Galvin and Galvin

[2016] FCCA 1921

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALVIN & GALVIN [2016] FCCA 1921

Catchwords:
FAMILY LAW – Leave to proceed with property application out of time.

Legislation:

Family Law Act 1975, ss.44(4), 75(2)

Cases cited:

Mackrell & Mackrell [2015] FCCA 1996

Applicant: MR GALVIN

Respondent: MS GALVIN

File Number: DGC 1237 of 2008

Judgment of: Judge Harland

Hearing date: 11 May 2016

Date of Last Submission: 11 May 2016

Delivered at: Dandenong

Delivered on: 11 May 2016

REPRESENTATION

The Applicant: In person

The Respondent: In Person

ORDERS

Property

1. The application made pursuant to section 44(3) of the Family Law Act 1975 (Cth) to file and proceed with an application relating to financial issues is dismissed.

2. Within 7 days of this order the Wife remove the caveat from the property (omitted) Volume, Folio (omitted).

Parenting

1. The father spend time with the child X born (omitted) 2001 (“the child”) from 13 December 2016 to 1 January 2017.

2. The father is permitted to take the child to the (country omitted) and (country omitted) during the time period in order 3.

3. The father return with the child to Melbourne, Victoria on 1 January 2017 and will spend time with the child until the mother nominates a date for the child to be returned to her care in Melbourne.

4. For the summer school holidays of 2017-2018 the child will spend Christmas Day and New Year’s Day with the mother.

5. The Application in a Case filed 11 April 2016 is otherwise dismissed.

6. The Duty list hearing listed 30 June 2016 be vacated.

AND THE COURT NOTES THAT:

A.The parenting matters remain listed for Final hearing on 13 October 2016 for 2 days.

B.At the Final Hearing is when the mother will nominate when the child is handed back in January 2017 in accordance with order 5.

C.The mother is going to be in the (country omitted) from 24 December 2016 and is not yet certain of her return date to Australia.

D.The mother will advise the father and the Court at the Final Hearing as to when her return date to Australia will be.

E.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1237 of 2008

MR GALVIN

Applicant

And

MS GALVIN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the applicant for leave to proceed with a property and maintenance application out of time.  The parties were divorced on 9 April 2010.  The parties met in 1987 and the parties agree that they started living together when they married on (omitted) 1992.  The parties were married in the (country omitted) and lived in the (country omitted) until 2008.  The parties have three children who are now aged 22, 18 and 14. 

3. The parties agree that at the commencement of the relationship the respondent had land that he had purchased prior to the relationship in the (country omitted).  During the relationship they built a house on that property.  There is little else that is agreed between the parties. 

4. On 25 November 2015, Judge Jones listed the matter for final hearing before me today with respect to the jurisdictional issue. 

5. Despite this the applicant has been ill-prepared in her case. She refers to having sought assistance from Monash Legal Services and Legal Aid on several occasions.  The onus is still on her to prepare her case. It has been on foot for many months.  I also note that these parties have been in and out of this Court since 2008 with respect to parenting issues.

6. The applicant filed an amended initiating application which does not specify what property and maintenance orders that she seeks if she is granted leave to proceed out of time.  During the course of the hearing her proposal remained unclear. Her case essentially is, as I understand it, that she says she is entitled to a share of the property that the respondent currently owns because they were still married when he purchased the Property R property in 2009 and it was from the proceeds of sale of the Property R property, together with the mortgage that enabled him to buy the current property that he lives in with his second wife and two young children.

7. Both parties cross-examined the other today and made oral submissions in support of their respective cases. 

8. The applicant says that the parties separated in 2010, not in 2008.  The evidence is that the applicant returned to the (country omitted) in late 2008 with two of the three children and stayed there for over a year.  When she returned she lived in property with the respondent until she moved out in 2014.  The applicant says that the respondent made promises to her post-separation and because of that and the living arrangements in the same house she thought she did not need to seek a property adjustment. 

9. She filed her application for leave out of time on 18 December 2014.  She moved out of the home a few months earlier in October 2014.  She does not explain why she did not file her application for another two months.  The main delay is the delay from the 12 months after the divorce became final which means the delay is some three years out of time. 

10. A real issue in this case is whether or not there was any merit in bringing this application, given that there does not appear to be much property in Australia.  The wife’s own evidence that she is on the property title for the property in the (country omitted) therefore is entitled to half of that property.  I have no evidence before me about the property in the (country omitted) and how (country omitted) law would deal with that property. 

