HUBERT & STROUD
[2019] FCCA 2538
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUBERT & STROUD | [2019] FCCA 2538 |
| Catchwords: FAMILY LAW – De facto relationship – application for declaration under section 90RD – application for leave to file out of time under section 44 – where dispute about the date of the end of the de facto relationship – where Applicant filed within time on their evidence and out of time on Respondent’s evidence. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 44, 90RD, 90SF, 90SM |
| Cases cited: In the Marriage of Jacenko (1986) 11 Fam LR 341 |
| Applicant: | MR HUBERT |
| Respondent: | MS STROUD |
| File Number: | SYC 2009 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 2 May 2019 |
| Date of Last Submission: | 2 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Shafizdeh of Brazel Moore Lawyers |
| Solicitors for the Respondent: | Ms Shelly as agent for Gentles Family Lawyers |
ORDERS
THE COURT DECLARES THAT:
For the purposes of these proceedings a de facto relationship existed between the Applicant and the Respondent commencing no later than 1 June 2009 and ending on 2 February 2016.
THE COURT ORDERS THAT:
Leave is granted to the Applicant to apply for orders under section 90SM of the Family Law Act 1975 (Cth) after the end of the standard application period and for that purpose the time for the filing of an Application by the Applicant is extended to 29 March 2018 being the date of the filing of the applicant’s Initiating Application in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Hubert & Stroud is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2009 of 2018
| MR HUBERT |
Applicant
And
| MS STROUD |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed by the Applicant male partner to a de facto relationship (“the Applicant”) on 29 March 2018 the Applicant sought final orders pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”) altering the property interests of the parties to the de facto relationship, the Applicant and the Respondent. In Part C of the Initiating Application the Applicant asserted that the parties commenced to live together on … 2009 and that the final separation (the end of their de facto relationship) occurred on 2 April 2016.
In his affidavit sworn or affirmed on 29 March 2008 and filed with his Initiating Application the Applicant deposed that he:
Commenced a relationship with [the Respondent] on 26 April 2009.
And that:
In June 2009, [the Respondent] moved in with me at my parents house at [address] and lived as a de facto couple.
He further deposed that:
My de facto relationship with [the Respondent] ceased on 2 April 2016.
In her Response filed 13 August 2018, the Respondent sought final orders only that the Applicant’s application be dismissed and that the Applicant pay the Respondent’s costs. In her affidavit sworn 13 August 2018 and filed with her Response on that day, the Respondent deposed that she:
…first met [the Applicant] in April 2009 and we commenced a relationship later that month
And that:
[The Applicant] and I separated on 2 February 2016 not to April 2016 as stated by [the Applicant].
Section 44(5) of the Act provides, relevantly, that a party to a de facto relationship may apply for an order under section 90SM only if the application is made within a period of two (2) years after the end of the de facto relationship (referred to in that section as the “standard application period”) or both parties to the de facto relationship consent to the application.[1]
[1] Family Law Act 1975 (Cth), s 44(5).
Section 44(6) of the Act provides, relevantly, that the court may grant leave to a party to apply after the end of the standard application period if the court is satisfied that hardship would be caused to the party if leave were not granted.[2]
[2] Family Law Act 1975 (Cth), s 44(6).
The Respondent asserted that the de facto relationship ended on 2 February 2016 and that as the Applicant’s Initiating Application was filed on 29 March 2018, he had filed outside the standard application period and that therefore his application should be dismissed as having been filed out of time.
As the Applicant asserted that the de facto relationship had ended on 2 April 2016 he asserted that his Initiating Application had been filed within the standard application period and so not out of time.
On the first return date of the proceedings on 15 August 2018, her Honour Judge Henderson (as her Honour then was) set the matter down “on 2 May 2019 at 10 AM for Final Hearing in relation to the de facto husband’s application for leave to commence proceedings out of time.” Though that was possibly the way the matter was presented before her Honour on the first return date, the real issue for determination, based upon the competing Applications and the conflicting evidence before the court on that date, was the duration of the de facto relationship and in particular as to whether the de facto relationship that had commenced in April or June 2009 (as agreed in the parties’ evidence) had ceased on 2 February 2016 or 2 April 2016.
In effect, what was sought was a declaration pursuant to section 90RD of the Act that a de facto relationship existed between the parties,[3] and when the de facto relationship ended.[4]
[3] Family Law Act 1975 (Cth) s 90RD(1).
[4] Family Law Act 1975 (Cth) s 90RD(2)(d).
In the event that the Applicant was successful in obtaining a declaration that the de facto relationship ended on 2 April 2016, the matter then could proceed on its normal course is a an Application for adjustment of property under section 90SM. In the event that the Respondent was successful in obtaining a declaration that the de facto relationship ended on 2 February 2016, then the Applicant would need to seek and obtain leave of the court under section 44(6) of the Act to make his Application after the end of the standard application period and so have the matter proceed.
On 2 May 2019 I heard the matter as a discrete threshold hearing with cross-examination on the issue of the declaration under section 90RD and, if the Respondent was successful, for leave to the Applicant under section 44(6).
The evidence relevant to the duration of the de facto relationship
On hearing, the Applicant relied on his affidavit sworn or affirmed on 29 March 2018. He sought leave to rely on his further affidavit affirmed 18 April 2019 and his financial statement affirmed 18 April 2019, the orders made by Judge Henderson on 15 August 2018 having required that the parties each file and serve one trial affidavit on which they intended to rely at hearing and any updated financial statement by 8 March 2019. That leave was granted.
