Jennings and Reeves

[2016] FCCA 1619

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENNINGS & REEVES [2016] FCCA 1619

Catchwords:
FAMILY LAW – De facto property proceedings – Application by Respondent de facto wife for summary dismissal of Applicant de facto husband’s property proceedings – Application for summary dismissal dismissed – Application for leave to proceed out of time by Applicant de facto husband – 2 month delay – Hardship to Applicant – No prejudice to Respondent – Application for leave to proceed out of time allowed.

Legislation:

Family Law Act 1975, ss.44(5), 44(6), 90UJ, 90UC, 90SM
Federal Circuit Court of Australia Act 1999, s.17A

Federal Circuit Court Rules 2001, r. 13.10, 13.10(c), 24.04

Cases cited:

Jeffries & Jeffries [2016] FCCA 454

Applicant: MR JENNINGS

Respondent: MS REEVES

File Number: PAC 767 of 2014

Judgment of: Judge Newbrun

Hearing date: 18 November 2015

Date of Last Submission: 18 November 2015

Delivered at: Parramatta

Delivered on: 10 June 2016

REPRESENTATION

Applicant:

Respondent:

Appeared in person

Appeared in person

ORDERS

1. The Respondent’s Application in a Case filed 22 January 2015 is dismissed.

2. Pursuant to section 44(6) of the Family Law Act 1975 (Cth) the Applicant is granted leave to commence his proceedings out of time.

3. Each party shall file and serve a formal Financial Statement within 8 weeks. In relation to the Financial Statement of the Respondent wife, she shall disclose all of her interests in real estate and other property, regardless of the name in which that property is held. Regarding the husband’s Financial Statement, he shall also ensure that such statement sets out any interest in companies.

4. Each party shall file and serve a short updating affidavit, within 28 days, such affidavit to be no longer than 6 pages (and containing no more than 10 pages of annexures).

5. If not already filed or exchanged, the parties shall, within 28 days, comply with their duty of full and frank disclosure pursuant to Rule 24.04 of the Federal Circuit Court Rules 2001; most particularly by serving on the other party:

   (a)A copy of the party’s 3 most recent taxation returns and assessments;

   (b)The completed superannuation form for any superannuation interest of the party and for a self-managed superannuation fund the trust deed and copies of the 3 most recent financial statements for the fund;

   (c)If the party has an ABN, copies of the last 4 business activity statements lodged;

   (d)A copy of the financial statements for the past 3 financial years, the constitution and the most recent annual return that lists directors and shareholders for any corporation in which any of the parties has an interest in; and

   (e)A copy of the financial statements for the most recent 3 financial years and a copy of the partnership agreement for any partnership in which a party has a duty of disclosure.

6. In the event the parties are unable to agree within 28 days as to the value of the Respondent’s jointly owned real estate properties as at the date of commencement of cohabitation as at separation date and as at presently, then the parties shall each obtain market appraisals, or other relevant evidence of each of the said properties such market appraisals or other relevant evidence providing an estimate of the said properties’ likely value as at date of commencement of cohabitation as at separation date and presently.

7. Within 21 days, each party must:

   (a)Specify any Orders sought in relation to any superannuation interest; and

   (b)Provide procedural fairness to any superannuation fund trustee.

8. Within 28 days, each party is to send to the other party a Short Case Outline setting out the party’s contention as to contribution based entitlements and the significant factors relied on, the party’s contention as to any s 75(2) adjustment sought and the factors in s 75(2) relied on (or the party’s contention as to any s 90SF(3) adjustment sought and the factors in s 90SF(3) relied on) and a draft of the order sought to give effect to the entitlement asserted.

9. Within 28 days, each party is to file and serve a Balance Sheet upon the other party. A Joint Balance Sheet noting the points of difference is to be filed by the Applicant with the Court no later than 48 hours prior to the next mention of the proceedings.

10. The proceedings are adjourned to the call over at 10:00am on 11 October 2016. At this time, the Court will consider whether the parties have complied with past directions of the Court, including today’s directions and whether they are otherwise ready to proceed with the proceedings.

11. In light of the above directions, neither party shall be permitted to file and serve any additional evidence, without the leave of the Court.

