Graff & Alperin
[2024] FedCFamC2F 939
•19 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Graff & Alperin [2024] FedCFamC2F 939
File number(s): MLC 1854 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – sensible hearing on the papers without appearances – leave to proceed pursuant to s 44(6) – sufficient likelihood of success to prove hardship – incomplete explanation for delay – 4 months outside of 2 year standard period - caveat lodged at start of standard 2 year period - financial disclosure agitated from 12 days after expiry of standard two year - prejudice to respondent considered-modest pool of assets-leave granted. Legislation: Family Law Act 1975 (Cth) ss 44, 45, 90SF, 90SM Cases cited: Althaus & Althaus (1982) FLC 91-233
Carlon & Carlon (1982) FLC 91-272
Hardwick & Hardwick (No 2) [2022] FLC 94-126
Jacenko & Jacenko (1986) FLC 91-776
Kennon v Spry (2008) 238 CLR 366
Keskin & Keskin [2019] FamCAFC 236
Sharp & Sharp (2011) 50 Fam LR 567
Skelton and Lindop (2022) 64 Fam LR 617
Slocomb & Hedgewood [2015] FLC 93-678
Division: Division 2 Family Law Number of paragraphs: 83 Date of last submission/s: 21 May 2024 Date of hearing: Hearing on the papers Place: Melbourne Counsel for the Applicant: Mr J Moore Solicitors for the Applicant: Perisic Lawyers Counsel for the Respondent: Ms S Damon Solicitors for the Respondent: Michelle Moloney Family Lawyers ORDERS
MLC 1854 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GRAFF
Applicant
AND: MR ALPERIN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.The requirement of the parties appearing on judgment in this matter be and is dispensed with.
2.Leave be and is granted to the applicant, Ms Graff, pursuant to section 44(6) of the Family Law Act 1975 (Cth) to apply for an order under s 90SM of the Family Law Act 1975 (Cth), under part (VIII)(AB), filed on 11 December 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
In the matter of Graff & Alperin I have made orders this day and I publish my reasons. I am required to determine whether the applicant de facto wife (the applicant), should have leave of the court to bring property settlement proceedings pursuant to section 44(6) of the Family Law Act 1975 (Cth) (‘the Act’) about four months after the time limit, set by parliament, had expired.
BACKGROUND
It is common ground that the applicant and the respondent cohabitated within the definition of a de facto relationship pursuant to section 4AA of the Act from about December 2015 or early 2016 until 12 August 2021. It is common ground, for different reasons, that this was a tumultuous and difficult relationship. Each party alleges substantial and continuing violence being wreaked upon him or her for the entire duration of the relationship. The applicant alleges that the respondent had a significant problem with illicit drug consumption to the point of being an addict and the respondent alleges that the applicant had a significant problem with the consumption of alcohol.
The parties have one child, X, who is now aged four. It is common ground that the parties separated on 12August 2021.
Evidence relied on
I now turn to the material relied upon. The parties relied upon the material set out in their outline of submissions, the applicant’s filed 21 May 2024 and the respondent’s filed the same day. That material included a tender bundle of documents and a title search. The material the applicant relied upon was straightforward enough. The respondent relied upon, according to his outline of submissions, his response to initiating application, his affidavit responding to the applicant’s initial affidavit and a statement of financial circumstances, all filed on 9 February 2024.
By looking at the court file, I was able to ascertain that the respondent had filed a further or comprehensive affidavit on 16 May 2024. The affidavit of the respondent filed 9 February 2024 responded to the applicant’s affidavit filed when she initiated proceedings on 11 December 2023.
The May affidavit of the respondent, not referred to in outline of submissions, responded to the applicant’s affidavit filed 10 May 2024. I proceeded on the basis that the absence of reference to the respondent’s May 2024 affidavit was an oversight or glitch and I have had regard to it. In any event, the substance of that affidavit coincides with the 9 February 2024 affidavit.
Sensibly: Hearing on the papers without appearances
To the credit of the judgment of the solicitors and counsel, each of the applicant and the respondent relied upon written submissions without appearances. It was the joint position of the parties (email dated 13 May 2024 and marked exhibit A) that oral submissions were not sought and each party sought to rely only on their written outline of submissions, knowing that the other also relied upon only written submissions.
That was a sensible and cost-effective way of proceeding as the comprehensive nature and detail of the respective written submissions meant that, to my mind, I would not have been assisted further by any oral submissions, interesting and articulate though they may well have been. Further, it appears to me that any benefit that may have come from oral submissions in addition to the careful written submissions would have been entirely outweighed by the significant cost of solicitors, counsel and clients for a day at Court.
Further, I am satisfied that it is appropriate not to require the parties to appear on this judgment and any requirement that they do so should be dispensed with. Any such requirement would run against the parties’ joint position that they sought the joint determination of the matter on the papers without the further expense of further appearances and such appearances would not have assisted me or the parties.
