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,… |
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- AGLC
- Emerald & Emerald [2018] FamCAFC 217
- Case
- [2018] FamCAFC 217
- Decision Date
CaseChat Overview and Summary
The Court's reasoning was based on the principles of limitation periods and the rationale behind them, which is to fix definite time limits for prosecuting civil claims. The Court found that the primary judge did not sufficiently consider the prejudice to the husband caused by the delay in the wife's application for property settlement, as the husband would be entitled to consider that after 30 years, the wife would not take family law property type division action. The Court also found that the wife's claim did not lose its character as a matrimonial cause as a result of a refusal to grant leave to institute proceedings out of time. Therefore, the Court granted leave to the husband to cross-appeal, allowed the cross-appeal, set aside the orders granting leave for spousal maintenance, and remitted the application for leave for spousal maintenance to the Family Court for rehearing by a different judge. The Court dismissed the wife's application for leave to appeal, and ordered her to pay the husband's costs for responding to the application for leave to appeal and the appeal.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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.