DIRECTIONS

1. Any service by the Applicant of documents upon the Respondent shall be through her Post Office Box address.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 767 of 2014

MR JENNINGS

Applicant

And

MS REEVES

Respondent

REASONS FOR JUDGMENT

1. On 22 January 2015 the Respondent de facto wife, Ms Reeves, filed an Application in a Case seeking, inter alia, to dismiss the de facto husband’s proceedings on a number of bases, being:

   1.That the Court Dismiss File number PAC 767/2014 by the Applicant due to out of time limits.

   2.That the Court Dismiss the matter by the Applicant in the interests of Justice due to an abuse of process by Applicant.

   3.That the Court finds the Applicant’s written Statutory Declaration dated 19.08.2008, filed in this court on 28.04.2014 be accepted as true evidence in which the Applicant makes no claim on the Respondent’s estate, income and assets in the event of death or separation.

   4.That the Court remove from the file the affidavit filed by Applicant dated 16.10.2014 due to an abuse of process and fraud.

   5.That in light of the Respondent’s employment, income and health, that there is no possibility of any payment or claim on her estate.

   6.That the Court grant both parties have no claim on the other’s income or assets.

2. The de facto husband’s Initiating Application was filed on 21 February 2014.  In that Application he seeks finals orders as follows:

   1.Within a period of fourteen days from the date of these orders the Respondent Defacto pay to the Applicant the sum of $90,000.

   2.Simultaneously with the payment referred to above, the Applicant shall relinquish any right to title or interest in any property of the Respondent.

3. Following the Respondent’s Application in a Case filed 22 January 2015 being filed, the Applicant filed a Response on 23 April 2015 seeking these orders:

   1.The Application for summary dismissal be dismissed. 

   2.In the alternative to 1 above, leave be granted to proceed out of time.

4. The Respondent filed a Response on 28 April 2014, responding to the Applicant’s Initiating Application filed 21 February 2014. In that Response the Respondent, inter alia, sought final orders as far as she was concerned that the Applicant pay her $181,800 and other orders as set out in that Response. The Court notes that in one of the later affidavits filed by the Respondent she appears to abandon any claim previously referred to in that Response against any assets of the Applicant.

5. The hearing of the Respondent’s application for summary dismissal of the Applicant’s proceedings was heard late last year. Each party appeared before the Court at that time legally unrepresented. Each party indicated to the Court what documents they relied upon in relation to the wife’s summary dismissal application and oral submissions were heard from the parties.

6. The Respondent for her part in support of her Application in a Case seeking, inter alia, summary dismissal of the Applicant’s proceedings relied upon 4 affidavits. She relied upon her affidavits filed 28 April 2014, 3 September 2014, 22 January 2015 and 30 October 2015.

7. The Applicant, for his part, relied upon his affidavits filed 21 February 2014, 21 October 2014 and 23 April 2015. 

8. The Court has considered all the affidavit material referred to above and has considered the submissions of the parties.

9. The Court quickly disposes of one sought order in the Respondent’s Application in a Case filed 22 January 2015. In paragraph 3 of the Respondent’s said Application she seeks the following order:

   That the Court finds the Applicant’s written Statutory Declaration dated 19.08.2008, filed in this court on 28.04.2014 be accepted as true evidence in which the Applicant makes no claim on the Respondent’s estate, income and assets in the event of death or separation.

10. In respect to this Statutory Declaration of the Applicant which is in evidence before the Court on this summary dismissal application again that Statutory Declaration is dated 19 August 2008 and is made by the Applicant alone, the Court notes that this document does not represent a binding Part VIIIAB financial agreement under the Family Law Act, 1975 (Cth) (“the Act”). To begin with as required by section 90UC of the Act, the Statutory Declaration is not expressed to be made under or pursuant to section 90UC; it is not expressed to be a financial agreement under Part VIIIAB of the Act. Moreover, pursuant to section 90UJ of the Act the document is not signed by both parties. Further, as averred to by the Applicant he did not obtain any independent legal advice in relation to that statutory declaration, before signing it. The Court emphasises, in this context, that it has just briefly stated that the Statutory Declaration is not a binding Part VIIIAB financial agreement under the Act. The Court is not stating that such document may not have some relevance in ultimate de facto property adjustment proceedings in this Court. It may well be depending on the final evidence before the Court and the wife’s submissions and the Respondent’s submissions that this document might assume some significance. The Court expresses no opinion in this respect at this stage.

