EMERALD & EMERALD
[2017] FamCA 798
•10 October 2017
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 | of | 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 NUMBER: MLC 4577 of 2017
| Ms Emerald |
Applicant
And
| Mr Emerald |
Respondent
REASONS FOR JUDGMENT
Ms Emerald (“the applicant”) seeks leave under s 44(3) of the Family Law Act 1975 (Cth) (“The Act”) to continue proceedings against Mr Emerald (“the respondent”) that have already been filed. Insofar as she desires to bring property alteration proceedings, she is about 30 years out of time.
The respondent opposes leave being granted.
The Initiating Application filed by the applicant on 11 May 2017 does not distinguish between the various forms of financial proceedings she desires to pursue. There is some apparent confusion in just what she proposes because as an interim order, she sought:
Upon the granting of leave the respondent pay to the applicant by way of spousal maintenance the sum of $500 per week.
Paragraph 44(4)(b) of the Act provides that leave shall not be granted unless the Court is satisfied that, in the case of spousal maintenance, at the time the decree (now order for divorce) became absolute (now final), the circumstances of the applicant were such that she would have been unable to support herself without an income tested pension, allowance or benefit.
Although it is not entirely clear from the applicant’s affidavit material, she seems to be asserting that in and around the relevant period, she was not only not working or receiving support from the respondent but also living on the Centrelink pension. On the assumption that that specific evidence is not challenged by the respondent (as can be gleaned from an affidavit he filed on 27 September 2017) albeit it may be challenged at trial, leave should be granted to the applicant to bring an application for spousal maintenance.
The applicant’s pursuit of a property division with the respondent is much more problematic.
Before turning to the specific facts that underpin the leave application, the principles need consideration.
Subsection 44(3) of the Act and the subsections that follow it relevantly provide that where a divorce order has taken effect, proceedings of a kind referred to in paragraph (ca) of the definition of matrimonial cause (s 4(1)) shall not be instituted, except by leave of the Court after the expiration of 12 months after the date on which the divorce order took effect.
Rather than the statute express the exception in general language, the leave provisions are specific and in the language of prohibition. Subsection 44(4) provides that the Court shall not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage if leave was not granted.
There may be many reasons or purposes for the restriction but the parties cannot escape the language by not addressing the need to establish its requirements. The onus is undoubtedly upon the applicant in that regard.
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)
Subsection 44(4) provides the necessary criteria for the exercise of the discretion. It must be first established that hardship would be caused to the applicant absent leave. If hardship is established, the Court must still be persuaded that the discretion should be exercised.
Those statements again focus on the need to provide the Court with evidence and then submissions.
Hardship has also been considered by courts. It is more than the loss of a right to commence proceedings; rather, it is the consequence of the loss of the right to commence proceedings that constitutes hardship (see Sharp & Sharp (2011) 50 Fam LR 567). There must be a claim worth pursuing. Therein lies another dilemma. The applicant filed her Initiating Application in May 2017 and has not since amended it, nor by her affidavit has she set out precisely what she seeks. Her counsel did not articulate anything precise either.
In her application, the applicant sought:
That there be an adjustment of the property interests of the parties pursuant to s 79 of the Family Law Act in such proportions as this Court deems appropriate.
No request to be excused from particularisation was made on the basis of (say) the need for discovery or valuation. Even if that had been the case, five months have now gone by and no such precision has been provided. That makes it difficult, if not impossible, to assess what the consequence would be of the loss of the right to litigate. The applicant referred to assets the respondent had purchased including land in B Town and various properties in Country C. She did not explain how she knew or why she had watched on as he had acquired all of these items. She said:
Whilst I am not fully aware of all of the property that was acquired, as the respondent has not disclosed his interests to date….
All of this evidence, or at least attempts to get it, are important to enable the Court to ascertain whether if leave was granted, it would, in the substantive result, alleviate that alleged hardship. In contemplating the meaning of hardship, the Full Court in Whitford at 78,144 said:
...The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that 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 ... If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
There is therefore a need not just to set out what is being sought but how, based on the evidence, such a property alteration order could be made. The evidence might also need to address the principles articulated in Stanford & Stanford (2011) FLC 93-483 in a case where some assets on the applicant’s own evidence have been acquired well after the end of the relationship.
The magnitude of the lost opportunity does not have to be large or indeed, identifiable in monetary terms, but it must at least be clear what it is that the applicant is pursuing. That is particularly relevant here because the respondent had remarried as long as 30 years ago and, as I understand, remains living with that wife.
The evidence of the applicant appeared to be contained in two affidavits. Although it was not drawn to my attention, the applicant’s solicitor filed an affidavit on 27 September 2017 wishing to “withdraw” an affidavit of the applicant dated 11 May 2017 because she did not have the benefit of a translator. The affidavit was not “withdrawn” in the sense of it being removed from the file but as the solicitor said there was no official translator (albeit it was the applicant’s son who did the translation), I shall not take that affidavit into account.
