Egerton & Sandown

[2021] FCCA 1215

FEDERAL CIRCUIT COURT OF AUSTRALIA

Egerton & Sandown [2021] FCCA 1215

File number(s):	DGC 219 of 2020
Judgment of:	JUDGE BURCHARDT
Date of judgment:	4 June 2021
Catchwords:	FAMILY LAW – application for extension of time to bring property proceedings – parties separated in 2016 and divorced in March 2018 – explanation for delay scarcely compelling – any hardship more probably than not arising from post-separation matters – applicant’s case facing significant difficulties in any event – not just and equitable to extend time  - application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 44(3), 44(6)
Cases cited:	Whitford & Whitford (1979) FLC 90-612
Number of paragraphs:	26
Date of hearing:	21 May 2021
Place:	Dandenong
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Mr Liddell
Solicitor for the Respondent:	Balwyn Legal

ORDERS

DGC 219 of 2020

BETWEEN:

MR EGERTON

Applicant

AND:

MS SANDOWN

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	4 JUNE 2021

THE COURT ORDERS THAT:

1.The amended initiating application filed 17 March 2020 be dismissed.

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 Egerton & Sandown is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BURCHARDT

INTRODUCTORY

1. On 23 January 2020, the applicant filed an application in respect of both parenting and property matters.  Parenting issues have since resolved.  Although his initiating application did not raise the matter, it has emerged that this application is substantially out of time because divorce took place on 1 March 2018.  The respondent strongly resists the application for an extension of time ultimately made by an amended application and, for the reasons that follow, I am going to uphold that objection.

   AGREED OR UNCONTROVERSIAL MATTERS

2. The husband was born in 1970 in the Country B.  The wife was born in Country C in 1970, but came to live in Australia in 1974 and is a citizen of this country.  The parties met in 1997, when the husband was visiting Australia, and they married in 2007.  A child X was born in 2007, and Y, born in 2010, followed.  The parties appear to have separated in June 2016 and, as indicated, the divorce took place in April 2018.  The husband works as a health care worker, earning a salary of approximately $72,000 per annum, and the wife works as a tradesperson and earns approximately $30,000 per annum, although these earnings have been, it would seem, completely diminished during COVID.  She is presently reliant on statutory benefits and child support, presently paid at $151 per week, together with $300 rent from her wholly-owned rental property.

3. The children live with the mother and spend time with the father on what appears to be an informal basis (there is no parenting orders application before the court). 

   THE PARTIES AFFIDAVITS

4. Much of what the parties have said is traversed in the agreed section above.  The husband’s first affidavit additionally suggested that he had brought approximately US$30,000 to Australia and that at that time, he owned a property in City D, Country B which had a mortgage of between $40,000 - $50,000.  The wife owned a unit in Suburb E.  The husband’s financial statement, filed 23 January 2020, showed superannuation worth $78,365, a car in his possession worth $35,000 and “nil” as to liabilities.

5. The wife’s first affidavit, filed 10 March 2020, took issue with the husband’s prior assertion that he had not signed the divorce application.  She deposed that the date of divorce is 1 March 2018.

6. The husband’s responding affidavit, filed 17 March 2020, suggested that he had not known about the divorce, but having repeated his $30,000 contribution at the start, deposed in round terms to debts of $50,000. 

7. The wife’s further affidavit of 19 April 2020 deposed to owning a unit in Suburb E worth $240,000 together with a mortgage of $84,000.  I note that her superannuation in her financial statement was $68,000.  The wife’s affidavit deposed that the husband had not, as he said, left the house with nothing but had, in fact, cleaned out the parties’ banks accounts at separation in the sum of $17,551.  She exhibited “-2”, which appears to prove this, and this has not been denied by the husband. 

8. In his final affidavit, the husband said that he had AU$60,000 at the start of the relationship, and that his City D property had been foreclosed in 2010, owing to prior financial difficulties.

   THE SUBMISSIONS MADE AND THE EVIDENCE GIVEN AT COURT

9. What follows is taken from my notes.  Neither party sought to cross-examine and by what, in effect, was consent, the matter proceeded by way of submissions.

10. The husband, who was self-represented, indicated that he had taken action within the relevant time period, as he had emailed the wife on 6 January 2018 and followed up at F Counselling in March 2018 and again in May 2019.  He says his main concern was the children at the time. 

11. Mr Liddell, solicitor for the wife, said property had not been discussed.  Mediation would not have assisted.  The husband had been served, and there was no hardship if his application out of time was not permitted.  He submitted that the wife pays all school fees and there was no hardship if the husband was not permitted to extend time.

12. In reply, the husband said he had brought $60,000 to Australian in 2007.  He had supported the household throughout the relationship.  The wife had done trades work and was busy on Saturdays, so he looked after the children and he did 100 per cent of the weekends.  The wife had not disclosed her financial information.  There was still no disclosure.  He said she works for cash-in-hand and that he made every direct financial deposit.  He had no idea how much she had made.

13. In response, Mr Liddell referred to the fact that there were no details about the Country B property.

    THE APPLICABLE LAW

14. Section 44(3) of the Family Law Act relevantly provides that:

    (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.

