Ethan and Humphreys

[2016] FCCA 3086

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETHAN & HUMPHREYS [2016] FCCA 3086

Catchwords:
FAMILY LAW – Leave to proceed out of time – Applicant 25 months late – inadequate explanation for delay – does not make out a reasonable prima facie case – probability claim will fail.

Legislation:

Family Law Act 1975, ss.44(6), 90SM

Federal Circuit Court Rules 2001

Cases cited:

Re. F: Litigants in Person Guidelines (2001) 161 FLR 189
Hall & Hall (1979) FLC 96-679

Applicant: MR ETHAN

Respondent: MS HUMPHREYS

File Number: MLC 4900 of 2015

Judgment of: Judge Curtain

Hearing dates: 15 & 16 August 2016

Date of Last Submission: 16 August 2016

Delivered at: Melbourne

Delivered on: 1 December 2016

REPRESENTATION

Counsel for the Applicant: None – Solicitor Advocate

Solicitors for the Applicant: Mr Aaron Eidelson

Counsel for the Respondent: None – In Person

Solicitors for the Respondent: None

ORDERS

THE COURT ORDERS ON A FINAL BASIS:

1. That the Application of Mr Ethan for leave to be granted out of time for proceedings pursuant to s.90SM of the Family Law Act 1975 be dismissed.

2. That the all other Applications and Responses be otherwise dismissed.

3. That liberty be reserved for the parties to mention the matter on the question of costs.

IT IS NOTED that publication of this judgment under the pseudonym Ethan & Humphreys is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4900 of 2015

MR ETHAN

Applicant

And

MS HUMPHREYS

Respondent

REASONS FOR JUDGMENT

Introduction

1. “The truth is subjective”, said the historian during a recent radio interview. I found this to be axiomatic of the Applicant’s case in this matter.

2. The Applicant, Mr Ethan is aged fifty five (55) years and is a (occupation omitted) by occupation. He seeks an order pursuant to section 44(6) of the Family Law Act 1975 (“the Act”), for leave out of time to proceed with an application pursuant to section 90SM of the Act. He is represented by a solicitor-advocate, a Mr Aaron Eidelson.

3. The Respondent, Ms Humphreys is aged fifty three (53) years and receives the New Start benefit. She appears in person and strongly opposes leave being granted. Being self-represented, I assisted her as best I could pursuant to the directions contacted in Re. F: Litigants in Person Guidelines (2001) 161 FLR 189.

Background

1. The Applicant filed his application on 1 June 2015 along with an affidavit in which he claimed that he lived in a de-facto relationship with the Respondent from (omitted) 2007 to 9 May 2011 with some separations during that period. Pursuant to the Act, his application was filed around twenty five months too late.

2. In his Initiating Application he sought the following orders:

   a)Final orders sought

   i)That there be a fair and equitable division of the property beings the assetts (sic) of the de facto marriage between the Applicant and the Respondent.

   b)Interim or procedural orders sought

   i)That there be a fair and equitable division of the property beings the assetts (sic) of the de fact (sic) marriage between the Applicant and the Respondent.

   ii)That the caveat currently placed by the Applicant on the Respondent’s property at Property A remain in place until orders guaranteeing the preservation of monies from the sale of the property be secure in a trust account until final orders by this Honourable Court.

3. On 30 July 2015 he filed an Amended Initiating Application where he sought the following orders:

   a)Final orders sought

   i)That there be a fair and equitable division of the property being the assetts (sic) fo (sic) the de facto marriage between the Applicant and the Respondent

   b)Interim or procedural orders sought

   i)That leave be granted to the Applicant pursuant to section 44(6) of the Family Law Act 1975 for the Applicant to apply after the end of the standard application period the Court being satisfied that hardship would be caused to the Applicant if leave were not granted.