That a de facto relationship between the parties had commenced in sometime between April and June 2009 was agreed between the parties. Relevant to the issue of the date of end of the parties’ de facto relationship, the Applicant asserted that:
a)During the relationship the parties experienced frequent difficulties mainly because of “money issues” and that sometimes the Respondent spoke to the Applicant “very badly and disrespectfully … And also in a very rude manner”;
b)There are occasions when the parties experienced difficulties in the relationship the Applicant would give the Respondent “some space by leaving the Town B unit and staying at either my mothers or fathers place in Sydney.” He recalls doing this on four occasions, on three of which he returned back to their common home at Town B and “continued to live generally happily as a de facto couple”;
c)The parties experienced difficulties in their relationship, mainly over money issues, through December 2015 and January 2016 and on the night of 1 February 2016 when they “had a fight (again) about money.” The Applicant had “a very uncomfortable night …. And… Had difficulty sleeping.”;
d)On the morning of 2 February 2016, the Applicant got up at about 6:00AM and noticed that the Respondent was still angry with him. There was a confrontation between the parties about some mess that the Applicant had caused accidentally in the bathroom and the Applicant left their home for work upset. The Applicant made a decision during that day while he was at work that he would go home, pack a backpack, and go and stay at his mother’s home at Suburb C for a while to give the Respondent and himself some space to think about the relationship and whether he wanted to continue to be in a relationship with the Respondent. Returning home to Town B from work at about 7:00PM the Applicant packed up “some clothes and other personal belongings” in a backpack and went to stay at his mother’s home, leaving his remaining belongings at the parties’ home in Town B;
e)On 4 February 2016 the Applicant sent Respondent a long email, a copy which was the annexure “B” to his affidavit of 18 April 2019. Relevantly, the email includes the following:
I was not planning on leaving you, or saying many of those things, but you continue to push me away, while I push you away. We are too strong for each other.”…“I know sometimes u hate me and want me to leave. Happens to me to, that’s why I those messages. I tell u exactly how I feel. So that’s why I want to leave you. I feel like this is all lost. How can u change how think of me? I don’t think u can. You have already decided that I don’t deserve the house, or car, and a it’s not really about the physical things. It’s the fact that you refused to include me purely because of money … I feel so sad to lose u, but maybe that is what we need. I will miss u … But maybe we can fix this. I don’t know. I hope so. Let me know what u think.
It is inherent in the text of the email that there had been an exchange of SMS messages between the parties between the Applicant leaving the Town B home on the evening of 2 February 2016 and creating the email on 4 February 2016.
f)Annexure “C” to the Applicant’s affidavit is a print of an email dated 27 February 2016 at 8:44PM from the Respondent to the Applicant containing a screenshot of an SMS message she had been trying to send to the Applicant, the text of the message being “I really haven’t had mine space to put what I’m thinking in words … Confused and tired! Need more time …” It was put to the Respondent in cross-examination that the message indicated that the Respondent was, as at 27 February 2016, still “confused about the relationship” to which the Respondent answered “No. The relationship was over.”
g)The Applicant attaches to his affidavit as annexure “D” 29 pages of print out of SMS messages between himself and the Respondent. He asserts these messages to be from the period between when he moved to his mother’s house (2 February 2016) and at least 2 April 2016 though none of the pages of the SMS messages bears a date, only a notation of the time of day.
h)The Applicant deposed that on 1 April 2016 he decided “that the relationship was unsalvageable and over.” He deposes that by an arrangement made with the Respondent in the course of their SMS messages he borrowed his mother’s car on 2 April 2016, drove to the Town B home, packed up all his belongings, locked the front door and put his front door key in the letterbox. He then drove to a local park for a prearranged meeting with the Respondent and told her that the relationship was over and completely finished. He then drove the Respondent from the meeting place and dropped her at the Town B unit. In cross examination, it was put to the Respondent that during the meeting at the park on 2 April 2019 the Applicant had informed her that he had decided that the relationship was over. The Respondent denied that the Applicant had made that statement to her.
In compliance with the trial direction orders, the Respondent filed a trial affidavit sworn 8 March 2019 and filed that day. Relevant to the issue of the date of the ending of the parties’ de facto relationship, the Respondent says that:
a)The last time the party spent time together was the morning of 2 February 2016 and that following an argument the Applicant left that morning “with a suitcase.” The Applicant did not return to the home after that time other than when he attended, in the Respondent’s absence, to pick up his computer table and his personal belongings;
b)On 26 February 2016, the Respondent organised to have the internet connection at the Town B home changed from the Applicant’s name to her name and she took over paying internet account. The Applicant cooperated with her in arranging this;
c)On 3 March 2016, the Respondent organised to have the electricity account for the electricity connection to the Town B home changed from the Applicant’s name to the Respondent’s name;
d)Since 2 February 2016, the Respondent has made all the payments required on the loan accounts secured by way of mortgage over the Town B home and has paid all outgoings relating to the Town B home without contribution from the Applicant.
Other than the evidence detailed above, the Respondent’s affidavit does not assist in relation to a decision made by either of the parties, whether communicated to the other party or not, that their de facto relationship had come to an end.
I have carefully read the print out of the SMS chain at annexure “D” to the Applicant’s affidavit of 18 April 2019 and considered the content in the light of the question as to whether or not, in the view of either party, the de facto relationship between them ended on 2 February 2016 or 2 April 2016. On an unknown date is a message from the Applicant:
Im saving up money incase we can get back so I can pay u back all those lost weeks and if we cant fix together then yeah I move out with … he needs a flatmate.