LEGAL PRINCIPLES
The Family Law Act 1975 (Cth) (“the Act”) provides that any claim for property adjustment must be brought within two years after the end of the de facto relationship, but that the court may grant “leave” to apply after the end of that standard period” if the court was satisfied that hardship would be caused if leave were not granted. Section 44(5) of the Act provides as follows:
Section 44
(5) Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a) the application is made within the period (the standard application period) of:
(i) 2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
Section 44(6) of the Act qualifies that standard application period requirement as follows:
Section 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; …
Hardship: foundational requirement
In Hardwick (No 2) [2022] FLC 94-126, McClelland DCJ and Strum J, with whom Riethmuller J agreed, observed at [28] – [29] as follows:
28.As recently noted by Austin J in Skelton and Lindop (2022) 64 Fam LR 617 (“Skelton and Lindop”) at [16] – [21], there is differing authority as to the test to be applied in determining the prospects of success. Those tests range from the need to establish “prima facie claim” to the need to establish “a real probability of success.” We respectfully acknowledge and adopt the reasoning of Austin J that the appropriate test to apply is whether the applicant for relief had “sufficient likelihood of success” to prove hardship.
29.In the event of the trial judge finding that the applicant for relief would suffer hardship if an extension of time was not granted, it is then necessary for the trial judge to consider those matters going to the exercise of discretion. In V and S, Thackray J noted at [7] that, in addition to prospects of success, other potentially relevant considerations to the exercise of discretion may include the following:
• The extent of the delay and the reasons (or absence of reasons) for the delay: Althaus & Althaus (1982) FLC 91-233;
• The extent of the hardship the applicant would experience if leave were not granted: Carlon & Carlon (1982) FLC 91-272; and
• The extent of the prejudice that would be caused to the respondent if leave were granted.
…
31.Applications seeking an interlocutory order under s 44(3) of the Act are generally dealt with on the basis that the applicant’s evidence is presumed to be correct “unless it is inherently unbelievable or contradictory” (Jacenko & Jacenko (1986) FLC 91-776 at [14]; Skelton & Lindop at [36]). It is important to appreciate that it is only in the event of leave being granted that the Court, at final hearing, will make a determination in respect to the accuracy or otherwise of the parties’ competing factual contentions.
(Emphasis added)
At [67], the Full Court in Hardwick (No 2) repeats its statement at [31] that, “in considering an application pursuant to section 44(3) the Act, the Court generally accepts the evidence of the applicant for belief for the purposes of the application unless it is inherently unbelievable or inconsistent”.
Hence it is necessary for the applicant to demonstrate her case had “sufficient likelihood of success” to demonstrate hardship and when considering whether there is a sufficient likelihood of success to demonstrate hardship if “leave” pursuant to section 44(6) of the Act is not granted, applications seeking an order for leave “are generally dealt with on the basis that the applicant’s evidence is presumed correct “unless it is inherently unbelievable or contradictory”. I proceed on that basis.
How a property settlement is determined
How a Court works out whether or not there should be a property settlement and the quantum of it is determined by the application of sections 90SM and 90SF of the Act. Those provisions include:
Section 90SM
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
…
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; …
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
…
(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last - mentioned property;
whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last - mentioned property;
whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; …
…
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; …
Section 90SF(3)
…
(3)The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; …
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; …
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; …
…
Hence to determine whether there is a sufficient likelihood of success to demonstrate hardship I must, in very broad terms, keep an eye on those legislative requirements. In summary the applicant needs to prima facie demonstrate that:
·there is property to be considered; and
·that at the end of considering whether it is just and equitable to make any property order at all and the retrospective analysis of the parties “contribution” and the prospective analysis of the relevant section 90SF(3) factors (often colloquially called “needs”) there is likely to be a property settlement worth the trouble and strife of the litigation.
CHRONOLOGY OF SOME SIGNIFICANT EVENTS
I take into account all of the evidence but some events and alleged events should be pointed out in my explanation for the orders I will make.
Respondent brings in B Street, Town C
The respondent purchased the B Street, Town C property in about 2005. It is common ground in this case that the only significant asset of the parties is the property at Town C in the state of Victoria (B Street, Town C) where the respondent is the sole registered proprietor. The respondent had purchased that property prior to the commencement of the relationship. It is encumbered by a substantial mortgage and it is alleged that it is subject to a loan agreement between the husband and his parents the alleged loans are of a significant amount, only a little less than the substantial mortgage.
Otherwise, the parties have a little superannuation and the applicant has a motorcar. For the purpose of this exercise, at this point I place very little weight on the allegation that the parties together, or one of them, has chattels and furniture or household contents with a market value of $10,000. I also place very little weight on the allegation that the applicant has a second-hand motor vehicle, now being about 13 years old, that cost a few years ago about $9000 second-hand. I place little weight on either party’s opinion about the second-hand value of that 13-year-old motor car, but I take into account that there is a motorcar.
