Emerald & Emerald

[2018] FamCAFC 217

FAMILY COURT OF AUSTRALIA

EMERALD & EMERALD [2018] FamCAFC 217

FAMILY LAW – CROSS-APPEAL – LEAVE TO CROSS-APPEAL – SPOUSAL MAINTENANCE – where the husband sought leave to cross-appeal against orders of the primary judge granting the wife leave pursuant to s 44(4)(b) of the Family Law Act 1975 (Cth) to institute spousal maintenance proceedings about 30 years out of time – where the primary judge erred in finding that s 44(4)(b) applied in circumstances were the decree nisi became absolute prior to the enactment of s 44(4)(b) by s 19 of the Family Law Amendment Act 1987 (Cth) – leave to cross-appeal granted – cross-appeal allowed – the orders of the trial judge set aside – matter remitted for rehearing.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – where the wife sought leave to appeal against orders of the primary judge dismissing her application for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute property settlement proceedings against the husband about 30 years out of time – where the application for leave relies on the success of the grounds of appeal – where the primary judge did not err in finding that the husband would be prejudiced if leave were granted – where the primary judge did not misdirect himself in considering the issue of hardship – where the primary judge did not err in dismissing the application for leave with respect to property settlement in circumstances where his Honour granted leave with respect to spousal maintenance – where the primary judge did not err in the exercise of his discretion – where the primary judge erred in finding that the wife had the opportunity to litigate her claim in the Victorian Civil and Administrative Tribunal – consideration of the meaning of “matrimonial cause” pursuant to s 4 of the Family Law Act 1975 (Cth) – a claim does not lose its character as a matrimonial cause as a result of a refusal to grant leave to institute proceedings out of time – where the error did not sufficiently inform the primary judge’s conclusions as to hardship so as to render the conclusion erroneous – leave refused.

FAMILY LAW – APPEAL – COSTS – where the cross-appeal was allowed and leave to appeal was dismissed – where neither party seeks an order for costs in relation to the cross-appeal – costs certificates issued – where the husband sought costs for responding to the application for leave to appeal and the appeal – where the order for costs was opposed by the wife on the basis of poor financial circumstances – where there are circumstances that justify an order for costs being made – costs ordered in favour of the husband to be assessed in default of agreement.

Family Law Act 1975 (Cth) ss 4, 8(1), 31(1)(a), 31(2), 39, 40(3), 44, 78, 79, 117(2A)(e)
Family Law Amendment Act 1987 (Cth) ss 19, 64
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Limitations of Actions Act 1974 (Qld) s 31(2)z
Property Law Act 1958 (Vic)

Aldred and Aldred (No 2) (1985) FLC 91-602; [1985] FamCA 5
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Althaus and Althaus (1982) FLC 91-233; [1979] FamCA 47
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 67
D & D (Costs) (2010) FLC 93-435; [2010] FamCAFC 64
DMW v CGW (1982) 151 CLR 491; [1982] HCA 73
Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
Frost and Nicholson (1981) FLC 91-051; [1981] FamCA 45
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall and Hall (1979) FLC 90-679; [1979] FamCA 50
Hedley & Hedley (2009) FLC 93-413; [2009] FamCAFC 179
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jacenko and Jacenko (1986) FLC 91-776; [1986] FamCA 25
Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54
Leibinger and Leibinger (1986) FLC 91-727; [1985] FamCA 2
Montano & Kinross (2014) FLC 93-623; [2014] FamCAFC 231
Pearce and Pearce (1982) FLC 91-276; [1982] FamCA 61
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Quarto & Emmert [2018] FamCAFC 19
Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156
Re Wakim; ex parte McNally (1999) 198 CLR 511; [1999] HCA 27
Rennie and Higgon (1981) FLC 91-087; [1981] FamCA 80
Rizeq v Western Australia (2017) 344 ALR 421; [2017] HCA 23
Sharp v Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150
Slocomb & Hedgewood (2015) FLC 93-678; [2015] FamCAFC 219
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Timbercorp Financed Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Whitford and Whitford (1979) FLC 90-612; [1979] FamCA 3
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993] QCA 114

APPELLANT/CROSS-RESPONDENT: Ms Emerald

RESPONDENT/CROSS-APPELLANT: Mr Emerald

FILE NUMBER: MLC 4577 of 2017

APPEAL NUMBER: SOA 83 of 2017

DATE DELIVERED: 13 November 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Melbourne

JUDGMENT OF: Alstergren DCJ, Strickland & Murphy JJ

HEARING DATE: 3 May 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 10 October 2017

LOWER COURT MNC: [2017] FamCA 798

REPRESENTATION

COUNSEL FOR THE

APPELLANT/CROSS-RESPONDENT:

Mr Strum QC with
Mr Matta

SOLICITOR FOR THE

APPELLANT/CROSS-RESPONDENT:

Faigenbaum Family Lawyers

COUNSEL FOR THE

RESPONDENT/CROSS-APPELLANT:

Mr Hutchings

SOLICITOR FOR THE

RESPONDENT/CROSS-APPELLANT:

Zeno Lawyers

Orders

1. Leave be granted to the husband respondent/cross-appellant to cross-appeal.

2. The cross-appeal be allowed.

3. Paragraphs (1) (insofar as it grants leave in relation to spousal maintenance), (2), (4) and (5) of the order made on 10 October 2017 be set aside.

4. The application of the wife appellant/cross-respondent for leave to institute proceedings for spousal maintenance be remitted to the Family Court of Australia for rehearing by a judge other than Cronin J.

5. There be no order as to the costs of and incidental to the Notice of Cross-Appeal.

6. The husband cross-appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband cross-appellant in respect of the costs incurred by him in relation to the cross-appeal.

7. The wife cross-respondent is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife cross-respondent in respect of the costs incurred by her in relation to the cross-appeal.

8. The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of the proceedings for spousal maintenance.

9. The application by the wife appellant for leave to appeal paragraphs (1) and (3) of the order made on 10 October 2017 be dismissed.

10. The wife appellant pay the costs of the husband respondent in relation to the preparation undertaken to respond to the application for leave to appeal and the appeal with such costs to be assessed in default of agreement.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 83 of 2017
File Number: MLC 4577 of 2017

Ms Emerald

Appellant/Respondent

And

Mr Emerald

Respondent/Cross-Appellant

REASONS FOR JUDGMENT

Alstergren DCJ & Strickland J

Introduction

1. By way of Further Amended Notice of Appeal filed on 22 March 2018, Ms Emerald (“the wife”) seeks leave to appeal and, if leave is granted, appeals against the order made by Cronin J on 10 October 2017 dismissing the wife’s application for leave to institute property settlement proceedings out of time. The wife also appeals against his Honour’s subsequent dismissal of the final order sought by her that there be an adjustment of the parties’ property interests.

2. Mr Emerald (“the husband”) opposes the application for leave to appeal, and the appeal if leave is granted, and on 2 May 2018 he filed an application in an appeal supported by an affidavit, of the same date, seeking an extension of time to file a Notice of Cross-Appeal against his Honour’s order granting leave to the wife to pursue her claim for spousal maintenance.

3. At the hearing of the appeal the time for the husband to file his Notice of Cross‑Appeal was extended, and the draft Notice of Cross-Appeal dated 2 May 2018 was treated as the Notice of Cross-Appeal.

4. Orders were also made at the hearing of the appeal for the parties to file and serve further evidence and submissions in relation to the date the decree nisi for dissolution of marriage became absolute, because that had the potential to affect the result of the cross-appeal. However, on 28 May 2018 the wife advised the Appeal Registrar that the decree nisi had been located, confirmed that the date the same became absolute was … October 1984, and thus, no evidence or submissions would be filed. We will explain the relevance of that shortly when addressing the Notice of Cross-Appeal.

Relevant Background

1. According to the wife’s evidence the parties married in or around 1977.

2. In 1984 the parties divorced. The husband refused to divorce under Islamic law.

3. The wife is illiterate and her sole source of income is derived from pensioner concession payments from Centrelink.

4. The husband is a driver.

5. There are five children of the relationship. Two of the children were born after the decree absolute, in 1987 and 1989 respectively.

6. In or around 1985 the husband remarried and there are two adult children of that relationship.

7. In 1987 the parties purchased their first home at T Street, Suburb O. The parties and the husband’s second wife lived together at this property until 1996.

8. In 1996 the parties purchased a property situated at E Street, Suburb O. It is the husband’s evidence that the current mortgage over this property is approximately $145,000.

9. The wife asserts that in 2004 the parties finally separated. The husband disputes this assertion, but does not otherwise depose to when final separation took place.

10. In 2007 the husband purchased in his sole name vacant land situated at D Street, North Suburb O for $250,000. It was the husband’s evidence that he built two factories on the land and subdivided the property, which cost an additional $300,000, and he currently leases one of the factories for $2,500 per month.