There is a strong inference in the messages that the parties had planned a trip together to Country D and had bought tickets in relation to that trip and that the Respondent was obtaining a refund in relation to the Applicant’s tickets:
I’m getting refund from your tickets
Immediately followed by a message from the Applicant:
…cool keep it for ur backup
To which the Respondent replies:
…had to pay $500 fine … But I will get rest back.
From the Respondent:
I just want the best for you at the moment! As being together or not! If moving out helps U move on! I’m happy to help U! I feel bad keeping everything I do think u deserve some to … There is no flighting anymore … Just want to see u happy!
And:
…and yeah I’m not sure about us either … It’s too hard as we both know …
And:
I really think u r the person I want to end up with in life! Sucks we can’t be together… I have a lot more respect for then u think
And:
but I think u will do so well in life! Keep saving and look after yrself … Contact me anytime okay?
Later from the Applicant:
yeah I know what you mean busy does help, good on you, I really hope we can work this out sometime when I’m not so sad.. Be safe [name]
And:
I will try my best to get better and be the man you need and deserve.
And:
hope ur well, im starting to feel better but would like to have a more stable job away from mum them hopefully move out somewhere else or something.
And:
I still have strong feelings for you and don’t want to be with anyone else, but I know it’s hard to live together and I still have to improve myself, I will keep trying and hope one day we can go on some dates together or something and see if we can work this out.
Sometime thereafter from the Respondent:
and one day if you want to go on a date … Just remember you only have to ask”.
The Law
I have to consider whether the parties’ de facto relationship ended on 2 February 2016 as the Respondent asserts or on 2 April 2016 as the Applicant asserts and then make the appropriate declaration in accordance with the provisions of section 90RD.[5]
[5] Family Law Act 1975 (Cth) s 90RD.
The definition of a de facto relationship is found in section 4AA of the Act[6] and provides:
[6] Family Law Act 1975 (Cth) s 4AA.
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
A recent decision from the Full Court of the Family Court of Australia giving guidance in relation to declaration of a de facto relationship pursuant to section 90RD[7] is Crick & Bennett[8] from which I extract the following paragraphs:
[65] … The ultimate task of the court is to determine whether the parties had “a relationship as a couple living together on a genuine domestic basis” (s 4AA(1)(c)). The concept of a couple is thus part of the test. How that test is met is determined by the considerations required by s 4AA(2) . None of those directly refers to “couple”. It is here that care needs to be taken not to add a gloss to the words of the section, as the authorities ……… make clear (Sinclair & Whittaker 92013) FLC 93-551; [2013] FamCAFC 129 at [93] – [94]; Cadman & Hallett 92014) FLC 93-603; [2014] FamCAFC 142 at [42] – [43]). …
[83] As was pointed out in Sinclair at [54]–[56], a finding as to whether or not a de facto relationship exists depends upon an assessment of all of the circumstances of the relationship, with each circumstance to be given such weight as the court considers appropriate. The Court in Sinclair quoted with approval the following statement from Lynam v Director General of Social Security (1983) 52 ALR 128 at [131]:
Each element of a relationship draws it colour and its significance from the other elements some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.[9]
[7] Family Law Act 1975 (Cth) s 90RD.
[8] Crick & Bennett [2018] FamCAFC 68 (Ainslie-Wallace, Aldridge and Watts JJ).
[9] Crick & Bennett [2018] FamCAFC 68, [65], [83].
I also refer to the Full Court decisions in Ricci v Jones[10] (in which the decision of Mushin J in Moby v Schulter[11] is referred to with approval), Jonah v White,[12] Delmarre & Asprey,[13] Somers & Collier,[14] and Sfakianakis & Sfakianakis.[15]
[10] Ricci & Jones [2011] FamCAFC 222.
[11] Moby & Schulter [2010] FamCA 748.
[12] Jonah v White [2012] FamCAFC 200.
[13] Delmarre & Asprey [2014] FamCAFC 218.
[14] Somers & Collier [2017] FamCAFC 123.
[15] Sfakianakis & Sfakianakis [2018] FamCAFC 185.
Consideration
The Applicant and Respondent are not and have never been married to each other and they are not related by family (as defined in section 4AA(6)).
During the period to February 2016 to 2 April 2016, which I will refer to as “the relevant period”, did the Applicant and the Respondent, “having regard to all the circumstances of their relationship” have a relationship as a couple living together on a genuine domestic basis?
During the relevant period:
a)The parties’ did not share a common residence;
b)No sexual relationship existed between the parties;
c)There was no financial dependence or interdependence between the parties in that they were each responsible, exclusive of the other, for their own accommodation costs and day-to-day living expenses, with the Respondent meeting the costs of the outgoings on the Town B property, including payment of the required payments on the loan account secured on the Town B property by a mortgage. The parties took cooperative steps to take the internet connection and electricity account relating to the Town B property out of the Applicant’s name and place them solely in the Respondent’s name. Neither paid accounts, costs or expenses for the benefit of the other and though several offers were made by the Applicant to the Respondent to assist her financially if she needed such assistance, none was sought by the Respondent nor provided by the Applicant;
d)During the relevant period the parties did not acquire or otherwise enter into ownership of any jointly owned property. The sum of the property was acquired by the Applicant and his own cost and his own use, being “a pushbike”;
e)During the relevant period neither party, on the evidence before the Court, expressed a commitment to a shared life, but both parties were questioning whether or not it would be possible for them at any time in the future to resume a shared life;
f)The parties’ relationship was not registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
g)The parties have no children either together or individually.
h)No evidence was led by either party in relation to the reputation and public aspects of their relationship during the relevant period or at all.
