Kearney & Ormond
[2021] FCCA 1632
•3 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kearney & Ormond [2021] FCCA 1632
| File number(s): | SYC 6853 of 2017 |
| Judgment of: | JUDGE TERRY |
| Date of judgment: | 3 August 2021 |
| Catchwords: | FAMILY LAW – Property – application for leave to file an application for a property settlement out of time - where the wife received in excess of 50% of the non-superannuation assets at the time of separation - where on the information currently available the most the wife could hope to obtain would be a superannuation splitting order – where the wife is 47 and a modest income earner – where the wife does not have the means to pay the legal fees which would be involved – where allowing the wife to proceed would cause her hardship, not alleviate it – where the wife provided no explanation at all for her failure to file within time –- leave to institute proceedings out of time refused. |
| Legislation: | Family Law Act 1975 (Cth) ss 44, 75, 79 |
| Cases cited: | Carlon & Carlon [1982] FamCA 60 Whitford & Whitford (1982) FLC 91-233 |
| Number of paragraphs: | 91 |
| Date of last submission/s: | 3 May 2021 |
| Date of hearing: | 3 May 2021 |
| Place: | Newcastle |
| Solicitor for the Applicant: | Catalyst Family Lawyers |
| The Respondent: | Self Represented |
ORDERS
| SYC 6853 of 2017 | ||
| BETWEEN: | MS KEARNEY Applicant | |
| AND: | MR ORMOND Respondent | |
ORDER MADE BY: | JUDGE TERRY |
DATE OF ORDER: | 3 AUGUST 2021 |
THE COURT ORDERS THAT:
The Initiating Application filed on 4 March 2020 is dismissed.
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 Kearney & Ormond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY
Introduction
Ms Kearney (“the wife”) has applied to the court for property settlement orders. She seeks orders that Mr Ormond (“the husband”) pay her $150,000.00 and that a splitting order be made transferring to her 100% of the husband’s interest in the Super Fund B.
The parties are divorced and their divorce order took effect on 13 January 2018. The wife had 12 months from that date to file an application for property settlements orders. She did not file until 4 March 2020 and she needs leave to proceed with her application, and in her Initiating Application she asked the court to make an order granting her that leave.
The husband filed a Response on 22 April 2020 seeking that leave be denied.
The dispute about whether leave should be granted was originally listed for hearing on 3 September 2020. The hearing did not proceed on that day and was adjourned to 3 May 2021 when it was heard.
The evidence
The wife relied on her Initiating Application, Financial Statement and Affidavit filed on 4 March 2020.
The husband relied on his Response and Financial Statement filed on 15 April 2020, two Affidavits filed on 15 April 2020, a further Affidavit filed on 30 August 2020 and the Affidavit of his mother Ms C filed on 30 August 2020.
The wife’s solicitor objected to the husband relying on the affidavits filed on 30 August 2020 because they were filed late in terms of the trial directions made for the hearing which was listed on 3 September 2020. However that hearing did not proceed and wife’s solicitor has had eight months to take instructions about the affidavits. The late filing is not a reason not to permit the husband to rely on the affidavits.
The content of them might have been; they are replete with material which is in the nature of submissions, unqualified opinion, conclusions and which is irrelevant. However the wife’s solicitor chose not to take objections and the wife’s affidavit also contained material to which objection could successfully have been taken, and I must simply be as careful as I can not to place weight on inadmissible material.
The wife was given the opportunity by orders made both on the 22 April 2020 and on 14 September 2020 to file an additional affidavit or affidavits and she chose not to do so.
The hearing on 3 May 2021 proceeded by way of submissions. The wife’s solicitor made oral submissions and relied on written submissions filed on 1 September 2020 and on a Tender Bundle which I marked as an exhibit. The husband made oral submissions.
Background
The parties were both born and grew up in England. They married in 2002 and commenced cohabitation in a house in City D which the husband had purchased about two years earlier.
The wife was 29 and was studying health care. The husband was 26 and was working as an engineer.
In 2003 the parties went travelling and ended up in Country E where their son X was born in 2004. The husband obtained employment as a retail worker with Employer F and wife became engaged in home duties and looking after X.
The parties remained in Country E for 10 years. The husband was employed in a variety of positions. The wife was the primary homemaker and parent. In 2009 she began working part time as a public servant and in 2011 she began operating an online sales business.