4. On the 9 October 2015 he filed a Further Amended Initiating Application which sought the following orders:

   a)Final orders sought

   i)That there be such property settlement pursuant to s90SM of the Family Law Act 1975 (Cth) as the Court deems appropriate.

   b)Interim or procedural orders sought

   i)That leave be granted to the Applicant pursuant to section 44(6) of the Family Law Act 1975 (“the Act”) for the Applicant to apply after the end of the standard application period to bring his Applicant under s90SM of the Act, the Court being satisfied that hardship would be caused to the Applicant if leave were not granted.

5. The Applicant alleges that although there are no children of their relationship, he says he made numerous financial contributions during this alleged de-facto relationship and therefore, he should be granted the relief sought.

6. The Respondent’s Amended Response filed 23 October 2015 sets out the following final and interim orders sought:

   a)Final orders sought

   i)That the Court dismiss the Application for final orders sought in the Amended Initiating Application filed 9 October 2015 because it is not brought within the standard application period under s.44(5) Family Law Act (sic) and because the Applicant has not made out a reasonable claim or an arguable case for the Court to be satisfied of the matters in s.44(6) Family Law Act (sic).

   ii)That further to paragraph 1 hereof the Court give summary judgment dismissing the said Application for Final Orders.

   iii)That in the event the Court does not make the order in paragraphs 1 or 2 hereof, a Declaration pursuant to s.90RD(1) Family Law Act (sic) that a de facto relationship never existed between the Applicant and the Respondent.

7. It was the Respondent’s case, in essence, that the Applicant and Respondent were simply “boyfriend and girlfriend”, never had a de-facto relationship and the Respondent lived an independent life, financially and otherwise, from the Applicant. She strongly objected to any allegation that the Applicant made a significant financial contribution during this alleged period of cohabitation.

8. On 12 August 2015 the matter came before me in the duty list and, in brief, I made orders for filing of further material, a conciliation conference on 30 November 2015 (which failed to resolve their differences) and for the matter otherwise to be listed before me on 3 August 2016 for final hearing. The expression final hearing is misleading; this hearing was only about the question of leave. If I was to grant leave for the application to proceed I would set a further trial date when the substantive matter could be dealt with. This was an interim hearing only as to the question of the merit of leave being granted pursuant to section 44(6) of the Act (see Emamy & Marino (1994) 92-487).

The Applicant’s Evidence

1. The Applicant relied on two Affidavits and he gave evidence during the two days of the hearing. I found his evidence unconvincing, misleading, ambiguous, contradictory and otherwise generally unhelpful. I gained the impression that he was attempting to tell the Court what he thought the Court should hear rather than always telling the truth. I shall comment on it further.

The Respondent’s Evidence

1. The Respondent presented as a person attempting to be accurate with the history of this matter although I felt from time to time she coloured her version of the truth and it could not be said that she was always objective. However, I found her evidence generally helpful, and where her evidence clashed with the evidence of the Applicant, I preferred the evidence of the Respondent. I shall comment on this further.

Material relied upon

1. The Applicant:

   a)Further Amended Initiating Application filed the 9 October 2015;

   b)Affidavit sworn or affirmed on 1 June 2015 and filed 1 June 2015;

   c)A further Affidavit sworn or affirmed the 30 July 2015 and filed 30 July 2015;

   d)A Financial Statement sworn and filed 1 June 2015;

   e)Final written submissions by the Applicant dated 15 August 2016.

2. The Respondent:

   a)Amended Response to Amended Initiating Application filed 23 October 2015;

   b)An Affidavit sworn and filed 6 August 2015;

   c)A Financial Statement sworn and filed 6 August 2015.

The Law

1. Section 44 of the Family Law Act 1975 (Cth) deals with the question of institution of proceedings. More particularly, subsections 5 and 6 are relevant to this action.

2. Subsection 44(5) says as follows:

   44 (5) Subject to subsection (6), a party to a de facto relationship may apply for:

   (a)  an order under section 90SE, 90SG or 90SM; or

   (b)  a declaration under section 90SL;

   only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period ).