11. In 2007, the husband and his new partner purchased farm land situated at S Street, Town P for $115,000.

12. The monthly mortgage repayments for the properties are as follows:

    a)$4,500 for T Street and S Street;

    b)$4,000 for D Street; and

    c)$1,000 for E Street.

13. In or around 2017 the husband issued Victorian Civil and Administrative Tribunal (“VCAT”) proceedings in relation to the jointly owned property in Suburb O.

14. As a result of the issuing of those proceedings the wife sought legal advice and as a consequence of the advice received by her, issued these proceedings seeking leave and if leave was granted, an adjustment of the parties’ property interests.

The trial judge’s reasons for judgment delivered 10 October 2017

1. Cronin J commenced his reasons for judgment by observing that the wife’s application for leave to institute proceedings pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) “[was] about 30 years out of time”.

2. His Honour continued and observed that the application failed to “distinguish between the various forms of financial proceedings [the wife] desire[d] to pursue”, and pointed to the fact that the application also sought an interim order for spousal maintenance in the sum of $500 per week (at [1] – [4]).

3. His Honour, nevertheless, first turned to briefly consider the application for leave to pursue the application for spousal maintenance and referred to s 44(4)(b) of the Act. In being satisfied that leave should be granted to the wife to bring that application, his Honour said this:

   6.Although it is not entirely clear from the [wife’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 [husband] but also living on the Centrelink pension. On the assumption that that specific evidence is not challenged by the [husband] (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 [wife] to bring an application for spousal maintenance.

4. His Honour then turned to the application for property settlement and stressed that pursuant to s 44(4) of the Act 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”, and further, that “[t]he onus is undoubtedly upon the [wife] in that regard” (at [10] – [11]).

5. His Honour briefly addressed whether granting leave to the wife would cause any prejudice to the husband, and relevantly said as follows:

   13.The [husband’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 [husband] referred more relevantly to the loss of documents, witnesses, bank records and most importantly, memories as potentially likely to cause prejudice to the [husband]. Those are not matters to dismiss lightly.

   14.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. …

   15.As will be seen below, the [wife] would never had [sic] begun this process but for the action that the [husband] took at VCAT, but the prejudice lies with the [husband] because he would be entitled to consider that after 30 years, the [wife] 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 [husband] explains his action at VCAT is another matter but I consider that as the [wife] 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 [wife] now has.

   16.      I accept therefore that there is prejudice to the [husband].

6. His Honour then turned to consider the question of hardship and said, consistent with a number of Full Court authorities, that “[i]t 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”. In the context of that principle his Honour observed the lack of precision in the wife’s application as to what she sought, and said that “counsel did not articulate anything precise either” (at [21]). Continuing, his Honour said as follows:

   23.      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 [wife] referred to assets the [husband] 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:

   24.Whilst I am not fully aware of all of the property that was acquired, as the [husband] has not disclosed his interests to date….

   …

   26.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… in a case where some assets on the [wife’s] own evidence have been acquired well after the end of the relationship.

   27.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 [wife] is pursuing. That is particularly relevant here because the [husband] had remarried as long as 30 years ago and, as I understand, remains living with that wife.

7. His Honour then turned to consider what was said by the wife in support of her application, but was ultimately not assisted by the lack of evidence and vagueness of the points being made. For example, the wife said that the husband required her to “hand over her pension”, but no evidence was provided as to “whether the money was used for accommodation and sustenance or whether the inference the [wife] wanted drawn was something more sinister” (at [34]).

8. As for the payment of the mortgage for the parties’ first home acquired in 1996, his Honour recorded that “nothing was said about the [wife’s] knowledge of the arrangements for the mortgage other than that presumably, her pension payments went towards them” (at [35]).

9. His Honour at [36] drew attention to the following explanation provided by the wife for her delay in bringing the application:

   …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 [husband] was seeking to declare that only he had an interest in the Matrimonial Home.

10. His Honour noted the use of the word “primarily” above in circumstances where the affidavit evidence failed to provide any additional reasons. His Honour was similarly “puzzled” by the wife’s use of the word “compelling” when she said at paragraph 29 of her affidavit that there “were compelling reasons for not filing an application [within time]”. His Honour relevantly said that “[w]hilst 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” (at [27] – [41]).

11. As to the submission by counsel for the wife that her role relating to the children over the years was an important contribution, his Honour said that it “takes the compelling reasons no further” as counsel was “restricted to the evidence she had available”. Importantly, his Honour said that “[e]ven if some form of hardship argument could be mounted here, [he] would have difficulty seeing a basis upon which to exercise the necessary discretion” (at [42] – [43]).

12. His Honour ultimately proposed to dismiss the wife’s application in circumstances where “the length of the delay is very long” and “the reasons for that delay are negligible” (at [45]). His Honour concluded as follows:

    46.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 [husband]. It is also significant that I am unable to assess on the evidence just what the [wife’s] case might be and thus, the strength on the merits are impossible to assess.

The cross-appeal

1. In support of the husband’s application for leave to cross-appeal, and if leave is granted, to cross-appeal paragraphs (1) (insofar as it grants leave in relation to spousal maintenance), (2), (4) and (5) of the order made by his Honour, the husband submits that his Honour erred at law in granting the wife leave to commence spousal maintenance proceedings out of time. That error is said to be his Honour’s reliance on s 44(4)(b) of the Act in circumstances where that paragraph did not apply.

2. Section 44(4)(b) was introduced into the Act by s 19 of the Family Law Amendment Act 1987 (Cth), which Act came into operation on 1 April 1988. Importantly, s 64 of that Act provided as follows:

   Application of relief from time limits applying in relation to institution of certain proceedings

   64.      Subsection 44(4) of the Principal Act as amended by this Act does not apply in relation to proceedings if the period within which the proceedings could have been instituted without the leave of the court had expired before the commencement of this Act.

3. Given that the decree nisi became absolute on 8 October 1984, it is plain that s 44(4)(b) of the Act does not apply to the wife’s application for leave to commence spousal maintenance proceedings out of time.

4. The section that does apply was the previous s 44(4) which provided as follows:

   44(4)  [“Hardship” requirement for leave under subsec. (3) or (3A)] The court shall not grant leave under sub-section (3) or (3A) unless it is satisfied that hardship would be caused to a party to a marriage or to a child of the marriage if leave were not granted.

5. In these circumstances there can be no doubt that his Honour erred, and leave to cross-appeal should be granted leading to the cross-appeal being allowed, and the relevant orders being set aside.

6. The question then becomes whether the application for leave to institute proceedings for spousal maintenance should be remitted for rehearing or whether this Court can reconsider the matter and re-exercise the discretion. The wife submitted the former, but the husband submitted the latter.

7. The basis of the husband’s submission is that although his Honour did not consider the issue of hardship in relation to the spousal maintenance application, the evidence that was before his Honour as to hardship in the context of the claim for property settlement, is the same as would be relied on before this Court, if this Court was considering the question of hardship in relation to the spousal maintenance claim. Further, the evidence as to delay and prejudice would also be the same if hardship was established, and this Court reached the point of re-exercising the discretion.

8. The wife’s submission was that the indicia, or the criteria of hardship, are different depending upon whether the issue is property settlement or spousal maintenance, and thus the fact that there was evidence before the court of hardship in relation to the issue of property settlement is insufficient. Further, it is said that the case was conducted by the parties and the court by applying the incorrect test, and the wife would now want to run the case by presenting evidence addressing the issue of hardship in the context of the application for spousal maintenance.

9. We accept the submissions of the wife, and find that the application for leave to institute proceedings for spousal maintenance out of time has to be remitted for rehearing.

Leave to appeal

1. Leave to appeal paragraphs (1) and (3) of the order made on 10 October 2017 is sought by the wife in the Further Amended Notice of Appeal, and neither party has raised any issue about that, despite there being conflicting Full Court authorities. Thus, we will not dwell on this issue save and except to say that the most recent Full Court decisions have treated the dismissal of an application pursuant to s 44 of the Act as requiring leave to appeal (see, eg, Slocomb & Hedgewood (2015) FLC 93-678 and Quarto & Emmert [2018] FamCAFC 19).

2. In support of the application for leave to appeal, all the wife has done is set out the background of the matter and the personal circumstances and assets of each of the parties. Plainly that is inadequate, but the husband has taken no issue with this lax approach.

3. In oral submissions at the hearing of the application for leave and the appeal, senior counsel for the wife explained that in reality the wife was relying on the success of the grounds of appeal to obtain leave, a not uncommon position to take.

4. Given the lack of opposition by the husband, we are prepared to proceed on that basis, and thus we turn to a consideration of the grounds of appeal.

The grounds of appeal

Ground 1

The Primary Judge erred in fact and law in finding that the Respondent Husband would be prejudiced if leave were granted pursuant to sec. 44(3) of the Family Law Act 1975 (Cth) to the Appellant wife to apply out of time for an alteration of interests in property due to the “loss of documents, witnesses, bank records and most importantly, memories” in circumstances where such findings were not open on the evidence.

