fully disclosed the value of the properties in Country B that she may have a beneficial interest in. These are matters to be determined at final hearing. The Husband’s evidence is not such as to persuade me that the Wife does not have a prima facie right to the relief claimed.
I am satisfied that the Wife has demonstrated that she would suffer hardship if leave was not granted to the Wife to initiate proceedings out of time.
Delay
By way of the case summary document, the Wife submits that the delay in bringing the application was, in effect, due to:
(1)alleged domestic violence;
(2)the parties’ shared life continuing, as there was no significant change in the living arrangements of the parties until March 2020, where the parties separated in 2011 and divorced in May 2018;
(3)a lack of awareness of any statutory time limits relating to the commencement of proceedings following the divorce orders made in May 2018; and
(4)ongoing medical and psychiatric issues of the Wife, as set out at [8] of the Wife’s affidavit filed on 5 May 2021.
The Wife submits that the period of approximately fifteen months between the time in which the statutory period expired and the date on which the initiating application was filed, is relatively short in the context of a long marriage, and where the parties continued to cohabitate after separation and divorce.
I accept the particular circumstances of this case, where the parties remained cohabitating notwithstanding that divorce orders were made by this Court, combined with health issues and a lack aware of statutory time limits, mean that the delay by the Wife in filing her application is explained.
Prejudice
I am satisfied that the Father has not, and will not, suffered any significant prejudice by granting an extension of time to the Wife. No particular prejudice has been pointed to which arises by reason of the delay.
The Husband submits that that the parties have not had a relationship since separation in 2011, the parties were divorced in 2018 and the Wife filed her application approximately 15 months out of time, and therefore the Wife should not be granted an extension of time.
However, in the context of a 22 year marriage and 31 years of shared life, including living together until approximately six months before the Wife filed her application, it is likely that the Wife would suffer greater prejudice than the Husband if leave was to not be granted. This is because the Wife will be in a situation where, on the evidence that she has filed, that she only has modest funds and assets, compared to the Husband who will retain an unencumbered property, various furniture with significant value and a motor vehicle, which form approximately 85% of the claimed asset pool in this matter. The Husband submits otherwise and says the Wife has received more than her fair share of the matrimonial assets. Whether that is the case is a matter for final hearing.
CONCLUSION
For these reasons I will grant an extension of time to the Wife to commence proceedings at the date on which the initiating application was filed with the Court. On that basis, I will make orders for the mater to be adjourned for a further mention and for a final hearing.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 8 June 2021
0
2
0