As between the applicant and the respondent, by the time final submissions are filed, the value of the Town C property was in dispute between them. Unsurprisingly, the applicant opined that it was worth about $1 million. That is $100,000 more than the respondent estimated.
The parties commenced cohabiting at the Town C property in late 2015 or early 2016. Hence the respondent made the direct contribution of bringing in the Town C property.
Respondents’ significant difficulty will illicit drugs
It is uncontested that between mid-2016 and early 2019, the respondent attended rehabilitation programs for illicit drug use on five occasions, in addition to attending a rehabilitation centre in Country D.
The respondent attended rehabilitation programs in mid-2016, early 2017, mid-2017, early 2018, early 2019 and the Country D facility in mid-2018.
For the purpose of this hearing, I am satisfied as to those events because they were plainly described in the applicant’s affidavit filed 11 December 2023 and not disputed in the respondent’s affidavit filed 9 February 2024. The same allegations were made in the applicant’s affidavit of 10 May 2024 and not responded to or contested in the respondent’s affidavit filed 16 May 2024.
Parties’ child arrives & difficulty with drugs continues
The parties’ child, X, was born in 2019.
The seventh admission of the respondent for illicit drug rehabilitation was shortly after X’s birth in 2019 and a further admission was when X was about 18 months old in 2020. In regard to all of those admissions, it was not disputed that they were ranging from “a week’s stay to up to 28 days”. In regard to the mid-2018 Country D stay, the applicant alleged that:
Upon his return [the respondent] resumed using [illicit drugs] and then other drugs, often in our garage and was drug affected around the children. During the relationship [the respondent] took money out of my handbag and used this money for drugs.
That identical allegation was contained in the applicant’s affidavit of 11 December 2023 and 10 May 2024. In both affidavits where there was a helpful paragraph-by-paragraph response to the applicant’s allegations, the respondent only denied the words or allegation:
[the respondent] took money out of my handbag and used this money for drugs.
It was also alleged that the respondent regularly asked the applicant for cash for drugs and the applicant’s estimate that the respondent spent between $450 and $500 each week on drugs was not disputed.
In 2015, the respondent’s driver’s licence was suspended and an interlock device was placed in his car after he was charged with drink driving.
In around early 2019, the respondent refinanced the mortgage on the Town C property and refinanced the mortgage to the extent of about $425,000. It is common ground between the parties that at a point in the relationship not that long before separation, the de facto matrimonial home moved from the Town C property to a rental property.
Parties live in B Street, Town C for only three years
The respondent alleges that when they commenced cohabitation they lived in a rental property and in 2017 they moved into the B Street, Town C property. That does not appear to be contested by the applicant.
The respondent alleges, and it does not appear contested, that the applicant was declared bankrupt in 2017. It does not appear contested that the parties lived in the Town C property from 2017 until about mid-2020. The rent for the rental property that they moved into in mid-2020 (or thereabouts) was a gift from the owner of that property to the respondent and would appear to be because of the relationship between the respondent’s parents and the owner of that property.
Very significant financial assistance from respondent’s parents
Thereafter, after some repairs were made to the Town C property, the property was rented out and the respondent’s parents collected the rent and applied that to the mortgage payment of the Town C property. It is quite clear that, throughout the relationship, the respondent’s parents were a significant financial support to the respondent and hence to the respondent and the applicant.
The respondent alleges that his parents have kept a careful record of every dollar that they had advanced to him. And it appears that it is alleged that each dollar advanced over the years, was in fact a loan.
Who was the major care giver to X?
The issue of who was the major caregiver for X is very much disputed. The applicant’s case is that she was the primary caregiver to X and that was necessary because of the circumstances of the respondent’s drug addiction. The respondent alleges that they shared equally in the care of X. The respondent alleges that he was unable to be employed for a couple of years because of a significant medical issue that affected his mobility.
Separation: Each alleges much violence from the other
Each party alleges that they were subject to significant violence from the other, from early in the relationship until the end. It is common ground that the parties separated on 12 August 2021 after a violent confrontation between them. On the applicant’s account, the respondent abused her and assaulted her, including a “headbutt” that fractured her nose. On the respondent’s account, the applicant abused him, assaulted him and in the applicant’s attempt to strike him there was an accidental clashing of heads, during which the applicant suffered a bloodied nose.
The respondent alleges that he recorded the events of that altercation and that the applicant was later charged with criminal offences of assault by the police relying upon that recording. Whether or not they did, in any event, the charges against the applicant were later withdrawn by the police. It appears uncontested that whilst those charges were withdrawn, the respondent was charged with other offending.
Caveats lodged & loan agreement
Soon after separation, in late 2021, the applicant lodged a caveat over the title to the B Street, Town C property. The caveat claimed the usual or ubiquitous claim of an “implied, resulting or constructive trust”.
