Hallett & Hallett
[2025] FedCFamC2F 745
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hallett & Hallett [2025] FedCFamC2F 745
File number(s): DNC 348 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 2 May 2025 Catchwords: FAMILY LAW – PARENTING – where interim consent orders are in place – application by the father to increase the time the child spends with him – insufficient change of circumstances to justify reconsideration of the consent orders in respect of time spent arrangements – where the parties are in dispute about the child’s enrolment in early learning – where the parties are in dispute about whether the child should travel interstate to visit the paternal grandmother – interim orders made for the child to be enrolled in early learning education – interim orders made permitting the child to travel interstate to spend time with the paternal grandmother
FAMILY LAW – PROPERTY – application by the wife to commence proceedings for spousal maintenance and an alteration of property interests outside of the statutory time period – application for a litigation funding order – exercise of the discretion to not grant leave – application for leave and associated orders dismissed
Legislation: Family Law Act 1975 (Cth) ss 117, 44(3), 44(4), 60A, 60B, 60CC(2), 60I, 62G, 69ZL, 72, 75(2), 79, Part VII Cases cited: Bustillo & Bustillo [2024] FedCFamC1F 556
Carswell & Tenson (No 4) [2024] FedCFamC1F 848
Goode & Goode (2006) 36 Fam LR 422
Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216
Jacenko & Jacenko (1986) 11 Fam LR 341
Lester & Lester [2024] FedCFamC2F 1012
Licata & Buxton [2019] FCCA 3181
Lynch & Lynch [2023] FedCFamC1F 801
Vang & Chung (No 3) [2024] FedCFamC1F 101
Waldmann & Paddack [2024] FedCFamC1A 100
Division: Division 2 Family Law Number of paragraphs: 108 Date of hearing: 30 April 2025 Place: Darwin Counsel for the Applicant: Ms Taylor Solicitor for the Applicant: Miltons Lawyers Counsel for the Respondent: Mr Lawrence Solicitor for the Respondent: Brisbane City Lawyers ORDERS
DNC 348 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALLETT
Applicant
AND: MS HALLETT
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The parties will within 14 days of these orders do all such things and sign all such documents to enrol the child, X (born in 2020) (“child”), in the B Child Care at C Street, Town D, Northern Territory UNLESS the mother nominates, within 7 days of these orders, her preference for the child to attend the B Child Care at E Street, Suburb F, Northern Territory, in which case the parties will immediately do all such things and sign all such documents to enrol the child in that learning centre within 7 days of that nomination.
2.Each party by 4pm on 30 June 2025 advise the other in writing which school they would like the child to attend when she commences her preschool year in 2026, and make all reasonable efforts in good faith to reach agreement and enrol the child in the agreed school.
3.If agreement under order 2, cannot be reached in writing by 4pm on 31 July 2025, the parties will jointly engage dispute resolution and do all reasonable things to reach agreement on a school for the child in 2026 on or before 1 October 2025.
4.In order that the child immediately spend time with the paternal grandmother:
(a)Within 7 days the father nominate a flight from Darwin to Melbourne for the child to travel with him to Melbourne, and the mother will provide the child to the father at the information desk at Darwin airport 3 hours before the nominated flight.
(b)Within 7 days the father nominate a flight returning to Darwin 4 nights after the flight in order 4(a), and the father will provide the child to the mother at Darwin airport at the baggage carousels at the conclusion of the flight.
(c)At 6pm on the second night after the first flight, the mother will call the child by Skype and the father will do all things necessary to facilitate that call from the mother of up to 30 minutes as per the child’s wishes.
5.The Application in a Proceeding filed 12 March 2025 be otherwise dismissed.
6.The Application in a Proceeding filed 11 March 2025 by the Respondent be dismissed.
7.The listing on 12 August 2025 before Judge Bowrey be vacated.
8.The matter be listed for compliance hearing at 9.30 am (ACST) on 12 August 2025 before Judge Liveris.
9.Costs be reserved to the trial.
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
JUDGE LIVERIS
In these reasons, and in both parenting and property applications, I will refer to Mr Hallett as the father and Ms Hallett as the mother, for ease of reference.
There are two applications in a proceeding, the first filed by the mother on 11 March 2025, relevantly seeking leave under section 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for orders under section 72 and 79 of the Act out of time, and a litigation funding order, and the second application filed by the father on 13 March 2025 seeking a series of parenting orders. The parties have both filed responses and affidavits in relation to each application and I have also received case outlines, and in each instance, I have been greatly assisted by detailed written submissions from counsel, supplemented by comprehensive oral submissions, for which I am grateful.
The overview of background facts is that the parties commenced a relationship in October 2006. They started living together in mid-2007. They do not agree on a month, but in my view, for present purposes, nothing materially turns on whether cohabitation commenced in or about April as the mother says, or July of that year as the father says. The parties were married in 2010. In 2020, their child, X, was born. The parties separated in April 2021.
Soon after separation, in July 2021, the father re-partnered with Ms G. Ms G had been the mother's best friend and confidante since 2011, and she relied on their longstanding friendship heavily, including for her medical expertise as a qualified health care worker. During the relationship, the mother had suspected that the father and Ms G were having an affair. She asked them both about it, and in about late May 2021, at around the time of separation, the father told her that he and Ms G were in a sexual relationship.
The parties are at odds over important detail of what occurred after separation, and there is conflict and disagreement not only in the parties' interactions, but also in these proceedings. Some of that extends to Ms G's role in X's life and the ongoing interactions with the mother that this gives rise to. Amidst a number of disputes, it is, however, common ground that in October 2021 the father paid the mother $375,000 in cash which contributed to her ability to purchase property at H Street for $580,000 in December 2021.
On the father's case, at the time this payment was made it represented an approximate 43 per cent payment of the non-superannuation pool to the mother and was made as the result of a post-separation negotiation and resolution of property matters between them.
The mother's case is a little less clear. Her evidence is that she had a single conversation with the father in early April 2021 where it was agreed the payment would be made to her. She describes the payment in her evidence as an "interim post-separation payment" but, reflecting on the payment, the mother's evidence is also that she accepted it because she felt powerless in the relationship, which only got worse when she knew that the father was in a live-in sexual relationship with Ms G. She also says that Ms G made statements to her advising her to accept the financial settlement that the father had offered.
These statements may tend to suggest something other than an interim payment. The father disputes the classification as a partial settlement and says this was never raised with him by the mother at any time. In any event, the parties agree that the transaction occurred without any legal advice or representation, and it was not formalised by way of Court order, binding financial agreement, or indeed, even reduced to writing.