Legal Principles

1. Again, the Court notes that the Respondent seeks to have the Applicant’s proceedings dismissed summarily on certain bases as set out in her Application in a Case filed 22 January 2015. 

2. The first sought order by the Respondent is as follows:

   That the Court Dismiss File number PAC 767/2014 by the Applicant due to out of time limits.

3. The Court refers to a helpful expose of relevant legal principles in relation to legal principles that the Court should apply when determining whether a matter is out of time pursuant to relevant provisions of the Act. In relation to such a leave to proceed out of time application, the Court refers to the decision of Judge Harland of this Court in the matter of Jeffries & Jeffries [2016] FCCA 454, decided on 25 February 2016. In that decision her Honour sets out legal principles that the Court should follow when considering an application by an Applicant for leave to proceed out of time:

   [15] I should note that the application proceeded on the affidavits and submissions only without cross-examination which is the usual course in applications of this type. Neither counsel agitated for any different course to be adopted.  Nygh J refers to the general principle on the issue of the establishment of a prima facie case is that the Court proceeds on the basis that the evidence of the applicant, unless it is “inherently unbelievable or contradictory”, should be accepted.  That is a fairly low bar, but there is a bar to establishing that there is a prima facie case. 

   [16] The cases of McDonald & McDonald (1977) FLC 90-317 and Whitford & Whitford (1979) 90-612 refer to reasonable prima facie case.  The consideration does not end at whether or not there is a prima facie case but I will deal with that application first.  As indicated previously, the husband’s evidence is scant.  The husband does not say what he thought the house was worth at the time of separation.  He does not give a context to the settlement at the time.  He does not give particulars as to the conversation he alleges about her superannuation. 

   [19] The second element is hardship. As the Court made clear in Sharp & Sharp (2011) FamCAFC 150, the inability to pursue a claim is not in itself hardship.  It is necessary to consider the merits of the application if leave was to be granted because if there is no real prospect of success, then it cannot be found that the applicant would suffer hardship.  The Court also stated that the hardship is not necessarily tied to a monetary value.  The husband does not elaborate on any hardship other than not being able to pursue his claim.

   [20] The next issue is an adequate explanation for the delay.  On the husband’s case, he says that he had no need to bring any proceedings until he found out about the wife’s health and her decision to withdraw her superannuation because she had not yet retired.  One of the gaps of the husband’s evidence is any attempts to raise this issue before commencing proceedings. If one was to accept his evidence on face value, then that could be seen as an adequate explanation for the delay.

   [21] The next issue is the prejudice to the respondent. The husband says that the wife is not prejudiced by the proceedings.  He did not expand on that.  Nygh J referred to prejudice in Jacenko & Jacenko as being beyond nuisance and annoyance and there is no doubt that an application of this type, to the wife in particular, is a nuisance to her and an annoyance. One of the real issues of prejudice to the wife, and particularly given that the husband’s application is for a just and equitable property settlement of all the parties’ assets, and given the nature of the allegations that he makes about waste, in order for the wife to meet that claim, she would need to be able to obtain evidence to refute it.

   [24] I want to refer to in more detail the Full Court authorities on the point of this type of application because one thing that is very clear is that in this type of case, as in any other case, essentially, it is about doing justice as between the parties.  I considered the issues in the case of Mackrell & Mackrell (2015) FCCA 1996 in which the Full Court decisions of Whitford & Whitford and Sharp & Sharp were considered.

   [25] In Whitford the Full Court said at [78,146]:

   “The determination how this discretion should be exercised, must depend on the facts of the particular case. Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date of the decree nisi, and the general policy of the Act which appears from s.44(3) and s.81 that financial relationships between the spouses should, wherever possible be brought to finality within a reasonable time after the dissolution of the marriage. Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength on the merits of the applicant's case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones. 