On consideration of the evidence of the parties outlined above and having regard to all the circumstances of the parties relationship during the relevant period, I find that during the relevant period the parties did not have a relationship as a couple living together on a genuine domestic basis, but had a relationship as a couple who had been in a de facto relationship and had separated and were still communicating in relation to each other’s welfare in relation to their individual views as to whether or not it would be possible for them to resume their de facto relationship at any time in the future.
In this regard I prefer the evidence of the Respondent as to her view of the endpoint of the parties’ de facto relationship and I find that on no later than 2 February 2016 the Respondent made a decision that the de facto relationship between herself and the Applicant had broken down irretrievably at that point.
Should the Applicant be granted leave pursuant to section 44(6) of the Act?
The relevant parts of section 44 of the Act[16] are:
[16] Family Law Act 1975 (Cth), s 44.
Section 44 Institution of proceedings
…
(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.
(5A) However, if proceedings are instituted by an application made with the consent of both of the parties to the de facto relationship, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.
(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted; or
(b) in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.[17]
[17] Family Law Act 1975 (Cth), s 44(5), (6).
The Relevant Facts
The Applicant’s affidavit sworn or affirmed 29 March 2018 and filed with his Initiating Application gives some very brief evidence about the financial history of the parties’ relationship relevant to a consideration of the question of leave.
The Applicant deposes that the parties lived together at his parents’ home while saving for a deposit on a house. The Applicant contributed financially and non-financially to the household from his earnings whilst the Respondent was able to accumulate her earnings. By March 2013 the parties had accumulated sufficient funds to place a 5% deposit on the property at E Street, Town B (“the Town B property”) and the parties proceeded with the purchase of the Town B property in the Respondent’s sole name, moving into occupation of the Town B property in June 2013.
The Applicant deposes that he was:
Responsible for partial payment of the mortgage and all our bills and day-to-day expenses. I also purchased most of the furniture and white goods. I also spend substantial amount of money to undertake renovations and improvements to the [Town B]’s property.
He further deposes that he was:
Responsible for the repairs around the unit as it was an older property and [the Respondent] and I equally contributed to the housework and household errands.
The Respondent in her affidavit sworn 8 March 2019 tells a somewhat different story. She deposes that during the parties’ de facto relationship she was employed throughout either on a part-time basis while studying or on a full-time basis after completion of her studies, but that the Applicant was not in paid employment throughout the whole period of the de facto relationship and that during these periods of the Applicant’s unemployment she supported him financially, deposing that:
I bought most of [the Applicant’s]’s clothes and also paid when we went out for dinner.
She further deposes that in … 2011, after she had commenced working full-time for Employer F, the parties opened a joint banking account and every week the Respondent deposited $500 into that account and, in addition, deposited any overtime or extra savings that she had into the joint account.
She deposes that:
[the Applicant] made a few contributions to this account but not the same extent that I did [sic].
In early 2013 the parties began looking online for properties to purchase, but did not have sufficient funds for a deposit until the Respondent’s grandparents gifted her the sum of $9,500, which she deposited into the joint savings account in about February 2013.
The Respondent deposes that in May 2013 she was able to purchase the Town B property in her sole name, utilising the savings in the joint account, including the money gifted to her by her grandparents, and a loan account obtained through Aussie Home Loans secured on the Town B property by mortgage. She deposes that her grandmother gifted her a further sum of $3,206 and that she paid the sum:
…into the mortgage
And:
…also contributed various sums to the mortgage from my Commonwealth Bank Smart Access account.
The Respondent deposes that after the parties moved into the Town B property she organised for kitchen tiles to be installed at a cost of about $500 and that both she and the Applicant contributed to the payment of this sum equally. On 4 March 2014 the Respondent paid $878 to install a built in wardrobe in the second bedroom and also had a built in wardrobe installed in the main bedroom at a cost of $925 to each of the Applicant and the Respondent.
The Respondent deposes that during their cohabitive relationship at the Town B property she was responsible for paying the strata fees, council and water rates, electricity account, the car registration and the car insurance. She asserts that the Applicant:
…did contribute a minimal amount to cover his costs of living. He also signed up and paid for NBN internet.
The Law relating to leave under section 44(6) of the Act
An often referred to starting point is the passage from the judgment of Nygh J in the Full Court’s decision in In the Marriage of Jacenko:[18]
As I stated in my decision of Frost and Nicholson (1981) FLC ¶91-051, a prima facie case should be judged on the evidence put forward by the Applicant in her affidavit evidence available at the time of the hearing of the application for leave.
The Respondent may demur that the evidence which the Applicant seeks to rely upon is not sufficient to justify the costs involved. In so holding, I followed the views expressed by Lindenmayer J. in Perkins and Perkins (1979) FLC ¶90-600; (1979) 4 Fam. L.R. 634. And I wholeheartedly accept the qualification that he introduced there; that there may be situations where, because of lack of clarity in the evidence of the Applicant, oral evidence may have to be called and cross-examination may have to be allowed.
But the general principle is that on the issue of the establishment of a prima facie case the Court proceeds on the basis that the evidence of the Applicant, unless it is inherently unbelievable or contradictory, should be accepted, and the Court should therefore decide whether or not on that basis a prima facie case has been made out. If leave is granted, then it is for the Court conducting the ultimate hearing to determine whether that prima facie case can be established.[19]
[18] In the Marriage of Jacenko (1986) 11 Fam LR 341.
[19] In the Marriage of Jacenko (1986) 11 Fam LR 341, 343.
