Camire and Camire
[2011] FMCAfam 373
•20 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAMIRE & CAMIRE | [2011] FMCAfam 373 |
| FAMILY LAW – Property – application for leave pursuant to section 44(3) to institute proceedings for property settlement and spousal maintenance – question of “hardship” at law to the applicant if leave is not granted – exercise of discretion and consideration of reasons for delay in bringing the application and prejudice to the respondent. |
| Family Law Act 1975, ss.44(3), 44(4), 79 |
| Whitford and Whitford (1979) FLC ¶90-612 G & G [1999] FamCA 240 Althaus and Althaus (1982) FLC ¶91-233 |
| Applicant: | MS CAMIRE |
| Respondent: | MR CAMIRE |
| File Number: | DGC 2300 of 2008 |
| Judgment of: | McGuire FM |
| Hearing date: | 29 March 2011 |
| Date of Last Submission: | 29 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trim |
| Solicitors for the Applicant: | Robin Harrison & Associates |
| Counsel for the Respondent: | Mr Dunlop |
| Solicitors for the Respondent: | Vivien Mavropoulos & Associates |
ORDERS
That the applicant wife have leave pursuant to s.44(3) of the Family Law Act 1975 to initiate proceedings for property settlement and spousal maintenance by her application filed 20 December 2010 as amended by her application filed 3 March 2011.
The parties attend a conciliation conference with a Registrar of this Court at 9.15 am on 7 July 2011 at Dandenong.
The matter be adjourned for directions on 20 July 2011 at 10.00 am before Federal Magistrate McGuire at Dandenong.
IT IS NOTED that publication of this judgment under the pseudonym Camire & Camire is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 2300 of 2008
| MS CAMIRE |
Applicant
And
| MR CAMIRE |
Respondent
REASONS FOR JUDGMENT
Application
The application before me was in the form of an amended application filed on 3 March 2011 by the wife. She seeks leave pursuant to s.44(3) of the Family Law Act 1975 (“the Act”) in order to bring property and spousal maintenance proceedings. The husband asks that the application be dismissed.
The application was heard on 29 March 2011 and dealt with on the basis of submissions by counsel for the parties in respect of the affidavit material properly filed. The issue as to whether the wife should have leave to institute proceedings was heard preliminary to and not as part of the substantive application.
The wife relied on her two affidavits filed 20 December 2010 and
3 March 2011. The wife had filed an initiating application on
20 December 2010 seeking orders as to a property settlement and spousal maintenance. By an amended application filed 3 March 2011 she sought leave pursuant to s.44(3) of the Act to proceed out of time.
The husband relied on his affidavit filed 22 March 2011.
Background
The parties were married in India [in] 2002 in a Hindu ceremony. They further took part in a civil ceremony in Australia [in] 2003.
In 2003 the parties moved from Sydney to live in Melbourne.
There are three children of the marriage, namely [X] born [in] 2004, [Y] born [in] 2005 and [Z] born [in] 2006.
The husband says that the parties separated in January 2008. His affidavit does not disclose the particulars surrounding the separation. The wife disputes that the parties separated at that time. She agrees that she travelled to India in July 2008 but says she did so at the instigation of the husband. She agrees that consent orders were made in the Federal Magistrates Court on 27 June 2008 in respect of the parenting arrangements for the three children which sees them living with the father. Both parties were represented by lawyers in the making of those consent orders.
The wife says, and I accept, that she has a poor command of the English language. Her affidavits filed in these proceedings show that the contents have been read to her in her native language. Despite the effect of the parenting orders and the fact that she was represented, the wife claims that she entered into those orders on the instigation of the husband telling her it “was just a formality and we will continue to live as husband and wife together”.
The wife travelled to India in July 2008 and says that she did so by agreement with the husband and that he and the children would follow soon after. The husband denies any such agreement. The wife says that she was left impecunious in India.
The husband filed an application for divorce in September 2009. Service was effected by mail. It is clear, however, that the wife received the divorce application in India. She says that the husband was at all times aware of her residential address and in fact they spoke by telephone on a number of occasions.