Not long after the applicant lodged a caveat against the title to the Town C property, the respondent’s parents lodged a caveat. The respondent and his parents executed a loan agreement, or what purports to be a loan agreement, in late 2021. That loan agreement records in summary fashion a multitude of advances said to total $290,000. The caveat lodged by the respondent’s parents was lodged some five days later.
The respondent alleges that notwithstanding that loan agreement, the respondent’s parents have continued to advance to him money by way of loan, and by way of loan and which should be taken into account as a liability against the assets of the parties and a further approximate $74,000 since separation.
Much Magistrates Court litigation
During 2021 and 2022, there were frequent attendances by the parties in this court and the local Magistrate’s Court. Their attendance was required because of criminal charges and intervention order applications on behalf of the applicant, on behalf of the respondent and by the respondent’s parents against the applicant. In 2022, there were at least nine events of an intervention order being made or a court appearance relating to an intervention order. Apart from intervention order proceedings, it is not disputed that in early 2022, the respondent was fined for a persistent breach of the intervention order against him protecting the applicant.
Roughly two months later, in mid-2022, the respondent was charged and fined for intentionally distributing an intimate image of the applicant.
The following month, in mid-2022, the respondent was charged and fined for contravening the intervention order.
Parenting orders litigation
The parties had commenced litigating about the parenting arrangements for X back in February 2022. On 3 August 2023, final orders were made in regard to X. The orders provided that X would live with the mother and spend time with the father initially on four nights per week, moving to five nights later on.
Deadline expires and applicant’s caveat remains
The two-year dateline or deadline or cut-off for the filing of any property settlement application by either party of 12 August 2023 came and went without anything happening. The respondent deposes that he relied significantly on the fact of there not being an application made.
The respondent is silent as to the impact of just what he was thinking about the still extant caveat on his property that had been lodged about three months after separation back in late 2021. The caveat lodged did not announce an intention to bring a property settlement claim. It was framed in language of the law of equity. An intention to bring a Family Law Act claim for property settlement, whether for married parties pursuant to section 79 of the Family Law Act or de facto parties pursuant to section 90SM(4) of the Family Law Act is not a caveatable interest.
It is the experience of this court and family law practitioners that, rightly or wrongly, the convenient procedure of lodging a caveat is often utilised rather than the cumbersome or more cumbersome procedure of application to the court for a Mareva or freezing order type of injunction.
Respondent on notice of a claim
I am satisfied that from late 2021, the respondent was on notice that the applicant had a claim against his Town C property.
Financial disclosure agitated from soon after between the deadline
By 12 August 2023, that is, the end of the standard application period of section 44(5), on the evidence before me, neither party had further agitated that conundrum. The respondent had not taken action to have the applicant remove the caveat and the applicant had not taken any legal step either in a Family Law Act court or a state court to validate her claim expressed in her caveat. But 12 days after the two-year standard application period expired, on 24 August 2023, the applicant’s solicitor sent a letter requesting discovery of financial information to the respondent’s solicitor. There is no evidence of any response and I infer there was none.
Not quite a month later, the applicant’s solicitor sent another letter seeking discovery of financial information from the respondent. On the evidence there was no response. I am satisfied there was no response. On 28 November 2023, the applicant’s solicitor sent a third letter seeking disclosure of financial information and, I infer, for the purpose of property settlement proceedings to the respondent’s solicitors. There is no evidence of any reply and I am satisfied there was not. The respondent’s affidavit correctly asserts that as the standard application period had expired, there was no obligation for disclosure.
Application for leave 4 months after deadline
On 11 December 2023, roughly two weeks after the third request for disclosure letter, the applicant issued these proceedings.
Hence, the application was just over four months outside the standard application period. In that time the applicant had thrice agitated for provision of financial information. That agitation is consistent with an intention bring a property settlement claim.
THE APPLICANT’S CASE FOR PROPERTY SETTLEMENT
I now turn to the essential elements of the applicant’s case. The applicant alleges that throughout the relationship the respondent had a significant drug problem and that impacted significantly on the contribution he was able to make. On the face of it, that is not an unlikely circumstance. The applicant alleges that this impacted on the respondent’s ability to maintain employment and to contribute financially from his income to the welfare of the family.
