COLFER & COLFER - [2011] FMCAfam 1416

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COLFER & COLFER

[2011] FMCAfam 1416

FAMILY LAW – Property – application for leave to institute proceedings out of time – hardship – discretion of the Court.

Family Law Act 1975, ss.44, 79

Whitford and Whitford (1979) FLC ¶90-612
Sharp & Sharp [2011] FamCAFC 150
Leibinger and Leibinger (1986) FLC ¶91-727

Applicant:

MS COLFER

Respondent:

MR COLFER

File Number:

MLC 6757 of 2011

Judgment of:

McGuire FM

Hearing date:

16 November 2011

Date of Last Submission:

16 November 2011

Delivered at:

Melbourne

Delivered on:

21 December 2011

REPRESENTATION

Counsel for the Applicant:

Ms A. Carter

Solicitors for the Applicant:

Harris & Chambers

Counsel for the Respondent:

Mr D. Staindl

Solicitors for the Respondent:

Rickards Legal

ORDERS

The wife’s application for leave to bring proceedings out of time pursuant to s.44(3) of the Family Law Act 1975 is refused.
The wife’s application filed 29 July 2011 be dismissed.
The husband’s application for costs is noted, and the Court directs the husband to provide written submissions in support of his application

in chambers by not later than 4.00 pm on 30 January 2012, and the wife to provide written submissions in response not later than 4.00 pm on 13 February 2012.

IT IS NOTED that publication of this judgment under the pseudonym Colfer & Colfer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 6757 of 2011

MS COLFER

Applicant

And

MR COLFER

Respondent

REASONS FOR JUDGMENT

The wife is the applicant for alteration of property interests and spousal maintenance. As a preliminary issue I am asked to determine whether she should have leave pursuant to s.44(3) of the Family Law Act 1975 (“the Act”) to institute proceedings outside of the 12 month limitation period for filing after the granting of a final order of divorce.
The parties, in fact, were divorced [in] 1976. The wife’s application was filed 29 July 2011 being almost 34 years out of time.
The husband is 71 years of age. The wife is 66 years old.
The parties married in November 1967.
In February 1968 they purchased the former matrimonial home

in which the wife still resides at Property M in Victoria.
There have been three children of the marriage. They are aged 43,

42 and 38 years respectively.
The parties separated in August 1974 and on 15 November of that year a maintenance order involving spousal and child maintenance was made in the [omitted] Magistrates Court.
The parties divorced on 31 October 1976.
The wife has remained at all times resident in the former matrimonial home at Property M. The husband, in addition to the maintenance order, made full mortgage payments until May 1982 and thereafter until May 1985 he made half the mortgage payments.
The husband continued to pay maintenance in accordance with the Magistrates Court order until November 2008.

The evidence

The wife relied on her affidavit and financial statement filed

29 July 2011. The husband filed an affidavit and financial statement

on 2 November 2011.
The matter proceeded by way of submissions on the face of the documents filed and without cross-examination.

The law

Section 44(3) of the Act provides time restrictions on maintenance

and property proceedings in that leave of the Court is required

to commence or continue such proceedings if more than 12 months has passed since the granting of a decree absolute or final divorce.
Section 44(4) of the Act sets out the requirements for leave to be granted as follows:
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.
The decision of the Full Court of the Family Court in Whitford and Whitford[1] is much quoted in applications for leave to institute proceedings out of time. Their Honours commented at [78,144]:
…two broad questions may arise for determination. The first
of these is whether the Court is satisfied that hardship would
[1] (1979) FLC ¶60-612.
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.
Their Honours continued at [78,146]:
The determination how this discretion should be exercised, must depend on the facts of the particular case. Due weight must
be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date
of the decree nisi, and the general policy of the Act which appears from sec. 44(3) and sec. 81 that financial relationships between the spouses should, wherever possible be brought
to finality within a reasonable time after the dissolution of the marriage. Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength on the merits of the applicant's case, and the degree of the hardship which would
be suffered unless leave were granted, are matters affecting the exercise of the discretion…

