Carter & Shahid - [2022] FedCFamC1F 867

Federal Circuit and Family Court of Australia
(DIVISION 1)
Carter & Shahid [2022] FedCFamC1F 867

File number(s): WOC 705 of 2019

Judgment of: CHRISTIE J

Date of judgment: 8 November 2022

Catchwords: FAMILY LAW – APPLICATION TO COMMENCE PROPERTY PROCEEDINGS OUT OF TIME – Where the applicant seeks to commence property proceedings under s 90SM of the Family Law Act 1975 (Cth) out of time – Where the parties agree they were in a de facto relationship – Where property proceedings may need to include a third party – Where the asset pool is modest – Where the costs of litigation impacts on the assessment of hardship

Legislation: Family Law Act 1975 (Cth) ss 44, 90SF

Cases cited:
Althaus & Althaus (1982) FLC 91-233; [1979] FamCA 47

Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121

Gadzen & Simkin (2018) FLC 93-871; [2018] FamCAFC 218

Whitford v Whitford (1979) FLC 90-612; [1979] FamCA 3

Division: Division 1 First Instance

Number of paragraphs: 51

Date of hearing: 1 November 2022

Place: Sydney

Counsel for the Applicant: Mr Rossic

Solicitor for the Applicant: Manning Lawyers

Counsel for the Respondent: Mr Moutasallem

Solicitor for the Respondent: Kells the Lawyers
ORDERS

WOC 705 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CARTER

Applicant

AND:
MR SHAHID

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

8 November 2022

THE COURT ORDERS THAT:
1.The application filed 29 August 2022 is dismissed.

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 the pseudonym Carter & Shahid has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:

This is an application for leave to commence financial proceedings out of time.
The parties separated in May 2019 and the applicant commenced proceedings for parenting orders in July 2019. On 24 May 2022 the applicant amended her application to seek financial orders as well.
The respondent opposes leave being granted.
The parties are the parents of X born 2018.
Background
The respondent married Ms B in 2006 and the couple had two children.
In 2013 the respondent and Ms B purchased land at C Street, Suburb D NSW (“the Suburb D property”) as joint tenants and in 2014 they commenced building a home on that property.
The parties to these proceedings met in 2015 when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carter & Shahid

Details

AGLC: Carter & Shahid [2022] FedCFamC1F 867
Case: [2022] FedCFamC1F 867
Decision Date

CaseChat Overview and Summary

In the case of Carter & Shahid, the parties were involved in a parenting dispute concerning their child, X, born in 2018. The applicant and respondent had a brief de facto relationship that ended in May 2019. The applicant sought leave to commence financial proceedings out of time, as the limitation period for such proceedings had expired. The primary issue before the court was whether the applicant had demonstrated sufficient hardship to warrant an extension of the limitation period under section 44(6) of the Family Law Act 1975 (Cth).

The court considered the nature of the de facto relationship, the assets available for distribution, and the likely entitlement of the applicant at final hearing. The primary assets in question were the Suburb D property and the parties' superannuation entitlements. The court noted that the respondent owned the Suburb D property jointly with his former wife, Ms B, and that any distribution of the property would need to account for Ms B's potential claims. The court also considered the respondent's personal debt and the appropriate method for valuing the Suburb D property. Ultimately, the court found that the applicant had not demonstrated sufficient hardship to warrant an extension of the limitation period. The court was not satisfied that the applicant had discharged the onus of proving that the refusal to grant leave would occasion hardship, as required by section 44(6) of the Act.

The court's reasoning was based on the applicant's inability to provide a clear and convincing assessment of the prospective claim, including the value of the Suburb D property and the likely entitlement of the applicant at final hearing. The court found that the applicant had not provided sufficient evidence to demonstrate that the refusal to grant leave would deprive her of a reasonable chance of success in the prospective proceedings. The court also noted that the inclusion of Ms B as a necessary party in the proceedings would likely increase the length and complexity of any proceeding. The court concluded that the applicant had not satisfied the requirements of section 44(6) of the Act, and therefore, the application for leave to commence financial proceedings out of time was denied.

