Jiao & Dong
[2021] FCCA 1598
•14 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Jiao & Dong [2021] FCCA 1598
File number(s): PAC 3284 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 14 July 2021 Catchwords: FAMILY LAW – de facto property adjustment proceedings – threshold hearing – declaration that de facto relationship existed made Legislation: Family Law Act 1975 (Cth), ss 4AA, 44, 79, 90RD
Migration Regulations 1994 (Cth), Schedule 2, cdn 801
Cases cited: Crick & Bennett [2018] FamCAFC 68
Marriage of Jacenko (1986) 11 Fam LR 341
Sharp v Sharp (2011) 50 Fam LR 567
In the Marriage of Althaus (1979) 8 Fam LR 169
Number of paragraphs: 93 Date of last submission/s: 29 March 2021 Date of hearing: 29 March 2021 Place: Parramatta Counsel for the Applicant: Mr Bank The Respondent appeared in person ORDERS
PAC 3284 of 2019 BETWEEN: MR JIAO
Applicant
AND: MS DONG
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
14 JULY 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Court declares, pursuant to s90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that the parties were in a de facto relationship, within the meaning of section 4AA of the Act, from about 2012 to December 2018.
2.The parties are directed to attend Conciliation Conference before a Registrar of this Court on a date to be advised.
3.Direct the parties, within 28 days, to provide updating financial disclosure to each other.
4.The proceedings are adjourned to 4 November 2021 at 9:30am for mention.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Jiao & Dong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These reasons for judgment relate to the determination of the Applicant Husband’s application for a declaration that a de facto relationship existed between the parties during the period from about 2012 to December 2018.
In the alternative, the Husband makes an application for leave pursuant to section 44(3) of the Family Law Act 1975 (Cth) (the Act) to commence property proceedings, pursuant to section 79 of the Act out of time.
The Wife opposed the Husband’s above proposed declaration and application for leave in the alternative.
A threshold hearing was held in relation to the above applications of the Husband and cross-examination was permitted by the parties. Both parties were cross-examined. One of two lay witnesses for the Husband was cross-examined. The Wife represented herself and the Husband was legally represented.
For ease of reference, in these Reasons the Applicant shall be referred to as the Husband, and the Respondent as the Wife.
PROPOSALS AND MATERIAL RELIED UPON
The Husband’s proposed Orders were set out in his Amended Initiating Application filed 25 September 2019.
The Husband relied upon the documents referred to on page 1 of his Amended Case Outline dated March 2021:
(a)Amended Initiating Application filed 25 September 2019 (with the Court observing that the Husband’s solicitors confirmed to the Court by email on 7 July 2021 that the Husband was indeed seeking declaratory relief and seeking section 44(3) leave in the alternative);
(b)His Affidavit filed 18 February 2021;
(c)His Financial Statement filed 12 July 2019;
(d)Affidavit of Mr B filed 2 November 2020;
(e)Affidavit of Ms C filed 25 November 2020.
The Wife relied upon:
(a)Response to Initiating Application filed 2 September 2019;
(b)Her Affidavits filed 2 September 2019 and 28 October 2020;
(c)Her Financial Statement filed 2 September 2019.
EXHIBITS
The following exhibits became evidence in the proceedings:
(a)Exhibit A: Diary entries of the Husband (In English);
(b)Exhibit B: Diary Entries of the Husband in Exhibit A (In Mandarin).
RELEVANT LEGAL PRINCIPLES
Section 4AA of the Act sets out the meaning of a 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.
As to the proper construction to be applied to section 4AA of the Act, the Court refers to relevant case law authority of the Family Court of Australia, as set out in the Full Court of the Family Court of Australia’s decision in Crick & Bennett [2018] FamCAFC 68 at paragraphs 13-14, including the decision in Crick & Bennett.