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

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

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

   The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". [Footnotes omitted]

   At 553 his Honour continued:

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

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

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

   [27] In terms of prejudice to the respondent, the Full Court in Richardson & Richardson (2000) FLC 93-012 considered this issue, that the prejudice to the respondent is looking at the respondent’s ability to meet the claim.  I have already referred to documentary evidence.  There may also be a lack of availability of witnesses. The authorities also go beyond that when considering prejudice to the respondent, and one of the relevant factors is and what was considered in Richardson & Richardson was that the respondent in that case had organised his finances and his life on the basis that the parties had implemented their financial settlement and, in that case, the respondent had re-married and carried out improvements on the former matrimonial home.

4. It is also appropriate to set out section 17A of the Federal Circuit Court of Australia Act 1999 headed, “Summary Judgment”. Section 17A provides, inter alia:

   (2)  The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if: 

   (a) The first party is defending the proceeding or that part of the proceeding;  and

   (b) The Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

   (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a)     hopeless;  or

   (b)     bound to fail; 

   for it to have no reasonable prospect of success.

5. The husband’s affidavit filed 21 February 2014 asserts, inter alia, that between 1 July 2006 and 26 February 2012 he contributed some $181,759 in financial outlays, covering rent, utilities, telephone, insurance, house repairs, gardening, cleaning and car expenses in the context of his de facto relationship with the Respondent. The Court notes that he annexes to his affidavit a summary schedule in relation to these asserted payments. 

6. In his said affidavit, the Applicant asserts regarding car expenses, that from late 2006 to December 2011, either he or his company paid the costs of the car which car was asserted to have been provided for the Respondent’s use.

7. In his said affidavit the husband refers to the Respondent’s income from two (2) sources during the de facto relationship; her (occupation omitted) income and her income from various rental properties owned by her jointly with another person. 

1. In his said affidavit the Applicant states that because he met all household expenses and the car expenses (apart from the Respondent’s fuel cost contributions), the Respondent was able to use her income to contribute to her mortgages and for her personal benefit.

2. The Applicant, in his said affidavit also refers to the wife’s remaining three (3) real estate properties such properties which he asserts are jointly owned by the Respondent with one Mr G, her former partner and states that the asset values of these real estate properties had increased between July 2006 and February 2014, in the sum of about $536,000.

3. In paragraph 10 of the Applicant’s affidavit filed 21 February 2014 and in his affidavit filed 23 April 2015, the Applicant refers to unpaid work that he carried out for the Respondent in relation to, inter alia, various legal actions being pursued by the Respondent together with assistance from the Applicant with managing the Respondent’s real estate properties and mortgages, her land tax matters and other matters related to her real estate properties. The Applicant asserts that this work for the Respondent provided financial benefit to her.

4. It can be seen or at least inferred from the above discussion as to aspects of the Applicant’s affidavit evidence, that the Applicant will seek to assert at any trial of these proceedings that he indirectly made relevant contributions towards the wife’s real estate properties, inter alia, through his rental and other payments and his non-paid work asserted to have been provided for the wife’s benefit.

5. The Court again refers to section 17A of the Federal Circuit Court of Australia Act 1999, providing that the Court may give judgment for one party against another if the Court is satisfied that the other party (in this case the Respondent asserts the other party is the Applicant) has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. In the context of hearing the Respondent’s present summary dismissal application, it is important that she understands that the Court is not deciding the case at this point. The Court is bound on the hearing of this application to ascertain whether the Applicant has a prima facie case to take to trial. There is established case law in relation to summary dismissal applications in this Court, indicating that in the present context, the Court should consider the Applicant’s asserted prima facie case at its highest unless on the evidence before it, the asserted prima facie case is inherently unbelievable or contradictory. 

6. The Court has referred to above aspects of the Applicant’s affidavit evidence indicating what would appear to be the essence of his property adjustment application against the Respondent. 

7. The Court notes that the Respondent in her affidavits strenuously seeks to assert both by her own statements and by annexed documents that the Applicant’s contentions are bound to fail and are baseless. 

8. The Court refers to the wife’s contention that the Applicant has admitted (or that there are documents which clearly establish) that all rental payments for the parties’ shared residences were met by his company. The Court, at this present interim hearing, does not accept again being bound to take the Applicant’s evidence in this context at its highest that the wife’s contention is made out. 