3. In section 44(6) it provides:

   44 (6)  The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

   (a)  hardship would be caused to the party or a child if leave were not granted; or

   (b)  in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

4. I note that the Applicant does not rely on section 44(6)(b).

5. I have not been directed to any authorities by the parties in relation to leave to proceed out of time in where a de facto relationship is alleged, but I note the authors of CCH Australian Family Law Practice at p. 44 in Volume 2, say the following:

   “(t)he provision relating to hardship is identical to that in section 44(4) regarding matrimonial causes. It is reasonable to believe that the court will follow existing authority on the question of determining if there is hardship and the exercise of discretion.”

6. The wording of section 44(6) is very similar to section 44(4) save it does not refer to “marriage”. Therefore in the absence of clear authorities relating to a de facto relationship, I propose to adopt the approach that has been set out in marriage cases seeking leave out of time. The line of authority in this area starts with Whitford & Whitford (1979) FLC 96-12 and Hall & Hall (1979) FLC 96-79 and more recently, Riordan & Riordan [2012] FMCAFam 1297. The authorities have established that I need to approach the question of leave by considering the following:

   a)An adequate explanation for the delay;

   b)Hardship to both parties and in particular, whether the Applicant has a prima facie case; and

   c)If satisfied as to the reasons for delay and hardship, whether in the exercise of my discretion I should grant or refuse leave.

Explanation for delay (Vigilantibus et non dormientilius lex succurrit)

1. The Applicant filed two affidavits on 1 June 2015 and 30 July 2015 both of which were poorly drafted and difficult to read. The first affidavit sworn or affirmed on 1 June 2015 went to six pages and did not address the reasons for delay in issuing these proceedings save the deponent said at paragraph 43 that he was jailed for four months in 2014 and after he “separated” from the Respondent, he was “very ill and uncommunicative for a long time.” He did not produce evidence to corroborate this allegation.

2. His second affidavit, sworn or affirmed on 30 July 2015 was filed along with his Amended Initiating Application seeking leave from this court to proceed pursuant to s44(6) of the Family Law Act 1975. One would expect this affidavit would contain detailed reasons for the delay; however he only addresses this in four paragraphs. He states initially at paragraph seven he had been jailed following the separation on 9 May 2011 for considerable periods on three occasions, which when he gave oral evidence, was clarified as periods of 35 days, 4 months and 30 days.

3. In paragraph nine he says in addition to having spent additional periods in jail he suffered severe depression and anxiety and he refers to a psychological report dated 21 November 2013 annexed to his Affidavit prepared for a County Court appeal. At paragraph 11 he said that he was facing police charges where the Respondent was a “principle witness” and he therefore was highly reticent to aggravate her attitude towards him. At paragraph 15 he said the following “…in the midst of all of this my mother became ill and was diagnosed with terminal cancer. She passed away on (omitted) 2014.”

4. On the first day of the trial, 15 August 2016 the Applicant gave evidence about the question of delay. In his evidence in chief he confirmed that he separated from the Respondent on 9 May 2011 which was the day he was released from custody for breaching an Intervention Order. He then said that in his mind he was still in a relationship, even though he and Ms Humphreys stopped living together from that day. The evidence was clear that the witness had hoped for or expected a reconciliation which never occurred. He went on to say that he formed the view that a reconciliation was not going to take place from about June 2012, when he had to remove all his furniture from the Respondent’s house.

5. I then asked him to tell me when he first obtained legal advice about this matter:

   “Okay. Well, when did you first get legal advice about this? --- Your Honour, I had no intentions of going through the Family Court. I made that clear to her at the time.

   “As long as you don’t sell the house, because you have children living there”, I said, “I’m prepared to not go after any- anything that belongs to you even though I’ve spent money, because that is a family home. Children come first.” Then when she put the house on the market that’s when I proceeded with legal action.

   All right. So I will ask the question again. When did you first get legal advice about this?--- I think it was about November 2014, you Honour.”

6. I found this evidence strange and unlikely to be true, and if accurate it appears it was his initial intent not to seek relief. This was never detailed in the two affidavits he swore in this matter.