The applicant alleges that she made a significant financial contribution by working when she was able to. The applicant alleges that she took maternity leave and returned to work on a casual basis when X was about six months old. It is clear that the respondent’s parents have provided significant financial support to the household of the applicant and the respondent. It is alleged that those advances were, to the dollar, loans. I refer to and repeat the following paragraphs of the applicant’s affidavit of 10 May 2024 that include controversial events:
26.In or around 2020 [Mr Alperin] and I moved out of the [Town C] property and moved into a property located at [E Street, Town C] where we lived rent free until separation. The owner of the property, [Ms F], covered utilities for the property. As far as I am aware, this was an agreement reached between [Ms F], [Mr Alperin] and [Mr Alperin]’s parents [Mr G] and [Ms H]. At the time, [Mr Alperin] was in and out of rehab, was not working and was not contributing to our household. The arrangement of [Mr Alperin] and I moving out of the [Town C] Property owned by [Ms F] and into the property at [E Street] was intended to help [Mr Alperin] and I financially get back on our feet. I continued to pay for joint expenses for [Mr Alperin], the children and I such as groceries, fuel, clothes for the children and other essential items.
…
31.Throughout the relationship, I worked as a [tradesperson]. Between 2006 and 2016 I was self-employed and ran my own [business]. After 2016, I continued to work for myself.
…
37.During the relationship [Mr Alperin] committed criminal offences and had significant drug use issues.
…
47.I provided primary care and financial support to the children during the relationship. [Mr Alperin] made little effort to provide for the children and was not employed for the last two years of our relationship.
48.Given [Mr Alperin] had difficulty maintaining stable employment, he did not contribute financially either before or after [X]'s birth. I paid the costs associated with pre-natal pregnancy appointments, doctor's bills, ultrasounds and afterwards for [X]'s nappies, formula, baby furniture and clothing. When [Ms F] was not in a rehabilitation program during this period, he was often asleep at home. [Ms F] did not contribute to the household duties of cooking and cleaning.
49.I was the primary carer for [X] during the relationship. I arranged [X]'s doctor appointments, vaccinations, medical appointments and day care enrolment, and solely purchased [X]'s clothing and food. Following [X]'s birth I took maternity leave before returning to work on a casual basis in 2019.
…
80.I am [X]'s primary care giver. I receive Child Support from [Mr Alperin] as assessed by the Child Support Agency in the sum of $53.47 each week…
86.I was subject to significant family violence perpetrated by [Mr Alperin] during our relationship. Physical abuse from [Mr Alperin] included [Mr Alperin] fracturing my nose after headbutting me. [Mr Alperin] also installed hidden cameras in our house to keep our family under surveillance. [Mr Alperin] regularly verbally abused me including making threats to kill me.
…
91.[Mr Alperin] headbutted me forcefully, hitting the bridge of my nose. My nose began to bleed. I was unsteady on my feet and felt lightheaded and faint. I struggled to remain standing afterwards. [Y] led me upstairs afterwards and I locked the children and I in the master bedroom. I regularly checked on [X] to ensure he was asleep and safe. I also left the room to collect my communication devices. I could smell marijuana emanating from the [outbuilding] where [Mr Alperin] was.
…
94.I fled with all three children to temporary accommodation with friends.
95.[In mid] 2021 I attended at [Town C] Police station and lodged a complaint of family violence and assault perpetrated by [Mr Alperin] against me. An Interim Family Violence Order was issued until the matter could be heard in the [City J] Court [in mid] 2021. Photographs were taken by [Officer K] of the injuries I had sustained from [Mr Alperin] headbutting my face.
96.[In mid] 2021 Victoria Police made a cross-application for Intervention Order against me, listing [Mr Alperin] as the affected family member. [Mr Alperin] alleged that I had called him derogatory names, including that he was a drug addict, that I had attempted to kick [Mr Alperin] and that I had hit his head.
97.[In mid] 2021, [Mr Alperin] and I consented without admissions to 12 month Final Intervention Orders…
Although many of the events and conclusions asserted are controversial the applicant’s case is not implausible and the law of the land requires me, for the purpose of this exercise, to proceed on the basis of the applicant’s case.
The four-step process of section 90SM of the Act.
Putting the wife’s case into the orthodox four-step process approved in Keskin & Keskin [2019] FamCAFC 236, the wife’s case is that at the first step, the assets of the parties are set out at paragraphs 9 and 10 of her affidavit:
9.As far as I am aware, the assets of [Mr Alperin] and I are as follows:
a. [B Street, Town C], VIC $1,000,000
b. Furniture and chattels $10,000
c. My car ([Motor Vehicle 1]) $2,500
d. My jewellery (in [Mr Alperin]'s possession) $8,000
e. [Mr Alperin]'s business – [L Business] Unknown
f. [Mr Alperin]'s superannuation $105,813
g. My superannuation $22,275
10.As far as I am aware, the liabilities of [Mr Alperin] and I are as follows:
a. Mortgage over [B Street, Town C] $397,750
b. [Mr Alperin]'s debt to Victoria Legal Aid $3,807.31
c. [Mr Alperin]'s Tax Debt $2,459
d. [Mr Alperin]'s debt to his parents $290,131
It is not yet clear whether or not the debt or the entire alleged debt to the respondent’s parents will be admitted. The applicant’s submissions contain substantial circumspection at paragraphs 20 through to 29 in regard to the claimed liability of loans and raises specifically the following:
29.Having regard to the foregoing it is reasonable for the Applicant to proceed on a case that the Respondent is seeking to reduce the asset pool by inflating the debt owing to his parents or that the asserted loan is simply a device raised in hopes of reducing the Respondent’s claim. The Applicant is not presently able to ascertain what part, if any, of the asserted liability would be treated as a liability or a contribution in a settlement of property between the parties. The manner in which the asserted liability is pleaded raises a nontrivial possibility that the Court would find no such liability to actually exist.