15. Pursuant to section 44(6):

    (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…

16. This section has, of course, been considered by the Courts on numerous occasions, and one of the more venerable, but still often-cited, cases is Whitford & Whitford (1979) FLC 90-612. I refer to the entirety of that judgment to which I have had regard but would set out the following extract at page 78146, which is perhaps particularly helpful:

    The determination of how this discretion should be exercised, must depend on the facts of the particular case. Due weight must be given to the express legislation intendment that ordinarily, proceedings should be commenced within a year from 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. These matters are not necessarily the only ones.

    THE EXPLANATION FOR THE DELAY

17. In his affidavit, the applicant appears to suggest that he simply was unaware of the divorce order and, indeed, of the time limit prescribed by the legislation.  It should be remembered that separation took place in 2016, which is now some five years ago.  Contrary to the husband’s position, it is clear beyond doubt that he was, indeed, served with the divorce application, as that is what the affidavit of service says.  As I understood his final position in Court, it was that he had received the divorce application but not signed the acknowledgment of service.  Given his concession, it is not necessary for me to explore the question of his signature on the acknowledgment of service, although, as I pointed out to him during the trial, it does appear to bear similarity to his signature on his affidavits.

18. Having said all of this, however, I am prepared to, as it were, accept in the husband’s favour the proposition he advances more generally that he was unaware of the time limits that might attach to his application.  Having said this, however, it still remains a fact that this is a long time after separation, and it is reasonable to suppose that until the application was filed, the wife thought that all financial matters between them had been concluded.

    WILL THERE BE HARDSHIP

19. The next question is whether or not hardship would be likely to occur to the husband if the application for leave for the extension of time is not granted.  Here, the matter is rendered more difficult by the lack of cross-examination and the relatively sparse nature of the affidavit and other materials filed.  I note that the husband’s initial position was that he had no liabilities.  These are now said to be worth $50,000.  The wife says that these would all be post-separation liabilities and that in any event, he extracted all their current funds at the point of separation.  Doing the best I can with the evidence that I have, it seems more probable than otherwise that the wife’s assertion as to the extraction of funds is correct.  There is simply no detailed proof of the husband’s debts, nor as to the extent to which they could in any sense be said to have accrued during the marital relationship.  Given that the marriage ended in June 2016, it seems to me more probable than otherwise that all or certainly the vast majority of any debts the husband may now have are post-separation debts.

    THE HUSBAND’S CASE

20. This brings us to the, in a sense, interrelated issue of the strength or weakness of the husband’s case were he to be allowed to run it.  His case would face significant difficulties as to the extent of his indebtedness for the reasons which I have just described.  That is, however, by no means the end of the matter. 

21. In considering the parties’ positions at the necessarily somewhat impressionistic level that this exercise presently involves, it has to be said, as Mr Liddell submitted, that the husband’s case faces great difficulties.  He may have brought in some $30,000 (I note that the figure has steadily grown during the proceedings) or even, perhaps, more at the start of the relationship.  He undoubtedly was the primary wage-earner during the relationship, and he may well have contributed, to an extent at least, with looking after the children when the wife was working at weekends.

22. What the husband’s case ignores, however, is the nature of the present property pool.  The parties’ superannuation is almost the same, although his is about $10,000 greater.  There is no evidence as to how much of it was accrued during the relationship, but the figures are not so disparate that any significant adjustment would in any sense be likely.

23. The only other property the parties presently have, if I accept the husband’s position as to his property in City D, is the unit that the wife owns.  That is a unit that she owned before the relationship commenced, and she has deposed, without challenge, that she has always paid the mortgage and outgoings.  Given that the mortgage is presently $84,000 and that the rent is $300 a week, I would infer, without any difficulty, given current interest rates, that that property had been paying for itself for quite some time.  The notion that the husband has made any material contribution towards the creation of this asset is plainly open to considerable question.  This is not a final hearing, so I am not in a position to make a final conclusion, but one might very well feel that the wife should have that which she had before the relationship even commenced. 

24. That is once again not the end of the matter either.  Where the pool is so small a size, being constituted in the fashion that it is, there would be every chance that the Court would take an asset-by-asset approach to this property pool and determine that it was just and equitable the wife retain it in any event.

25. In my view, the husband’s chances of success are not great, and the wife would suffer the obvious and significant hardship of losing the only hard asset she has in circumstances where she has and will continue to have for many years to come the primary costs and responsibilities of the carer of the two children.

    CONCLUSION

26. Balancing all these relevant matters leads, in my view, to a very clear conclusion.  The husband’s explanation as to not bringing his case in time is scarcely compelling at best.  There is, in my view, no compelling evidence that the husband is suffering hardship beyond possibly a set of circumstances of indebtedness which, more probably than otherwise, does not in any sense arise out of the matrimonial relationship.  The only hard asset is entirely the fruit of the endeavours of the wife.  The wife has far greater future need components.  In my view, even if there is some measure of hardship to the husband in not providing him the extension of time in which to bring his case, his chances of success are so diminished and low that it would not be a useful exercise of the Court’s discretion and, therefore, not just and equitable to provide the application for leave to proceed out of time be granted. The application will be dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       4 June 2021