7. Further, I find it puzzling that the Applicant said he never got legal advice on this topic until about November 2014, however he had filed a report from a psychologist dated 12 months earlier which is addressed to his solicitor who acted for him in this trial. Did he have this solicitor acting for him at least twelve months before he got legal advice?

8. Overall, the Applicant’s explanation for the delay is inadequate, too general, lacks detail and I take the view he had numerous opportunities from May, 2011 to obtain legal advice and institute some proceedings earlier than he has. This gentleman has “sat on his hands” and not sought to properly pursue his claim, which in any event I find generally lacks merit and if pursued, would probably fail.

Investigation of the merits of the proposed claim

1. In Hall & Hall 1979 FLC 96-79 at page 78-627 the Full Court said as follows:

   “The cases, more particularly Mackenzie’s and Whitford’s cases and also McCarron (1978) FLC 90-444 and Wingate (1979) FLC 90-624, have considered what is meant by the term “hardship” in this context, and the term “substantial detriment” seems to be the generally accepted interpretation of that word.

   Fundamental to that is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept. For example in Swallow’s case (unreported Emery J., 16 September 1977; referred to in McDonald’s case) it was said to be “a prima facie case which is in the circumstances substantial”; the Full Court in McDonald’s case differed from that by stating that it ought to be “a reasonable prima facie case”. In Mackenzie’s case it was described as being “a probability of success”, and in Whitford’s case the distinction was said to be that the Applicant would need to show that she would “probably succeed” to be contrasted with a situation where she had “no real probability of success”. In Perkins’ case (1979) FLC 90-600 Lindenmayer J. described it as “a reasonable probability of the claim being successful in some measure”.

   These varying phrases may tend to suggest different shades of meaning whereas in reality they are directed to the same 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 categorise the nature or quality of that claim, subject, however, to the qualification referred to by Lindenmayer J. in Perkins’ case at p.78, 054 when he said:

   “I would add only this qualification, that if the Applicant’s evidence as to merits of his or her proposed claim is in itself inherently improbable or self-contradictory in important respects, or if it is clearly shown by other impeachable evidence (such as undisputed documentary evidence or the testimony of independent witnesses) to be false, then the Applicant may be held to have failed to establish a prima facie case notwithstanding that if his or her evidence were accepted there would be a reasonable probability of success”.

2. The Applicant in his first affidavit sworn or affirmed on 1 June 2015 said at paragraph 11 that the parties commenced cohabitation on (omitted) 2007 and the relationship continued for approximately four years, whereas he said at paragraph 21 they lived together from (omitted) 2007 until the 9 May 2011. I noted at paragraph 32 of the same affidavit he said that he was released from prison on (omitted) 2011 and said… “I and the Respondent continued our habitation at Property A.”

3. This contradiction was not explained to the Court and during evidence he did say and confirmed the parties separated on 9 May 2011. I noted further that in his first affidavit he referred to his children and the Respondent’s children living with them and that now some or all are adults. I noted further that none were called to corroborate the Applicant’s allegations.

4. He also referred to bank loans, paying bills and paying rates, but no corroborating documents were produced by the Applicant. I noted further that in paragraph 18 of his first affidavit he referred to emails and text messages from the Respondent but none were produced to the Court.

5. At paragraph 24 of his first affidavit he made the following allegation “…in the years we were living together as a de facto couple I estimate that I gave her over $300,000 which I had earned through my work as a (occupation omitted)...” He went on to say “…my contributions to the Respondent exceeded $300,000…” I noted the cross-examination of the Respondent very carefully and this allegation was never put to her.

6. In the second affidavit sworn or affirmed on 30 July 2015 and filed on the same date the Applicant says in paragraph 5 “…the Respondent is currently selling the matrimonial home and has indicated that she has no intention of settling our financial issues in a fair and equitable manner. This is despite her previous assurances to me to the contrary...” I noted that these alleged previous assurances were never put to the Respondent in cross-examination.