9. In respect to this contention of the Respondent again that it was the Applicant’s company which paid the rental for their various shared residences, the Court notes Annexure 25 of the wife’s affidavit filed 28 April 2014, being, inter alia, a letter dated 25 June 2011 on the Applicant’s company’s letterhead, such letter being addressed to a third party stating, inter alia:

   PROPERTY H

   …

   I would like the business [the Court interpolates here that this appears to be a reference to the Applicant’s company, which is stated on the letterhead] to continue to pay rent for at least two months to give [the Respondent] peace of mind …

   There is a DEFT automatic debit on the … business account ((omitted)) to pay $1,140 every fortnight. Next due 11 July 2011.

10. The Court notes that this letter was dated 25 June 2011, being very much towards the end of the parties’ de facto relationship.  The Court is of the view that Annexure 25 is not necessarily an answer to the Applicant’s assertion that he paid rent in circumstances where the husband was arguably in control of his company and any financial capacity of the company to pay the rent was likely, or at least arguably, due to his labours. Further, Annexure 25 does not clearly state from which time the business (again, the Court interpolates here that this is a reference to the Applicant’s company) had been paying the rent for the residence of the parties.

11. The Court notes, in the present context, that there is some evidence from the Applicant presently before the Court that the lease of the said Property H property was in the Applicant’s personal name. 

12. The Court should also refer to Annexure 41 to the wife’s above affidavit filed 28 April 2014, which the Respondent seeks to rely upon to meet the Applicant’s assertion that he personally paid the rent, whereas the Respondent asserts it was his company which was paying the rent. Annexure 41 is a document merely headed, “Consultancy Costing”, whose authorship is not stated. At this interim hearing, Annexure 41 is of no assistance in clearly resolving the Respondent’s assertion that is was the Applicant’s company that was paying the rent and not him personally.

13. As to the Respondent’s contention that the Applicant made no contribution to the mortgages on her jointly-owned properties, the Court has had regard to Annexure 12 to the Respondent’s affidavit filed 3 September 2014, being a signed statement by her former partner, Mr G, stating, inter alia, that he paid 80 to 100 per cent of all mortgages held with the Respondent during the period from 2006 to 2012.

14. Even accepting the contents of that statement of Mr G, it would appear that the Respondent, despite Mr G’s asserted financial assistance in significantly meeting the Respondent’s half-share of the mortgage repayments, was still paying up to 20 per cent of mortgage repayments during the period from 2006 to 2012.

15. In these circumstances, the Applicant’s assertion that his payment of rent on behalf of the parties together with his assertions relating to unpaid work provided for the financial benefit of the Respondent, arguably indirectly contributed to the preservation of the Respondent’s jointly-owned properties by enabling the Respondent to meet mortgage repayments in relation to the jointly-owned properties has, prima facie, some substance.

16. The Court also notes the Respondent’s assertion that she had a “deal” with the Applicant when she moved in with him that she was not paying “double rent” “and so [the Applicant] was responsible for all household rental and his own living expenses.” The Respondent annexes an email from the Applicant to a third party (Annexure 38 to the Respondent’s affidavit filed 28 April 2014) and dated 20 October 2011, stating by the Applicant, inter alia, that:

    [The Respondent] stopped work a couple of weeks after she moved in, six years ago and not ever having any financial contribution from her has always strained me, as does $590 a  week rent. I am living beyond my means here, because [the Respondent] and I agreed I would rent a house big enough for her kids to be able to stay here.

17. In the view of the Court, at least in the context of the present application by the Respondent for summary dismissal, such an agreement between the parties is not necessarily a legal answer to the Applicant’s contention at this interlocutory stage that his payment of rent for the parties’ residence during the relationship (together with other relevant payments) together with his asserted unpaid work for the Respondent which provided financial benefit to her, indirectly contributed to the preservation of the wife’s jointly-owned properties by enabling her to meet her share of the mortgage repayments over those properties.