On 9 March 2022, the mother went to the Top End Women’s Legal Service to obtain advice about the parenting and property matters. The mother approached NT Legal Aid in May 2022, following which she contacted several lawyers, but was unable to find one to assist her. On 5 July 2022, the father filed an application for divorce. On 16 July 2022, the mother was personally served with the divorce application. By orders made in August 2022, the parties' divorce took effect in September 2022.
The mother's evidence is that she did not receive any official notification of the orders. She said she was left uncertain about the status of the divorce proceedings. At the time of making her affidavit on 11 March 2025, the mother did not know the precise date the divorce order took effect. She has not given any evidence as to when she became aware that the order had been made.
On 30 November 2023, the mother received advice from TEWLS. The mother has waived privilege in relation to her claim of inadequate legal representation. The record of advice shows that the mother instructed TEWLS that the divorce was finalised in September 2022. In an email sent to her lawyers on 9 February 2025, the mother said that she was not sure about that date and is not certain that it is right.
Regardless, the advice from TEWLS was correct that, at the time, for the mother to make an application for "property orders", that time had passed. The mother was advised of her ability to apply out of time. She gave instructions that, as part of a verbal agreement, the father paid her $375,000. She was advised that, "It appears the only option may be making a prompt application to the Court, including orders seeking disclosure."
Thereafter, TEWLS was not able to further assist the mother, and on 4 December 2023 a referral of legal matter was sent to the NT Legal Aid Commission. The referral records the mother's instructions that the divorce was finalised in September 2022, and I am satisfied that the incorrect date recorded in the email of advice of 30 November 2023 was therefore a typographical error.
On 22 December 2023, the mother had a meeting with a lawyer at the NT Legal Aid Commission. Some discussion was had about the merits of pursuing a property settlement out of time, however, no advice about merits was given. On the same day the mother received an email from the father's lawyers attaching a notice of intention in relation to the parenting matters. A parenting mediation was conducted on 12 July 2024, but before the mediation the mother had a second meeting with the lawyer at the Legal Aid Commission. She was told that she was unlikely to qualify for legal aid representation in parenting or property matters.
On 25 July 2024, the father commenced these proceedings as parenting proceedings, seeking joint decision-making in relation to all major long-term decisions about X, and that X spend time with him on a fortnightly basis in two stages: first, for three nights per fortnight for six months, then seven nights per fortnight in the second stage, moving towards a similar pattern once X starts primary school.
The mother's lawyers filed a notice of address for service on 19 August 2024. This followed a period of various dates in 2022, 2023 and 2024 where the mother was not able to find affordable legal representation, which was leaving her feeling extremely frustrated and distressed.
On 22 August 2024, the mother filed a response in the proceedings seeking a range of interim and final parenting orders. The interim orders sought included the preparation of the family report, and that the father complete a Circle of Security parenting program, that an Independent Children’s Lawyer be appointed and that the parties appoint, share the costs of and attend a private mediation. They also included orders that X live with the mother and that she have sole parental responsibility for her. She sought orders that X spend regular time with the father in each fortnight from 3.30 pm Friday until 4.30 pm Saturday in week 1, and from 9 am to 5 pm on Saturday and Sunday in week 2.
On 4 September 2024, the mother's lawyers wrote to the father's lawyers about an adjustment of property interests. On 22 September 2024, the father's lawyers replied stating, "Our client is not willing to engage in further negotiations regarding a property settlement."
On 2 October 2024, interim consent orders were made that the parties equally share decision-making responsibility for X, that X live with the mother and that she spend time with the father as may be agreed, but failing agreement in each fortnight from 3.30 pm on Friday until 4 o'clock on Saturday in week 1 and from 4 o'clock Thursday until 4 o'clock Friday in week 2.
Other orders were made for special occasions, changeovers and communication. A further order, without consent, was made requiring the parties to attend a Court-based family dispute resolution conference in or about February 2025.
On 13 December 2024, the mother filed an application for child support. Child support was assessed at the weekly rate of $379.33 based upon the father's 2024 taxable income of $415,006 and the mother's in the sum of $26,948.
On 11 February 2025, a family report under section 62G of the Act was ordered, and that report is yet to be completed.
On 11 March 2025, the mother filed an application in a proceeding, the one to which I have referred, seeking leave to institute property adjustment and spousal maintenance proceedings out of time, and the litigation funding order. She also sought orders in that application that the parties attend a private mediation. She seeks to be paid periodic maintenance in the sum of $1,500 per week, commencing within seven days after the order, and that the father pay $100,000 towards her legal costs, and also that he pay the costs of and incidental to the application.
In the application proper, the mother seeks a final property adjustment order that the father pay her a cash amount equal to 65 per cent of the total property pool, including superannuation, on a global basis within 90 days of the date of the order.
On 13 March 2025, the father filed his application for interim parenting orders to which I have also referred. On 9 April 2025, the mother filed her response to the father's application seeking orders that it be dismissed with costs, and similarly, on 28 April 2025, the father filed his response to the mother's application seeking the application for leave be dismissed with costs.
Against that background and observations, some that I have made, I have considered each application in the following terms.
PARENTING APPLICATION
These are shortform reasons pursuant to section 69ZL of the Act in relation to interim parenting matters. There has been no cross-examination, and I am constrained by the limitations of an interim hearing. The applicable procedure was set out by the Full Court in Goode & Goode (2006) 36 Fam LR 422 at [68]:
[68] In our view some of the comments of the Full Court in [18] are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Part VII of the Act governs parenting proceedings. The objects of the Part are set out in section 60B.
Section 60A provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. In determining what is in the child's best interests, I must consider the matters that are set out in section 60CC(2).
At an interim hearing, to the extent that it is possible I am required to make an assessment of what is in X's best interests, guided by the relevant statutory provisions, and on the basis of less contentious or undisputed evidence, any agreed facts and inferences which may fairly arise.
The father's application seeks orders in three broad categories: first, X's enrolment at B Child Care at C Street, Town D, unless the mother nominates the centre at Suburb F; second, an order permitting X to travel to Melbourne to visit the paternal grandmother, and third, a variation of the interim consent orders that regulate living arrangements.
The order for X's travel to Melbourne is also supported by an affidavit of the paternal grandmother who gives some evidence of her living and health issues. She says that she has a relationship with X and that she has video chats with her at least once or twice a week when X is in the father's care. She does not anticipate that she will be able to travel to Darwin to see X in the foreseeable future, and she has not seen X in person since 2023. She is aged 85.
In response to the father's application, the mother has raised a lack of any change of circumstances generally that would justify intervention to reconsider the interim consent orders that were made on 2 October 2024. For reasons that I will now set out, I accept that submission in relation to the third broad issue, but not the first two.
