IBBOT & BAUMER

[2018] FamCA 1157

FAMILY COURT OF AUSTRALIA

IBBOT & BAUMER [2018] FamCA 1157

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to apply – Where the father seeks leave to commence property adjustment proceedings out of time – Where the parties formally entered into final parenting Orders – Where the parties disagree about the start and end date of their relationship – Where there is no dispute that the father did not commence property adjustment proceedings within two years of the end of their de facto relationship, regardless of which of them is correct about the separation date – Where the father was aware of the limitation period and would suffer hardship if leave was refused – Where the father’s application has been dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ibbot

RESPONDENT: Ms Baumer

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

FILE NUMBER: LEC 310 of 2016

DATE DELIVERED: 15 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14, 15 and 16 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Boys

MPB Lawyers

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: O'Reilly & Sochacki

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders (Made on 14 November 2018)

1. That the applicant father’s application for leave to commence property adjustment proceedings arising out of the breakdown of the de facto relationship with the respondent mother is refused and the application is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ibbot & Baumer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 310 of 2016

Mr Ibbot

Applicant

And

Ms Baumer

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Yesterday morning, at the start of the parenting Orders trial between the mother and the father in this matter, I dismissed the father’s application for leave to commence property adjustment proceedings out of time. These are my reasons.

2. The parenting Orders proceedings were commenced by the father in 2016 in the Federal Circuit Court. They were later transferred to this Court and designated as a Magellan list matter having regard to allegations made by the mother against the father that he has indecently dealt with their two young sons.

3. The mother and the father had been in a de facto relationship when their 8 year old and 5 year old boys were born. They disagree about when that relationship started and they disagree about when it ended. The mother says that it ended in late 2012. The father says that it ended in May 2013.

4. In or around May 2015, the mother and the father entered into an agreed parenting regime the written terms of which were, with their consent, made into a parenting order. The arrangements that Order provided for broke down not long after, leading the father to commence the proceedings that are now before me in a trial.

5. At the time the former couple entered into those consent parenting orders they were both legally represented, I understand, by the same firms of solicitors which represent them in this trial.

6. Of course, the father had a statutory right to commence property adjustment proceedings within two years of the end of their de facto relationship. If the mother is correct about the date of their separation, he had until the end of 2014 to do that. If the father is correct about the date, then he had until in or around May 2015 to do that. There is no dispute that he did not commence property adjustment proceedings within two years of the end of their de facto relationship, regardless of which of them is correct about the separation date.

7. Now three and a half years after the date by which, on his case, at best, he should have commenced property adjustment proceedings he made his application for a grant of leave to proceed with those property adjustment proceedings.

8. He did that, orally, at the start of a parenting trial that has been pending since 2016 and has been set down for hearing this week now for several months. He did not file an application formally seeking leave to proceed and he did not file an affidavit of evidence specifically deposing to facts that he relied upon to support his case for leave to be granted. In pressing the application, the solicitor for the father made reference to some of the matters of fact that the father had deposed to in his affidavit of evidence in chief that he had filed for the trial that is going on, and to a Financial Statement that he had filed. That evidence had been prepared and filed, I apprehend, on the basis of a belief that leave would be granted and that a property adjustment dispute was going to be heard at the same time as the trial of the parenting proceedings. Some of that evidence went to issues of contribution, both financial and non-financial, that might normally be considered in property adjustment proceedings.

9. Section 44(6) of the Family Law Act 1975 (Cth) gives the Court a discretion to grant leave to a party of a de facto relationship to apply after the end of the two year limitation period for property adjustment Orders if the Court is satisfied that hardship would be caused to the party or a child if leave were not granted.

10. As to this issue of hardship, the solicitor for the father submitted that the evidence established that the mother owns her own home, subject to a mortgage, such that she has a few hundred thousand dollars’ worth of equity in it at the moment. The father, he said, concedes that the mother owned the home at the time their de facto relationship commenced and that he did not put any money into its purchase or towards the direct payment of the mortgage repayments whilst he lived in that home with the mother. The father owns nothing and never has. He, like the mother, is currently unemployed and they both survive on Commonwealth income support benefits at the moment.

11. The father’s solicitor pointed to the father’s evidence that he made non-financial contributions towards the renovation and maintenance of the mother’s home whilst they lived together; that he paid money that he earned or received towards the purchase of groceries used by the family during their time together; and that he made contributions towards the welfare of the family constituted by him, the mother and the two children in the form of parenting of the boys.

12. The father’s solicitor submitted that the father would clearly suffer hardship if he was not given leave to commence property adjustment proceedings now, albeit at least three and a half years after the expiration of the period within which he had an unquestionable right to commence those proceedings without the Court’s leave.

13. I accept that the father made out a prima facie case that he would suffer hardship if not granted leave. He has no assets. He survives on Commonwealth benefits and he appears to have made some contributions during a de facto relationship that lasted a few years or several years, whatever was its correct commencement date. He might very well have been able to persuade a Court that an Order requiring the mother to pay him a small sum of money whilst retaining her home would be a just and equitable property adjustment Order.

14. However, a finding of hardship is only a pre-condition to the discretionary determination of whether to grant the applicant leave to commence proceedings despite being out of time. A grant of leave to commence those proceedings out of time does not necessarily follow a determination that hardship would be suffered if leave were not granted.

15. Critically, in my judgment in this case, there was no evidence adduced by the father going to his state of knowledge of the existence of a limitation period and going to an explanation for the delay in bringing the application for leave. Notwithstanding the complete absence of evidence about those things, the solicitor for the father told the Court from the bar table that the father had been advised to bring the application when he could have brought it as of right and that the father had chosen not to bring the application for leave to proceed before now because he did not want to upset the mother. As I said to the father’s solicitor at the time during the hearing, that information given by him to the Court without being solicited by the Court was likely to be fatal to the father’s application. It was.

16. I was not persuaded that the discretion to grant leave should be exercised in circumstances where the father, I must accept, knew of the limitation period, was advised by his current solicitor to commence proceedings within that limitation period and clearly chose not to, and, further, chose not to press an application to be granted leave to commence proceedings out of time at any point in the last three and a half years, most of which time he has been involved in prosecuting these parenting orders proceedings before this Court, represented by the same solicitor who apparently advised him to commence proceedings within the limitation period and where no evidence going to these critical factual matters was even adduced by him in support of the oral application made yesterday.

17. That is why I ultimately refused the discretionary grant of leave. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 November 2018.

Associate: 

Date:  15 July 2019