It appears that there has been some financial disclosure, but nonetheless the applicant has been required to deal with the allegation of the loans and the loan agreement without the benefit of the obligation for detailed disclosure as required by the rules. If it is the case that the loan agreement with the parents (executed shortly after the applicant lodged a caveat against the B Street, Town C property) is valid, then depending on whether the property was worth $900,000 or $1,000,000, the equity in the Town C property may be about $307,000. And putting aside the value of jewellery, second-hand motorcars, furniture and chattels, the applicant would only have just that, a second-hand motorcar, some furniture and, she alleges, some jewellery held by the respondent.
Hence, for practical purposes, the respondent holds the bulk of the assets of the parties. In addition to the roughly $300,000 of equity in the property[1] (assuming the loan agreement is valid and enforceable and in priority to the applicant’s property claim) the respondent has superannuation of about $106,000 and the applicant about $22,000.
[1] On the applicant’s case.
In his affidavit of 16 May 2024, the respondent puts the value of the property at $860,000 and puts the non-superannuation assets that he has at a net of debt figure of about $92,000 and asserts that the applicant has a second-hand motor car, furnishings and art to the value of $20,000. In written submissions, the respondent’s position as to the value of the Town C property moved to it having a value of $900,000. I am satisfied that there is a, not large but not insignificant, pool of property, being mostly the equity in the Town C property.
I now turn to look at what would be stage 2 or step 2, the “contribution” analysis, in Keskin. I do so not in a determinative or final manner, but very much in a summary way for the limited inquiry purposes of the interlocutory application relating to section 44(6) of the Act. On the applicant’s case, she has made a not insignificant contribution as income earner and home‑maker for about four years prior to X’s birth and a significant contribution as home‑maker and parent for X in the roughly five years since.
The relationship was of relatively short duration, roughly five years, but the respondent has continued to make contributions as a parent to X up until now. Hence, the contribution period to be considered is roughly from early 2016 until mid-2024. The contribution clock or assessment does not stop at separation. On the applicant’s case, she has made a not insignificant contribution over that period by way of modest financial contribution and a significant contribution as home-maker and parent.
It is clear that the respondent made a not insignificant initial contribution. In the event that the advances that the respondent’s parents made were not loans as alleged but were gifts or parental type contributions, those contributions would likely be a very significant contribution on the respondent’s behalf. As well as there is the respondent’s initial contribution. In the event that most or all of those contributions are regarded as loans and are in fact deducted, then the respondent’s contribution, to a much smaller pool, would weigh significantly less. In either case, the applicant has made a not insignificant contribution over a not insignificant period.
It is clear that on the applicant’s case, if made out at final hearing, there could well be an adjustment in her favour on account of family violence factors, or what is commonly regarded as a Kennon claim, either at the second contribution step of the third section 90SF step.
I now turn to the section 90SF analysis or the third step of the orthodox four-step process. The applicant’s case is that she receives modest or minimal child support, that she has a modest income, and otherwise has next to no assets. The respondent is now employed and at least at this point in time, has a regular income, notwithstanding his significant health difficulties. I am satisfied that on the applicant’s case there may well be an adjustment in her favour on account of the largely prospective factors of section 90SM.
This will be a matter of significant dispute at trial on the material as filed. It is, of course, the respondent’s case that he was the victim of significant violence and, for the purpose of acknowledging that, I recite some of the relevant parts of his affidavit to demonstrate his position. It is the respondent’s case that the applicant made a negative contribution, and it would appear on his case that the applicant alone made a negative contribution, for example I cite the following:
47.[Ms Graff] had made the property unliveable, there was damage to the walls, the doors, the locks, the flooring, the fixtures, and fittings. In drunken rages, [Ms Graff] intentionally destroyed my property during these years. The costs of the repairs were borne by my parents for which I am ultimately liable.
…
55.On this evening [in mid] 2021, [Ms Graff] began denigrating me, saying; [insults]. [Ms Graff] then struck me to the face twice. [Y] was pleading, "Mum please! Just come inside!" [Ms Graff] kicked me to the groin. On the fourth attempted strike at me, I ducked, and due to [Ms Graff]'s drunkenness, and her frenzied state, she stumbled forward and our heads clashed. Later [Ms Graff] would accuse me of head butting. This clash caused [Ms Graff] to have a bloody nose. [Ms Graff] later alleged a broken nose to police. The clash of heads was accidental.