Before speaking to those orders, in Bustillo & Bustillo [2024] FedCFamC1F 556, interim orders were made in February 2023. A single expert psychiatrist report was released to the parties in March 2024, and thereafter the father made an application to vary the interim orders. Austin J made some observations at paragraphs 45 and 46:
[45] Finally, but no less importantly, the father could not point to any change of circumstances which would justify revision of the interim orders last made in February 2023. The only development contended by the father was the release of the single expert’s report, which should not usually be viewed as a change in circumstance to justify another interim hearing when the expert opinion evidence is likely to be controversial but is still untested (Fowler & Northwood (2022) FLC 94-114 at [10] and [32] –[47]).
[46] Neither s 65D(2) nor s 65DAAA of the Act purports to place restrictions upon when interim parenting orders may be varied, but litigation should not be conducted by serial interlocutory skirmishes in the hope or expectation that, by process of attrition, one party might eventually submit to the will of the other. Interim hearings should only be conducted as and when necessary to make orders placing the family into a satisfactory holding pattern until the parenting arrangements which will govern their lives can be properly determined at final trial. In Fowler & Northwood, both parties wanted the interim orders varied and so both contended for changes in circumstances to justify another interim hearing, but here the mother asserted there were no changes in circumstances at all and the father could point to nothing but the untested single expert report.
In this case, the father's application is to substantially increase the time that X spends with him in two stages:
(a)The first, for four months in each fortnight with him for one night in the first week and four nights in the second week; and
(b)In the second stage:
(i)with him from after school on Monday to the start of school on Wednesday;
(ii)with the mother from the end of school on Wednesday to the start of school on Friday;
(iii)with the father from the end of school on Friday to the commencement of school on Wednesday; and
(iv)with the mother from the end of school on Wednesday to the commencement of school on Monday.
In my view, orders of this kind go to some of the central issues in contention in the parenting proceedings. In order to be properly determined, they require findings to be made on tested evidence, including the evidence of the family consultant. They are matters properly for trial.
Whilst there is ongoing conflict between the parties, that was acknowledged by both of them in differing ways and to differing extents when the proceedings were filed. The father also pointed to a power imbalance in relation to parenting arrangements.
The mother's evidence is that an important feature of the proceeding is the betrayal and psychological harm that has been inflicted on her by the father and Ms G. These were known issues that existed before the consent orders were agreed and made. The father also places some emphasis on the mother's updated evidence about her mental health, including the letters from J Clinic dated 16 April 2024 and 22 January 2025 and a letter from Ms K, psychologist, dated 15 December. The year is not given, but I presume it is 2024 based on its content.
This evidence is led in support of the submission that the ongoing need for support of X has impacted the mother's inability to manage legal proceedings, and the treatment that she is receiving in relation to her mental health more accurately with reference to that evidence. In any event, I do not find that it is a circumstance that warrants a re-visitation of the consent orders or gives rise to an unacceptable risk of harm to X.
A significant proportion of the evidence goes to the role that Ms G plays in X's life and the impact that it has on the mother. The mother's evidence of betrayal and psychological harm may have some bearing on determining what is in X's best interests, but in my view it is premature to gauge that, and that is also a matter that is properly for trial.
But for these reasons, I do not consider that there has been any development that justifies the revision of the interim consent orders that are in place in relation to X's living arrangements.
I accept the father's submissions in relation to the need to enrol X in an early learning facility. She is four and a half years old. She is to commence primary school in 2026, and she should be in early learning this year, including to facilitate a transition into her primary school education.
I have had regard to the mother's evidence that she disagrees that X is ready to commence full-time mainstream education and that the application is, in that sense, premature. I have also had regard to the mother's position that she prefers homeschooling, but is also open to looking at L School.
The mother's outline of submissions set out a number of key legal principles that apply to disputes between parties about schooling. They were summarised by Judge A. Kelly in Licata & Buxton [2019] FCCA 3181 at paragraphs 104 to 115:
[104] The principles applicable to the determination of a schooling dispute are well settled. As in all parenting proceedings, decisions as to schooling are to be determined having regard to the best interests of the child.
[105] Education is a major long-term parenting issue: Act, s 4. Where parties have equal shared parental responsibility, they are each entitled to participate in the decision-making process relating to educational issues.
[106] Where a schooling application is brought forward on an urgent basis, it is not, in a legal sense, a final order; accordingly, it is appropriate to determine the matter on the principles applicable to an interim hearing: Sheill & McMurr . I have addressed those principles above.
[107] There is no legal presumption that favours a child’s primary carer choosing the relevant school that the child attends: Re G, Children’s Schooling(Re G); Low & Chapman . Consequently, there is no onus of proof cast on either party in the determination of the application.
[108] The day-to-day reality of where a child does reside predominantly with one parent is, however, of relevance. In general, it will commonly be in a child’s best interests to attend school which is close to his or her predominant place of residence: Bilz & Breugelman ; Re G . However, to state a general principle in that form necessarily invites attention to the anterior questions: what is the child’s predominant place of residence? Why is it in a child’s best interests concerning attendance at a school which, although close to one residence, is distant from the other?
[109] The parents’ interests in securing an arrangement that is convenient for them is a matter that is appropriate to take into account: Eden & Eden-Proust . This is because, while the interests of the child are required to be the paramount consideration, s 60CA does not provide that those interests are the sole consideration: AMS v AIF ; Eden & Eden-Proust . It follows that some regard should be had to the relative inconvenience to each of the parents with respect to matters such as any necessary transport arrangements: Eden & Eden-Proust .
[110] For example, in Low & Chapman , Monahan J observed that to enrol a child at a school which was located at a place mid-point between the parties’ residences was perhaps ‘an obvious option’ where the parties live some distance apart. I did not understand His Honour to be suggesting any more than that such an option may be an obvious point for consideration alongside any other suitable options.
[111] While it will ordinarily be of importance to consider the effect on the resident parent, this does not mean that the convenience of the non-resident parent is ignored: Bilz & Breugelman. Again, it may be added that the distinction between a resident and non-resident parent becomes diluted where the parties have agreed upon a week about parenting arrangement, particularly one that has been on foot and to which the parties have adhered to for some years.
[112] The views of the children may be a relevant but usually not a determinative consideration: s 60CC(3)(a) Bilz & Breugelman ; Re G. The child’s views on schooling may be of lesser weight if the child is of a young age: Stevens & McLaren.
[113] The process of evaluating competing school proposals should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where those schools are prima facie satisfactory: Bilz & Breugelman . The location of the school to the children’s residence remains an important factor: Re G.
[114] The court may be assisted in the resolution of a schooling dispute by the opinions of an expert: Stevens & McLaren. By s 60CD(2) the court may ‘inform itself of views expressed by a child’ by a number of means, including a report given to the court by a family consultant under s 62G(2) or, subject to the Rules of Court, ‘by such other means as the court thinks appropriate’: Bondelmonte.