7. Of great significance to me was the fact that the Applicant said a number of times in his evidence that he earned over $100,000 per annum and used these monies to benefit the parties. He said further that he believed he had some corroborating documents in his possession at his residence. Given he produced no documentary evidence in his affidavits or to the court, I requested that he locate those documents overnight and produce them to me the next morning.

8. On day two of the hearing when asked about these documents, he said he searched the house for corroborating documents but could not locate them and guessed that he left them at the Respondent’s home!

1. In cross-examination, the Respondent said that the Applicant and his children came to live at his house from (omitted) 2007 as they were evicted from their (omitted) home and effectively had nowhere else to go. She was subsequently cross-examined further about intervention orders between the parties and said the following:

   MR EIDELSON: Now, the reason that the intervention order has been taken out is because you did get back together after the intervention order. Correct?---Not by choice.

   HIS HONOUR: What do you mean by that?---Your Honour, the intervention orders were always taken out because whenever I asked the applicant for his board money, he would come up with excuses and become irate.

   What money did you ask for?---His board money.

   Board money. Yes?---The $350 that we verbally agreed on. He always had excuses and the promise that he made of looking for a rental, he never made any such effort to look for a rental. And because I was receiving a single parent pension, I would not – I did not want the applicant staying there for any length of time. And when I – if I asked him for the board money, he would become violent and aggressive. And if I would not engage in the quarrel, he would then turn on my children and verbally abuse them. And I would just simply pick up the phone and call the police. Because when it first happened on the very first intervention order, I was advised by the police officer to always have an intervention in – order in place, even if it’s varied, because then that gives them the power to remove.

   If you had an intervention order in place, why would you allow him back in?---The only reason I allowed him back in, your Honour, was because he used the fact that he had chattels in my garage. He always wanted – he used that for the excuse to keep coming back. And then he would manipulate me, and say he was sorry, and he would, you know, become a better person. He won’t do it again. “Please let me stay. I’ve got nowhere to go. I promise I’ll take my – I’ll find a place, and I promise I’ll take my stuff, and I will pay you back the money I owe you”

2. She admitted that she did allow him to return to her home at Property A on a few occasions, but always as her “boyfriend.” She was adamant they held no joint accounts and there were separate savings. At one stage she said… “no joint bills, no joint accounts, no joint nothing.”

3. I note that she was not cross-examined about the following paragraphs in her affidavit sworn 6 August 2015:

   5(b). The Applicant and I were never in a de facto relationship. We were in a casual sexual relationship between about (omitted) 2007 to around (omitted) 2010. The Applicant stayed at my house from time to time usually for around 2 to 4 weeks at a time and at the most for a period of 6 weeks. I estimate that he stayed at my house for around four to five separate periods of a few weeks during that time. For most of the period (omitted) 2007 to (omitted) 2010 the Applicant did not live at my home.

   5(c). For example, he stayed for a time with his neighbour at (omitted). He stayed with a friend who lives somewhere past (omitted) for around 1 to 2 months in 2008. He rented a cottage in (omitted) for around 3 to 4 months in 2008. He subsequently lived at (omitted), (omitted) then at (omitted), (omitted) and he also rented a place at (omitted) and another place at (omitted). His tenancies were usually fairly short because he didn’t pay the rent. He was also incarcerated for crimes not connected with me for around 4 to 6 months in 2009 and for another 4 to 6 months in 2010 to 2011.

   5(d). On the various occasions that the Applicant stayed at my house he had generally presented himself as being in a desperate short term financial need situation and having nowhere else to live. He always promised to pay me board which he never paid. Several times he was removed from my house pursuant to an intervention order or for breaches of an intervention order which proceedings were mostly initiated by the police.

   5(e). Throughout the period that I was involved with the Applicant he did not generally contribute money to my household (save as I set out in paragraph 6.6), did not contribute towards rates, water usage and did not pay for food. While his 3 children lived at my house he did not even contribute to their food and upkeep costs. He kept his personal items including his motor vehicle in my garage even when he moved out and this was despite my asking him again and again to remove his belongings. He simply refused to do it.