In 2012 the parties purchased a home in Suburb G, a suburb of City H.
In mid-2013 the husband was offered a job in Australia and at Christmas 2013 the parties moved to Melbourne, where the husband became a Senior Manager for Employer J. In Australia the wife was engaged in home duties.
In 2016 the parties sold the Suburb G property.
In 2016 the husband accepted a job in Sydney. On the evidence of both parties the wife was not happy about the idea of moving. She remained in Melbourne with X and the husband commenced living in an apartment in Sydney. The husband made some trips to Melbourne and the wife and X went to Sydney to spend some time with the husband.
In late December 2016 or early January 2017 the wife rented a unit in Town K on the Region L and commenced living there with X. The husband continued to live in the apartment in Sydney but he visited the wife and X in Town K and continued to support the wife. At first she was able to use credit cards and draw on bank accounts as she had done in the past but in or about June 2017 he began to place $4,871.00 per month into an account for the wife’s use. He also made the monthly payments of $1,254.37 to M Financial Services for the motor vehicle which the wife was driving. The debt to M Financial Services was in the husband’s name but the vehicle was registered in the wife’s name.
The husband said that he also paid $400.00 per week to BUPA for medical insurance. The wife had many months to file an affidavit contradicting this and she did not do so and I accept that this occurred.
In August 2017 the husband sold shares he held in Employer J and Company N. He received a total of $236,820.00 and deposited the money into a CBA Bank Account which was in joint names.
On 7 September 2017 the husband sent the wife a letter telling her that he intended to apply for a divorce and containing a proposal for a property settlement. The wife maintained that this was the date of separation, although she gave evidence in her affidavit about believing well prior to that that the husband was having an affair and said that he had told her in January 2017 that he wanted financial independence.
In early September 2017 a child support assessment issued. The wife suggested that the husband initiated it and the husband suggested the wife did so. The latter proposition seems more likely but regardless of how it came about it showed the wife as having 100% care of X and the husband was assessed to pay child support of $2,294.00 per month. Upon the assessment issuing the husband ceased paying $4,871.00 and instead paid the wife $2,294.00 per month child support. He continued to make the payments of $1,254.37 per month for the motor vehicle.
On 13 September 2017 the wife transferred $184,125.00 from the joint account to an account in her name. She left $53,700.00 in the account which was the balance remaining on the loan to M Financial Services for the purchase of the Motor vehicle.
At or about the same time the wife engaged the services of Catalyst Family Lawyers to act for her and they sent the husband a request for disclosure. The husband also engaged lawyers and the lawyers corresponded back and forth.
On 17 October 2017 the husband sold his remaining Employer J shares and received $157,575.00. He subsequently used this money toward the purchase of a property in the Region O in South Australia.
On 18 October 2017 the husband filed an application for divorce in which he said that the date of separation was 2 March 2015. It was his case that the relationship between the parties had been breaking down when they were still living in Melbourne.
The wife said that she filed a response in which she asserted that the date of separation was 7 September 2017. She said in her affidavit that she indicated that she did not want the court to want the court to dismiss the application and that as a result a divorce order was made on 12 December 2017. The husband said that the Registrar made a decision about the date of separation. I have not had a look at the documents filed in connection with the divorce so I cannot be sure what happened but there is no doubt that a divorce order was made on 12 December 2017.
The husband said that in the second half of 2017 he made attempts to see X but he said, and the totality of the evidence makes it likely, that he was obstructed in that regard, even when he went to the child’s school. He said in his affidavit filed on 30 August 2020 and the wife did not seek to contradict that the last time he saw X was on 3 December 2017.
During 2018 the parties solicitors continued to exchange correspondence about property matters. The wife maintained that the husband was tardy in making disclosure. The husband strongly disputed this and referred to detailed information about his spending in the wife’s 4 March 2020 affidavit which he said could only have come from documents he supplied.
In March 2018 the husband ceased to make the payments on the Motor vehicle. He said that he was of the view that the wife had the capacity to make the payments.
On 15 May 2018 the wife’s solicitor sent a letter to the husband advising him that the wife no longer wanted to keep the Motor vehicle and had left it parked on the side of the road for him to collect. The husband drove to the Region L and picked the vehicle up. He has since made the loan repayments.
In June 2018 the wife relocated to England with X. She did not inform the husband that she intended to do so and he found out about it when someone who was acquainted with the family saw X in the UK and told him about it.