Later in his Honour’s judgment, his Honour noted:
The issues then before his Honour were those which have been established in this court as long ago as 1977 in McDonald and McDonald (1977) FLC 90-317; (1977) 3 Fam LR 426. The Applicant must establish three principal matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time; secondly, that denial of the wife's claim would cause her hardship; and thirdly, an adequate explanation as to her delay.
That third requirement must now be read, subject to the decisions of the Full Court in Althaus and Althaus (1982) FLC 91-233; (1979) 8 Fam LR 169, and Howard and Howard (1982) FLC 91-234; (1979) 8 Fam LR 178 which indicate that in appropriate cases the degree of hardship to be suffered by the Applicant may well outweigh an inadequate explanation of delay.
If those three elements are satisfied, the court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice which the Respondent would suffer by reason of the delay in bringing the application.[20]
[20] In the Marriage of Jacenko (1986) 11 Fam LR 341, 343.
In Sharp & Sharp,[21] the Full Court said:
[21] Sharp & Sharp [2011] FamCAFC 150.
[12] It is important to bear in mind the purpose of s 44 in the context of the Act, which is that time limits are to be observed as the wording of that section makes clear. The principles concerning applications for leave to commence an action out of time are well-known. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; 139 ALR 1 at 8 McHugh J said:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often 3 years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates".
[13] At CLR 553; ALR 8 his Honour continued:
A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated ...
A limitation provision is the general rule; an extension provision is the exception to it ...
[14] There is nothing to suggest that this expression of the law in general is not entirely applicable to a consideration of s 44 of the Act. Indeed so much is seen from the opening words of the s 44(4), "[t]he court shall not grant leave under subs (3) unless".
[15] In In the Marriage of Whitford (1979) 24 ALR 424; 4 Fam LR 754; 35 FLR 445; (1979) FLC 90-612 (Whitford) the Full Court noted at ALR 433; Fam LR 761; FLR 455-6; FLC 78,146 that while the section intends to confer power to grant leave to avoid hardship, the "power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi".
[16] We accept that s 44(4) provides the criteria by which we must be satisfied prior to exercising our discretion to grant leave pursuant to an application brought under s 44(3). In accordance with s 44(4)(a) it must be established in this case that hardship would be caused to the husband if leave were not granted. If hardship is established, the court must nevertheless be persuaded that the discretion should be exercised in favour of the Applicant to grant leave to allow the application: Whitford.
Hardship
[17] It is well-accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.
[18] In assessing hardship in this context the well-established test is that the Applicant must have a prima facie claim worth pursuing or a "real" probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
[19] In considering the meaning of hardship, in Whitford at ALR 430; Fam LR 759; FLR 452-3; FLC 78,144 the court said:
... The requirement, that the court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the court that the Applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the court cannot be satisfied that hardship would be caused if leave were not granted ... If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the court cannot be satisfied that the Applicant or a child would suffer hardship if leave were not granted.
[20] Further at ALR 431; Fam LR 760; FLR 454; FLC 78,145 the court said:
... As a general proposition it might be said that, the inability of an Applicant to pursue a claim which in the circumstances of the Applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the Applicant will have to bear himself or herself are about as much or more than what the Applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either subsection 44(3) or 44(4) for saying that the right or entitlement lost must be a substantial one.
[21] At the same page the court continued:
In an appropriate case, and depending on the circumstances of the Applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value ...
[22] If an Applicant demonstrates hardship of the type discussed, then the Applicant must then persuade the court that in the exercise of its discretion leave should be granted.
Discretion
[23] In Whitford the Full Court continued at ALR 432-3; Fam LR 761; FLR 455; FLC 78,145-6 to consider the exercise of discretion:
Section 44(4) inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the court is satisfied that hardship would be caused ... Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date of the decree nisi, and the general policy of the Act which appears from s 44(3) and s 81 that financial relationships between the spouses should, wherever possible be brought to finality within a reasonable time after the dissolution of the marriage. Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the Respondent by reason of the delay, and the strength on the merits of the Applicant's case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones.
…
[27] We observe that subsequent Full Court decisions have indicated that the appropriate approach to a determination under this section necessitates a clear distinction to be made between the proof of hardship and a consideration of the consequential exercise of the discretion (See in particular Whitford at ALR 431; Fam LR 760; FLR 454; FLC 78,145; In the Marriage of Cox (1981) 7 Fam LR 627; (1981) FLC 91-068 (Cox); In the Marriage of Walker (1984) 9 Fam LR 983; (1984) FLC 91-564. See also Hedley v Hedley (2009) 42 Fam LR 147; 235 FLR 58 ; (2009) FLC 93-413; [2009] FamCAFC 179 at [132] (Hedley) per Boland J and at [218] per Cronin J).[22]
[22] Sharp & Sharp [2011] FamCAFC 150, [12]-[23], [27].
Later on in that judgment, the Full Court said:
[75] In Tamaniego v Tamaniego [2010] FamCAFC 254 (Tamaniego) O'Ryan J said at [162]:
[162] As to the second part of the exercise, the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties: see Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30. In Gallo v Dawson McHugh J referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or refusal of the extension of time ... In summary, in considering the second question the court may have regard to a number of factors that include whether the Applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the Respondent to the application for leave or other persons.
[76] In In the Marriage of Althaus (1979) 8 Fam LR 169 at 173; (1982) FLC 91-233 at 77,267-8 (Althaus), Evatt CJ stated, and the Full Court held that:
The requirement that the Applicant under s 44(3) give an explanation of the delay in bringing proceedings in my view requires a consideration of the whole period from the date of the decree nisi to the lodging of the application. It requires the court to consider whether the wife took all reasonable steps to pursue her claim or whether, on the other hand, she acted at any time as if she had no intention of proceeding or pursuing any claim at all against the husband. It requires the court to consider whether it can reach conclusions as to why the proceedings were started beyond the time lodged and whether those proceedings are attributable to default on the part of the Applicant.