In relation to this matter, by reference to s 4AA of the Act, as set out above, the Court observes that the various “circumstances” of the parties’ relationship as set out in section 4AA(2) are not exclusive “circumstances” to be considered by the Court, and further, that it is not mandatory for each and every “circumstance” in section 4AA(2) to be found to exist by the Court before it can find that a de facto relationship existed. For example, it is not mandatory for the Court to find that the parties had a sexual relationship, whether for the whole or part of the relationship. A further example, in relation to the “circumstance”- “the nature and extent of their common residence”-is that it is not mandatory for the Court to find that the parties lived together for the whole or part of the relationship.
WHETHER THE PARTIES’ WERE IN A DE FACTO RELATIONSHIP BETWEEN 2012 AND DECEMBER 2018
In resolving the issue of the existence of the parties’ de facto relationship, the Court is required to have regard to all the circumstances of the parties’ relationship and determine whether they had a relationship as a couple living together on a genuine domestic basis. Those “circumstances” may include any or all of the matters set out in section 4AA(2) of the Act. The Court now proceeds to consider the circumstances of the parties’ relationship and make findings.
EVIDENCE
At the outset, the Court should state that it had concerns with the reliability of the Wife’s evidence.
For example, in the Wife’s copy of the Centrelink document signed by her on 28 November 2017, she states in question 10 that she separated from the Husband in 2008 whereas in her Affidavit filed 2 September 2019, paragraph 3, she asserts that the parties’ separated on 21 December 2010. The Court observes that in the statement of the Wife at item 83 of the Centrelink document, she declares that the information provided in the form is complete and correct, and that she understands, inter alia, that giving false or misleading information is a serious offence.
In question 14 of the Centrelink document, she asserts that she has filed for divorce (from the Husband) in 2009, whereas the divorce proceedings in the Federal Magistrates Court of Australia were instituted in 2012.
As to the Wife’s assertion in her Affidavit filed 2 September 2019 that her brother gifted her $200,000 to assist in the purchase of D Street, Suburb E (“the D Street, Suburb E property”), in cross examination the Wife stated that she could not recall the exact amount that her brother had given her because at that time she was suffering from serious depression. She had stated that she was able to contact her brother and confirmed that he had not provided an Affidavit to the Court.
Later, in cross examination, when it was put to the Wife, on behalf the Husband, that $100,000 was lent to the parties by the Wife’s brother to assist in the purchase of the D Street, Suburb E property, the Wife stated that not only her brother, but her sister and nephew had helped her with the purchase of the D Street, Suburb E property; this evidence was contrary to her Affidavit filed 2 September 2019 which had alleged that it was only her brother that had financially assisted the Wife in the purchase of the D Street, Suburb E property, apart from the mortgage loan from ANZ bank.
As to the Wife’s assertions in her Affidavit filed 28 October 2020 in relation to paying her mortgage in late 2013, the Wife conceded in cross examination that prior to purchasing the D Street, Suburb E property (which property had been purchased in about mid 2014), she did not own any other properties in Australia, and moreover that she had no mortgage indebtedness prior to purchasing the D Street, Suburb E property.
Accordingly, the Court proceeds with significant caution in relation to the Wife’s evidence.
The following recitation of facts represents findings by the Court unless a contrary intention appears.
The Husband was born in 1950 in China. The Wife was born in 1968.
In 2006, the Husband married the Wife. At this time the Wife lived in China.
At the time of the marriage, the Husband owned an investment property at Suburb F, a car and about $30,000 cash.
The Wife arrived in Sydney in 2007. When the Wife arrived in Sydney from China in 2007, the parties’ lived in a rented unit in Suburb G.
The Husband worked in the construction industry until he retired in 2015.
The Wife probably controlled to a significant degree the financial affairs of the parties’ household.
The Wife attended to domestic chores such as cooking and cleaning.
In 2008, the Husband sold the Suburb F unit and realised $46,000. He deposited that sum into the parties’ joint CBA account.
In 2010, the Wife obtained employment as a carer where she worked until 2016, and she earned about $800 gross per week.