1. This ground asserts that his Honour’s finding as to prejudice to the husband was not open on the evidence.

2. There is no doubt that the husband did not present evidence as to the availability or unavailability of “documents, witnesses, bank records and … memories”, but the first thing to note is that the finding that his Honour made was not that there would be prejudice to the husband because of the lack of these things, but specifically that their absence was “potentially likely to cause prejudice to the [husband]” (at [13]). The second point to emphasise is it is never helpful to cherry pick sentences from a trial judge’s reasons, and avoid looking at the context of those sentences together with the reasons as a whole.

3. Thus, it is necessary to consider the particular sentence identified in the context of the entirety of his Honour’s consideration of this issue. In that regard his Honour said as follows:

   12.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)

   13.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.

   14.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)

   15.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.

   16.      I accept therefore that there is prejudice to the respondent.

4. As can be seen, the starting point according to the High Court is the rationale for the existence of limitation periods, namely, “[w]here there is delay the whole quality of justice deteriorates”. And thus, a court does not necessarily need specific evidence to accept that where there is a substantial delay there is the prospect, or potential, for documents and/or witnesses to no longer be available.

5. Further, it was not just the potential prejudice that that may cause, that the husband was relying on to establish prejudice. There were also the entitlements of the husband’s second wife and the children of that family, and there is no challenge to this aspect of the husband’s case.

6. However, the crucial question was whether the husband was now faced with an action that he had no reason to expect, or had been led to believe would not be brought. His Honour found that that was the case, and thus found there was prejudice to the husband.

7. It is also relevant to note that the submission made by counsel for the husband at trial that his Honour could presume prejudice, and which is challenged by the wife, is in fact supported by authority. In Sharp v Sharp (2011) 50 FamLR 567 (“Sharp”) the Full Court said this at [97] (per May and Ainslie-Wallace JJ, with Young J agreeing):

   Merely because the respondent to an application for leave does not point to particular prejudice that might arise if leave were granted, does not dispose of the question. The law presumes prejudice to flow to a person sought to be joined in the litigation after the effluxion of the relevant time limits…

8. Accordingly, there is no merit in this ground of appeal as pleaded. We note though that in the wife’s written summary of argument she has made submissions and relied on argument that go outside that ground of appeal. Despite there being no application for leave to file an Amended Notice of Appeal, we propose to address those further submissions.

9. First, it is said that it was not open to his Honour to find as he did in [15] because in summary, although the parties had divorced in 1984, they subsequently lived together and had two more children, they purchased a property together, and the wife had no school experience and was unable to read or write. Further, nowhere in the husband’s affidavit did he depose to a belief that the wife would not seek a property settlement.

10. This submission cannot enjoy any more success than the issue raised in the ground itself. The onus is on the wife to demonstrate a basis for the discretion of the trial judge to be exercised in her favour, and a relevant aspect of that recognised in the authorities (see, eg, Frost & Nicholson (1981) FLC 91-051) is whether she had given any indication to the husband that she intended to bring proceedings. Nowhere did the wife make that assertion.

11. Thus, this complaint has no merit either.

12. Secondly, it is argued that instead of relying on the prejudice to the husband to dismiss the application, any perceived prejudice could have been taken into account following a grant of leave to the wife to institute proceedings for property settlement. That is so, but that does not assist the wife here because prejudice was not the only basis for his Honour’s exercise of discretion. His Honour said this:

    43.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

    ...

    44.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.

    45.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;

    46.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.

    47.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.

13. Thus, this complaint also has no merit.

Ground 2

The Primary Judge erred by failing to:

(a)    consider, and/or

(b)    apply any, or sufficient weight, to-

the hardship that would be caused to the Appellant Wife with the prejudice occasioned to the Respondent Husband by reason of the delay, and/or

(c)    give adequate reasons therefor.

1. Unfortunately, this ground of appeal bears little relationship to the written summary of argument purportedly in support thereof.

2. In the latter, the complaint is that his Honour “misdirected himself” in considering the issue of hardship, and he did so on “two separate bases”.

3. First, it is said that his Honour proceeded on the basis that “the actual ‘worth’ of the claim for property settlement needed to be made apparent by the wife”, and secondly, although it seems to this Court to be part and parcel of the first, his Honour “found that he was not able to determine whether the wife would suffer hardship in circumstances where she did not particularise her claim pursuant to s 79 of the Family Law Act”.

4. Reliance is placed by the wife on what the Full Court said in Whitford and Whitford (1979) FLC 90-612 (“Whitford”) as follows (at 78,145):

   Hardship may be caused to an applicant if leave were not granted to institute proceedings, although the applicant is not in necessitous circumstances. Whatever the financial situation of an applicant may be … loss of a prospective entitlement to property including money, or … inability to have the financial and property relations of the parties adjusted or resolved, may constitute hardship. …

5. However, with respect, this submission is not an accurate representation of what his Honour said or how his Honour determined this issue. Once again it demonstrates the problem with cherry picking parts of a judgment which should be read as a whole.

6. As to the first issue, what his Honour actually said was that “[t]here must be a claim worth pursuing” (at [21]), and that is entirely consistent with the authorities. For example, in Althaus and Althaus (1982) FLC 91-233 (“Althaus”) the Full Court said (at 77,267):

   …The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim.

7. Further, in Sharp the Full Court referred to “the well established test … that the applicant must have a prima facie claim worth pursuing” (at [18]).

8. Further still, in Whitford the Full Court said this (at 78,144):

   …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.

9. In her application the wife simply sought as follows:

   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.

10. Plainly, that was insufficient to satisfy the test, and his Honour decried the lack of particularisation (the so-called second issue raised by the wife), saying that that made “it difficult, if not impossible, to assess what the consequence would be of the loss of the right to litigate [namely the requirement set out by the Full Court in Sharp]” (at [23]).

11. As his Honour correctly articulated in [27]:

    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.

12. In order to make some assessment of the reasonableness of her claim, his Honour then turned to the evidence presented by the wife in her affidavit material, summarised what was relevant in light of the forgoing principles, and then carefully identified what was lacking in that evidence.

13. His Honour concluded at [43] that, “[e]ven if some form of hardship argument could be mounted here, I would have difficulty seeing a basis upon which to exercise the necessary discretion”, then considered that aspect of the matter, finding at [46] it “significant” that he was “unable to access on the evidence just what the [wife’s] case might be, and thus, the strength on the merits are impossible to assess.”

14. Thus, the wife had failed to satisfy the onus that she had to demonstrate that she had a reasonable claim.

15. We can find no error by his Honour in this approach.

16. In the ground of appeal itself, it seems that the wife is complaining that the trial judge failed to consider or apply any or sufficient weight to the hardship that would be caused to her. However, that is simply not the case. His Honour carefully traversed the evidence of the wife in an attempt to discern whether she would suffer hardship, but his Honour was unable to divine her claim and find the necessary hardship.

17. In oral submissions before us, it was suggested that this ground challenges the weight given by his Honour to the wife’s evidence of hardship. However, such an argument is difficult to sustain. What needs to be established is that the trial judge was plainly wrong, his decision being no proper exercise of his discretion (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) per Stephen J at 519 – 520), and that has not been established to our satisfaction here.

18. It is also suggested that his Honour’s reasons were inadequate, but we are not persuaded that that is the case. As identified above, his Honour clearly set out the pathway to his decision (Bennett and Bennett (1991) FLC 91-191).

19. There is no merit in this ground of appeal.

Ground 3

The Primary Judge erred in dismissing the Appellant wife’s application for leave to institute proceedings out of time for a property settlement, in circumstances where his Honour granted her such leave with respect to her claim for spousal maintenance.

1. This ground of appeal is bereft of any merit whatsoever.

2. The test for granting leave to institute spousal maintenance proceedings out of time (s 44(4)(b)) is different from the test for granting leave to institute property settlement proceedings out of time (s 44(4)(a)).

3. It is entirely understandable though that a court when granting leave to institute property settlement proceedings out of time would not look “to split off the maintenance part of the [applicant’s] application”, as was the case in Althaus. However, that is not the case here. His Honour dismissed the application for leave to institute property settlement proceedings, but was able to give leave to institute spousal maintenance proceedings because the test in s 44(4)(b) was satisfied.

Ground 4

The Primary Judge erred in law in finding that the Appellant Wife may litigate her entitlements in relation to the Suburb O Property in the Victorian Civil and Administrative Tribunal, in circumstances where such a claim is a matrimonial cause within paragraph (ca) of the definition thereof in sec. 4(1) of the Family Law Act and therefore required by sec. 8(1)(a) to be instituted under that Act.

1. As referred to above, approximately 12 years after the parties divorced, they purchased a property at Suburb O in joint names.

2. The parties, their children, and the husband’s second wife lived in that property until 2004 when separation according to the wife finally occurred. Thereafter the wife remained living in that property at various periods of time, and she was living there at the time of the hearing before the trial judge.