[115] Competing views have been expressed as to the relevance of the parties’ agreement as to how schooling should be implemented. In Eden & Eden-Proust , Thackray J indicated that the existence of an agreement between parties would be an important factor. In Re G, the parties’ prior agreement on the issue was held not to carry much weight.
(Citations omitted)
I also have regard to the relevant factors that are set out in paragraph 44 of the mother's written outline. In my view, it is not in X's best interests to put the dispute about her schooling on hold until the trial. That will have the effect of delaying, if not eliminating, her ability to realise the benefits of a transition into school, and is inconsistent with her developmental, psychological, emotional and cultural needs.
The father's evidence sets out in some detail the inquiries and research that he has made with various educational institutions, both in the private and public sector. There is evidence of some thought that he has applied to which school will be in X's best interests in an overall sense, including from a geographical perspective where the school is located. The orders he proposes provide for the mother with an option to select an alternative specified school if she chooses. There are no capacity to pay issues as the father will pay the costs that are associated with the schooling.
Further, touching on the remarks I made in respect of the first broad issue, in my view it is consistent with X's best interests that the commencement of early education will reduce the in-person contact, or at least may reduce the in-person contact between the parties, and Ms G, thereby reducing the risks of parental conflict at changeovers, which, in a general sense, is a particular theme in the proceedings, and to the extent that it may reduce that potential, that is in X's best interests.
The early learning centre nominated is at a rough midway point between the parties' homes. That is one consideration that the authorities say regard can be had to. The school that the mother has expressed a preference for, that is L School, is an approximate 45-minute trip from the father's home. This would increase the time that X would need to be travelling, and in an overall sense, in my view, it is not in her best interests.
I do not consider that the evidence shows that X has developed any particular familiarity with the environment and educational philosophy or the people at L School, such that her best interests would be served by maintaining and developing a connection with that institution. I appreciate she has had some contact with the institution, but the mother's evidence given about the existing connections and friendships at the school is quite general. The fact that the school is able to provide for a child's whole of education as they develop is also one factor. However, weighing all the other considerations up in the circumstances, in my view the orders sought by the father are in X's best interests.
In making that order, and noting also the orders sought in relation to 2026, which I also will make, there is foreshadowed some dispute about what primary school X is to be enrolled in. It is unfortunate that this is the case, but that appears to be the reality of the parties' positions, at least at this point in time. That is not to say that those positions may change and soften, particularly as the litigation develops. However, at this stage I will make orders as being, in my view, in X's best interests, as per paragraph 2 of the father's application, and also paragraphs 3 and 4 as at least providing a framework to deal with X's enrolment in school for 2026, failing which, of course, an application to Court may well be required.
I am also of the view that the proposal for X to travel to Melbourne to spend time with the paternal grandmother, with whom she is developing a relationship and has not seen in person since 2023, should be allowed. The order as sought and as made is a one-off trip.
The mother's evidence is that she has reassured the father of her commitment to supporting and nurturing the relationship between X and her paternal grandmother. She has extended an open invitation for the paternal grandmother to visit the Northern Territory and stay overnight at her home. She is also willing to accompany X on any interstate trip to ensure her wellbeing. The mother feels that it is necessary for her to support her on interstate travel.
As I have said, the paternal grandmother has given evidence that, at age 85 and with the health conditions that she has spoken about, she does not consider that she will be able to travel to the Northern Territory in the foreseeable future. It is in X's best interests for her to have the benefit of a relationship with people who are significant to her, such as the paternal grandmother, where it is safe to do so.
The father's travel proposal for this trip involves X being away for four nights. It is true that the longest time that X currently spends with the father is two nights, but in my view, an increase in time to four nights for the very specific purpose of the trip to Melbourne, which may also involve the mother being in attendance in some way, is in X's best interests, including as it provides her with the benefit of having the closeness of that relationship and is otherwise in her best interests.
So, I will make orders as sought by the father in relation to X's trip to Melbourne, that is paragraph 5, and requiring the father to nominate various flights and so forth to update those dates so that it is not April. I will then make orders otherwise dismissing the father's application in a proceeding.
PROPERTY APPLICATION
Section 44(3) of the Family Law Act provides:
Limitation on applications relating to certain maintenance and property proceedings
(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a)—the date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b)—the date of the making of the decree.
The court may grant such leave at any time, even if the proceedings have already been instituted.
In this case the divorce order took effect in September 2022.
The mother filed her application for property adjustment seeking the cash payment equivalent to 65 per cent of the total property pool, including superannuation, within 90 days, on 11 March 2025. Accordingly, the application was filed approximately 17 months out of time for the purposes of section 44(3) and approximately 11 months after the application was foreshadowed by the mother's lawyers in correspondence.
The divorce order provides notes that if a party to the marriage proposes to make an application under the Act as to property or maintenance of that party, the application must be made within 12 months from the date upon which the divorce order takes effect, and that after that time an application cannot be made without first obtaining the leave of the court.
The mother has given evidence about being served with the application for divorce, as I have referenced. She has not given evidence of when or how she became aware of the divorce order or the date that it took effect. At the time of making her affidavit on 11 March 2025, she did not know the precise number of months and days out of time that the application was made.
The mother had her first appointment with TEWLS on 9 March 2022. The mother's evidence is that she was not aware until that first appointment that a limitation period applied to commence property proceedings within a year of divorce. I find, in those circumstances, that the mother was aware from 9 March 2022 about the application of a limitation period. I am unable to make a finding about when the mother became aware of the date the divorce order took effect. However, the mother was aware of that date when she had an appointment with TEWLS sometime in the week before 30 November 2022.
Section 44(4) of the Act provides the criteria by which I must be satisfied prior to exercising the discretion to grant leave or not.
(4) The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b) in the case of proceedings in relation to the maintenance of a party to a marriage—that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
As the parties have both acknowledged, the legal principles that apply to an application for leave under section 44(4) are well settled. They have been set out and adopted in many cases. In Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216, McClelland DCJ and Reithmuller and Strum JJ set them out at paragraphs 21 to 31 as follows:
[21] Section 44(3) of the Act empowers the Court to grant leave to a party to commence or to continue proceedings in circumstances where they have failed to seek orders for property adjustment pursuant to s 79 of the Act within 12 months of a divorce order taking effect. The husband appropriately acknowledged that leave to appeal is required in respect of the order made by the primary judge granting such leave to the wife (Welland & Hawthorn (2021) 64 Fam LR 520 at [13]).
[22] The test adopted in this Court for leave to appeal is a conjunctive one, namely, whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, if so, whether a substantial injustice would occur if leave were not granted: Medlow & Medlow (2016) FLC 93-692 at [57] ; Moy & Pao [2022] FedCFamC1A 17 at [11].