Hardship to the applicant

It is well established that hardship is that which would be caused to the applicant or a child if leave were not granted. The loss of the right
to institute proceedings in itself is not hardship. Rather, the section deals with the consequences, if any, of the loss of that right. Again, their Honours in Whitford and Whitford (supra) at [78,144] state:
…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…
In a more recent Full Court decision of Sharp & Sharp[2] at [18] their Honours confirmed:
In assessing hardship in this context the well established test
[2] [2011] FamCAFC 150.
is that the applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
It follows that in the matter before me the applicant wife must have some probable chance of success in her application which seeks unquantified spousal maintenance and a property order in the following terms:
a)That the husband transfer his interest in the unencumbered property at Property M to the wife, such property having a value according to the wife of $560,000.
b)Such further order pursuant to s.79 of the Act “by way
of distribution of the property between the parties upon such terms and conditions as this Honourable Court deems just and appropriate…”
On a close reading of the wife’s application it may, therefore, be open for the Court to interpret the wife as seeking an order that the husband’s interest in the former matrimonial home transfer to her
but that there be some consequential adjustment, including perhaps
a cash adjustment, to the husband. As such, the wife’s application
is unparticularised and vague in the orders that it seeks and it follows that it is an almost impossible task, on a literal reading of that application, to determine whether or not there is a probability
of success. That is, it is not possible to decipher from the application itself for instance what percentage distribution of the property pool the wife seeks.
What I do know is the following:
a)That the parties married in 1967 being now some 44 years ago.
b)They separated as long ago as 1974.
c)The parties have variously been in employment since that time.
d)The wife has had the full use and benefit of the home since separation.
e)The husband has contributed significantly to the mortgage payments for the home in which the wife has had residence since separation.
f)The husband has paid spousal and child maintenance including for a period after the children have achieved adulthood.
g)The wife has, only recently, received a major inheritance.
h)The husband has since retired and has realised his superannuation benefits but there is no evidence as to what part, if any, of those superannuation entitlements accrued during the course of the relationship and hence it is not possible to make findings
of contributions, to this resource at least.
i)The wife was apparently the primary carer of the children post separation including a child or children who suffered and continue to suffer some disabilities.
If leave were not granted for the wife to commence proceedings in this Court then the parties would have the option to proceed in a State court, namely the Victorian Civil and Administrative Tribunal (“VCAT”). The wife says at paragraph 49 of her affidavit:
…If this Court cannot assist me, I will be forced to issue proceedings that are not as appropriate in my circumstances
and at considerable expense and with a much greater level
of uncertainty of outcome.
I assume that the wife is here referring to the option to issue proceedings in the State court.
I find some merit in the submissions of counsel for the husband that
no particulars are given or argued by the wife as to why proceedings instituted in VCAT would not be “as appropriate”. There is no justification or particularisation for the claim that such proceedings would be more expensive. Similarly, there is no particularisation
or justification why such proceedings would have “a much greater level of uncertainty of outcome”.
Given the vagueness and lack of particularisation of the wife’s application initiating proceedings on its face, the fact that the period
of cohabitation was only some seven years in duration and ceased some 37 years ago, consideration of the parties’ financial circumstances
now as appears on the face of their sworn financial statements, and the evidence that I do have as to contributions, both direct and indirect,
I am not satisfied that the wife has made out a case that she or a child would suffer hardship in the sense that she would lose the right
of “probable success” in her application should she not be given leave to prosecute that application.
The wife’s application for spousal maintenance is more easily disposed of. Again, she does not particularise her claim in her application.
As such, at its highest I must consider whether or not the wife has any reasonable likelihood of success in an application for spousal maintenance per se and without reference to quantum.
Section 44(4)(b) states:
The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
…
(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.
It is conceded that as at the relevant period the wife was, in fact,
in receipt of spousal maintenance pursuant to a court order.
Not surprisingly, given the passage of time, I have no details
as to whether or not that order was made by consent or after a defended hearing. Whilst the quantum in today’s terms might be minimal,
the order was made some 37 years ago and in all likelihood was then