The wife says that she endeavoured unsuccessfully to seek some appropriate legal advice in respect of the divorce application. That application was heard in Melbourne on 10 November 2009 and a divorce order became final on 11 December 2009 thereby enlivening the time limits in the Act for bringing proceedings of a financial nature.
The wife returned to Australia in August 2010 and she says that she did so with the assistance of the Indian High Commission and the Australian Embassy.
The wife deposes that her solicitors wrote to the husband on
30 November 2010 making a proposal for property settlement but there was no response. The wife filed her application for property settlement on 20 December 2010 being on my calculations nine days out of time.
The husband says that the parties separated in January 2008 and that the wife was fully aware of the fact and effect of the separation as evidenced by the subsequent children’s orders. He says that he assisted her by the purchase of a one-way ticket to India at her request and thereafter lost contact with the wife.
The law
Section 44(3) of the Act provides that proceedings shall not be instituted in respect of property or spousal maintenance matters after the expiration of 12 months from the date of divorce without leave of the Court or with the consent of both parties.
Section 44(4) of the Act sets out the requirements to be met for leave to be granted, being:
(a) hardship would be caused to the party or a child if leave were not granted; or
(b) in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
The Full Court of the Family Court in Whitford and Whitford[1] considered the proper approach and the issues for the Court in an application under s.44(3) of the Act. At [78,144] the Court said:
Thus, on an application for leave under sec. 44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.
[1] (1979) FLC ¶90-612.
The Full Court went on to say:
The loss of the right to institute proceedings is not the hardship, to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection is concerned. The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the Court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
In summary, therefore, and as Ellis J observed in G & G[2] at [22]:
…proof of hardship is a necessary pre-condition to the exercise by the Court of its discretion. The generally accepted interpretation of hardship, in the context of s.44(3), is “substantial detriment”. The loss of the right to institute the proceedings itself, however, is not hardship within the meaning of the section.
[2] [1999] FamCA 240.
As the Full Court in Whitford[3] said at [78,145]:
Whatever the financial situation of an applicant may be, his or her loss of a prospective entitlement to property including money, or his or her inability to have the financial and property relations of the parties adjusted or resolved, may constitute hardship.
[3] Supra.
If the threshold is crossed and the Court is satisfied that hardship would result then the Court must exercise its discretion. That discretion is at large and dependent upon the facts of the case. Nevertheless, the authorities suggest that it is normally incumbent upon the applicant to give a reasonable explanation for the delay in bringing the substantive application.
Returning to the issue of “hardship”, the authorities[4] state that a detailed hearing on the merits of the applicant’s substantive claim is not required. Rather, it seems that the applicant must present in prima facie form a reasonable claim with some chances of success.
[4] Althaus and Althaus (1982) FLC ¶91-233.
The wife in this case therefore carries an onus to firstly satisfy the Court that she would suffer hardship as defined above if leave were refused. If she does not discharge that onus then the matter is at an end. If, however, the Court is satisfied that there would be hardship to the applicant by refusal of leave then the Court is to exercise its discretion including consideration of the following:
a)whether there has been a reasonable explanation for the delay in bringing the application; and
b)what prejudice, if any, would follow to the respondent if the application for leave is granted.
Discussion
There are a number of credit issues between the parties and given that counsel elected to proceed by way of submissions on the face of the affidavits and thereby leaving the issues of disputed fact and credit untested, I am of the view that I am bound to take the applicant’s case at its highest unless the material before me as it is allows such findings of fact or credit or if the applicant’s evidence is inherently unacceptable.
Both parties refer in their affidavits to the dates of marriage ceremony in India and Australia. The wife then says at paragraphs 3 and 4 of her first affidavit:
I remained at home and took care of our three children… I was discouraged from leaving the home and interacting with other people and as a consequence I have very little English.
The house in Sydney was either sold or transferred into the Husband’s sister’s name in late 2003. We then moved to Melbourne and subsequently bought a house in [N]. The Husband bought our current home at Property D, [D] whilst I was in India…
The husband in his affidavit is silent as to the proprietary circumstances of the parties between their marriage and the date
of separation. He states at paragraphs 7 and 11 of his affidavit:
Immediately prior to the final separation the parties and the children lived in rented accommodation in [N] owned by my sister Ms R.