3. Subsequently, the husband took proceedings in VCAT seeking a declaration pursuant to the Property Law Act 1958 (Vic) that only he had an interest in that property. It was that action which prompted the wife to seek legal advice, resulting in her application for leave to institute proceedings pursuant to s 44(4) of the Act.

4. In [39] his Honour said this:

   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.

5. The wife says that his Honour should not have taken that into account because, in fact, she did not have the ability to “litigate her entitlements … under state law”. The submission is that any proceeding in relation to the jointly owned property at Suburb O is a matrimonial cause under s 4(1)(ca) of the Act, and the Family Court of Australia has exclusive jurisdiction over that matrimonial cause (s 8(1)(a) and s 39(1) of the Act).

6. The submission of the husband is that once leave to issue proceedings out of time had been refused, proceedings in relation to the property would no longer be a matrimonial cause.

7. The husband also faintly argued in his summary of argument that, in effect, proceedings in relation to the subject property may not be a matrimonial cause because they are not proceedings “arising out of the marital relationship” (s 4(1)(ca)(i)), or “in relation to … completed divorce proceedings” (s 4(1)(ca)(ii)). However, that argument was not pursued.

8. It is apparent from a perusal of the authorities cited by the wife, that the specific issue in question here has not been the subject of judicial determination.

9. There have been cases where proceedings have been instituted in a state court, and action has been then taken in the Family Court of Australia to restrain those proceedings in the context of an application for leave to institute proceedings. However, no case was cited and nor is this Court aware of any, where the specific issue has been whether proceedings could be taken in the state court following the dismissal of an application for leave to institute proceedings in the Family Court of Australia.

10. In Rennie and Higgon (1981) FLC 91-087 (“Rennie and Higgon”) Nygh J granted an injunction pending the determination of the husband’s application for leave to institute proceedings out of time, restraining the wife from continuing Supreme Court proceedings or instituting further proceedings in respect of the parties’ property in any court except the Family Court of Australia.

11. In the course of that determination his Honour found that the Supreme Court proceedings fell within the definition of matrimonial cause on the facts of the case, and were thus within the Family Court of Australia’s exclusive jurisdiction. Thus, the implication is that that would remain the case even if leave was refused, and that implication is strengthened by his Honour saying in effect that s 44(3) (as it then was) does not foreclose Family Court jurisdiction as such; it is a procedural provision and it affects the remedy and not the right. However, the implication is directly challenged by what his Honour said at 76,599, namely:

    I am only asked to restrain the wife pending the hearing of the husband’s application for leave and I will only do so. If the leave under sec. 44(3) is by any unforeseen chance not granted, it clearly would be improper to restrain the wife from attempting to seek relief in the Equity Division [of the Supreme Court]. …

12. In Pearce and Pearce (1982) FLC 91-276, Murray J found that the proceedings for partition and sale of property jointly owned by the parties may still be a matrimonial cause and could not be heard by a state court even though the time for commencing proceedings under the Act had expired, as long as those proceedings can be said to be “in relation to” the completed proceedings for dissolution of marriage. Primarily for that reason her Honour found hardship and granted leave to institute the proceedings, fearing that no other court might be able to deal with the matter. Again, the implication is that if leave is refused, then the state court would have no jurisdiction.

13. In Aldred and Aldred (No 2) (1985) FLC 91-602 the trial judge found that it would be a hardship upon the wife to remain “tied into a financial dependence on the husband with neither the Family Court nor the state courts having jurisdiction to release her from it”. The Full Court agreed that this would be sufficient hardship upon the wife.

14. Once again though this was not a case where the precise issue here was determined, and it can only be relied on for the implication flowing from that statement of the trial judge.

15. The correctness of the implication from these decisions, and the submission of the husband that VCAT would have no jurisdiction, would seem to be dependent upon a unitary view of matrimonial cause.

16. However, that is in fact the case. Once it is demonstrated that a claim is a matrimonial cause, the jurisdiction to hear and determine such a claim is within the exclusive purview of courts exercising jurisdiction under the Act, and plainly that does not include VCAT (s 8(1)(a), together with the proclamation made by the Governor-General on 23 November 1983 pursuant to s 40(3) of the Act, and s 39(1)).

17. Here, the claim by the wife is a claim pursuant to s 79 of the Act, and such a claim is within paragraph (ca) of the definition of matrimonial cause in s 4 of the Act. That paragraph provides that a matrimonial cause means:

    Proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

    (i)arising out of the marital relationship;

    (ii)in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties…

18. Importantly, this claim cannot subsequently lose its character as a matrimonial cause as a result of the outcome of, or a determination made in, the proceedings, for example, as here, a refusal to grant leave. That is what Nygh J in Rennie and Higgon was referring to in describing the application for leave as a procedural provision, only affecting the remedy but not the right (see [89] above; see also DMW v CGW (1982) 151 CLR 491).

19. Thus, as a result of the proceedings instituted by the wife being a matrimonial cause, VCAT has no jurisdiction to entertain either the claim already made by the husband, or any claim that may be sought to be made by the wife.

20. Accordingly, his Honour was in error in saying what he did in [39]. However, it is readily apparent from his Honour’s reasons that that was not a matter to which his Honour attached much, if any weight, in concluding that relevant hardship had not been established. As can be seen, there were many other considerations that his Honour took into account to arrive at that finding. Accordingly, that error by the trial judge cannot be the basis for overturning his Honour’s decision by granting leave to appeal and allowing the appeal.

21. Before leaving this ground, subject to one possible rider, we indicate our agreement with Murphy J that the refusal of leave to institute proceedings under s 79 of the Act does not leave the parties without a remedy under the Act; proceedings could be instituted pursuant to s 78 of the Act.

22. The rider is, whether the wife, for example, might be prevented from bringing such proceedings by the application of what is known as Anshun estoppel. That is an estoppel which prevents a party from bringing claims which should have been pursued in former proceedings (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). It applies if allowing the new proceedings would result in an inconsistency with the old ruling, or the claim is so relevant that not including it in the earlier proceedings was unreasonable. A court then has a discretion whether or not to apply the principles of that estoppel.

23. Although we note this possible rider, we are not in a position to determine whether this estoppel would apply or not, or how the discretion might be exercised, because this is not an issue that was raised by either party, and plainly no submissions were put in relation to it. Thus, we can say no more about the applicability of this estoppel.

Ground 5

The Primary Judge erred in the exercise of the [sic] his discretion in applying insufficient or no weight to the reasons for the delay by the Appellant Wife in seeking leave to institute proceedings out of time.

1. This ground asserts that his Honour gave “no weight” to the reason for the delay by the wife in seeking leave. However, that assertion cannot be sustained. At [30] – [42] his Honour carefully considered the wife’s evidence and submissions and concluded at [45] as follows:

   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;

2. That leaves the assertion that his Honour afforded “insufficient weight” to the reasons for the delay.

3. It is said that the “main reason” for the delay was because the wife did not know that she was entitled to a property settlement until the husband instituted proceedings in VCAT, and the wife instructed a solicitor. It is further said that that ignorance is exacerbated by her illiteracy, by her caring for the parties’ five children, and being subjected to “prolonged family violence”.

4. The first point to make is that the wife’s counsel did not argue before his Honour that the allegations of family violence, or that the wife’s care of the children, was relevant to the wife’s delay, and thus it is not open to the wife to suggest that his Honour failed in the exercise of his discretion by not giving adequate weight to these reasons for the delay.

5. Secondly, and perhaps more significantly, as identified above it is a difficult exercise to seek to impugn an exercise of discretion by mounting a weight challenge.

6. It is unnecessary to repeat the well-known principles applicable to such a challenge (see, eg, CDJ v VAJ (1998) 197 CLR 172 per Kirby J at 230). Suffice to say that what needs to be established is that the trial judge was plainly wrong; his decision being no proper exercise of his discretion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal, can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge (Gronow per Stephen J at 519 – 520).

7. Here, after duly considering the wife’s various reasons for the delay, his Honour gave greater weight to matters such as the expressed intendment of the legislation that ordinarily proceedings should be commenced within 12 months (at [44] and [45]).

8. The wife has not persuaded us that in so finding his Honour erred in the exercise of his discretion and was plainly wrong.

9. There is no merit in this ground of appeal.

Conclusion

1. We have found no merit in Grounds 1, 2, 3 and 5, and with Ground 4, although we consider there is error, that error is not such that the appeal should be allowed as a result.

2. There is also no merit in the further complaints raised in the wife’s summary of argument.

3. In these circumstances the application for leave to appeal must be dismissed.

Costs

The cross-appeal

1. Neither party seeks an order for costs in relation to the cross-appeal. Rather, both parties sought costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). Given the basis on which the cross-appeal is being allowed, we consider it is appropriate for each party to have costs certificates in relation to the same for both the cross-appeal and the rehearing.