On the balance of probabilities, the Court does not accept that the parties’ separated on 21 December 2010. The Court finds that the parties remained living together until about October 2013 when the Wife shared rented premises in Suburb G with one Mr H (see below).
In early 2012, the Husband purchased a pair of earrings for the Wife costing $1,400.
In July 2012, a Divorce Order was made between the parties. None of their relatives and friends were aware of the divorce. After the divorce, the parties’ continued their relationship as Husband and Wife, despite not living in the same residence between about October 2013 and January 2015.
On the balance of probabilities, the Court finds that the parties had a sexual relationship during their marriage and thereafter up until about late 2013, early 2014. Nevertheless, the Court finds that despite the likely cessation of the parties’ sexual relationship at about this time, the parties continued thereafter, and up until about the time of separation in late December 2018, to be physically affectionate with each other.
In about 2012, the Wife had married a Mr H in China. Upon the grant of his spousal Visa, Mr H came to Australia in about 2013. He lived in the same rented premises in Suburb G as the Wife from this time until about 2014 when he left those premises. (The Court observes that certain bank statements of the Wife were sent to the Suburb G address in about March 2014, and a letter from a real estate agent was sent to the Wife at the Suburb G address in June 2014).
On the balance of probabilities, the Wife and Mr H never lived together in a genuine Husband-and-Wife relationship. The Wife stated in cross examination that she was not physically intimate with Mr H. The Wife had gone to China in 2012, the day before her marriage to Mr H. Apart from the Wife alleging that she and Mr H lived together as Husband and Wife, which allegation the Court does not accept, she does not give any significant particulars of the content of that alleged Husband and Wife relationship.
The Wife, again, had asserted that she married Mr H in 2012 in China. She had stated, “Upon the grant of his spousal visa, Mr H joined me in Australia in about 2013… We separated, on about 27 October 2014, when Mr H left the Suburb G home.”
The Court observes that the period between the date of the Wife’s marriage to Mr H in 2012, and the date of their alleged separation on about 27 October 2014, is a period of two years.
By reference to the Australian Government, Department of Immigration and Border Protection Schedule 2, Visa 801-Partner documentary material provided to the Court by the Husband’s legal representatives, the Court observes, in relation to the BS-801 visa, that there is a two year wait out period which is described as follows:
In most cases, Applicants are ineligible to be granted the permanent Visa until two years after their application is made. This means UK-820 Visa holders are usually required to wait two years before their BS–801 application is able to be finalised.
Mr H’s marriage to the Wife in 2012, his coming to Australia in about 2013 upon the grant of his spousal Visa, and later living in the same residence as the Wife from 2013 to about 27 October 2014, and lack of any physical intimacy with the Wife, is consistent with Mr H seeking to comply with the above Schedule 2, Visa 801-Partner requirements with a view to obtaining such a Visa.
The Wife’s marriage to Mr H, on the balance of probabilities, was not a genuine marriage.
The Wife continued to reside in the rented premises at Suburb G until the lease expired in about January 2015. The Wife then moved into the D Street, Suburb E property to live with the Husband.
Despite the parties not living in the same residence between October 2013 and about January 2015, on the balance of probabilities, they continued their Husband-and-Wife relationship, including communicating and caring for each other, and enjoying intimacy; in this context, the Court refers to, inter alia, the contents of the Husband’s diary.
The Wife stated, in cross examination, that she had gone to Centrelink at about the time that she moved into the D Street, Suburb E property in about January 2015, where the Husband was then living, and had asked whether the parties could live under the one roof; the Court infers, on the balance of probabilities, that the Wife had sought clarification from Centrelink as to whether she could still receive Centrelink benefits in these circumstances. (The Court should state that it does not accept that the parties were merely living under the one roof in the D Street, Suburb E property from about January 2015, and it does not accept that they were merely in a landlord-tenant relationship from this time.)