The husband was considerably aggrieved about the wife’s action in relocating to England with X. He sought legal advice and was given information about the Hague Convention. In line with the legal advice he received, in July 2018 he sent the wife an email saying that he was aware that X was overseas and he did not agree with him staying there. He did not receive a response but said that after careful consideration he decided not to pursue Hague Convention proceedings.
The husband said, and the wife did not say anything to contradict, that the wife made no attempt to correspond with him about X or explain why she had acted as she did.
On 17 August 2018 the wife purchased a 30% interest in P Street, City Q, UK for £63,000.00.
After the wife relocated to England the husband did not hear anything further from her or her solicitor until 1 April 2020 when he was served with the wife’s Initiating Application, Affidavit and Financial Statement.
The applicable law
Pursuant to s. 44 (3) of the Family Law Act an application for a property settlement shall not be instituted except by leave of the court or consent of both parties after the expiration of 12 months from the date the divorce order took effect.
The wife’s application was filed 14 months out of time. The husband does not consent to the application being filed and the wife requires leave of the court, and s. 44 (4) provides as follows:
(4)The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a)that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b)in the case of proceedings in relation to the maintenance of a party to a marriage - that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
In Whitford and Whitford[1] the Full Court said that in determining whether to grant leave the court had to engage in a two-step process:
(i)It must determine whether hardship would be caused to the applicant or a child of the marriage if leave was not granted.
(ii)If it is so satisfied it must determine whether, in the exercise of its discretion, it should grant or refuse leave to institute proceedings.
[1] Whitford & Whitford (1979) FLC 90-612
The onus is on the Applicant to satisfy the court that hardship would be caused if leave was not granted and the standard of proof is the balance of probabilities.
In Whitford & Whitford the Full Court said as follows about the meaning of “hardship” for the purposes of s.44(3) of the Family Law Act:
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 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. 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.
In recent years the Full Court has emphasised the need in determining if hardship would be caused by a refusal to grant leave the legal costs the legal costs which will be incurred in pursuing an application. In Gadzen & Simkin the Full Court said as follows:
It bears emphasis that, as the Full Court observed in Edmunds at [18], “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”. However, to establish “hardship” within the meaning of s 44 an applicant for leave must demonstrate a prima facie or arguable case of substance, having regard to all the circumstances of the case, taking into account likely costs.[2]
[2] Gadzen & Simkin (2018) FLC 93-871
If hardship is established the court must consider whether in the exercise of its discretion leave should be granted. In this context it looks at the Applicant’s explanation for the delay in filing the proceedings and the hardship or prejudice to the Respondent in granting leave as well as at other matters relevant to the particular case.
The parties’ current financial circumstances
The wife is 48. She is working three days per week as an office worker for a business and earns $422.00 per week. She receives a low-income government subsidy of $221.00 per week and child support of $537.00 per week.
According to her financial statement she has the following assets:
Description Value Share of property at P Street, City Q, UK $119,605.00 Bank R Account #...20 $6,645.00 Bank P Account #...68 $2,069.00 Motor Vehicle 2 $16,000.00 Household Contents $15,000.00 Total $159,319.00[3] [3] Total of $159,932.00 as recorded in the Financial Statement is incorrect.
The wife has superannuation of $1,500.00 with Super Fund S. She did not declare any liabilities.
The wife’s solicitor said that the wife’s legal costs up to and including the interim hearing were $9,020.00 and that her estimated costs to the conclusion of the final hearing were an additional $25,960.00. He said that any additional work required would be charged at $440.00 per hour.
The husband is 45. In his financial statement filed on 15 April 2020 he said that he was employed as a Senior Manager for Employer T in Sydney earning $6,365.00 per week or $330,980.00 per annum and $814.00 per week from an investment property.
According to his financial statement he has the following assets:
Description Value Property at U Street, Town V, Region O $560,000.00 CBA Bank Account #...87 $1,000.97 CBA Bank Account #...41 $99.39 CBA Bank Account #...48 $5,384.63 CBA Bank Account #...97 $1,464.40 CBA Bank Account #...50 $0.36 Motorcycles x 3 $20,000.00 Motor vehicle $40,000.00 Household Contents $20,000.00 Total $647,949.75
The husband has the following liabilities:
Description Value Mortgage U Street, Town V, Region O $531,222.00 CBA Loan $27,453.00 CBA Mastercard $20,543.00 M Finance $30,489.00 Total $609,707.00
The husband has the following superannuation:
Description Value Super Fund W $89,060.34 Super Fund B $19,713.76 Super Fund Y $67,765.00 Total $176,539.10
The wife’s submissions
The wife’s solicitor submitted that when the wife transferred $184,215.00 to herself in September 2017 she received a little under 50% of the cash available to the parties. That is not correct. She left only $53,700.00 in the account, so she received the majority of the cash available to the parties at that time.