The appeal

1. If the application for leave to appeal was to be refused, the husband sought an order for costs against the wife on the basis that the application would have been wholly unsuccessful (s 117(2A)(e) of the Act). However, we note that the costs sought only relate to the preparation undertaken in responding to the application for leave to appeal, and if leave was granted, the appeal. In other words, as we understand it, no costs are sought in relation to the attendance of counsel at the hearing of the application.

2. The wife opposes any order for costs, on the basis of her poor financial circumstances. However, this Court has often held that impecuniosity is no bar to an order for costs being made where there are circumstances otherwise that justify an order being made (D & D (Costs) (No 2) (2010) FLC 93-435). Here, there are such other circumstances, namely the lack of success of the application, and accordingly we propose to make an order that the wife pay the costs of the husband in relation to the preparation undertaken by the husband in responding to the application for leave to appeal, and the appeal, with such costs to be assessed in default of agreement.

MURPHY J

The husband’s cross-appeal

1. I agree with Alstergren DCJ and Strickland J that the husband should have leave to cross‑appeal and that the cross-appeal should succeed for the reasons given by their Honours. I also agree with the orders proposed by their Honours in that respect. 

The wife’s application for leave to appeal and appeal

1. I am unable to agree with their Honour’s conclusion in respect of the wife’s application for leave to appeal. In my opinion leave should be granted and her appeal allowed.

2. In my respectful view it was not reasonably open for his Honour to conclude that the absence of particularity in the wife’s claim for s 79 relief should lead to the conclusion that the wife would not suffer hardship if leave was refused.

3. Further, his Honour’s finding in that respect is informed by a finding at [23] that the wife did not “request to be excused from particularisation” of her claim. That finding is, with respect, demonstrably incorrect.

4. It appears that Alstergren DCJ and Strickland J agree with me that the proceedings instituted by the husband in VCAT are a matrimonial cause and also agree with my reasons for that conclusion. Their Honours contend however that this error did not sufficiently inform his Honour’s conclusion as to hardship so as to render the ultimate conclusion erroneous. As will be seen, I am unable to agree. 

5. As a consequence of the matters just referred to, I am of the view that his Honour’s finding that the wife did not establish hardship within the meaning of s 44(4) of the Act was not open on the evidence before him, and as a consequence, erroneous.

6. The grounds of appeal also assert discretionary error. Strictly, however, his Honour did not exercise any discretion; in his Honour’s judgment, the wife’s application failed at the first hurdle thereby rendering discretionary considerations irrelevant to his Honour’s determination.  

7. However, his Honour said at [43], “[e]ven if some form of hardship argument could be mounted here, I would have difficulty seeing a basis upon which to exercise the necessary discretion”. In light of the arguments before this Court addressing an asserted exercise of discretion, and the fact that those arguments are addressed in the reasons of Alstergren DCJ and Strickland J, I will address what I will assume is an alternative finding by his Honour to the effect that even if hardship was established, discretionary considerations would preclude leave being granted. 

8. In my respectful opinion, error attends that conclusion. In my opinion his Honour failed to take account of relevant considerations and erred in a factual finding relevant to the exercise of that discretion. 

9. The reasons which follow seek to explain all of these conclusions. 

The two requirements for the grant of leave

1. The Full Court in Sharp held that “the appropriate approach to a determination under [s 44(4)] necessitates a clear distinction to be made between the proof of hardship and a consideration of the consequential exercise of the discretion” (at [27]). That is, the discretion required for relief arises if, but only if, “hardship” is established (s 44(4)(a); see also, Whitford at 78,145 (cited by the primary judge); Hedley & Hedley (2009) FLC 93-413; Montano & Kinross (2014) FLC 93-623).

2. Authority establishes that an explanation for delay is an extremely important consideration in the exercise of discretion. However, unlike hardship, a failure to adequately explain delay is not, at least as a matter of principle, fatal to obtaining leave. The same is true of prejudice to the opposing party if leave is granted. It, too, is a highly important discretionary consideration. However, it too is not, at least as a matter of principle, a bar to the grant of leave. Conversely, establishing a lack of prejudice is not a necessary precondition to the grant of leave (Whitford at 78,142; Hall and Hall (1979) FLC 90-679; see also, Frost and Nicholson (1981) FLC 91-051 and Leibinger and Leibinger (1986) FLC 91-727).

3. For an appellate court, a consequence of the application of those principles is that an appeal which asserts error in a conclusion as to hardship (or lack of hardship) is not an appeal from the exercise of a discretion, but an appeal asserting error in a factual finding (or a finding as to a mixed question of fact and law). In this case, where no oral evidence was given before his Honour, this Court “is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge” having of course given proper “respect and weight to the conclusion of the trial judge” (Warren v Coombes (1979) 142 CLR 531 at 551).

4. A challenge to the second component for the grant of leave involves a challenge to the exercise of discretion to which different principles apply. A conclusion by an appellate court different to that of the primary judge does not attract appellate intervention; error within recognised categories must be established (see, eg, House v The King (1936) 55 CLR 499 at 505; Gronow at 519 – 520).

The primary judge’s hardship finding

1. My conclusion that his Honour erred in finding that hardship would not be occasioned to the wife if leave was refused results from my conclusions as follows:

   (a)It was not open for his Honour to make that finding based upon what his Honour found to be the wife’s lack of particularisation of her s 79 claim;

   (b)The only conclusion reasonably open on the evidence before his Honour is that the wife did establish a prima facie case for s 79 relief and, in turn, hardship in not being permitted to pursue that claim if leave was refused;

   (c)His Honour’s conclusion was based on an erroneous factual finding, namely that the wife did not seek to be excused from particularisation of her claim; and

   (d)His Honour’s conclusion that, if leave was refused, the wife had remedies within the VCAT proceedings instituted by the husband, is an error of law and that error informs his Honour’s conclusion that there was no relevant hardship. 

(a)      The wife’s failure to particularise her claim

1. The terms of ground 2 do not particularise specific error in respect of his Honour’s hardship finding and the terms of that ground bear little relationship to the written and oral arguments advanced. Those arguments press broader assertions of error in respect of the finding, including matters central to my conclusion as to error as just outlined. No objection is taken to those written and oral arguments being advanced and the husband does not assert any prejudice thereby.

2. The finding that the wife had not particularised her s 79 claim was central to his Honour’s finding that denial of that claim would not cause the wife hardship. His Honour found:

   21.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.

   22.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.

   23.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:

   24.Whilst I am not fully aware of all of the property that was acquired, as the respondent has not disclosed his interests to date….

   (As per original)

3. In Whitford, the Full Court referred to the necessity for an applicant for leave to file “adequate affidavit evidence” (at 78,143). However that statement needs to be seen in context. The Full Court noted at 78,143:

   …the only question to be determined is, whether leave should be granted enabling the applicant to institute proceedings, and the extent of the proceedings and any investigation should be regulated accordingly. 

   The Court went on to say at 78,144 – 78,145:

   …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.

   …

   …Whatever the financial situation of an applicant may be, his or her loss of a prospective entitlement to property including money, or his or her inability to have the financial and property relations of the parties adjusted or resolved, may constitute hardship…

4. In Hall and Hall (1979) FLC 90-679, the Full Court said at 78,627:

   …the … fundamental inquiry which basically is in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the court. It is not necessary to further categorize the nature or quality of that claim. … As Lindenmayer J. said [in Perkins and Perkins (1979) FLC 90-600], an application under sec. 44 is not intended to be a detailed hearing of the merits of the proposed claim itself…

   (Emphasis added)

5. A similar approach can be seen in later decisions of the Full Court. In Althaus Evatt CJ, with Marshall SJ and Strauss J agreeing, said at 77,267:

   In my opinion, sec. 44(3) and (4) are not intended to require a detailed hearing on the merits to determine whether the applicant’s claim will succeed. The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim.

   (Emphasis added)

6. In Jacenko and Jacenko (1986) FLC 91-776, the Full Court (Nygh J; Fogarty and Walsh JJ agreeing) said, in referring to what had earlier been said in Frost and Nicholson, that an approach by counsel for the husband that “he was entitled not merely to argue whether or not the wife, on the basis of the affidavit evidence, had presented a prima facie case but to probe that prima facie case and seek to destroy it by cross-examination of the wife” was “misconceived” (at 75,643).  Nygh J said at 75,643:

   As I stated in my decision of Frost and Nicholson, a prima facie case should be judged on the evidence put forward by the applicant in her affidavit evidence available at the time of the hearing of the application for leave.

   …the general principle is that on the issue of the establishment of a prima facie case the Court proceeds on the basis that the evidence of the applicant, unless it is inherently unbelievable or contradictory, should be accepted, and the Court should therefore decide whether or not on that basis a prima facie case has been made out. If leave is granted, then it is for the Court conducting the ultimate hearing to determine whether that prima facie case can be established.