In light of the court's findings, it ordered that the applicant's application for leave to commence financial proceedings out of time be dismissed. The court's decision was based on the applicant's failure to demonstrate sufficient hardship to warrant an extension of the limitation period, as required by section 44(6) of the Family Law Act 1975 (Cth). The court found that the applicant had not discharged the onus of proving that the refusal to grant leave would occasion hardship, and therefore, the application was denied. The court's decision effectively precluded the applicant from pursuing financial proceedings against the respondent beyond the standard application period, as set out in section 44(5) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The parties are the parents of X born 2018.Background The respondent married Ms B in 2006 and the couple had two children. In 2013 the respondent and Ms B purchased land at C Street, Suburb D NSW (“the Suburb D property”) as joint tenants and in 2014 they commenced building a home on that property. The parties to these proceedings met in 2015 when they were both at the E Agency. The respondent and Ms B separated in April 2017 and in mid-2017 the parties commenced co-habitation. In 2018 the parties had a child, X. In early 2019 the respondent and Ms B were divorced. On 21 May 2019 the applicant and respondent separated. On 5 July 2019 the applicant commenced parenting proceedings in the Federal Circuit Court of Australia (as it then was). The respondent reconciled with his former wife and in 2020 a third child was born to that relationship. On 21 May 2021 the limitation period for commencing proceedings without leave expired. On 24 May 2022 the applicant filed an application for leave to commence financial proceedings out of time. In 2022 a fourth child was born to the respondent and Ms B. The evidence replied upon by the applicant was set out in her Outline of Case document. Similarly, the evidence relied upon by the Respondent was listed in the Outline of Case document filed in his case.The law The applicant for leave is required to demonstrate that the requirements of s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) have been satisfied in order for the Court to grant such leave. The applicant bears the onus. Sections 44(5) and 44(6) of the Act provide:(5) Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:(a) the application is made within the period (the standard application period) of:(i) 2 years after the end of the de facto relationship; or(ii) 12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or(b) both parties to the de facto relationship consent to the application.…(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:(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. In that regard, the applicant is required to demonstrate that if leave is not granted then she is deprived of her reasonable chance of success in the prospective proceedings and that will occasion hardship: Gadzen & Simkin (2018) FLC 93-871. It is necessary to make a summary assessment of the prospective claim of the applicant in order to determine whether or not the onus has been discharged: Edmunds & Edmunds (2018) FLC 93-847 at [16]-[17]; Althaus & Althaus (1982) FLC 91-233.Consideration

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is necessary to make a summary assessment of the prospective claim of the applicant in order to determine whether or not the onus has been discharged: Edmunds & Edmunds (2018) FLC 93-847 at [16]-[17]; Althaus & Althaus (1982) FLC 91-233.Consideration This is a difficult case. I accept that the assets of the applicant and respondent are modest and the respondent’s assets are held jointly with his current partner, to whom he was previously married. Both parties accept that the relationship between them would be regarded as a de facto relationship at law notwithstanding the fact that it was of a brief duration. The applicant is required to demonstrate hardship in order to enliven the discretion to grant leave which is created by the terms of s 44(6) of the Act. It is accepted that the hardship in question is the hardship occasioned by the refusal to grant leave and the consequent loss of the right to bring a proceeding which has some merit. In order to assess whether or not the claim of hardship is established on the evidence it is necessary to understand the nature of the claim in a general or summary sense that is:(a)What assets are available for distribution?(b)What is the likely contribution based entitlement of the applicant at final hearing?(c)What adjustment (if any) would be appropriate to take into account any relevant matters under s 90SF of the Act? The asset position of the parties is set out in their financial statements. The most significant assets are the home of the respondent and his partner (subject to mortgage) and the parties’ respective superannuation entitlements. In broad terms the evidence in each parties’ financial statement suggests that the assets are: There is some controversy surrounding the value of the Suburb D property. I cannot resolve that controversy. The applicant for leave also contends that the credit card and personal loan debt of the respondent should be excluded for the purpose of ascertaining the net pool available for adjustment. The respondent is a joint tenant with Ms B of the Suburb D property. They purchased the land together (exhibit 2). They continue to own it as joint tenants (exhibit 3). Counsel for the respondent alluded to the fact that, if leave were granted, Ms B may need to be joined (or may seek leave to be joined) to the proceedings as a necessary and independently represented party. The inclusion of a necessary party is likely to increase the length of any proceeding. The effect of the joint tenancy is that, while the respondent is the owner of the property with an entitlement to it as a whole, he shares that entitlement with another person and each of the parties to this application concede that a short hand way of representing that is to attribute half of the value of the property and half of the value of the mortgage to the respondent. Counsel for the respondent faintly hinted that the claims of Ms B (for whom he does not act) may be greater than a 50 per cent share would acknowledge. That may be the case but I can make no finding in that regard.

File number(s):	WOC 705 of 2019
Judgment of:	CHRISTIE J
Date of judgment:	8 November 2022
Catchwords:	FAMILY LAW – APPLICATION TO COMMENCE PROPERTY PROCEEDINGS OUT OF TIME – Where the applicant seeks to commence property proceedings under s 90SM of the Family Law Act 1975 (Cth) out of time – Where the parties agree they were in a de facto relationship – Where property proceedings may need to include a third party – Where the asset pool is modest – Where the costs of litigation impacts on the assessment of hardship
Legislation:	Family Law Act 1975 (Cth) ss 44, 90SF
Cases cited:	Althaus & Althaus (1982) FLC 91-233; [1979] FamCA 47 Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121 Gadzen & Simkin (2018) FLC 93-871; [2018] FamCAFC 218 Whitford v Whitford (1979) FLC 90-612; [1979] FamCA 3
Division:	Division 1 First Instance
Number of paragraphs:	51
Date of hearing:	1 November 2022
Place:	Sydney
Counsel for the Applicant:	Mr Rossic
Solicitor for the Applicant:	Manning Lawyers
Counsel for the Respondent:	Mr Moutasallem
Solicitor for the Respondent:	Kells the Lawyers

WOC 705 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CARTER Applicant
AND:	MR SHAHID Respondent

order made by:	CHRISTIE J
DATE OF ORDER:	8 November 2022