[77] Of interest in this case Evatt CJ added at Fam LR 173; FLC 77,268:
Where hardship to the Applicant is established and there is no question of prejudice to the Respondent, the court should not seek to raise artificial barriers if the Applicant has behaved in a reasonably diligent manner in prosecuting her claim.[23]
[23] Sharp & Sharp [2011] FamCAFC 150, [75]-[77].
The Full Court further said:
[94] … In considering the question of prejudice, the court does not merely look at the time which has elapsed since the expiration of the limitation period.
[95] As Meagher JA observed in Ramadam v Leda Holdings [2001] NSWCA 41 at [6] (Ramadam) "it is the prejudice to the defendant as at the date of the filing of the statement of claim which must be examined, no matter what was the date of its origin". Although, in Ramadam the limitation period related to a personal injuries claim and particular provisions of the Limitation Act 1969 (NSW), the prejudice to the Respondent as assessed as at the time the application was filed is particularly relevant in assessing delay in the circumstances of this appeal: see In the Marriage of Hall (1979) 5 Fam LR 411; (1979) FLC 90-679 (Hall).
[96] Additionally, in these circumstances the fact that the wife may have reasonably expected that the husband would later bring an application does not ameliorate the prejudice that she may suffer as a result of the husband's delay.
[97] 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. The New South Wales Court of Appeal in McLean v Sydney Water Corporation [2001] NSWCA 122, per Giles JA (Hodgson and Stein JA agreeing) said at [22] that:
[22] … Prejudice engendered by delay and unlikelihood of a fair trial will be highly material, and if there is prejudice and unlikelihood of a fair trial that will tell strongly, often conclusively, against the grant of an extension of time. It does not follow that in the absence of prejudice (other than general prejudice) and unlikelihood of a fair trial it will be just and reasonable to grant an extension of time.[24]
[24] Sharp & Sharp [2011] FamCAFC 150, [94]-[97].
Two recent decisions of the Full Court have examined the relevant legal principles to be applied on hearing of Applications for leave to apply for property settlement orders out of time under section 44 of the Act. In Edmunds & Edmunds,[25] the Full Court stated:
[25] Edmunds & Edmunds [2018] FamCAFC 121 (Ryan, Aldridge and Watts JJ).
[16] The hearing of applications for leave pursuant to s 44(3) should be “summary in character” (Neocleous & Neocleous (1993) FLC 92-377 at 79,914) and not a final hearing of the matter (Whitford and Whitford (1979) FLC 90-612 at 78,143; Hedley & Hedley (2009) FLC 93-413 at [32] per Finn J and at [111] per Boland J). A detailed hearing of the case on its merits is not required (Althaus and Althaus (1982) FLC 91-233 at 77,267).
[17] In Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434 Macrossan CJ of the Queensland Court of Appeal, in the course of discussing s 31(2) of the Limitation of Actions Act 1974 (Qld), relevantly observed that:
… Applicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an Applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge’s mind of the material which the Applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular Applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial. There are some resemblances in this to the situation of a defendant who resists a summary judgment application. The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time. In any situation where proof of a case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration.
[18] The point to be drawn from this passage is that an Applicant for leave is not required to establish their final case on the leave application. Similarly, the Court is not to approach the application on that basis.
[19] In the context of an interlocutory injunction in a patent case but in terms that apply to all interlocutory injunctions, in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 (“Beecham”) at 622 the High Court described the inquiry the Court is to undertake in the following way:
The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Preston v. Luck; Challender v Royle. How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks.
[20] We consider that as an application for leave is also an interlocutory application, these principles appropriately apply in this case. Thus the Court, when considering the issue of leave and the strength of the proposed case, will look to see whether, in the event that the evidence remains the same at a final hearing, there is a probability that the Applicant would succeed in obtaining a property settlement adjustment in her favour. The Court does not undertake a preliminary trial but looks to see whether there is some or a fair or reasonable probability that relief will be granted.
[21] In Sharp at [18] the Court, consistently with Beecham in our opinion, considered that there must be a “‘real’ probability of success”.[26]
[26] Edmunds & Edmunds [2018] FamCAFC 121, [16]-[21].
Their Honours continued at paragraph 47:
[47] As the Full Court pointed out in Sharp at [18], “the well-established test is that the Applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
[48] That involves a consideration, but not a final determination, of the nature of the Applicant’s claim. In doing so, the Court must weigh the Applicant’s case against that of the Respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.[27]
[27] Edmunds & Edmunds [2018] FamCAFC 121, [47]-[48].
And, pointedly in this matter:
[72] In our opinion, the primary judge erred by not considering whether the wife had a prima facie case for, or a real probability of, obtaining a property settlement order that may well have fallen short of the outcome sought by her but nonetheless would see her obtain a greater share of the property available for division than the 31.2 to 32.9 per cent currently held by her.[28]
[28] Edmunds & Edmunds [2018] FamCAFC 121, [72].
Continuing on at paragraph 121, the Court held that:
[121] In Sharp the Court said:
[97] 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. The New South Wales Court of Appeal in McLean v Sydney Water Corporation [2001] NSWCA 122, per Giles JA (Hodgson and Stein JA agreeing) said at [22] that:
[22] Prejudice engendered by delay and unlikelihood of a fair trial will be highly material, and if there is prejudice and unlikelihood of a fair trial that will tell strongly, often conclusively, against the grant of an extension of time. It does not follow that in the absence of prejudice (other than general prejudice) and unlikelihood of a fair trial it will be just and reasonable to grant an extension of time.[29]
[29] Edmunds & Edmunds [2018] FamCAFC 121, [121].