…
59.On the second occasion I reported all the crimes perpetrated by [Ms Graff] against me during the relationship, over the course of the five years. I produced to police, evidence of gross sexual assault and grievous bodily harm, rape, aggravated rape, intentionally cause serious injury and assault with weapons, common assault, threats to kill, encouraging [self-harm], willful damage to property, assault of both [X], and [Y], distributing intimate images, threats to do so, deprivation of liberty, and knowingly having unprotected sexual intercourse with me and at least two other men who were positively confirmed STD via vaginal swab.
…
63.
…
k. …[Ms Graff] provided some contributions to food and living expenses…
l. …As I was unemployed from [X]'s birth due to a chronic health condition, I assumed the role of stay-at-home father while [Ms Graff] worked…I continued to contribute, through my parents, at all times. At no time did [Ms Graff] support me. My parents meet the cost of my treatment and any accommodation that was required…
u. As to Paragraph 37 I say that during the relationship [Ms Graff] also committed extreme criminal offences, for which I hold evidence. [Ms Graff] had severe, explosive anger and rage issues, and was a low functioning alcoholic...
dd. As to Paragraph 49, I deny the contents therein and say that [Ms Graff] and I shared the parenting responsibilities for [X] …
uu. As to Paragraph 77-78 I say I say [Ms Graff]'s narrative of a victim has impacted her of her own accord, though not through alleged perpetration of Family Violence by me…
vv. As to Paragraph 79 I say I am in good health, save that I receive ongoing mental health support, and treatment after suffering six years of narcissistic abuse and extreme violence perpetrated by [Ms Graff] …
I cannot determine those substantial factual disputes on this hearing. The law requires that for the purpose of this hearing I accept the applicant’s case unless contradicted by incontrovertible evidence or it is implausible.
HARDSHIP PRIMA FACIE DEMONSTRATED
On the applicant’s case, I am satisfied that the applicant has a significant likelihood of success to achieve a property settlement of a not insignificant sum compared to the assets that she otherwise has. By demonstrating that she has a “likelihood of success” in regard to her property application, and is otherwise of very most modest circumstances, I am satisfied she has demonstrated “sufficient likelihood of success” to show that there would be “hardship” to her if leave was not granted.
EXERCISE OF DISCRETION
Hardship is a necessary, but not a sufficient condition, for leave pursuant to section 44(6). I must also balance the matters that contend for and against the granting of leave once hardship is established.
Extent of delay and explanation for it
I now turn to the issue of the extent of the delay and the explanation for that delay. The applicant puts forward paragraphs 82 and 83 of her affidavit as explaining the delay and I repeat those matters here:
82.I was funded by Victoria Legal Aid during the proceedings in relation to parenting matters. I was required to pay a contribution to Victoria Legal Aid in order to secure funding for representation during the parenting proceedings. Legal Aid funded approximately $10,758 of legal fees for my representation during the parenting proceedings. I was not in a financial position to privately engage a lawyer to represent me during those proceedings. I could not privately engage a lawyer to commence negotiations with respect to property matters whilst in receipt of Victoria Legal Aid funding for parenting matters. I am otherwise aware that between [late] 2022 and [mid] 2023 the Victoria Legal Aid Small Claims Property Pilot was closed.
83.The parenting proceedings, Intervention Order proceedings and criminal proceedings occurring' concurrently impacted my ability to issue these proceedings prior to the two year time limit. I understand that I am approximately four months' out of time.
To the extent of the delay, in the context of a tumultuous relationship of about five years with about eight years of respective contributions, is about four months. It is not a substantial delay. It may be that the extensive litigation and involvement of authorities in regard to parenting matters, family violence intervention orders, witness statements and being prosecuted or investigated for criminal offences led to litigation fatigue, but that is merely speculation. I’m not satisfied that the relatively short delay has been adequately explained.
On the other hand, the respondent has not deposed to any attempt to bring to a head or finalise the applicant’s claim contained in the caveat lodged on the property back in late 2021. The delay in demonstrating an intention to bring a claim was about merely 12 days: that being the time between the expiry of the two year deadline and the first discovery letter. In that relatively short four month period of delay in issuing, the applicant had agitated the potential issue of proceedings on three occasions, those being, the first, roughly 12 days after the expiration of the date, then about a month later, and then about two months later. I also take into account the lodging of a caveat back at the start of the two year period.