11. In terms of assets in Australia there are issues in dispute about this but it appears that the main asset would be the property that the respondent owns in (omitted), Victoria, which is subject to a mortgage.  The issue in dispute appears to revolve around the purchase of the Property R flat that the respondent purchased in September 2009.  He says that he had saved about $15,000 to pay for that deposit and that this was after the parties separated.  The respondent says that the parties separated on 30 March 2008. 

12. The respondent started parenting proceedings on 10 April 2008.  The applicant filed a response in those proceedings and filed an affidavit. The Monash Legal Service assisted her.  In her affidavit she swore that they had separated on 30 March 2008.  That is also the date in the divorce application that the respondent filed in 2010.  There is no response document to the divorce application challenging that separation date. 

13. I have real issues of concern about the applicant’s credibility.  There are aspects of her evidence I just do not believe.  I find that the parties separated on 30 March 2008. 

14. In any property proceedings there are several things that the Court has to consider.  Firstly, whether or not is just and equitable to make any property adjustment at all.  Secondly, is to identify what the legal and equitable interests of the parties are at the date of the hearing.  Thirdly, is to consider what the parties’ contributions are, both financial and non-financial, which includes direct and indirect contributions and also includes the welfare of the family and care of children. 

15. It is relevant to look at what contributions parties made coming into the relationship. There is no dispute that the respondent had an interest in land at the beginning of the relationship.  It is also relevant to look at what property the parties had at separation, particularly when the separation occurred many years before the hearing, as well as looking at what the property pool is now. 

16. The other issue that a Court looks at in property proceedings is whether or not there needs to be further adjustment pursuant to section 75(2) of the Family Law Act 1975 (Cth) (“Family Law Act”).

17. As best I can ascertain from the material before me when the parties migrated to Australia (and the respondent came about a year before) the parties had little by way of assets apart from the property in the (country omitted), which they still own today.  The respondent says that it cost about $10,000 to move the family to Australia and that includes the migration costs.  The applicant thinks that that sum is exaggerated.  I am not satisfied that they had any assets of significance at that time.  Certainly in terms of costs of moving a family of five as well as the associated costs for visas and the like, the figure of $10,000 is not an unreasonable or unrealistic sum. I am not satisfied that there were any other assets, apart from the property in the (country omitted). 

18. The parties lived in rental accommodation up until they separated.  There were periods where the parties remained living under the same roof after they separated but the issue of separation is about the end of the marriage relationship.  It is not about whether or not they remained living under the same roof.  The evidence of the wife that she filed in the latest round of proceedings is inconsistent with the evidence that she has given in previous proceedings.  The wife says that lawyers explained at the time of the earlier proceedings that this would have no legal consequence. I do not accept her evidence.

19. When the applicant returned to Australia with the two children after the parties separated she moved into the property that the respondent then owned, having purchased the property at Property R.  She lived in the property and they lived separately under the one roof until she moved out of that property in October 2014.

20. The respondent annexed documents to his affidavit, including documents from the child-support agency, which further support his case that the parties separated in 2008. 

21. Again I do not accept the applicant’s evidence about the child-support issue.  Her evidence was unconvincing and contradictory.  I had the impression that she was trying to say what she thought would suit her current case.  The applicant says that she had an arrangement with the respondent where he was not in fact paying child-support because she was living in the property.  There may well have been an agreement of that nature.  That does not mean that she did not have an advantage in living in the property without having to pay rent on another property elsewhere.  Paying child support whether by paying money or in kind is consistent with the parties having separated.

22. The applicant says that she was looking after the children during that period and if she had not been then the respondent would not have been able to earn the income that he earned.  The respondent disputed this and said he had other family members that assisted him and that he also was involved in looking after the children, as they did separately post the relationship. 

23. There is no doubt that during the relationship the applicant made contributions to the benefit of both of them and the family, particularly in the non-financial sphere, that is, looking after the children, and that is something that the respondent acknowledged.  It seems both of them made contributions during the marriage. 