The Wife refers to her copies of alleged rental receipts issued to the Husband, for specific alleged rental periods, during the years 2014, 2015, 2016, 2017, and 2018. The Court observes that the copy receipts do not cover the whole period from 2014 to 2018 and are sporadic, and the Wife conceded, in cross examination, that she did not consistently issue these receipts to the Husband. On the balance of probabilities, the likely purpose of the Wife issuing rental receipts to the Husband was to enable her to continue to receive Centrelink benefits.
The Wife had no formal rental agreement with the Husband. The Wife agreed in cross examination that she could have rented the D Street, Suburb E property to anyone, apart from the Husband.
In June 2014, the D Street, Suburb E property was purchased in the Wife’s name. The purchase price was $920,000. The Husband’s nephew, Mr B lent the parties’ $40,000 for stamp duty, which the Husband paid off later. The Wife borrowed $736,000 from the ANZ bank to fund the purchase. She refinanced this mortgage with NAB in about September 2015. The Court is unable to determine, at this interim stage, exactly how the balance of purchase price was funded although it finds, on the balance of probabilities, that the parties intended the D Street, Suburb E property to be their joint property.
In 2017, the Husband purchased 2 diamond rings for $30,000 and $24,000. He also purchased two watches costing respectively $10,000 and $25,000. He purchased this jewellery as investments and the Wife has retained these items.
The Husband purchased a sapphire ring for the Wife in 2018 for $850.
On 22 December 2018, the Husband left the D Street, Suburb E property. At this time the Wife wrote in the Husband’s diary, “Today’s matter is the most painful. Maybe it’s destined that all the things have come to an end.” She had also written in his diary, the next day, “Neighbour cut down two trees. My mood is still very heavy. Feels like my heart is just empty.”
Mr B, the nephew of the Husband, swore an Affidavit filed 2 November 2020. The Court accepts this evidence.
Since 2015, Mr B’s parents started coming to Australia to visit him twice a year and they would usually stay for 2 to 3 months on each visit. During his parent’s visits, the parties’ would frequently visit him and his parents, and Mr B recalls that the parties’ would meet with himself and his parents at least once a week either at his house or they would dine out together.
Not once during the parties’ visits did either of them mention to Mr B about their divorce, and it appeared to Mr B that nothing out of the ordinary had occurred regarding their relationship. He recalls that during the parties’ visits on occasions when they introduced themselves to other guests they would address each other as Husband and Wife.
Ms C, the sister of the Husband, swore an Affidavit filed 25 November 2020. She was cross-examined. The Court accepts her evidence.
Ms C was born in China. She has always been in frequent contact with the parties.
In January 2015, Ms C was contacted by the Wife informing her that the parties’ were under financial distress due to the purchase of the D Street, Suburb E property and that the Husband had rashes due to hot weather in Sydney. She transferred $2,000 to the Wife’s account for the purpose of purchasing an air conditioner for the parties.
Both Ms C and her Husband started coming to Australia to visit their son frequently since 2016 and they would usually spend 2 to 3 months on each visit. During these visits, the parties’ would frequently meet up with her and they appeared to Ms C to be in a normal Husband-and-Wife relationship on all occasions.
In January 2018, both Ms C and her Husband stayed at the parties’ residence for about a week. To Ms C, the parties’ appeared to be a normal couple who shared the same bedroom. Ms C also recalls that during the parties’ visits, on occasions when they introduced themselves to other guests, they would address each other as Husband and Wife.
Ms C gave oral evidence.
Ms C stated that whenever she introduced the Wife to others she always referred to the Wife as her sister in law.
Ms C stated that in 2016 the parties always came to her son’s residence for dinner, and they acted as Husband and Wife.
The Husband maintained a personal diary from at least 2006 to 2018. Exhibit B are copies of the Husband’s diary in the Mandarin language. Exhibit A is the English translation of the diary. The Court accepts the contents of the Husband’s diary as a truthful record of the matters referred to therein.