   (Emphasis added) (Citations omitted)

7. In Edmunds & Edmunds (2018) FLC 93-847 (“Edmunds”) the Full Court at [17] quoted what was said by Macrossan CJ in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434:

   … applicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action … It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that it is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial. There are some resemblances to the situation of a defendant who resists a summary judgment application.  The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time. In any situation where proof of a case is difficult and very far from straight forward, it would be very expensive to require a party applying to extend time to demonstrate his case with any degree of elaboration.

   (Emphasis added)

8. That case involved an application for leave pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld). The Full Court in Edmunds held that “these principles appropriately apply in this case”, the Full Court considering at [20] that:

   …the issue of leave and the strength of the proposed case, will look to see whether, in the event that the evidence remains the same at a final hearing there is a probability that the applicant would succeed in obtaining a property settlement adjustment in her favour. The Court does not undertake a preliminary trial but looks to see whether there is some or a fair or reasonable probability that relief will be granted.

   (Emphasis added)

9. I respectfully join with the primary judge in being highly critical of s 79 cases in which the relief sought is not particularised and it is left to the Court to undertake tasks which could have, and should have, been undertaken by legal practitioners representing those parties. I respectfully agree that it is all too common and impedes the orderly disposition of cases.

10. That said, it should also be accepted that it is by no means uncommon in regularly-commenced s 79 proceedings that the precise terms of relief are not “pleaded” in the Initiating Application (or Response) and do not descend to any meaningful particularity until case outlines are filed before trial or, not infrequently, at the trial itself. In any event, that situation is very different from the present.

11. The wife made it clear that she was seeking to obtain a property settlement in her favour. Her obligation was to discharge an onus that she had a “fair or reasonable probability” of “obtaining a property settlement” or, as other authorities have put it, that she had a prima facie case for s 79 relief. The wife did not need to establish a prima facie case for the orders she asserted she could, would, or should obtain at trial.

12. Indeed, the wife deposed to not being able to do so by reason of being “not fully aware” of the husband’s property in circumstances where: they had been separated for 13 years; the husband having been significantly violent to her and their children, including conduct falling within paragraph (g) of the Act’s definition of “family violence” (s 4AB(2)(g)); and the husband spending significant periods of time with his current wife and family even prior to their separation in 2004. Equally, the wife deposed to being “not fully aware” of the husband’s assets or financial position more generally and his failure to disclose the same (albeit, of course, in circumstances where he said there should be no proceedings in which the obligation to disclose would arise).

13. In my respectful opinion, his Honour’s insistence upon the particularisation to which the reasons avert, in the context of the obligation on the wife revealed by established principle to establish a prima facie entitlement to a property settlement, is erroneous and the conclusion as to hardship based upon the same was not reasonably open to his Honour.

14. That conclusion can be seen to be reinforced by its converse: the wife did in fact establish a prima facie entitlement to s 79 relief as my reasons which follow seek to demonstrate.

(b) The wife’s prima facie entitlement to s 79 relief and asserted hardship

1. The wife’s claim is for s 79 relief. Her affidavit evidence needed to establish that there was “a fair or reasonable probability” that she would obtain s 79 relief – that is, that she had a prima facie case satisfying s 79(2) and, separately, s 79(4).

Section 79(2)

1. The wife established on a prima facie basis such existing interests in property of which she was aware (principally the jointly-owned home at Suburb O) and foreshadowed the need to further identify property subsequent to disclosure by the husband which she asserted to be inadequate. 

2. It could hardly be doubted that consensual (albeit unusual) arrangements in respect of, at least, Suburb O, had come to an end and that “the express and implicit assumptions that underpinned the existing property arrangements [had] been brought to an end by the voluntary severance of the mutuality of the marital relationship” (Stanford v Stanford (2012) 247 CLR 108 at 122 [42]).

3. Here, of course, the marital relationship had come to an end formally many years previously. Yet, the property interests of the parties, at the very least in so far as O was concerned, were the subject of express and implicit (albeit apparently conflicting) assumptions in respect of the use of that property that were altered when the husband commenced proceedings in VCAT. Furthermore, his Honour had evidence from the husband as to other interests in property acquired during the highly unusual circumstances of the parties’ relationship.

4. Each of the parties assert, by their differing proceedings, that the end of consensual arrangements in respect of, at least, that property, requires a remedy. 

5. A prima facie case satisfying s 79(2) is plainly established.

Section 79(4)

1. The second and separate question is whether the wife has established a prima facie case that the matters referred to in the balance of s 79 render it just and equitable for s 79 orders to be made.

2. No finding by his Honour is contrary to the wife’s evidence that, despite the husband and wife divorcing under Australian law in 1984:

   ·The parties “remained Islamically married”;

   ·The parties subsequently resumed cohabitation in or about 1987 when the wife was pregnant with the parties’ fourth child, and after the husband’s remarriage;

   ·The husband and wife, their then four children and the husband’s new wife cohabitated for approximately nine years from about 1987 until 1996;

   ·During that time a further child was born to the husband and wife in 1989; and

   ·Also during that time the husband had a “married relationship with each of his wives and rais[ed] children of [his first] and his second marriage” (wife’s affidavit filed 26 September 2017 at paragraph 14).

3. In 1996 Suburb O was purchased subject to a mortgage. Significantly as it seems to me, despite some 12 years having passed since the parties’ divorce, that property was acquired by the parties as joint tenants. 

4. Equally significant in my view is the fact that, not only did the wife and the parties’ children reside in Suburb O, but also the husband “split his time” between that property and the property occupied by his second wife and their children.  The wife deposes that “[o]riginally he would spend approximately 50% of his time with each of the wives and families but as time passed he spent more time with his second wife and family” (wife’s affidavit at paragraph 17). The wife deposes to not only remaining “Islamically married” but also to the husband refusing to divorce her under Islamic Law. The wife deposes to “having a married relationship” with the husband.

5. The wife deposes that the parties separated finally in 2004. Although the husband disputes that, he does not otherwise depose to when final separation took place.  After that separation the wife moved to New South Wales with the three younger children.  She “rented various residential properties in the suburbs” (wife’s affidavit at paragraph 22). The wife returned to Victoria in 2009; lived successively in two rented properties and then recommenced occupation of Suburb O in about July 2016. She has lived there since. 

6. Despite the parties’ divorce, they lived together with the husband’s second wife and the children of both relationships for about nine years. For a further eight years, the husband divided his time between the home where the wife and their children lived and the home where his second wife and their children lived. The parties cohabitated for approximately seven years before their divorce in 1984.  There are five children of their relationship. Significantly, two of those children were born after the wife commenced living with the husband and his second wife in 1987. 

7. Thus it can be seen that the wife’s prima facie claim to s 79 relief relates to contributions of all types made by her over a period of 27 years until the asserted final separation in 2004 during which time the parties had and nurtured five children. In addition during a further 12 months after July 2016 prior to the hearing before his Honour, the wife occupied Suburb O exclusive of the husband and contributions were made accordingly.

8. It should be accepted that the wife’s affidavit does not depose to contributions by reference to the specific sub-paragraphs of s 79(4) and also that particularity is lacking. However, in respect of the prima facie case which the wife was obliged to substantiate, the only inference reasonably open from the evidence – which in this respect was not disputed by the husband’s (equally unparticularised) evidence – is that the wife made, at the least, significant contributions as a homemaker and to the welfare of the family and significant indirect contributions to the property of the parties or either of them. 

9. Further in that respect, the wife deposes to the husband having “continued to insist that [she] pay him the Centrelink pension” that she received “so that he could apply it to the support of the children and [the wife]” (wife’s affidavit at paragraph 18).

10. The fact that contributions are made post-divorce and post-separation does not alter their nature as contributions; the attribution of weight being a matter for trial and dependent upon the particular circumstances of the case (see, eg, Kowalski and Kowalski (1993) FLC 92-342). The particular circumstances here are unusual to say the least.

11. I respectfully disagree with the primary judge’s conclusion at [23] that the lack of particularisation made it “difficult, if not impossible, to assess what the consequence would be of the loss of the right to litigate”. What was lost was the wife’s potential entitlements by reference to s 79(4) of the Act in respect of the property of the parties or either of them, by reason of contributions made over a lengthy period of time, some of which at least, were ongoing at the date of the proceedings before his Honour. 

12. The wife’s evidence before his Honour, including her Financial Statement – albeit it, again, lacking additional particularity – raises matters relevant to s 79(4)(e) and, thus, there is potential for those matters to impact upon the wife’s entitlement.