of some substantial benefit to the wife and, in any event, there
is no evidence before me of either an appeal or subsequent applications based on changes of circumstance.
In addition, the husband contributed substantially to the mortgage payments on the home in which the wife resided. He also paid
an element of child maintenance under the Magistrates Court order.
The wife’s own sworn financial statement filed in these proceedings discloses expenditure of $347 per week from an income of $298 per week from an age pension. However, it is long established that spousal maintenance is not to be determined simply upon the relative incomes of the parties but also as to an examination of property and resources. The wife’s financial statement discloses that she holds bank accounts totalling some $181,796 (I am left to wonder why she receives
no interest on those deposits according to her sworn financial statement). In addition, she has superannuation entitlements which, given her age, should have or be capable of vesting. She discloses
no liabilities other than a credit card debt of $59.
On the basis of that information I could not be satisfied that the wife even in a current spousal maintenance application would pass the threshold of establishing need.
Consequently, and given that the wife has an onus in my view
to adduce evidence of sufficient weight and probity in support of her claimed hardship, she does not pass the threshold and this brings to an end her application.
Nevertheless, and in the circumstances, I think it proper that I comment on the second limb of the consideration as to whether I would have exercised my discretion. The matters that I must consider include the following:
a)The length of delay in bringing the application.
b)The reasons for delay.
c)The hardship, if any, to the respondent if leave were to be granted.
The delay in this matter is an extraordinarily long one. It constitutes some 34 years since the wife’s entitlement to bring an application without leave expired.
I am not satisfied that the wife has adequately explained her reasons for delay. She has over the years had legal advice. She was represented
in the divorce application. She says that her lawyer at that time,
a Mr McDonald, did not advise her as to the time limits in a property settlement. Mr McDonald is now deceased and I am obliged to accept the wife’s evidence.
However, at paragraph 41 of her affidavit the wife concedes that
in 1986 she became aware of the limitation period for bringing property or maintenance applications after a divorce. She says simply that she did not pursue the options apparently because she did not understand that she had any.
Again, in 1989, the wife did seek advice from a solicitor at the Legal Aid Commission of Victoria. She says, however, that this solicitor/client relationship ceased when they were unable to obtain the late Mr McDonald’s file. At paragraph 44 of her affidavit she says:
…By 1990 I had given up trying because I did not think I could resolve the issue without needing to sell the home to pay for legal fees in a state court. At no stage was I aware that the Family Law Courts can make an exception for applications filed out of time in special circumstances or with the consent of both parties. Had
I known this, I would not have given up in 1990.
The wife says in May 2010 she herself contacted the husband trying
to reach an “agreement”. Shortly prior to her initiating these discussions it seems that the wife herself had benefited by a substantial inheritance.
Significantly, in my view, the wife concedes that in paragraph 48 of her affidavit to seeking and obtaining more advice from a solicitor in July 2010. She says that correspondence was sent to the husband by those solicitors from July 2010. Nevertheless, the wife does not file her application until 29 July 2011, being more than one year (on the uncontradicted submissions of the husband’s counsel) from the time she obtained her most recent advice.
As such, I am satisfied that over the many years since divorce the wife has had advice from a number of sources including solicitors.
She became aware of the time limitations many years ago.
I am not satisfied that lack of commitment in pursuing her options
is an adequate or reasonable explanation for such a lengthy delay.
Further, I find some force in the husband’s argument that the mere flux of time would be prejudicial to him in defending a case where witnesses and recollections of events from the 1970s may
be unobtainable or lost in time in respect of important issues such
as contributions. As the Full Court said in Leibinger and Leibinger[3] at [75,281]:
With the death of the wife’s mother as well as the effluxion of time and the likely blurring of the parties’ memories of events that took place 20 or 30 or more years ago, I cannot see how the husband’s application for property settlement could be tried adequately or fairly to the wife. I see great prejudice to her with the granting of leave to the husband…
[3] (1986) FLC ¶91-727.
Consequently, even if the wife had been able to establish hardship, which I find she has not, then in my discretion I would not have been satisfied as to the wife’s explanation of the lengthy delay and further would have been satisfied that there would be substantial prejudice
to the respondent husband by leave being granted.
The wife’s application will be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of McGuire FM

Date: 20 December 2011