In the diary, there are many references to the Wife made by the Husband.
There are numerous references to the Wife in the diary in:
·March 2006,
·2007 (For example, the Wife, in 2007 “went to the butchers to make the barbecue skewers”);
·2008 (For example, the Wife, in 2008, “went back to China at 9 PM tonight. I went to see her.” And, in 2008, “(The Wife) at City J exchanged the 45000 AUD.”); and
·2009 (For example, the Wife, in 2009 “does health check-up, stayed at Ms K’s place”).
It is relevant to observe from the Husband’s diary, bearing in mind the Wife’s allegation that the parties separated on 21 December 2010 (which allegation the Court does not accept), the following entries in the diary relating to the Wife:
·2010: The Wife sent “5000 bucks to City J..”
·2011: The Wife “sent to China 12,000 AUD..”
·2011: The Wife “today changed a new mobile phone.”
·2011: The Wife “bought two diamonds in total 2000 bucks”
·2012: The Wife “bought a pair of earrings, 1400 bucks…”
·2012: The Wife “sent 2000 bucks AUD to big sister…”
·2012: The Wife’s “citizenship test, failed”
·2012: The Wife “sat the citizenship test, passed.”
The above entries in the Husband’s diary are consistent with the Husband’s contention that there was no separation between the parties from 21 December 2010.
It is relevant to observe from the Husband’s diary, bearing in mind the parties’ divorce made on 20 July 2012, and the Wife’s marriage to Mr H in 2012, the following entries in the diary relating to the Wife:
·2012: The Wife “called, talked about buying house in City J”
·2012: “At 7 PM in the evening, accompanied (the Wife) to Region L Council to swear at the citizenship ceremony…”
·2012: “In the evening, together with (the Wife), went to Ms Dong’s place to drink”
·2012: “In the evening, the couple invited me and (the Wife) to a Cantonese restaurant for dinner”
·2013: “at noon, went to RTA with (the Wife)..”
·2013: “(The Wife) bought two strings of red coral, 50 bucks.”
·2013: “In the afternoon, with (the Wife), went to city to take the monorail sightseeing train.”
·2013: “(The Wife) is having a surgery in hospital today in the morning, to remove the…”
·2013: (The Wife) is admitted to hospital again tonight for examinations on her heart”
·2013: “(The Wife’s) elder brother sent 45,000 bucks AUD”
·2014: “(The Wife) bought the D Street, Suburb E via auction, price at 920,000 bucks..”
·2014: “(The Wife’s) mortgage is all good…”
·2014: “Today is the day our new home got transferred in title…” (Court’s emphasis)
·The Husband records the Wife attending Court on three occasions namely 12 December 2014, 23 January 2015, and 4 May 2015; in this regard, the Husband asserts his understanding that the Wife was charged with assaulting Mr H.
·2015: “Today (the Wife) went back to China, the holiday is one month.”
·2017: “Took a walk in the city with (the Wife)..”
·2017: “In the evening, (the Wife) performed cupping on my back, release blood, etc”
·2017: “Went to Suburb M party BBQ. (The Wife) went with me.”
·2018: “(The Wife’s) birthday. Invited N, O and another three people I don’t know.”
·2018: “Today’s matter is the most painful. Maybe it’s destined that all the things have come to an end.” (This diary entry was written by the Wife)
(The Court observes that the Wife was cross-examined in relation to this entry of the Wife in the Husband’s diary on 22 December 2018. Inter alia, the Wife had stated that she had always treated the Husband as a best friend. She had further stated, “For all the things I did for him, he was not grateful.”)
·2018: “Neighbour cut down two trees. My mood is still very heavy. Feels like my heart is just empty.” (This diary entry was written by the Wife)
The above entries in the Husband’s diary are consistent with his contention that after the parties’ divorce, they continued their relationship as Husband and Wife up until late December 2018. The above entries are inconsistent with a relationship between the parties of merely landlord and tenant.