13. The primary judge found that the wife’s allegations of family violence “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” (at [32]). I respectfully disagree. Whether or not the wife could make out a case that her contributions were made significantly more onerous by reason of family violence so as to render any established violence relevant in her property claim is a matter for trial. There was, however, sufficient evidence deposed to by her to indicate plainly on a prima facie basis that she had a claim to that effect worth pursuing if leave was granted. For example, the wife deposed to:

    ·A threat made by the husband at the time of separation in about 2004, that if she and the children did not remove themselves from the home he would “burn the house down with you and the kids in it” (wife’s affidavit at paragraph 19);

    ·The police being involved at the time of separation following a “serious domestic violence incident … [where the husband] tried to strangle [the parties’] daughters” (wife’s affidavit at paragraph 19);

    ·The parties living together between 1987 and approximately 2005 “save that due to violence and abuse perpetrated on [the wife] and the children [they] left where [the parties] were then living and went to [five separate] Women’s refuges for some weeks” (wife’s affidavit at paragraph 20);

    ·The husband threatening to kill her and her family when living in Country C and “on one occasion … [the husband] pointing a loaded rifle at [her] and [her] daughters. The [husband’s] brother intervened and disarmed the [husband]” (wife’s affidavit at paragraph 20); and

    ·Taking “the two eldest children to New South Wales, away from the [husband] for 4 months in 2000 after [the adult children] had sought and obtained Intervention orders against the [husband] alleging assaults against them” (wife’s affidavit at paragraph 21).

14. In my view, the evidence before his Honour supports clearly a prima facie claim for s 79 relief worth pursuing. The denial of leave sees that claim and the potential remedies consequent upon its pursuit lost. The right and the potential remedies have real value. In my respectful opinion, the primary judge’s conclusion that denial of leave would not cause the wife “hardship” within the meaning of s 44(4) of the Act was not reasonably open.

(c)      The primary judge’s factual error

1. His Honour’s finding that the wife did not ask to be “excused from particularisation” is, with respect, demonstrably wrong. 

1. An interim order sought by the wife in her Amended Initiating Application filed 26 September 2017 sought that she be excused from particularising her claim “until the completion of discovery”. The wife deposed to being “not fully aware of all of the property that was acquired” and to a failure to disclose by the husband (wife’s affidavit filed 29 September 2018 at paragraph 18). 

2. That sworn evidence was crucial to her inability to particularise her claim further including as to property held by the husband and its value.

(d)      Error of law with respect to the VCAT proceedings

1. In my respectful view, his Honour’s finding that the wife had potential remedies within the VCAT proceedings is erroneous. The proceedings instituted by the husband are in my view a matrimonial cause. The Family Court (relevantly) has exclusive jurisdiction to determine that matrimonial cause. The corollary is that VCAT has no jurisdiction to determine the husband’s claim.

2. The combined effect of s 8(1) of the Act and, relevantly, a proclamation made by the Governor-General under s 40(3) of the Act and fixed on 25 November 1983 results in proceedings by way of a matrimonial cause not being able to be instituted except under the Act. Section 39 of the Act prescribes that a matrimonial cause may be instituted under the Act, relevantly, in the Family Court of Australia. Section 31 of the Act grants the Family Court (relevantly) jurisdiction with respect to (again relevantly) “matters arising under this Act … in respect of which matrimonial causes are instituted … under this Act” (s 31(1)(a)).

3. The combined relevant effect is that the Family Court has jurisdiction to hear and determine matters arising under the Act from matrimonial causes which are instituted under it, whereas, again relevantly, a state tribunal does not.

4. “Matrimonial cause” is defined by reference to a number of specific subparagraphs (see, definition in s 4 of the Act). Subparagraph (ca) provides that a matrimonial cause means:

   proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

   (i)arising out of the marital relationship;

   (ii)in relation to concurrent, pending or competed divorce or validity of marriage proceedings between those parties…

5. In DMW v CGW (1982) 151 CLR 491, Dawson J held at 511:

   Whether proceedings answer the description of proceedings by way of a matrimonial cause so as to fall within the jurisdiction of the Family Court and outside the jurisdiction of the other courts specified in the proclamation (see Family Law Act, ss. 8 and 40(1) and (4)) cannot be dependent upon the ultimate outcome of those proceedings. The nature of the proceedings must be characterized by the matters which fall for determination in the proceedings…

6. His Honour continued:

   …Notwithstanding that the issues to be determined go to jurisdiction, the Family Court does not lack power to embark upon an investigation of those issues … even if it ultimately holds that jurisdiction is lacking. The proceedings in which it determines those issues may nonetheless constitute a matrimonial cause. This would, I think, be the proper conclusion without recourse to the definition of “proceedings” in s. 4 of the Family Law Act, but that definition, which includes within the term “proceedings” an “incidental proceeding in the course of or in connexion with a proceeding” makes it clear in my view that an inquiry by the Family Court into the facts necessary to found its own jurisdiction itself falls within the definition of a matrimonial cause.

7. The proceedings instituted by the wife assert that she is entitled to relief pursuant to s 79 of the Act. By instituting those proceedings, she invokes a matrimonial cause (definition, s 4, sub-paragraph (ca)). There is no doubt on the evidence before his Honour that each of the requirements of that sub-paragraph are met. Proceedings have been instituted with respect to that matrimonial cause. That being so, the Family Court has jurisdiction to hear and determine “matters arising under the Act” in respect of that matrimonial cause.

8. The matter is not the cause or causes of action within it; it is “a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy” (Fencott v Muller (1983) 152 CLR 570 at 603). Determination of the matter includes determination of the entire controversy. Importantly, the determination of whether the proceedings are a matrimonial cause “cannot be dependent upon the ultimate outcome of those proceedings” and “[t]he nature of the proceedings must be characterized by the matters which fall for determination in the proceedings” (DMW v CGW at 511).

9. In Rana v Google Inc (2017) 254 FCR 1, the Full Court of the Federal Court of Australia (Allsop CJ, Besanko and White JJ) said this at [21]:

   Generally, non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton at 374 Barwick CJ; Moorgate at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate at 476. It remains federal even if the federal claim is struck out: Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 481-482. Nor does dismissal of the federal claim mean that a court exercising federal jurisdiction somehow loses jurisdiction over the balance of the matter: Burgundy Royaleat 219; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [85] per French J. The same is true if the federal claim is effectively abandoned: see Moorgate. Indeed, a matter remains in federal jurisdiction even if a party is added and no federal claim is made against that party, provided it is all part of the same matter, the same controversy: Re Wakim at [145] per Gummow and Hayne JJ. The position is summarised in Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773 at [36] as follows:

   It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction …

10. The granting of leave is a procedural matter as Nygh J points out in Rennie and Higgon. His Honour said at 76,595:

    …Section 44(3) therefore does not terminate the right to a property settlement which has accrued during the course of the marriage. It therefore still remains a right in relation to the property of the parties in respect of which, under the principles laid down in Sieling and Sieling [(1979) FLC 90‑627], an injunction can lie.

11. The relevant matrimonial cause here, defined in sub-paragraph (ca) of the s 4 definition, does not lose its character as a matrimonial cause by reason of a determination made in respect of proceedings to which it relates. Proceedings for settlement of property referenced to matrimonial cause (ca) remain a matrimonial cause whether or not an applicant is granted leave and whether or not an applicant receives a remedy referable to s 79 of the Act.

12. If leave is not granted for the wife to continue the s 79 proceedings instituted by her, she is precluded from accessing remedies flowing from the application of s 79. There would remain, however, property owned as joint tenants. Importantly, and contrary to what appears to emerge from his Honour’s reasons, the parties would not be without a potential remedy under the Act; proceedings lie for a different remedy in respect of the same matrimonial cause. Proceedings pursuant to s 78 of the Act are a matrimonial cause by reason of the same circumstances that render the proposed s 79 proceedings (and its attendant application for leave) a matrimonial cause.

13. Applications pursuant to s 78 of the Act are specifically excluded from the operation of s 44(3). Crucially, it should be observed that, consequent upon the declaration of “the title or rights, if any” that a party has in respect of the property the subject of the application, “consequential orders to give effect to the declaration” can be made. Specifically those orders “include” orders as to the “sale or partition” of property and “interim or permanent orders as to possession”. (Of course, the application of s 78(2) itself requires the exercise of a discretion). Moreover, in proceedings in respect of that particular statutory remedy, the Court also has jurisdiction to determine “different claims [which] arise out of ‘common transactions and facts’ or ‘a common substratum of facts’, notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’”. (Re Wakim; ex parte McNally (1999) 198 CLR 511 at 585 per Gummow and Hayne JJ, footnotes omitted. See also, Rizeq v Western Australia (2017) 344 ALR 421 at [55] – [56] per Bell, Gageler, Keane, Nettle and Gordon JJ).

14. The wife’s application before his Honour did not seek s 78 relief and nor, it seems, did the parties or his Honour avert to the potential for any such relief being available. But a failure to seek available relief is a different matter to a finding that the relief sought in the proceedings is the only relief available. A refusal of leave pursuant to s 44(3) is not a denial of alternative remedies.

