Donovan & Hargrave
[2011] FMCAfam 1468
•13 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONOVAN & HARGRAVE | [2011] FMCAfam 1468 |
| FAMILY LAW – Property – application in a case – application for leave to commence proceedings out of time – institute proceedings under Family Law Act 1975 (Cth) s.44(3) – where applicant claims not to have had legal advice – where English is not applicant’s first language – whether applicant would suffer hardship if leave were not granted. |
| Family Law Act 1975, ss.44, 79 |
| In the Marriage of Althaus (1979) 8 Fam LR 169; (1982) FLC 91-233 Bevan & Bevan (1995) FLC 92-600 In the Marriage of Carlon (1982) 8 Fam LR 729; FLC 91-272 Frost & Nicholson (1981) FLC 91-051 Hall and Hall (1979) FLC 90-679 Whitford & Whitford (1979) FLC 90-612 |
| Applicant: | MS DONOVAN |
| Respondent: | MR HARGRAVE |
| File Number: | PAC 1122 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 December 2011 |
| Date of Last Submission: | 13 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jamieson |
| Solicitors for the Applicant: | Gibson Howlin Lawyers |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No Solicitor on the record |
ORDERS
The Applicant is granted leave under subsection 44(3) of the Family Law Act 1975 to institute proceedings for the division of matrimonial property under section 79 of the Family Law Act.
The Respondent is to file and serve a Response to the Application for division of matrimonial property, an affidavit in support and a financial statement within one month.
IT IS NOTED that publication of this judgment under the pseudonym Donovan & Hargrave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 1122 of 2009
| MS DONOVAN |
Applicant
And
| MR HARGRAVE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife for leave to institute proceedings for the distribution of matrimonial property out of time. The Applicant requires the leave of the Court because more than twelve months have elapsed since the parties’ divorce became final.
The Respondent husband opposes the application for leave. He claims that the Applicant had legal advice before signing an agreement to receive a share in the property.
Background
The parties were divorced on 8th April 2009. The divorce became final on 9th May 2009.
The parties separated in about April 2010, according to the Applicant.
The parties sold a jointly owned property at Property K, New South Wales, in about February 2010. The Applicant claimed to have received an amount of $5,000.00 from the proceeds of sale. She retained her interest in a [omitted] business and a motor car.
There does not appear to have been a document setting out an agreement between the parties.
Evidence and Submissions
The Applicant relies on her affidavit sworn on 28th March 2011 in support of her Application.
The Respondent has not filed any affidavit about this issue.
In her affidavit, the Applicant deposes that she did not obtain any legal advice at the time of the divorce. She is of Vietnamese birth and English is her second language.
The Applicant states:
I was intimidated and scared of [Mr Hargrave] and I did not wish to make any problems and did not know of my rights to seek any further amounts from the sale of out former matrimonial home. I did not know that I had rights to dispute what [Mr Hargrave] gave me from the sale of the former matrimonial home.
It was only when I obtained independent legal advice for the purposes of Parenting matters that I discovered that I was perhaps entitled to further funds in a division of the matrimonial assets.[1]
[1] Affidavit of Ms Donovan 28.3.2011 at paragraphs [29]-[30]
The Applicant has annexed to her affidavit a copy of a letter dated 1st February 2010 from a firm of solicitors, BT Legal. The letter is addressed to both the Applicant and the Respondent. The letter refers to the proposed settlement of the sale of the parties’ home at Property K, and shows the amount payable by the purchaser on settlement to be $579, 842.76. The bulk of that amount was payable to the mortgagee, but a sum of $116,106.68 was to be paid to the Respondent.[2]
[2] Affidavit of Ms Donovan Annexure “C”
The Applicant also annexes a copy of a letter to the parties dated 8th February 2010 from Gilmour & Orley, real estate agents. That letter shows that the balance of deposit, a sum of $17,106.10, was paid directly into the parties’ nominated bank account.[3]
[3] Ibid Annexure “D”
The Applicant claims that she only received $5,000.00 out of the proceeds of sale.[4]
[4] Ibid at [32]
The Applicant also deposes:
I authorised the entire sale proceeds to be paid to [Mr Hargrave] as I was intimidated and scared of him and did not understand that I may be entitled to more than $5,000.00 from the proceeds of sale of the Property K property.[5]
[5] Ibid at [34]
The Applicant also claims that the Respondent had a superannuation entitlement as he was in employment during the marriage.