Principles for granting an extension of time to commence or continue proceedings
[23] The decision as to whether leave should be granted to commence or continue proceedings pursuant to Pt VIII of the Act essentially involves balancing two competing principles of public policy. The first is that the Commonwealth Parliament has stated that, ordinarily, such proceedings should be commenced within 12 months of the date of the divorce. The second is that relief from the operation of s 44 of the Act should nonetheless be granted out of time in order to avoid hardship to a spouse or a child of the relationship.
[24] In respect to that second consideration, s 44(4)(a) of the Act provides that an extension of time should not be granted under s 44(3) of the Act unless the Court is satisfied “that hardship would be caused to a party to the relevant marriage… if leave were not granted”.
[25] In Whitford & Whitford (1979) FLC 90-612 at 78,145, the Full Court said:
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.
[26] We observe that in Family Law (2022, 7th ed) at [36.120], Riethmuller and Smith note that what constitutes appreciable detriment necessarily depends upon the circumstances of each case, stating that:
In many cases the substantial detriment is the inability of a spouse to pursue a claim for maintenance or an alteration or property interests where the resulting loss is significant in the light of his or her financial circumstances.
[27] The applicant for relief’s prospects of success in the proceedings, if leave is granted, is relevant to both the question of hardship and the second task undertaken by the Court, which is to consider matters going to the exercise of discretion generally. This is because “[if] the probable result of the hearing on the merits is that hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant would suffer hardship if leave were not granted”: V and S [2006] FCWA 2 (V and S ), per Thackray J at [6].
[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 & Althau (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.
[30] In Frost & Nicholson (1981) FLC 91-051 (Frost & Nicholson ) at 76,425, Nygh J said that prejudice, in this context, “means that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought”. However, in Atwill & Atwill (1981) FLC 91-107 (Atwill & Atwill ) at 76,794, Nygh J stated that the relevant prejudice would need to be “distinctly observable hardship, such as financial commitments made on the basis that no liability existed”. It appears to us that the extent of any prejudice is simply one of the relevant factors to consider and that Nygh J’s comments in these two cases should be read as descriptive of circumstances where prejudice is likely to be a weighty factor, not a test for the relevance of evidence of prejudice. Additionally, in Atwill & Atwill , his Honour also pointed out that the fact that the respondent will suffer prejudice does not necessarily mean that the discretion will be exercised in their favour.
APPROACH
[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.
Further, in Lester & Lester [2024] FedCFamC2F 1012, Judge Parker also summarised the principles and the approach to be taken in relation to such applications at paragraphs 7 to 11:
[7] Pursuant to s 44(3) of the Act, where a divorce order has taken effect, proceedings under s 74 or 79 shall not be instituted except by leave of the Court in which the proceedings are to be instituted after the expiration of 12 months after the divorce. Subsection 44(4) provides, relevantly, that the Court shall not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted.
[8] Consideration of an application under s 44(3) effectively involves two stages:
(a) Consideration of whether hardship is demonstrated; and
(b) Consideration of whether the Court’s discretion should be exercised so as to permit the application to proceed.
[9] The onus is on the Applicant, in this case the Husband, to demonstrate hardship and to persuade the Court that the discretion should be exercised in his favour.
[10] Statutory time limits, such as the one in s 44(3), serve a legitimate public purpose and should not be arbitrarily disregarded, but the discretion should be exercised in favour of an extension of time where to do so will avoid hardship.
[11] As the Full Court held in Gadzen v Simkin, the Applicant is required to demonstrate that if leave is not granted, then he will deprived of a reasonable chance of success in the prospective proceedings and that will occasion hardship. The Applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success and leave will not be granted if to do so would not, in the substantive result, alleviate that hardship.
Citations omitted
The mother's prospects of success in the proceedings, if leave is granted, is relevant to both hardship and the exercise of the discretion generally. As it is said, the stronger the prima facie case, the greater the likelihood of hardship if the application is refused. I am also entitled to consider the issue of costs of the property proceedings within that context.
The mother's case is that when the relationship commenced, she had a motor vehicle worth approximately $10,000, personal items, and bank accounts totalling approximately $74,600. The father's evidence, by and large, accepts these initial contributions and their values.
The mother says that the father contributed the real property at M Street, Town N, the former matrimonial home, which he purchased in March 2005 for the sum of $192,500. The mortgage was then approximately $170,000. The father also had a one-quarter interest in the property at O Street, Suburb P. All of these matters are also largely accepted by the father. He says that his interest in the property at O Street was approximately $85,000 at the commencement of the relationship.
The mother's case on hardship, including as to the sufficient likelihood of success of her claim, first relies on the contributions that she made during the course of the relationship which spanned some 15 years. It is not particularly in contention that the mother was the primary carer for X, especially whilst the father was at work. The father's evidence is that when he was at home, parenting responsibilities were mostly shared equally. The mother says that she managed most aspects of childcare, but she does acknowledge that the father did most of the baths early on, though she also says that when he did so, that was often with the assistance of Ms G.
At the start of the relationship, 2 M Street was underdeveloped. In 2008, 2010 and 2012, the mother received cash payments from her grandmother prior to her passing that totalled $307,226.16. Over the course of the relationship, the mother made financial contributions to the property, and I accept the items specified in her evidence as being payments made between 2007 and 2016. These payments total $399,094.47. A substantial portion of that sum are payments made by the mother on multiple occasions totalling $332,000 to Q Company for construction work for the second dwelling on the former matrimonial home.
The mother says, in the circumstances, the entire cost of construction of the second dwelling on the former matrimonial home came solely from financial resources that she had supplied to the relationship. I have received the building plans for the construction of the dwelling and accept the evidence that is given.
Further, in early 2015, the mother received an inheritance from her grandmother's estate in the amount of $238,000. I accept the mother's calculations that during the relationship she received, through gifts or inheritance from her grandmother, the total sum of $545,326.16.
It is a point of contention in the mother's evidence that most of the money was invested into matrimonial expenses, however. The father's evidence is that the mother told him that she still had around $80,000 left in cash after the construction work of the former matrimonial home, and he also says that he saw none of the money that was received in early 2015. He also says that the mother has not explained her expenditure of that money, and he calculates, on this basis, that the mother had approximately $318,000 in cash at the date of separation, and at the time that he paid her $375,000 in cash.
The submission made by the mother is that, on a dollar-for-dollar analysis, she has invested $399,094.47 in direct financial contributions to the relationship and she has received $375,000 at separation, and even on that basis, before turning to consider non-financial contributions and future needs, hardship is made out because there is a sufficient likelihood of success of a greater adjustment of property interests in her favour.