15. The effect of the decision of Alstergren DCJ and Strickland J in this appeal is to leave the wife without a remedy pursuant to s 79 of the Act. Whether she might now pursue other available relief in fresh proceedings instituted by her may raise other questions – for example, whether any new proceedings raised a claim or issue “so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim or issue not to have been made or raised in it”: Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 at [27]. That issue does not arise on this appeal and it is inappropriate to comment further upon it.

16. In summary, then, I am of the view that the proceedings for settlement of property instituted by the wife are a matrimonial cause and the proceedings for leave pursuant to s 44(3) are incidental thereto. The consequence is that VCAT has no jurisdiction to entertain the claim made by the husband and his Honour’s conclusion to the contrary is, in my respectful view, erroneous.

17. The conclusion that the primary judge gave little weight to what his Honour found was the availability of remedies for the wife within the VCAT proceedings appears to emanate from a reading of his Honour’s reasons as a whole (see, [98] above). No specific passages of his Honour’s reasons are referenced. At [39], his Honour said that he “[took] into account that [the wife] has the opportunity to litigate her entitlements there”. His Honour did not elaborate further nor was it explained how and to what extent that factor was taken into account.

18. Yet an erroneous finding as to jurisdiction and power and reference to an asserted availability of remedies in another jurisdiction must in my view be seen as a crucial matter. Indeed, if his Honour’s conclusion to that effect was correct, it could hardly be said that the availability of alternative proceedings offering alternative remedies was an unimportant fact impacting on a conclusion as to hardship. 

19. In my view it is not possible to dismiss his Honour’s erroneous conclusion as to the availability of potential remedies outside the Act as having little bearing on his Honour’s conclusion as to hardship. Rather, the central question posed by s 44(4) is answered by his Honour with reference to what in my respectful opinion is an important matter, namely an error of law going to jurisdiction.

Discretionary considerations

1. The primary judge referred to the discretionary considerations considered relevant at [44] – [47] of the reasons:

   44.…such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the [husband] by reason of the delay and the strength on the merits of the [wife’s] case, and the degree of 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.

   45.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;

   46.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.

   47.In my view, the application in respect of property alteration must fail…

2. For reasons I have earlier given, I consider that his Honour’s conclusion that the “application in respect of property alteration must fail” is not open on the evidence before his Honour. 

3. So, too, contrary to his Honour’s stated position, I respectfully consider that it is possible to “assess on the evidence just what the [wife’s] case might be”; it is a prima facie case for s 79 relief based on a 27-year period during which five children were born and raised and contributions were made. It is true that it is not possible to discern the orders which the wife seeks but, as has been said, that particularisation must await, as the wife’s amended application asserts, disclosure by the husband consequent upon leave being granted. 

4. As I have said, in my view, a prima facie case for s 79 relief was in fact substantiated. As appears from [44] of the reasons, “the strength on the merits of the [wife’s] case” was a significant consideration for his Honour. I respectfully consider that his Honour’s discretion was to that extent informed by error.

5. In the passages quoted, his Honour refers to delay as an important consideration. Authority dictates that it is indeed often an important consideration. Throughout the reasons, his Honour refers to the delay being 30 years, being the period between divorce and the filing of the application. As an example of the importance attached to that period, his Honour says at [15]: “In Frost & Nicholson, Nygh J described a ten year period as ‘an extreme example’. How much more so is a gap of 30 years?”

6. Yet, the circumstances of this case rendered relevant and important other considerations pertaining to that 30-year period. Not the least of those is that the parties’ relationship post-divorce is attended by facts and circumstances (or, to borrow from Stanford, “stated and unstated assumptions”) entirely inconsistent with the ordinary concept of divorce and inconsistent with the desire, and necessity, for the “clean break” contemplated by s 81 of the Act.

7. What might be described as a final separation in the more conventional sense occurred 13 years before the application was filed. Further, and to my mind very significantly, despite that “final separation”, in 2016 the wife resumed occupation of Suburb O – owned by the parties it will be recalled as joint tenants. On the evidence before his Honour, “stated and unstated assumptions” arising from the parties’ marriage relationship attended the occupation of the property before 2004, and again post‑July 2016. On the evidence before his Honour, those assumptions can be seen to have only ended when the husband filed proceedings concerning Suburb O in VCAT some eight months later. 

8. None of the matters to which I have just referred were taken into account by his Honour. In my view all are highly relevant to the role that the important matter of delay played in the exercise of discretion. 

9. His Honour refers at [30] to the wife’s evidence that “[s]he had no schooling experience, spent her life raising children and is unable to read and write” but goes on to find:

   31.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.

   …

   36.…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.

   37.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.

   38.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?

10. The divorce was obtained some 33 years prior to the proceedings before his Honour. It was succeeded by the apparently consensual arrangements earlier discussed. It was succeeded by the acquisition of real property as joint tenants and arrangements that pertained to the use and occupation of that property. While in the ordinary course of events matters such as what was or was not known, or what was or was not said, at the time of the divorce could be important to the exercise of the discretion, in my respectful view, the matters just referred to rendered them of marginal relevance, at best, in the unusual circumstances of this case. 

11. Further, the wife’s reason for filing her application is tied to the VCAT proceedings which, as his Honour found, pertains to one piece of real property. However, the evidence reveals that the husband’s institution of the VCAT proceedings had a much more important role: they served as a demarcation point which brought to an end circumstances that had pertained informally for many years which affected directly a central component of “property of the parties or either of them”. Again, in my view, that is an important relevant matter that was, with respect, not considered by his Honour.

12. His Honour finds at [15]:

    As will be seen below, the [wife] would never had (sic) begun this process but for the action that the [husband] took at VCAT, but the prejudice lies with the [husband] because he would be entitled to consider that after 30 years, the [wife] 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 [husband] explains his action at VCAT is another matter but I consider that as the [wife] 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 [wife] now has.

1. It can perhaps be accepted that facing an action which, but for the grant of leave could not be commenced, involves, all else being equal, at least some prejudice to a respondent (see, eg, Sharp at [97] – albeit that I do not consider, with respect, that in using the word “presumes”, their Honours intended to suggest a legal or factual presumption in the strict sense). However, here the husband had, by the initiation of proceedings in VCAT, submitted himself to proceedings and implicitly acknowledged the need for a remedy in respect of one component of the “property of the parties or either of them”.

2. Once again, all else being equal, it might be said that a divorced former party to a marriage could, after 30 years, consider that his former spouse “would not take family law property type division action”. Yet, that can hardly be said to be the case here. Here, the husband:

   ·    resumed cohabitation with his “former spouse” together with his new spouse and their respective children;

   ·    had further children with his former spouse subsequent to resumption of cohabitation;

   ·    thereafter acquired real property with his former spouse as joint tenants;

   ·    divided his time between a former spouse and their children and a current spouse and their children;

   ·    resided during that “split time” in the jointly owned real property with his former spouse and their children; and

   ·    remained “Islamically married” to his former spouse and would not grant her an ‘Islamic divorce’.

3. In my respectful opinion, his Honour has failed to take account of those matters. I consider each and all to be highly relevant in assessing any prejudice to the husband, and to the relevant discretion more broadly.

4. For those reasons, I am of the view that, to the extent his Honour sought to exercise a discretion alternative to his finding that there was no hardship, the exercise of that discretion miscarried.

Leave to appeal and costs of the appeal

1. The reasons I have outlined explain my view that the appeal has substance and that failure to grant leave to appeal would cause injustice to the wife.

2. It was contended that if error be found, this Court should itself find that hardship has been established and exercise for itself the consequent discretion. In that respect, neither party sought to adduce further evidence relevant to the circumstances as at the date of the appeal (Allesch v Maunz (2000) 203 CLR 172). Nor did either party suggest that further evidence should be before the Court. I consider the record permits of this Court reaching its own conclusion on the wife’s application for leave to proceed out of time.

3. As will I think be clear from what I have earlier said, in my view hardship is established by the wife and discretionary considerations point to leave being granted.

4. Consequent upon my conclusion that leave to appeal should be granted and the appeal allowed, I would set aside the order dismissing the wife’s claim. 

5. If orders were made as I consider appropriate, I would order each party bear their own costs. Each would have been successful and succeeded on questions of law. I would then have made orders for certificates to issue to each party as applied for pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Summary of conclusions

1. For the reasons set out above, I would make the following orders different to those proposed by Alstergren DCJ and Strickland J:

   ·The wife be granted leave to appeal;

   ·The appeal be allowed;

   ·The order made by Cronin J on 10 October 2017 dismissing the wife’s s 44(3) application, be set aside;

   ·In lieu, orders made granting leave to the wife pursuant to s 44(3) of the Act to proceed with her application for settlement of property pursuant to s 79 of the Act;

   ·Those proceedings be consolidated with the proceedings for spousal maintenance remitted pursuant to the orders proposed by the majority; and

   ·Each party bear their own costs of and incidental to the appeal and that costs certificates issue to each in the usual terms.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Strickland & Murphy JJ) delivered on 13 November 2018.

Legal Associate: 

Date:  13 November 2018