In Gadzen & Simkins[30] (Murphy, Aldridge & Kent JJ) the Full Court examined the authorities on leave under section 44 of the Act as follows:
[29] The statutorily expressed requirements for the grant of leave in s 44(3) of the Act are in identical terms, for all practical purposes, as those requirements with the grant of leave under s 44(6). It follows that authoritative pronouncements as to the principles applicable to the operation of s 44(3) apply equally to s 44(6). In Whitford and Whitford (1979) FLC 90-612, 78,144 (“Whitford”) the Full Court stated:
Thus, on an application for leave under sec. 44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the Applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.
[30] Self-evidently, the Full Court there and subsequent Full Courts (as will be discussed) have emphasised that hardship within the meaning of the section must first be established for the discretion to grant leave to arise.
[31] In discussing hardship the Full Court in Whitford said At 78,144:
The hardship referred to in sec. 44(4) is the hardship which would be caused to the Applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the hardship, to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection is concerned. The requirement, that the Court must be satisfied that hardship would be caused if leave werenot granted, implies that it must be made to appear to the Court that the Applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the Court is concerned is not whether the Applicant or a child is suffering hardship, but the question is whether the Applicant or a child would suffer hardship if leave were not granted. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the Applicant or a child would suffer hardship if leave were not granted.
[30] Gadzen & Simkins [2018] FamCAFC 218.
[32] The Full Court then proceeded to discuss the meaning of “hardship”. In the course of that discussion the Full Court said At 78,144 – 78,145:
In our view the meaning of “hardship” in subsec. 44(4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment. Cf. the meanings assigned to “hardship” in the Shorter Oxford Dictionary and in Webster’s New International Dictionary…
…
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. As a general proposition it might be said that, the inability of an Applicant to pursue a claim which in the circumstances of the Applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the Applicant will have to bear himself or herself are about as much or more than what the Applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either subsec. 44(3) or 44(4) for saying that that the right or entitlement lost must be a substantial one.
[33] In Althaus and Althaus (1982) FLC 91-233, 77,266 – 77,267 Evatt CJ (with whom Marshall SJ and Strauss J agreed) observed of earlier cases:
…Now to some extent there may be an exercise of semantics involved here. The case of Mc Donald referred to a reasonable prima facie case as the test. Other cases such as McKenzie and Whitford suggest that the Applicant needs to show that she would probably succeed. In the case of Perkins and Perkins (1979) FLC 90-600, Lindenmayer J. suggested that the test was that there was a reasonable probability of the claim being successful…
In my opinion, sec. 44(3) and (4) are not intended to require a detailed hearing on the merits to determine whether the Applicant’s claim will succeed. The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the Applicant the right to litigate that claim.
[34] In Hall and Hall (1979) FLC 90-679, 78,627; (see also McCoy and Chancellor [2014] FamCAFC 62; Sharp v Sharp (2011) 50 Fam LR 567 (“ Sharp ”) and Edmunds & Edmunds (2018) FLC 93-847 (“Edmunds”)) the Full Court said:
Fundamental to that [a finding of hardship] is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept …
[35] In Sharp the plurality of the Full Court observed:
[17] It is well-accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.
[18] In assessing hardship in this context the well-established test is that the Applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exits is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
[36] In Edmunds the Full Court recently cited with approval the judgment in Sharp and said:
[17] As the Full Court pointed out in Sharp at [18], “the well-established test is that the Applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
[18] That involves a consideration, but not a final determination, of the nature of the Applicant’s claim. In doing so, the Court must weigh the Applicant’s case against that of the Respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.
[37] It follows from these authorities that the starting point in determining an application for leave is to consider the question of hardship which requires for its existence a conclusion that an Applicant has a prima facie or arguable case of substance having regard to all of the circumstances of the case. That must take into account the costs or likely costs to be incurred in pursuing the claim.[31]
[31] Gadzen & Simkins [2018] FamCAFC 218, [29]-[37].
These paragraphs were recently referred to by Kent J in the Full Court decision in Beckham & Quarrington[32] at paragraph 16.
[32] Beckham & Quarrington [2019] FamCAFC 114.
A neat summary of the required approach is stated by the Full Court in Edmunds:[33]
[33] Edmunds & Edmunds [2018] FamCAFC 121.
[5] The primary judge described the task before her in the following way:
[16] The authorities on the issue of an application pursuant to s44(3) are numerous. The Court must consider whether the Applicant has established:
a) A reasonable prima facie case for relief had proceedings been instituted in time;
b) That denial of the claim would cause the Applicant hardship;
and
c) An adequate explanation as to the delay.
[17] In appropriate cases the degree of hardship to be suffered by the Applicant may well outweigh an inadequate explanation of delay. Once the three elements are satisfied, in determining whether to exercise its discretion to grant relief, the question of prejudice which the Respondent would suffer by reason of the delay in bringing the application ought to be considered.
[6] Such an approach is consistent with the authorities: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J; McDonald and McDonald (1977) FLC 90-317 at 76,688; Jacenko and Jacenko (1986) FLC 91-776 (“Jacenko”) at 75,644; Sharp v Sharp (2011) 50 Fam LR 567 (“Sharp”).[34]
Has the Applicant established a reasonable prima facie case for relief, had proceedings been instituted in time?
[34] Edmunds & Edmunds [2018] FamCAFC 121, [5]-[6].