The father submits that there is a difficulty in looking at the dollar-for-dollar contributions made by the mother during the relationship in isolation from the father's contributions. He has set out an estimate of financial contributions during the course of the 15-year relationship that are in the order of approximately $1.3 million. He has also given evidence of his earning capacity during that time.
I appreciate the need to make a holistic assessment of the value of contributions made by the parties, and that in doing so, the Court is required to be cautious in emphasising the importance of a particular value of a particular item of property or contribution at the expense of the myriad of other contributions that the parties make during the course of a relationship. However, in my view, there is some force to the submission that on a holistic analysis of the 15-year relationship, including the 11-year marriage where the mother was the primary caregiver of X and the husband worked, that the payment received by the mother does not take into account the full extent of her contributions during the relationship, and including her future needs.
I also take into account the medical and health issues that the mother has been affected by, particularly since separation. Some, but not all of this, relates to what I have spoken about, what the mother has described as the betrayal and psychological harm as a consequence of the father's relationship with Ms G, and the mother's evidence that I have touched on about the ongoing psychological distress to her that has been caused by the father's behaviour, both, it must be said, during the relationship and after it. She has also given evidence about hospitalisations of her own in 2021, 2023 and 2024 for a variety of medical conditions, and in some instances that has also included X.
Post-separation, the mother purchased the property at H Street on 20 December 2021, as I have said, utilising the $375,000 in cash given to her by the father, and her savings. For his part, the father says that since separation, and more particularly since October 2021, he has made contributions that increase the value of the asset pool by approximately $517,000, and he gives a breakdown of those estimations and contributions in his evidence.
Since separation, the mother has continued to be the primary carer for X. In her financial statement filed on 11 March 2025, the mother deposes to a total average weekly income of approximately $1,082.59 and a total personal expenditure of approximately $621 each week. She estimates the total value of property owned in the sum of $660,116.17, and an estimated superannuation value of $60,000.
The mother is 47 years old, and although she is a qualified professional, she has a limited earning capacity. She has set aside her personal and professional goals, including a long-held desire to study health care, so as to focus on and prioritise X's needs. As I have pointed out, the mother's 2024 taxable income is in the sum of $26,948. The property at H Street is unencumbered, but there is the future needs of the parties.
The husband is 49 years old. He is employed as a full-time professional at R Company. His 2024 taxable income is $415,006. It points to the disparity between the parties in terms of future needs. In submissions, it was said that this particular year was an unusually high one for the father's income. There is no evidence to this effect, however, the father has said in his evidence that he is hopeful that the outcome of the parenting proceedings will lead to X having increased time with him, which will potentially impact his income due to adopting flexible work arrangements. The father's evidence is that since October 2021, he has increased his salary in the sum of $120,000, in addition to the number of other estimated increases that I have touched on.
Whilst the father points to the mother's earning capacity and the potential for her to commence work in connection with his desired outcome in the parenting proceedings, I accept there is some merit demonstrated by the mother's claim to an adjustment of property interests that also builds in some allowance for future needs. In saying all of that, I am mindful that the analysis to be performed at this juncture is that of a summary assessment of the prospective claim advanced by the mother in order to determine whether or not she has discharged the onus to demonstrate hardship.
In weighing up each party's case against the other, I also take note of the fact that the parties have different views of the size and value of the asset pool. The mother has also raised allegations of non-disclosure that have impeded the ability to make a more reliable assessment of these matters. There are also significant disputes about the value of real estate, which are, of course, a matter for expert evidence. The mother's estimate is that H Street is worth $580,000, whereas the father says that figure is too low. He has produced evidence from realestate.com.au that suggests a value in the mid-range of $635,000.
The mother's case estimates the value of the former matrimonial home in the sum of $1 million, and the father estimates that the value of that property at separation to be $630,000. He points to some improvements he has made to that property.
On 25 April 2025, the mother's lawyers wrote to the father's lawyers pointing out that they had made a number of requests for financial disclosure, and despite the repeated requests they had not received any financial disclosure. But, be that as it may, I remind myself that in applications for leave out of time, pursuant to authorities that I have been referred to and that are set out, such as Jacenko & Jacenko[1] which I will refer to, the Court proceeds on the basis that the evidence of the applicant, unless it is inherently unbelievable or contradictory, should be accepted, and I proceed on that basis.
[1] (1986) 11 Fam LR 341.
I also, however, bear in mind that at this stage of the proceedings the inquiry is limited. It is not to the merits of the mother's claim necessarily, but rather, if there is a claim, on the mother's case the total value of the global asset pool including superannuation is approximately $3,126,116.17. She estimates that, post-separation, she holds approximately 23.03 per cent of the global asset pool and the father holds approximately 76.97 per cent.
Conversely, on the father's case, the value of the non-superannuation asset pool was $1,793,700 at separation, and on the basis of his estimated value of H Street and the mother's cash in hand and how that is put, he says the mother's post-separation property represented a 43 per cent division to her.
The primary assets of the pool are real property, shares, cash and superannuation. It is difficult at this juncture to perform any sort of cost-benefit analysis as to the potential of the mother's claim, both in terms of a 65 per cent adjustment in her favour and what that translates to in dollar terms, other than accepting the mother's case at its highest, which, on her calculation of the asset pool, would equate to a payment of approximately $2 million to her, or at least a settlement representing $2 million to her.
As at 28 April 2025, the mother had paid approximately $47,000 in solicitor and counsel's fees in these proceedings on a pay-as-you-go basis, and the father has paid just over $70,000. Property proceedings will require not only a substantial increase in the legal professional costs to be incurred, but in the areas of valuations and disclosure, which are currently in some level of contest. Taking the potential cost of litigation into account and the impact that may have on the depletion of the overall property available for distribution, however, in my analysis of the assets at the date of separation, the evidence of the contributions and the likely future needs, I am satisfied having regard to all of these factors that hardship could arise if the mother is not able to pursue a claim for a property adjustment order.
However, that is not the end of the matter because the court retains a residual discretion. The exercise of the discretion is a broad one with reference to the facts and circumstances of each particular case. My decision must consider whether the granting of leave will do justice between the parties. Relevant matters for consideration include the length of the delay, the reasons for the delay, any prejudice occasioned to the respondent by reason of the delay, the strengths, the merits of the applicant's case, and the degree of hardship which would be suffered unless leave was granted.