   5(f). At no stage did we consider ourselves as a couple. We did not socialise as a couple. For a time he was my boyfriend but he was never my partner. We did not have a joint account. He did not act as step parent to my children. When the police took down the details to take him to Court for intervention orders I would say emphatically to them that he was not my partner but they would on occasions say words to the effect “leave it with us, this is the way it is done”. I did go out on occasions with the Applicant to pubs. Sometimes when I was with him and also when I was not with him, I did play the pokies. I did not generally do so to excess and whatever I spent was my own money.

   ……..

   6(h). He paid no board, he bought no food and he paid nothing towards utilities or rates. I couldn’t keep paying the enormous costs of having four extra people in my house. By December 2007 I was demanding that he leave and after an incident when he was violent and drunk on the 19 December 2007, I obtained the first of several intervention orders. After that he begged me to let him returnand to give hima chance to pay me back. Christmas was coming and I was very sorry for his young children and I allowed them all back into my house, again as a short term measure.

   6(i). By the 7 January 2008 I obtained a second intervention order and the Applicant left my house again. He then presented me with an Application dated 17 January 2008 which he had prepared to go to VCAT saying that he was my tenant and that he had paid a $1,400 bond. Of course no such bond or rent had ever been paid.”

4. Further, she was not cross-examined about Annexure E H5 which was a copy of the Applicant’s application to the Victorian Civil and Administrative Tribunal wherein he claimed to be the Applicant tenant and the Respondent landlord was Ms Humphreys. He said that the application was for the tenant to reside in the premises until 17 January 2008 as the rent was paid to that date and he was also seeking the landlord to return a $1,400 bond.

5. Further, she was not cross-examined about an exhibit to her affidavit H3 which was a copy of a consent order dated 4 June 2015 in the Supreme Court of Victoria wherein the plaintiff was Ms Humphreys and the First Defendant was Mr Ethan, the parties to these proceedings, wherein they entered into the following consent orders:

   “THE COURT ORDERS BY CONSENT THAT:

   1. Pursuant to r45.05(2) of the Supreme Court (General Civil Procedure) Rules 2005:

   a.The requirements of rr 5.03(1) and 8.02 are dispensed with; and

   b.The plaintiff (Ms Humphreys) is authorised to commence this proceeding by originating motion in Form 5C.

   2.   The second defendant (Registrar of Titles) forthwith remove the caveat lodged in dealing number (omitted) over the title to the property at Property A in the State of Victoria, being the property described in Certificate of Title Volume (omitted).

   3.   The first defendant (Mr Ethan) pay the plaintiff’s costs of this proceeding fixed in the sum of $5,000.”

6. This was a very strange outcome for the Applicant in this case to agree to such an order in the Supreme Court if he thought he had such a reasonable claim in this court. This was not explained to me.

7. Moreover, the Respondent established in cross-examination that during the alleged period of cohabitation the Applicant lived at the following addresses:

   a)(omitted);

   b)(omitted);

   c)A residence at (omitted);

   d)A (omitted) motel;

   e)(omitted);

   f)(omitted);

   g)(omitted); and

   h)(omitted).

8. The Respondent also gave evidence that during this period of alleged cohabitation she dated two other men and that the parties never had any joint debts or joint bank accounts.

9. Overall, I am satisfied that the proposed application for relief by the Applicant has no probability of success on this current evidence. He has not made out a prima facie case. He has no corroboration for the very general and broad statements he makes and notwithstanding I gave him an opportunity to produce documentary proof, he produced none. Moreover he alleges during the period of cohabitation or part thereof his children and/or the Respondent’s children also resided there from time to time. None of these potential witnesses were called. The Applicant has no corroboration at all for his allegations and the Respondent put forward a very credible case that at best they were boyfriend and girlfriend and he made no significant contribution to her assets whatsoever.

10. I am satisfied that he would not suffer hardship as referred to in the authorities if leave was not granted and the Respondent would suffer hardship if I let the application proceed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date:  1 December 2016