…
At the date of separation neither party owned any assets of any real value, save that I had superannuation interest then of about $30,000.00.
The parties agree that the husband purchased a property at Property D, [D] in late 2008. In his affidavit at paragraph 16 the husband says:
In relation to financial matters I say as follows –
(a)In late 2008 I purchased real property at Property D, [D] for a price of $239,000.00. The purchase price was financed by way of a bank loan of $203,500.00 and substantial personal loans from my sister Ms R and other family members.
(b)In late 2010 I sold the [D] property for $287,500.00. From the net proceeds I received $76,276.81 and from those funds I repaid my sister and my other family members, namely Mr/Ms A and Mr/Ms K, the funds they had advanced to me to assist in the purchase of the property. As at the present time I have retained only $7508.00 from those proceeds of sale. Other than what is set out in my Financial Statement filed in these proceedings, I do not own any other assets or resources of any kind whatsoever.
(c)I now live in Sydney in a property owned by my sister Ms R. My sister does not charge me any rent and my only source of income is via Centrelink payments.
(d)My sister Ms R is a professional business woman and she has assisted myself and other family members in substantial financial ways over many years.
The silence of the husband as to the property of the parties between 2003 and 2008 is of some significance. The evidence of the wife clearly suggests the ownership of property both during the relationship and post separation by the husband. Further, the husband has superannuation entitlements. The wife’s affidavit material sets out a prima facie claim for contribution as homemaker and parent. The husband does not, in my view, adequately explain the disbursement of the balance proceeds of sale of the [D] property in 2010. On his own evidence, there were net proceeds of $76,276.81. He says that he repaid personal loans to family members who assisted with the purchase. However, on his own evidence, the sale price of the property was some $48,500.00 in excess of the purchase price. The evidence suggests that the husband is in employment. The wife’s evidence is that she is impecunious and relied upon government benefits.
Taking all of these matters into account, I am of the view that the wife has set out sufficient material in support of her substantive application such that there may be a reasonable chance of success. I am satisfied given the matters above that there is a “pool” of property to which any order could attach. I stress, however, that my comments should not be taken as a proper testing or investigation of the substantive merits of the applicant’s claim at this stage.
Having determined that hardship would follow if leave were not granted to the applicant to bring her application, I must now consider whether to exercise my discretion. I note the following:
a)the substantive application albeit not in proper form in that it did not seek an order under s.44(3) of the Act, was filed only nine days after the 12 month period had expired;
b)the husband had been put on notice of the wife’s property claim by a letter to his solicitors prior to the expiry of the 12 month period;
c)
the wife claims that she was unaware of the fact of and/or date
of the divorce becoming absolute due to her being in India and her lack of understanding of the English language; and
d)the wife did not return to Australia until August 2010.
Taking all of these matters into account I am of the view that the wife has given an adequate explanation for her delay in bringing her application.
It is also proper that I consider any prejudice to the respondent by granting leave to the applicant. Generally, a party should be able to rely on the time limits set out in the Act and then be able to move on with their lives without fear of litigation. In this sense, there would necessarily be some prejudice to the husband. Nevertheless, his affidavit material suggests that there was little or no property of the parties at the date of separation, save and except his superannuation entitlements. He has since separation purchased and sold a residence. However, on the material before me I can see no manifest prejudice to the respondent in the granting of leave to the applicant to bring proceedings under s.79 of the Act. Certainly the respondent might have recourse by way of costs orders should the s.79 application ultimately be unsuccessful.
Conclusion
Having considered the relevant authorities and the material before me, and for the reasons set out above, I am of the view that leave should be granted to the wife to prosecute her amended application out of time. Accordingly, there will be an order that the applicant be given leave pursuant to s.44(3) of the Act to initiate property proceedings by her application filed 20 December 2010 as amended by the application of
3 March 2011. I will hear counsel as to directions for the furtherance of this matter.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 19 April 2011
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