In this case, as I have said, the length of the delay is approximately 17 months. The property pool is intact and there is no joint ownership of assets. However, in my view, factors that suggest against the exercise of the discretion in the mother's favour are the inadequacy of the reasons for the delay and the prejudice to the father. I do not accept the mother's submission in relation to the sufficiency of the explanation for the delay in filing property adjustment orders as reasonable for the following broad reasons:
(a)First, the mother became aware of the time limit on 9 March 2022. That was in the order of approximately 19 months after separation and before the father had commenced divorce proceedings. It was also five months after the cash payment made by the father had been made, and three months after the mother purchased H Street. On 5 May 2022, at the intake interview with S Services, the matter was deemed inappropriate to mediate, and on 11 May that year, a section 60I certificate was issued. The mother then went to Legal Aid and then went on to make her inquiries with legal practitioners that I have already referred to.
(b)Second, the mother has not given clear evidence as to when she became aware of the date of the divorce order taking effect. However, in the week before 30 November 2023, she instructed TEWLS of that date. She does not remember it now for the purposes of her evidence, but the evidence is that she was aware of it at that time. She was advised that the limitation period had passed, and at that stage the limitation period had expired within the preceding nine weeks or so. Despite being advised that the only option may be to make a prompt application to the court, including for disclosure orders, the mother did not take this step.
(c)Third, whilst the mother was referred back to Legal Aid and was not able to obtain legal representation, Legal Aid reiterated the fact that the mother was out of time to make an application for a property adjustment order. That reiteration was given on 22 December 2023, the same day, as I say, that the mother was served with the father's notice of intention. Whilst the mother continued to seek private legal representation the following year, knowing she was out of time, she continued to not file proceedings. In Lynch & Lynch [2023] FedCFamC1F 801, Brasch J said at 70:
I do not accept the husband's lack of funds for a lawyer as a reasonable explanation for delay. Many people act for themselves. Section 44(3) does not say that the time limit only applies where the party can afford a lawyer.
To the extent that the mother's case is put in terms of ignorance of the law, in Waldmann & Paddack [2024] FedCFamC1A 100, McClelland DCJ said a number of things going to ignorance of the law as a result of inadequate information is not a valid reason to extend time at paragraphs 120 to 121:
[120] This explanation is inadequate because ignorance of the law, including ignorance as a result of inadequate information being provided by a party’s legal advisor, is not a valid reason to extend time. Were it otherwise, any self-represented litigant or poorly advised litigant would be able to circumvent the relevant statutory limitation period. This would be contrary to the public policy goal of the inclusion of limitation periods which were described by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551–553 where his Honour relevantly stated:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. … The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo , “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
…
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:
The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.
(Footnotes omitted)
[121] If a litigant were able to avoid time limits by asserting ignorance of the law, including as a result of negligent or neglectful legal advice, those important public policy considerations would be circumvented.
(d)Fourth, the wife became legally represented in these proceedings, at least officially, in August 2024. She was active in the parenting proceedings. Although she foreshadowed the intention to make a property adjustment application on 4 September 2024, she did not do so until 11 March 2025 within the significant activity that occurred within the parenting proceedings, including the filing of a response and the making of consent orders.
(e)Fifth, I do not accept the explanation that the mother was pursuing a negotiated outcome without resorting to the costs of litigation at any point, as being satisfactory. In circumstances where the mother had received $375,000 in October 2021 and there was scope for some dispute, it seems, about the categorisation of that payment, the response made on behalf of the father on 26 September 2024 that the mother was out of time and would not negotiate, there was nothing to prevent the mother from filing the application at any time before then, but certainly, as at 26 September 2024, when it was clear to the mother that the father was effectively taking a limitation point. But in any event, as I have said, the father made his position plain when it was put to him. The mother did not take steps to mitigate the effect of delay by simply filing proceedings, which would not have prevented her from continuing to pursue a negotiated outcome in any event.
(f)Sixth, although the mother was affected by a number of medical conditions over this relevant period of time, and accepting the stresses associated with litigation, parenting, the mother's feelings of betrayal and her financial constraints, she was able to take certain steps. This example included making a child support application at around the same time that she was diagnosed with a medical condition and commenced medication. I do not say any of that by way of criticism. I appreciate the mother's evidence about the stress that she felt and that the variety of factors contributed collectively to her inability to initiate proceedings within the prescribed time limit, she has not given any evidence of any attempt to file an application on her own behalf and, as I have said, took significant steps in the proceeding once she did obtain lawyers, but did not do that until 11 March.
The father, in reality, was not given notice of the mother's views about her intention to commence property proceedings until September 2024, and he was entitled to believe and did believe, that the cause of action had expired, that the parties had resolved their financial relationship, and he had set about to arrange and rearrange his financial affairs accordingly.
Additionally, whilst I appreciate the financial constraints that the mother was affected by and what she described as the "referral loop" in relation to her lawyers that she was in, which also had the effect of contributing to her feelings of despondence and affecting her self-worth, again, whilst not a criticism of the mother, the mother elected to invest the entirety of the $375,000 cash payment made to her and her savings in H Street. That was a matter for her to determine, and it was something within her control.
If, as the mother suggested, the agreement with the father was an interim one, and especially knowing about his relationship with Ms G, it was open to her to arrange her affairs in some fashion that enabled her to obtain some legal advice or to be able to have some cash available to obtain some legal advice and representation into matters that she may have considered outstanding and contentious.
I am also concerned about the prejudice to the father if leave to proceed out of time were granted. The father's case is that the payment made in October 2021 finally determined the division of property interests.
I have pointed out that the mother's evidence is a little unclear in the sense, on one hand it refers to an interim payment, but on the other suggests it may be a final payment that she felt pressured at the time by the father and Ms G to accept. But in any event, the father intertwined his financial and non-financial relationship with Ms G once their relationship started. That has now been of some four years.
The parenting proceedings loom as a very high conflict proceeding. That, at least in part, comes from the depth of feeling about the fact of the father's relationship with Ms G, the way it formed and the fact that it continues. It affects changeovers, and it affects a variety of other matters relating to X's best interests, but, as I say, the father has conducted his life in a post-separation sense in a way that he has moved on, in some expectation that the financial matters between the parties have resolved.
He now financially supports Ms G. She has become income-dependent, and from December 2024 the father assists in providing full-time care for two of X's step-siblings as a result of their long-term hospitalisation. It is said on behalf of the father that such is the extent of the intertwined nature of the financial relationship between he and Ms G, it may well require Ms G to be joined as a party to these proceedings. I am not entirely sure about that, but I do accept and do consider that it is likely that substantial legal costs would be involved in a financial proceeding, and indeed, that looms large in the parenting proceedings as well, but it would add to those costs.
In the circumstances, whilst I am satisfied that some hardship could arise if leave was not granted, I have determined that in the exercise of my discretion leave should not be granted due to what I have variously considered and weighed up to be the length of the delay, the inadequacy of reasons for the delay, the prejudice that would be caused to the father if leave were granted, and I do not consider in those circumstances that the granting of leave will do justice between the parties. I do not exercise my discretion in the mother's favour to extend time in these circumstances.