24. I have to determine whether or not I should exercise the discretion that I have under section 44(4), of the Family Law Act to grant leave to proceed out of time and as I explained to the parties at the beginning of this hearing, that is an issue about looking at the hardship of the parties and the children in whether or not to exercise that discretion.  It is very much an issue of a balancing act, looking at both parties’ positions.  There are several Full Court decisions that have discussed the nature of the issues the Court has to consider in these types of applications.  I had cause to refer to these in a previous case of Mackrell & Mackrell [2015] FCCA 1996 paragraphs 13 to 19 states:

    Section 44(3) of the Family Law Act 1975 provides that property and maintenance applications must be brought within 12 months of a final divorce order. The Court has a discretion to grant leave to a party to proceed with an application out of time pursuant to section 44(4) if the Court is satisfied that hardship would be caused to a party to the marriage or a child if leave were not granted.

    Both counsel referred to the Full Court of the Family Court decision of Whitford and Whitford (1979) FLC 90-612 which is often referred to in these applications. The Full Court commented that there are two questions arising in these types of applications being:

    a) whether the Court is satisfied that the applicant or child of the marriage would be caused hardship if leave were not granted;

    b) if the Court is satisfied that hardship would be caused, then whether or not the court should exercise its discretion to grant or refuse leave to institute proceedings out of time.

    The Full Court said at [78,146]:

    “The determination how this discretion should be exercised, must depend on the facts of the particular case. 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 s.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. 

    On the other hand, ss 44(3) and 44(4) point to the conclusion that the legislature intended to confer power on the Court to grant leave  to institute proceedings in order to avoid hardship. Having regard to the nature of the jurisdiction which this Court exercises, this power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.” 

    The Full Court also stated that the inability to pursue a claim is not in itself hardship. It is necessary to consider the merits of the application for leave was granted. This is because if there is no real prospect of success then it cannot be found that the applicant would suffer hardship if the leave were not granted. Hardship is not necessarily tied to a monetary value: see Sharp v Sharp [2011] FamCAFC 150.

    In Gallo and Dawson (1990) 93 ALR 479 McHugh J of the High Court held that the purpose of rules to allow an extension of time (in this case an application to extend the time within which to lodge an appeal) is solely to enable the Court to do justice between the parties. In order to determine whether or not there would be an injustice to the parties were it not granted, it is necessary to consider the history of the proceedings, the conduct of the parties, the nature of litigation and the consequences for the parties of the grant or refusal of the application to grant an extension of time. It is necessary to consider the applicant’s prospects of success in the substantive proceedings. It is necessary to be mindful of the purpose of such time limits.

    The applicant’s explanation for the delay is inadequate. Her counsel says that the fact that the informal agreement was not formally implemented is in itself an explanation for the delay. I do not accept this submission. The wife had been represented at some point during the negotiations for property settlement. Both parties were aware at the time of implementing the informal settlement that in order to formalise the arrangement they needed to enter into consent orders made by the Family Court and enter into a binding child support agreement registered with the Child Support Agency. That much is made clear from the penultimate paragraph of Exhibit A. The parties’ divorce did not become final until 22 September 2012. Still, the applicant took no action. The lack of adequate explanation for delay is a relevant factor but the enquiry does not end there.

    The Full Court in Sharp v Sharp made the following statement with respect to the law at [12] – [14]:

    It is important to bear in mind the purpose of s 44 in the context of the Act, which is that time limits are to be observed as the wording of that section makes clear. The principles concerning applications for leave to commence an action out of time are well known. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541  at 551 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". [footnotes omitted]

    At 553 his Honour continued:

    A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated ...

    A limitation provision is the general rule; an extension provision is the exception to it ...

    There is nothing to suggest that this expression of the law in general is not entirely applicable to a consideration of s 44 of the Act. Indeed so much is seen from the opening words of the s 44(4), "[t]he court shall not grant leave under subs (3) unless ... ".

25. In my view, in the circumstances of this case, I think the prejudice to the respondent, if the applicant was granted leave, outweighs the hardship to her.  I have considered, I look at the small asset pool in Australia, the fact that the respondent has remarried and has two young children and the fact that there is property in the (country omitted) which the parties have a joint interest in.

26. It is not a case of the applicant walking away with nothing.  That would not be the determining factor.  The respondent has paid child-support, says he continues to pay child-support.  Both parties are working.  Two children of the relationship are now over the age of 18.  There is one child under the age of 18 who lives with the applicant and spends time with the respondent.  There are parenting applications on foot that remain outstanding that are listed for a final hearing in October after the preparation of a family report. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 27 July 2016