The Court observes that there were entries made in the Wife’s previously discussed Centrelink document, dated 28 November 2017, which were consistent with the Husband’s contention that he maintained a de facto relationship with the Wife following the parties divorce in 2012 and up until December 2018.
For example, in the above Centrelink document, the Wife asserts that the parties’ are free to use the same kitchen. She asserts that the parties’ use the same bathroom albeit they lock the door when the other person is using. She asserts that she does the cleaning albeit that the Husband cleans his own room. She asserts that the parties’ share the use of a car being registration number …, having been purchased in 2012.
Further, in the above Centrelink document, the Wife asserts that since the parties’ separated in “2008”, she has treated the Husband like a friend, and that her relationship with the Husband is peaceful.
In summary, having regard to the above evidence, the Court is satisfied, on the balance of probabilities, that having regard to all the circumstances of the parties’ relationship, they had a relationship as a couple living together on a genuine domestic basis from about 2012 until December 2018, and they were in a de facto relationship during that period.
APPLICATION BY THE HUSBAND, IN THE ALTERNATIVE, SEEKING LEAVE TO COMMENCE PROPERTY PROCEEDINGS UNDER SECTION 79 OF THE ACT OUT OF TIME AND PURSUANT TO SECTION 44(3) OF THE ACT
Should the Court be incorrect in determining that the parties had a relationship as a couple living together on a genuine domestic basis from about 2012 until December 2018, and they were in a de facto relationship during that period, then the Court would nevertheless grant leave to the Husband to commence property proceedings under s79 of the Act out of time and pursuant to section 44(3) of the Act. The Court now sets out its reasons in this regard.
The parties had married in 2006 and a Divorce Order was made on 19 June 2012 with such Order to take effect on 20 July 2012.
On 12 July 2019, the Husband had commenced proceedings in this Court seeking, inter alia, Final Orders in relation to the existence of a de facto relationship between the parties from about 2012 to December 2018. He had not sought Orders seeking leave under section 44(3) of the Act.
On 25 September 2019, the Husband filed an Amended Initiating application seeking interim Orders, to be determined by the Court separately as threshold issues:
(a)Whether a de facto relationship existed between the parties for about 2012 to December 2018 such that a declaration pursuant to section 90RD(1) of the Act can be made; and
(b)Whether the Court should grant leave pursuant to section 44(3) of the Act to allow the Husband to pursue Property Orders pursuant to section 79 of the Act out of time.
Section 44(3) and (4) of the Act provides:
Limitation on applications relating to certain maintenance and property proceedings
(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983
(a) divorce Order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an Order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the Court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a)--the date on which the divorce Order took effect; or
(d) in a case referred to in paragraph (b)--the date of the making of the decree.
The Court may grant such leave at any time, even if the proceedings have already been instituted.
…
(4) The Court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted;
In relation to an application for leave under section 44(3) of the Act, past decisions of the Full Court of the Family Court of Australia have indicated that the question is not whether the claim will succeed, but, “The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the enquiry into whether hardship will be suffered by denying the Applicant the right to litigate that claim.”
In the Marriage of Jacenko (1986) 11 Fam LR 341, the Full Court stated that the general principle is that the Court proceeds on the evidence of the Applicant, which should be accepted unless it is inherently unbelievable or contradictory.
The Full Court has indicated that hardship may be found when the Applicant has a prima face claim worth pursuing or one which has a real probability of success which would otherwise be lost: Sharp v Sharp (2011) 50 Fam LR 567.
Legal authorities have established that if the Court is satisfied that hardship would be caused, it should then proceed to consider whether leave should be granted. This is a discretionary matter, and the Court may have regard to a number of factors, including 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, or other persons.
As to delay explanation, the Applicant’s explanation for the delay, or the lack of it, is no more than one factor which weight depends on all the circumstances: see In the Marriage of Althaus (1979) 8 Fam LR 169.