18. Again, the Court notes the Applicant’s assertions in his affidavits regarding his unpaid work for the Respondent which he alleges resulted in consequential financial benefits to the Respondent. Again, the Applicant, the Court infers, would seek to contend in relation to this asserted unpaid work for the Respondent that he indirectly enabled the Respondent to meet her mortgage repayments in relation to her jointly-owned real estate properties and such unpaid work for the Respondent with consequential financial benefits to her constituted a relevant contribution or contributions to the preservation (and the Court interpolates here that the Applicant asserts in his evidence that the Respondent’s jointly-owned properties increased in value during the relationship) of her jointly-owned real estate properties. The Court notes that the Applicant’s evidence, in this context, in relation to his asserted unpaid work for the Respondent is set out in particular at paragraph 18 of his affidavit filed 23 April 2015, including Annexure JB of that affidavit. 

19. In the view of the Court, in the context of the present application for summary dismissal made by the Respondent, the Applicant does raise a prima facie case of relevant contributions having been made by him under section 90SM of the Act, to the preservation of the Respondent's jointly owned properties in that again, taking the Applicant's evidence at its highest through the Applicant's payment of rent for the parties' shared residences, together with other payments and together with the Applicant's evidence relating to his provision of unpaid work for the Respondent with resultant financial benefits accruing to the Respondent thereby, the Respondent was indirectly assisted in meeting her mortgage repayments on her jointly owned properties during the relationship.

20. Accordingly, pursuant to section 17A of the Federal Circuit Court Act 1999 and rule 13.10 of the Federal Circuit Court of Australia Rules, the Court is not satisfied that the Applicant has no reasonable prospects of successfully prosecuting his proceedings. The Court is satisfied, in the context of the present application by the Respondent for summary dismissal of the Applicant's proceedings that the Applicant has a prima facie case to be taken to trial.

21. In the Respondent's Application in a Case filed 22 January 2015, again, the first order that she seeks is that the Court dismiss the Applicant's proceedings, "due to out of time limits." The Respondent contends on the evidence before the Court that the husband is out of time to file his Initiating Application which was filed on 21 February 2014. The Court accepts this submission; however it notes that that is not the end of the matter.

22. In the wife's affidavit filed 28 April 2014, she, in Annexure 6 to that affidavit annexes an affidavit of the Applicant sworn 23 January 2013.  That affidavit of the Applicant was prepared in the context of legal proceedings between the parties in the Local Court at Burwood a few years ago.  In paragraph 1 of the Applicant's affidavit sworn 23 January 2013, he states, inter alia:

    I left the relationship because of her abuse and advised her on 31 December 2011. … I attended (omitted) police station. On 31 December 2011 [the Respondent] was arrested and charged with Assault and Intimidation … Police obtained an Apprehended Violence Order against her. 

23. The Court refers to further paragraphs of the Applicant set out in his affidavit in those earlier proceedings. Again, the Court accepts the submission of the Respondent that the Applicant's proceedings were probably commenced out of time but not by very much. On the evidence before the Court, noting section 44(5) of the Act, the Court finds that the parties’ de facto relationship probably came to an end on 31 December 2011. True it is on the evidence before the Court, that the parties finally physically separated on 26 February 2012 but the factual reality on the evidence before the Court is that the parties’ de facto relationship had probably come to an end by 31 December 2011.

24. Accordingly, under section 44(5) of the Act, the Applicant should have filed his Initiating Application within two (2) years of 31 December 2011; that is by 31 December 2013. Accordingly, the Applicant was almost two months out of time when he filed his Initiating Application on 21 February 2014. However, as noted previously in these reasons the Applicant seeks by his Response filed 23 April 2015 an order that leave be granted to proceed out of time.

25. Under section 44(6) of the Act, the Court may grant leave to the Applicant to proceed out of time if the Court is satisfied of certain matters. Those matters are set out in such cases as Jeffries & Jeffries, which the Court has previously referred to. Those matters include whether or not the Applicant has established a prima facie case in relation to his proceedings and again the Court has found earlier in these reasons that the Applicant has established a prima facie case.  The Applicant in relation to his application for an extension of time to commence proceedings being out of time by some two months must establish hardship if leave were not granted. The Court must also consider the Applicant's explanation for the delay in commencing proceedings and the issue of any relevant prejudice to the Respondent if leave is given to the Applicant to proceed out of time.