The applicant’s second affidavit is important for a number of reasons, apart from it being her only evidence. First, she had the benefit of her lawyer’s involvement over a period four or five months. Secondly, there was a hearing before a registrar in August 2017 at which both parties were represented (including in the case of the applicant, by counsel) and thirdly, she filed the relevant affidavit after the registrar’s hearing. I turn to what the affidavit says in the context of the principles just discussed.
The applicant said:
·A divorce occurred in 1984 “under Australian law” but there had not been a divorce under “Islamic Law”;
·There was family violence;
·She received a pension because no assistance was provided by the respondent;
·The applicant moved in with the respondent in 1987 at a time when he was already married again. She and the respondent “lived as a married couple” and both “wives” received Centrelink;
·In 1996, the respondent and the applicant purchased a home into which she moved and the deposit was paid from savings and the balance came from a mortgage;
·She had no schooling experience, spent her life raising children and is unable to read and write.
No evidence was given about the circumstances under which the applicant sought the Australian divorce, who conducted it on her behalf, how it was served or what she understood about time restrictions. No mention was made of any lawyer involvement which one might have anticipated having regard to the fact that there were young children.
In respect of the second dot point above, the allegations were vague and general to the point of language such as “many occasions” but the connection with the divorce and the relevance to the parties’ obvious ongoing relationship was not clear. For example, more children were born and there was no suggestion by the applicant of any impropriety on the part of the respondent in their conception, but in those same years, she sought and obtained intervention orders which she said the respondent subsequently “forced” her to withdraw. These statements drawn by the applicant’s lawyer could not be explained by the language difficulties of the applicant or time pressure because the application had originally been filed in May 2017. The vagueness and relevance of this as evidence was concerning.
The applicant said at paragraph 10 of her affidavit that she became aware of the respondent’s new relationship, so she applied for a divorce under Australian law and returned to Australia from Country C because she was frightened of the respondent’s reaction “to the divorce”. Yet the relationship not only went on, but the parties acquired property together.
In respect of the third and fourth dot points above, the applicant went on to say that the respondent required her to hand over her pension benefits. That might enable the Court to presume that the money went towards some of the capital investments that the respondent obtained. Unfortunately, that was not something that she gave evidence about. In other words, I do not know whether the money was used for accommodation and sustenance or whether the inference the applicant wanted drawn was something more sinister.
In respect of the home purchased, nothing was said about the applicant’s knowledge of the arrangements for the mortgage other than that presumably, her pension payments went towards them. She was thrown out of that house but somehow, managed to return to occupy it in 2016.
In respect of the last dot point, whilst she was undoubtedly prejudiced by the absence of education, that does not explain her lack of knowledge of the need to institute proceedings within time. Indeed, the explanation can be seen at paragraph 25 as follows:
I have not until this date sought to issue proceedings for settlement of property due primarily to the fact that I was unaware of my entitlement to seek an order until I recently attended on a solicitor’s office in relation to proceedings issued in the Victorian Civil and Administrative Tribunal whereby the Respondent was seeking to declare that only he had an interest in the Matrimonial Home.
I note the use of the word “primarily” but nothing else in the affidavit evidence indicated any additional reasons. For example, no mention was made of what, if any, advice was given about time limits after the divorce. No mention was made about advice, if any, obtained when the “matrimonial home” was purchased as joint proprietors.
Thus, had the respondent not commenced the action at VCAT, she would have done nothing about her financial position, well knowing that the respondent had other property. She was content to receive the pension entitlements and only altered that perspective when she obtained legal advice. There seems to have been no suggestion of her asking the respondent for assistance before now for some years. How was it possible for her to obtain possession of the “matrimonial home” and how were the mortgage commitments (if any) and the rates being paid?
Whilst the VCAT proceedings might have precipitated her present action, I take into account that she has the opportunity to litigate her entitlements there under state law in relation to that particular property even if no other property.
Finally in respect of the evidence, the applicant said at paragraph 29 that she sought the relief:
…as there were compelling reasons for not filing an application (within time)
The use of the expression leaves me puzzled as to what she was referring to.
It was submitted on behalf of the applicant that her role relating to the children over the years was important as a contribution but that takes the compelling reasons no further. Counsel was restricted to the evidence she had available.
Even if some form of hardship argument could be mounted here, I would have difficulty seeing a basis upon which to exercise the necessary discretion. As was said by the Full Court in Whitford at 78,145:
S 44(4) inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused
...
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 s 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.
Accordingly, I would give significant weight to the intention of the legislation that ordinarily, proceedings should be commenced within a year. Here:
·the length of the delay is very long;
·the reasons for that delay are negligible;
I find that because of that long delay but also the involvement of the second wife it is conceivable that if leave were to be granted, that will cause prejudice to the respondent. It is also significant that I am unable to assess on the evidence just what the applicant’s case might be and thus, the strength on the merits are impossible to assess.
In my view, the application in respect of property alteration must fail. I will make an order that there be a directions hearing before a registrar to assess when and how any spousal maintenance matter is to be determined.
I certify that the preceding Forty-Seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 October 2017.
Associate:
Date: 10 October 2017
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