In terms of the spousal maintenance proceedings, the wife's case in respect of that application was made on the same basis as the property adjustment proceedings, that is, section 44(4)(a). The same principles apply as to hardship as they do in these proceedings, as they do in the section 79 proceedings.
In respect of spousal maintenance, particularly the principles that were set out by Harper J in Vang & Chung (No 3) [2024] FedCFamC1F 101 as:
[54] Subsection 44(4)(a) and (b) then prohibit the grant of leave unless the Court is satisfied either that hardship would be caused to the applicant for maintenance if leave were not granted or as at the date 12 months from the date of the parties’ divorce the applicant would have been unable to support herself without an income tested pension, allowance or benefit. The Court thus has no power or discretion to grant leave unless one of the subparagraphs is satisfied. If such satisfaction is achieved, the court then retains a residual discretion to grant leave or not, and the onus remains on the applicant to persuade the Court the discretion should be exercised in their favour ( Arcand & Boen (2021) FLC 94–046 at [38] –[40] (“ Arcand & Boen ”); Welland v Hawthorn (2021) 64 Fam LR 520 at [16]).
…
SECTION 44(3)
[76] Turning to the provisions of s 44 of the Act, the wife made clear in her submissions that she did not contend s 44(4)(b) was satisfied. She relied upon a case of hardship if leave was not granted.
[77] The wife bears the onus of establishing hardship, and if she does so, the wife then must persuade the court that it should exercise its discretion to grant leave. Hardship does not arise from the loss of the right to bring the relevant proceedings but from the consequences of the loss of that right. This requires consideration of the quality of the proposed claim. If hardship is demonstrated, numerous factors can influence the exercise of the residual discretion, including the length of the delay, the adequacy of reasons for the delay, and the prejudice the respondent would suffer if the application for extension of time was granted ( Gadzen & Simkin (2018) FLC 93–871 at [29]–[37] [40] ; Arcand & Boen at [40]).
[78] The likely costs of the litigation constitute one factor to be considered in determining whether or not hardship would be alleviated by the grant of leave ( Whitford and Whitford (1979) FLC 90–612 (“Whitford”); Walker and Walker (1984) FLC 91–564 ).
[79] The wife’s claim for spouse maintenance requires her to establish, pursuant to s 72 of the Act, that she is unable to support herself adequately whether, relevantly (there being no child of the marriage) by reason of age, or physical or mental incapacity for gainful employment, or any other adequate reason having regard to the matters in s 75(2). In considering the quality of the wife’s claim the Court must weigh her case against that of the husband’s and form a view as to whether there is in fact a sufficient probability of success, that would, if leave were granted, alleviate hardship ( Edmunds & Edmunds (2018) FLC 93–847 at [48] ). More recently, in Skelton v Lindop (2022) 64 Fam LR 617 at [17]-[21] (“Skelton”), Austin J sitting as the Full Court pointed out that the test is demonstrating a “sufficient likelihood of success” to prove hardship rather than likely success at trial on the balance of probabilities, which requires a higher standard of satisfaction, citing Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57 at [65] and [69] . I accept this is the correct test ( Hardwick & Hardwick (No 2) (2022) FLC 94-126 at [28] ) and it binds the determination of interlocutory applications (Skelton at [19]). The wife’s untested evidence is taken at its highest for this purpose (see Whitford).
Whilst the mother was advised about the limitation period that applied to commencing "property proceedings" from the meeting with TEWLS in the week before 30 November 2023, she says that she was unaware of the possibility of making an application for spousal maintenance until she consulted with solicitors. Her evidence about the timing of this is not precise, however, her evidence is that she was referred to her lawyers on 1 July 2024.
The mother's evidence is that because of receiving minimal child support from the father, as well as the high cost of pursuing an application, doing so was financially prohibitive and that she did not do so until recently. Curran J set out the principles that ought to apply to an application for spousal maintenance generally in Carswell & Tenson (No 4) [2024] FedCFamC1F 848 at 344, and I will extract that paragraph in these reasons.
[344] The High Court in Hall v Hall (2016) 257 CLR 490 at [52], with reference to Astbury v Astbury (1978) 4 Fam LR 395 at 398, states “[t]he wording of s 72(1), it has been noted, seems to imply that each party should attempt to support himself or herself where that is reasonable having regard to the matters referred to in s 75(2).”
The application in this case is for maintenance in the sum of $1,500 per week for some fixed time in the order of six months, or to the trial. I take into account the disparity of income between the parties, but also that the mother's weekly income exceeds her total personal expenditure. I also take into account, as I have said, that the mother elected to manage her financial affairs such that the property at H Street was financed outright, such that she has no mortgage repayments.
In support of the submission that she is not able to support herself adequately, the mother points to her role as a primary caregiver for X, her limited income, her ongoing health issues and her lack of family support. She also places weight on the income disparity between the parties, as I have said, and broadly speaking, a number of other 75(2) factors.
It is slightly difficult to ascertain how the sum of $1,500 per week has been calculated, acknowledging that it is in the Court's power to order some other amount should it find the criteria made out. Whilst I appreciate also that it is not necessary for a party to deplete all of their capital in order to demonstrate an ability to support themselves, and the focus is on whether the particular applicant for spousal maintenance is in a position to finance themselves adequately from their own resources, I take into account the matters set out in the mother's financial evidence, including her income and expenses and her assets. Whilst the mother has an earning capacity, I accept that her capacity to attain gainful employment is limited by reason of being the primary caregiver for X, which she has given extensive evidence about prioritising over many other aspects of her life.
Having regard to the matters that I have set out, however, I am not satisfied that the mother would suffer hardship if leave was not granted. If I am wrong in that conclusion in terms of the application being made outside of the limitation period and the exercise of the residual discretion to refuse leave, I would otherwise refuse leave and restate the analysis that I made of the explanation for the delay as being inadequate as it relevantly applies in respect of this element to the application, as it does to the application for a property adjustment, and I would not exercise my discretion to grant leave in those circumstances.
An application for a litigation funding order was also made. In order for the Court to make an order under section 117 of the Act, the Court must be satisfied that there is a significant disparity in the financial resources of the parties, that the financially stronger party can fund their own litigation, that the applicant cannot fund their own litigation, that the proceedings are sufficiently complex to warrant legal representation and that the applicant has reasonable prospects of obtaining at least the amount sought on a final basis.
In light of my findings, conclusions and orders in relation to other aspects of the application, this aspect of the application falls away, and in those circumstances I will make orders that I indicated at the outset and before delivering these reasons.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 3 June 2025
0
13
1