26. In relation to the hardship element that the Applicant must establish to be successful in obtaining leave to extend time, the Court notes that it has found that he has a prima facie case in relation to his proceedings and the Court has found that it is not satisfied that he has no reasonable prospect of successfully prosecuting his proceedings for de facto property adjustment. In this sense, the Court is satisfied that hardship would be caused to the Applicant if leave to extend time were not granted. In this context also the Court notes again taking the Applicant’s evidence at its highest, that he on one view is financially of modest means. The Court notes that his present Application seeks an order that the Respondent pay him the sum of $90,000.

27. Proceeding then to the exercise of the Court’s discretion to grant leave to extend time, the Applicant’s explanation for delay in commencing proceedings (again a period of some two months delay) and referred to in his affidavit filed 23 April 2015, is that the parties finally physically separated on 26 February 2012 and that was the date on which the Applicant formed the view the relationship ended.

28. This evidence of the Applicant is arguably inconsistent with his affidavit of 23 January 2013, paragraph 1, (again see Annexure 6 to the Respondent’s affidavit filed 28 April 2014) wherein he states that “I left the relationship because of her abuse and advised her on 31 December 2011.”

29. Whilst the above evidence of the Applicant indicates that his delay explanation is somewhat unsatisfactory, the Court is of the view bearing in mind legal authority indicating that a party’s delay explanation or lack thereof is no more than one factor whose weight depends on all the circumstances that this somewhat unsatisfactory delay explanation should not prevent the Court exercising its discretion to allow the extension of time sought by the Applicant. In this context, the Court notes the length of delay is only some two months. The Court notes again taking the evidence of the Applicant at its highest, that the Applicant’s financial situation appears to be modest, the Applicant’s sought property adjustment order of $90,000, the evidence before the Court indicating the Respondent has a joint interest in certain real estate properties and again the Court’s finding that the Applicant has established a prima facie case to be tried.

30. On the question of potential prejudice to the Respondent if leave to extend time in which to commence proceedings is granted to the Applicant that is, any potential prejudice occasioned to the Respondent by reason of the Applicant’s delay, the Court notes that the Respondent in her evidence strenuously resists the Applicant’s proceedings and his factual contentions. The Respondent does not assert nor did she submit in her oral submissions any specific prejudice to her should the Applicant be given leave to continue his proceedings by reason of his mere two month delay.

31. No party has submitted to the Court that relevant documents will now be unobtainable should leave be granted to the Applicant to commence his proceedings out of time again his delay being some two months.  The Court is not satisfied that there is any relevant prejudice to the respondent occasioned by his delay in commencement of proceedings should the Court grant leave to the Applicant to commence his proceedings out of time.

32. The Court refers to the balance of the orders sought by the Respondent in her Application in a Case filed 22 January 2015. The Court refers to the Respondent’s contention in her Application in a Case that the Applicant’s proceedings are an abuse of process and a fraud. The entitlement of a party to seek to dismiss proceedings as representing an “abuse of process” is picked up by rule 13.10(c) of the Federal Circuit Court Rules.

33. Past case law authority provides examples of what relevantly constitutes an abuse of process of proceedings, for example where proceedings instituted are being conducted for an ulterior purpose or where a party is seeking to re-litigate issues already addressed by the Court or for example, where the proceedings are frivolous and vexatious. The Court is not satisfied on the evidence presently before it that these proceedings represent an abuse of process or a fraud upon the Court.

34. The Court has also considered the Respondent’s proposed orders 4, 5 and 6 in her Application in a Case. This relief sought by the Respondent is rejected. On the evidence before the Court, the Court is not satisfied that the Applicant’s affidavit sworn 16 October 2014, and filed 21 October 2014, is an abuse of process and a fraud and the Court in light of its earlier reasons will not make the orders sought in paragraphs 5 and 6 of the Respondent’s Application in a Case. 

35. The Court in a moment will make its various orders and directions in relation to the proceedings currently before it. The Court confirms that pursuant to section 44(6) of the Act, that the Court is satisfied that hardship would be caused to the Applicant if leave were not granted to him to commence his proceedings out of time. Accordingly, the Court makes the following orders and directions.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:         19 July 2016