The Respondent disputes the Applicant’s claims and says that the Applicant did have legal advice. The firm BT Legal were in fact the Applicant’s solicitors. He said that he “walked away without a cent from the proceeds of sale of the house”. He also said that there was another document signed by both parties setting an agreement between them but he did not have a copy if that document.
The Respondent asked the Court not to exercise the Court’s discretion in favour of the Applicant.
The Relevant Law
Where a divorce order has taken effect, proceedings for division of matrimonial property shall not be instituted, except by leave of the court or with the consent of both parties to the marriage, after the expiration of 12 months after the divorce order has taken effect (Family Law Act, s.44(3)).
Paragraph (a) of subsection (44(4) of the Act sets out the requirements for leave to be granted to commence property proceedings after the expiration of 12 months:
The Court shall not grant leave under subsection (3) and (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; …
It is not necessary for a detailed hearing on the merits of the claim to be undertaken before the question of leave is decided. The Court does not have to decide whether the substantive claim will succeed (In the Marriage of Althaus[6]. Where the Applicant establishes a claim proper to be heard, the Court should generally be reluctant to refuse to allow the claim to proceed where the delay has been explained and there is no real prejudice to the Respondent (Hall and Hall[7]; Frost and Nicholson[8]).
[6] (1979) 8 Fam LR 169; (1982) FLC 91-233
[7] (1979) FLC 90-679
[8] (1981) FLC 91-051
It is not necessary to show that the Applicant is in penurious circumstances before hardship is established (Bevan & Bevan[9]).
[9] (1995) FLC 92-600
The Full Court considered the meaning of ‘hardship’ in s.44(4) in Whitford & Whitford[10]:
We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotation. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense. As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship.[11]
[10] (1979) FLC 90-612
[11] (1979) FLC 90-612 at 78,145
Whilst an explanation is only one factor to be considered, a failure to give a satisfactory explanation for a substantial delay in seeking to institute proceedings may be refused leave (In the Marriage of Carlon[12]).
[12] (1982) 8 Fam LR 729; FLC 91-272
In considering whether or not to grant leave, the Court must also consider whether in the circumstances the respondent would suffer prejudice if leave to institute proceedings were granted (Frost & Nicholson[13] per Nygh J at 76,424).
[13] Supra
Conclusions
In my view, the Applicant has shown that she has an arguable case for obtaining a property order if she were granted leave to institute proceedings out of time. I am also satisfied that no undue prejudice would be sustained by the Respondent if leave were granted.
The Respondent states that he “walked away with nothing” after the former matrimonial home was sold. However, the Applicant has produced evidence that a total of $133,212.78 was received by the parties by way of proceeds of sale, of which the Applicant claims that she received only $5,000.00. If this is in fact the case, the Applicant would appear to have a claim for a greater amount.
The Respondent told the Court had in fact received legal advice, as the solicitors who acted on the sale were her own solicitors. However, these solicitors did not act for the parties in the divorce proceedings. The Court file shows that the Application for Divorce was a joint application which appeared to have been prepared by one or both of the parties and not by a lawyer.
The former matrimonial home was sold early the following year on the joint instructions of the parties. There is no evidence that the solicitors involved had any instructions to advise either party about family law matters.
A copy of the parties’ Certificate of Divorce is annexed to the Applicant’s affidavit. The Certificate bears this advice:
If a party to the marriage proposes to make any application to the Court as to property or as to the maintenance of that party such application must be made within 12 months of the divorce order taking effect. After that time such an application cannot be made without first obtaining the leave of the Court to do so.
That is very clear advice which the Applicant seems to have either ignored or overlooked. She may not have understood that it could apply to her.
It is relevant that the Applicant was born in Vietnam and English is not her first language. She has required the services of an interpreter for these proceedings. She has deposed that it was only when she sought legal advice for the purpose of the parenting proceedings that she was informed about her right to commence property proceedings.
By contrast, the Respondent, who is also originally from Vietnam, speaks fluent English. He is a member of the [omitted] profession and is able to represent himself in these proceedings in a clear and articulate manner.
In all the circumstances, I am satisfied that the Applicant has given a satisfactory explanation for failing to commence an application for property settlement within the time prescribed by s.44(3) of the Act. I am also satisfied that she would suffer hardship if leave to institute proceedings were not granted to her.
I am not of the view that the Respondent would be unreasonably prejudiced by a grant of leave to the Applicant to commence proceedings for division of matrimonial property.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 10 January 2012
3
0
1