In the instant proceedings, under section 44(3) of the Act, the Husband should have commenced property proceedings under section 79 of the Act, within 12 months of the Divorce Order between the parties taking effect, namely by 20 July 2013. Accordingly, the Husband is presently almost 8 years out of time, with the Court observing that he sought leave under section 44(3) of the Act on the filing of his Amended Initiating Application on 25 September 2019.
The parties formal marriage subsisted from 2006 until 20 July 2012; a marriage of about six years. There were no children of the relationship.
The Husband alleges that he brought into the marriage a property at Suburb F which was sold in 2008 realising $46,000. He alleges that he deposited that sum into the parties’ joint CBA account. He alleges that in 2008, the Wife transferred $45,000 from that account to purchase a property in China registered in the names of the Wife and her brother. In his Financial Statement filed 12 July 2019, the Husband alleges that he has a 70% share in that property in China with the estimated value of that share being $189,583.
The Husband alleges that he effectively provided the funds which enabled the Wife to make various payments to her family in China between the years 2007 to 2012. Specifically, the Husband alleges that from time to time, the Wife transferred amounts out of the parties’ joint CBA account to the Bank of China account in Australia, then from this bank to offshore accounts in China. These amounts were allegedly received by either the Wife or her relatives. For example, funds were allegedly sent by the Wife in 2010, $5000; in 2011, $12,000; and in 2012, $2000.
The Husband, between 2008 and 2012, allegedly sent back to China about $150,020 and which the Wife told the Husband that these transferred funds were used for investment.
The Husband alleges that he worked in the construction industry during the marriage up until he retired in 2015. He alleges that during the marriage since 2007, he provided his entire wage to the Wife, which moneys were used for the parties’ living expenses.
The Court notes the Husband’s allegation that the sum of $100,000 was provided by the parties from their joint account towards the purchase of the D Street, Suburb E property in July 2014. The Husband’s nephew Mr B had lent the parties $40,000 for stamp duty for the purchase of that property which the Husband paid off later. The Husband purchased jewellery in 2017 which is now the possession of the Wife and which has a value allegedly of some $50,550 (as at the date of filing of the Husband’s Financial Statement on 12 July 2019).
The Court observes that the Husband alleges that he has no real property registered in his name. He alleges that his only significant assets, in his possession, are a motor vehicle and a bank account with modest funds. He alleges he has no superannuation. He alleges that he resides with his cousin in a home unit at Suburb P. Again, the Husband is aged 70 years, and the Wife is aged 53 years.
Should the Court be incorrect as to its previous findings in relation to the existence of a de facto relationship between the parties, then the Court would find that the Husband has a prima facie claim worth pursuing or one which has a real probability of success, under section 79 of the Act, which would otherwise be lost if he was not granted leave to commence property proceedings under section 79 of the Act out of time. The Court is satisfied that the Husband would suffer hardship if leave were not granted.
As to the Court’s discretion to grant leave to the Husband under section 44(3) of the Act, the Court infers, based upon the whole of the material before the Court, including the Court’s above factual findings in relation to the existence of the parties’ de facto relationship, that the Husband did not commence property proceedings under section 79 of the Act in time because he regarded the parties’ Husband-and-Wife relationship as subsisting after their divorce in 2012 and up to December 2018. Accordingly, the Court is of the view that the Husband would have a reasonable explanation for delay in commencing property proceedings under section 79 of the Act in time.
Based upon the whole of the material before the Court, the Court is of the view that the granting of leave to the Husband to commence property proceedings under section 79 of the Act out of time would not prejudice or impose hardship on the Wife. Inter alia, the Court observes that the parties have produced certain historical financial records in relation to the parties’ respective allegations made in these proceedings.
Accordingly, and again, should the Court be incorrect as to its findings relating to the existence of a de facto relationship between the parties, the Court would nevertheless grant leave to the Husband to commence property proceedings under section 79 of the Act out of time, pursuant to section 44(3) of the Act.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 14 July 2021
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