Extent of Hardship to applicant
In the circumstances of the applicant being of very modest means and supporting the parties child and modest pool of assets and likely substantial legal costs, I am satisfied that more than trifling, and likely significant hardship, will be suffered by the applicant if leave is not granted pursuant to section 44(6) of the Act
Extent of prejudice to respondent
As to prejudice, I take into account the observations of the Full Court in Slocomb & Hedgewood (2015) FLC 93-678 at 47:
[47]In view of the lengthy time that had expired from the date of the divorce to the filing of the application, the judge was correct to consider the prejudice to the husband. In Sharp & Sharp (2011) 50 Fam LR 567 the Full Court said at [57]:
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 litigation after the effluxion of the relevant time limits. Even if the court came to the view that there was no significant prejudice to the respondent, the court may consider whether in all of the circumstances of the case, it is just and reasonable to grant the extension sought.[2]
(emphasis added)
[2] Whilst [47] in Slocomb & Hedgewood ostensibly cites [57] of Sharp & Sharp, the text included and quoted from Sharp & Sharp is derived from [97] of Sharp & Sharp.
The respondent set out in his February affidavit the following:
14.Discussions and matters relevant to Child support were raised and addressed. I pay child support as assessed and there have been no arrears.
15.I reasonably believed that there was no claim that [Ms Graff] intended to raise in relation to property matters. There was no reason to alter our property interests. I reasonably believed that [Ms Graff] did not have an interest in my property and nor did she intend to pursue an interest in my property. If [Ms Graff] did intend to do so, why was it not addressed within the two years.
The respondent asserted in his May affidavit:
23.The property pool is insignificant, and any claim made by [Ms Graff] would be trifling. The property has a debt to the bank and to my parents, it needs repairs before it could be sold and the cost of a sale would leave a very small sum remaining. I estimate repairs to prepare the property for sale would be $30,000 and sale costs around $15,000.
32.If the court were to grant leave to [Ms Graff] to proceed, I will have incurred further legal costs, experienced further stress and left feeling discriminated against. I spent over a year in the family court system, following all the rules and orders, in relation to the children's proceedings, only to find that there are rules which can be broken without consequence. [Ms Graff] has flagrantly disregarded the law and failed to address the property matter within two years of separation.
33.I feel that [Ms Graff] has used this process of applying outside of the rules as a measure of family violence. It has caused me distress and stress since the issue of property matters was raised out of time by [Ms Graff]. To bring such an application, only after [she] could reasonably have been expected to feel safe and secure that we were finally financially separated and I was looking towards resolving my financial future with my parents, elevates my anxiety, creating uncertainty about my future.
34.On the 11 November 2023 after learning that [Ms Graff] was seeking to negotiate property matters out of time, I requested from her or her lawyer an explanation for the delay. I have not received any explanation, nor have I been informed on what grounds. on what basis, the court would accede to granting her the extension of time that she will need to be granted to proceed with her claim. The delay has not and cannot be explained. To be the Respondent to such an application feels like an abuse of process. I feel that this is the final opportunity for [Ms Graff] to subject me to further family violence, to hurt me.
64.[Ms Graff] has not suffered financial hardship since separation. [Ms Graff] has been supported by family and friends. I do not believe [Ms Graff] has suffered nor will suffer further financial hardship in the event her application is dismissed. The value of the property pool will be exceeded by the total value of our legal fees.
In terms of the extent of the hardship to each of the parties, I am satisfied that the applicant’s claim, on her case, is for more than a trifling amount. I am troubled at the likely extent of legal fees being spent by either party in the context of the highly disputed mutual allegations of family violence against each other. It is notoriously time-consuming to explore those serious allegations over such a significant period. Nonetheless, I am not satisfied that the extent of legal fees will likely outweigh any property settlement the applicant will receive. That may be the case, but I am unable to conclude that at this point.
I take into account how the respondent feels about the out of time application. The hardship to the respondent is having to meet the same claim that he would have had to have met had the applicant issued proceedings four months earlier and the presumed prejudice of a claim out of time.
CONCLUSION
So for the reasons discussed above and for the purpose of this interlocutory application accepting the applicant’s case, I am satisfied that the applicant has demonstrated that she will suffer hardship if she is deprived of the opportunity of bringing her reasonably arguable, not insignificant property settlement claim against the respondent.
In the exercise of my discretion I take into account a number of matters. I take into account that her claim appears to be reasonably arguable. I take into account that the respondent was on notice of at least the potential for a claim from when the applicant lodged a caveat shortly after separation, and some 18 months prior to the expiry of the standard application period.
I take into account that a mere 12 days after the expiry of the standard application period, the applicant’s solicitors wrote the first of three “discovery” letters that alerted the respondent to her intention to bring a property claim. The property claim was then brought about four months later and, in the context of this relationship, was not a substantial delay.
I am satisfied that the respondent cannot point to any particular prejudice, save the presumed prejudice that flows to him from having to litigate a claim that is made four months late. I am not satisfied that the legal expenses will exceed any property settlement claim that the applicant would receive on her case. I further take into account that the issue of costs may well be qualified or influenced by written offers of settlement in any event.
In all of those circumstances, I’m satisfied that the applicant should have leave to issue proceedings.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 July 2024
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