On the joint evidence of the parties the asset pool consists of the following:
| Assets | |
| The Town B property | $380 000.00 |
| Wife’s savings | $16 976 |
| Husband’s savings | $1 643 |
| Motor Vehicle A | $14 000 |
| Motor Vehicle G | $28 000 |
| Motor Vehicle H | $34 000 |
| Contents | $4 000 |
| TOTAL | $478 619 |
| Liabilities | |
| Loan account | $168 813 |
| Husband’s debt to his mother | $30 000 |
| Husband’s CBA credit card | $3 651 |
| Husband’s RACV car loan | $33 592 |
| Wife’s Trade Loan | $9 260 |
| TOTAL | $245 316 |
| Superannuation | |
| Wife’s superannuation | $33 850 |
| Husband’s superannuation | $16 169 |
| TOTAL | $50 019 |
The net matrimonial assets without superannuation are $233 303 and with superannuation $283 322.
In assessing whether or not the Applicant has a reasonable prima facie case for relief under section 90SM,[35] the Applicant’s case should be evaluated taking the Applicant’s evidence at its highest.
[35] Family Law Act 1975 (Cth), s 90SM.
The starting point is whether or not it is just and equitable in all the circumstances to make an order altering the property interests of the parties. The Applicant presents evidence, albeit somewhat limited to the present time, that during the currency of the parties’ de facto relationship from April 2009 until 2 February 2016, a period of two months short of six years, he made financial and non-financial contributions to the acquisition, conservation, and improvement of property forming part of the available asset pool at the time he filed his Initiating Application, and contributions to the welfare of the family unit constituted by himself and the Respondent.
The Town B property is in the sole name of the Respondent. Unless the Applicant obtains an order for adjustment of property interests under section 90SM of the Act,[36] he cannot achieve a sharing in the equity in the Town B property. It is just and equitable to proceed with consideration of whether or not the Applicant has a prima facie case for adjustment of property under section 90SM(4).[37]
[36] Family Law Act 1975 (Cth), s 90SM.
[37] Family Law Act 1975 (Cth), s 90SM(4).
Taken at its highest, the Applicant’s evidence could entitle him to a finding that the contributions between the parties from the start of their de facto relationship and up to the present time are in the range of between 20% and 30% by the Applicant and 70% to 80% by the Respondent. On the basis of the assets, liabilities and superannuation of the parties as set out above, if there is no adjustment between the parties and each retained the assets in their power, possession, or control and responsibility for their own liabilities, the current division of the net pool between the parties would be 4.4% to the Applicant and 95.6% to the Respondent.
On the available evidence, it would not seem that there was any basis for a further adjustment between the parties for the future needs factors referred to in section 90SF(3)[38] (as referred to in section 90SM(4)(e)).[39]
[38] Family Law Act 1975 (Cth), s 90SF(3).
[39] Family Law Act 1975 (Cth), s 90SM(4)(e).
On that basis, the Applicant has made out a reasonable prima facie case for relief had his Initiating Application been filed by 2 February 2018.
Would the denial of the Applicant’s claim cause the Applicant hardship?
As referred to above, if there were no adjustment of property between the parties by an order under section 90SM of the Act,[40] the Applicant would hold 4.4% of the net asset pool including superannuation. On the basis that I have found that he has made out a reasonable prima facie case, taking his evidence at its highest, for a division of the net asset pool between the parties as to 20% to 30% to the Applicant and 70% to 80% to the Respondent, if the Applicant is not able to proceed with his claim under section 90SM, he will suffer hardship that could not be cured under State legislation (the Applicant not being a co-owner on title to the Town B property with the Respondent) and his likelihood of success in any proceedings asserting an equitable interest in the property being sparse.
[40] Family Law Act 1975 (Cth), s 90SM.
If leave was granted to the Applicant to proceed with his Initiating Application filed out of time, that hardship would accrue to the Respondent in that if the Applicant’s claim is successful he would in all likelihood obtain an order for payment by the Respondent to the Applicant of the sum of money so as to achieve the appropriate percentage division of the net asset pool between them with the Respondent retaining the Town B property (subject to a sale of the Town B property by way of enforcement on a failure to pay).
The period during which the Applicant was out of time between 2 February 2018 and 29 March 2018 is less than two months. I am not aware on the evidence if there were negotiations between the parties leading up to the expiration of the standard application period.[41]
[41] Family Law Act 1975 (Cth), s 44(5).
In weighing the hardship to the Applicant and the hardship to the Respondent, I find that the Applicant would suffer the greater hardship if he is not granted leave to proceed.
Does the Applicant provide an adequate explanation for the delay?
The Applicant does not provide a specific explanation for delay because, on his evidence, he had not delayed, but had filed his Initiating Application within time (it being his assertion that the parties separated on 2 April 2016). The question of separation has been put to a threshold hearing and I have made the findings set out earlier in these reasons that the parties separated on 2 February 2016.
Accordingly, I find that though the Applicant does not provide a specific explanation for the delay explicitly, the explanation for his delay is necessarily implied in his assertion as to the time of separation. On that basis I find the explanation for delay adequate.
Leave is granted to the Applicant
On the basis that I have found that the Applicant has established a reasonable prima facie case for relief had his Initiating Application being filed in time, and that the Applicant would suffer hardship if leave were not granted.
I find that there is an adequate explanation for his delay in filing. I find that it is appropriate to exercise the Court’s discretion to make an order granting leave to the Applicant to apply after the end of the standard application period by extending his time to apply up to and including 29 March 2018, being the day on which his Initiating Application was filed.
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 20 September 2019
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