EMERALD & EMERALD - [2017] FamCA 798

FAMILY COURT OF AUSTRALIA

EMERALD & EMERALD

[2017] FamCA 798

FAMILY LAW – PRACTICE AND PROCEDURE – SECTION 44(3) application - Application opposed by respondent husband. Where the period subsequent to divorce is 30 years. Where explanations as to why action not taken are vague. Where the evidence does not support an order because the wife’s claimed relief is not clear. Where the husband had remarried and any order would also impact on that person’s rights. Where the wife had maintained a relationship with the husband including living with him, having further children to him and enjoying mutual support yet that all ended about 12 years ago. Evidence does not support an order for property but does support an order relating to spousal maintenance leave because at the time the divorce became absolute, the wife was dependent upon an income tested pension or benefit.

Family Law Act 1975 (Cth)

Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541
Frost & Nicholson (1981) FLC 91-051
Sharp & Sharp (2011) 50 Fam LR 567
Stanford & Stanford (2011) FLC 93-483
Whitford & Whitford(1979) FLC 90-612

APPLICANT:

Ms Emerald

RESPONDENT:

Mr Emerald

FILE NUMBER:

MLC

4577

2017

DATE DELIVERED:

10 October 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

4 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mandelert

SOLICITOR FOR THE APPLICANT:

Rsg Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Smith

SOLICITOR FOR THE RESPONDENT:

Zeno Lawyers

Orders

That save as to any application for spousal maintenance by the wife, paragraph 1 of the interim orders contained in the initiating application filed 26 September 2017 is dismissed.
Pursuant to s 44(3) of the Family Law Act 1975 (Cth), the wife has leave to bring her application for spousal maintenance as set out in paragraph 1 of the application for final orders filed 26 September 2017 and pursuant to paragraph 3 of the application for interim orders contained in the same application document.
Paragraph 2 of the final orders in the said application is dismissed.
All other extant applications for final orders are adjourned to a date to be fixed for allocation to a judge as a final hearing.
Paragraph 3 of the application for interim orders in the said application is adjourned to the Senior Registrar’s List of cases at 10 am on 1 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Emerald & Emerald has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE…

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.

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Details

AGLC: EMERALD & EMERALD [2017] FamCA 798
Case: [2017] FamCA 798
Decision Date: 10 October 2017

CaseChat Overview and Summary

In this matter before Cronin J, the applicant wife sought leave to commence proceedings for property settlement and spousal maintenance out of time, which was opposed by the respondent husband. The parties had been divorced for approximately 30 years, and the wife's explanations for the significant delay were considered vague. The court noted that the husband had remarried, and any property orders would impact his current wife's rights. While the wife had maintained a relationship with the husband, including cohabitation and having further children, this ceased approximately 12 years prior to the application.

The primary legal issues before the court were whether to grant the wife leave to proceed with her application for property settlement and spousal maintenance pursuant to section 44(3) of the *Family Law Act 1975* (Cth), and to consider the prejudice to the respondent arising from the extensive delay. The court was required to balance the policy behind limitation periods, which aim to ensure the quality of justice and prevent prejudice through the loss of evidence and memories, against the potential for hardship if leave were refused.

The court applied the principles established in *Brisbane South Regional Health Authority v Taylor* and *Frost & Nicholson*, which emphasise that the discretion to extend time must be exercised in light of the rationales for limitation periods. While acknowledging the general prejudice to the respondent caused by the 30-year delay, including the potential loss of documents, witnesses, and memories, the court found that the wife's situation was not an "extreme example" of delay as contemplated in *Frost & Nicholson*. The court considered that the respondent's actions at VCAT, which prompted the wife's application, meant he could not necessarily rely on the applicant not taking action. However, the court found that the wife's claimed relief for property settlement was not clear and that the evidence did not support such an order. Conversely, the court determined that the wife had a claim for spousal maintenance because she was dependent on an income-tested pension or benefit at the time of the divorce becoming absolute.

Consequently, the court dismissed the wife's application for property settlement. However, pursuant to section 44(3) of the *Family Law Act 1975* (Cth), the wife was granted leave to bring her application for spousal maintenance. Other extant applications for final orders were adjourned for a final hearing, and an application for interim orders was adjourned to the Senior Registrar's List.

Orders

Orders of the court

That save as to any application for spousal maintenance by the wife, paragraph 1 of the interim orders contained in the initiating application filed 26 September 2017 is dismissed.

Pursuant to s 44(3) of the Family Law Act 1975 (Cth), the wife has leave to bring her application for spousal maintenance as set out in paragraph 1 of the application for final orders filed 26 September 2017 and pursuant to paragraph 3 of the application for interim orders contained in the same application document.

Paragraph 2 of the final orders in the said application is dismissed.

All other extant applications for final orders are adjourned to a date to be fixed for allocation to a judge as a final hearing.

Paragraph 3 of the application for interim orders in the said application is adjourned to the Senior Registrar’s List of cases at 10 am on 1 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The principles concerning applications for leave to commence actions out of time were considered in Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541 at 551 where McHugh J said:The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. (my emphasis) The respondent’s affidavit refers to the entitlements of his second wife and the children of that family and whilst that is something to take into account, at least there is a claim, entitlement or relief that is available to them. Counsel for the respondent referred more relevantly to the loss of documents, witnesses, bank records and most importantly, memories as potentially likely to cause prejudice to the respondent. Those are not matters to dismiss lightly. In respect of prejudice, I agree with what Nygh J said in Frost & Nicholson (1981) FLC 91-051: Prejudice here means that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought. To give an extreme example, if after ten years a wife sought leave under sec. 44(3) without ever having given any indication beforehand that she wished to seek a property settlement, leave might well be refused. That does not apply in the present case. (my emphasis) As will be seen below, the applicant would never had begun this process but for the action that the respondent took at VCAT, but the prejudice lies with the respondent because he would be entitled to consider that after 30 years, the applicant would not take family law property type division action. In Frost & Nicholson, Nygh J described a ten year period as “an extreme example”. How much more so is a gap of 30 years? How the respondent explains his action at VCAT is another matter but I consider that as the applicant failed to explain how she obtained possession of the property in which she currently lives, he had no recourse other than through VCAT, unless he had sought the relief that the applicant now has. I accept therefore that there is prejudice to the respondent. In Brisbane South Regional Health Authority v Taylor (supra), McHugh J went on at paragraph 553 to say: A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated...(my emphasis) The approach of the authorities can then be seen as early as Whitford & Whitford(1979) FLC 90-612 (“Whitford”) where the Full Court of the Family Court said that while the section intends to confer power to grant leave to avoid hardship, the “... power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.” (my emphasis)