In October 2017 the husband turned his remaining Employer J shares into cash and as a result he received $157,575.00. However although he also had the $53,700.00 which was left in the joint account he was liable for the debt to M Finance in this amount so the wife still had the majority of the non-superannuation assets.
The wife’s solicitor submitted that in addition the husband had superannuation which “dwarfed” the wife’s and that much is true.
The wife’s solicitor submitted that the wife had made contributions throughout the marriage as a homemaker and parent, supported husband in his corporate role and made some small financial contributions from her work as a public servant and her online business.
He said that at present the wife was working part time and was in receipt of a very modest wage and was partially reliant on government benefits and that X, now 16, had significant health needs.
In the written submissions prepared by counsel it was asserted that the wife was living frugally off $769.00 per month but that is not correct. She receives a total of $1,180.00 per week from her employment, government benefits and child support of $537.00 and her expenses are $769.00 per week. According to her financial statement she has $550.00 per week left after payment of housing costs, tax and motor vehicle expenses.
Nevertheless there is absolutely no doubt that the husband has a vastly superior income and much more cash available to him each week.
The husband also appears to have re-partnered although in the context of assessment of s. 75(2) matters that may not be a significant matter.
The wife’s solicitor submitted that although it looked as if the husband was asset poor, he had failed to provide updated disclosure and the wife (and the court) could not be sure that the figures in his financial statement were correct. He suggested that there was a possibility that the husband had failed to disclose funds or had engaged in profligate spending for which he might, if the wife’s application proceeded, be brought to account.
He submitted however that even if the figures in the husband’s financial statement were correct the wife would be entitled to a share of the husband’s superannuation and she may be awarded ongoing maintenance.
I accept that the wife may be awarded a share of the husband’s superannuation but there is no application for maintenance on foot and my attention was not drawn to any precedent in Australia for an order for spousal maintenance being used as a tool to achieve justice and equity when the parties are asset poor and one party is income rich.
Transferring all the available assets from the income rich party to the other party has been used, and in theory this could include the transfer of the entirety of one parties superannuation to the other party.[4]
[4] Best & Best (1993) FLC 92-418
The wife’s solicitor submitted that the wife was likely to receive more than 50% of the pool and that her legal costs were unlikely to exceed or come close to the amount she would receive.
He submitted that the wife had therefore established that she would suffer hardship if she was not given leave to proceed.
Turning to the second limb, the wife’s solicitor submitted that a delay of 14 months was minimal compared to the delay in other cases in which leave had been granted.
The wife provided no explanation for her delay in filing her application, but her solicitor asked the court to infer that the need for her to re-establish herself in England and source appropriate medical treatment for X provided a satisfactory explanation.
During oral submissions the wife’s solicitor referred to the wife’s evidence that the parties were of the Religion Z faith and to her assertion that she was quite subservient to the husband. It is unclear what he wished me to do with that submission but the wife’s actions in removing $185,000.00 from the joint bank account in September 2017, leaving the Motor vehicle on the side of the road and requiring the husband to come and collect it and relocating to England with X without the husband’s consent suggest the opposite.
The wife’s solicitor suggested that the husband was somehow responsible for a property settlement not progressing in 2018 because he had not provided full and frank disclosure and did not respond to a letter sent to him by the wife’s solicitor in June 2018. The husband strongly disputed that he had not provided full and frank disclosure and said that he had paid solicitors nearly $20,000.00 to represent him and had provided copious disclosure and made offers of settlement. However even if the husband was remiss with disclosure neither that, nor his failure to respond to a letter from the wife’s solicitor in June 2018 explains why the wife failed to file within time. If he was being tardy her remedy was to file an application; doing nothing was not going to help.
The wife’s solicitor submitted that no hardship would be caused to the husband if the wife was allowed to proceed with her application and that the court should in the exercise of its discretion make an order giving the wife leave to institute proceedings.
The husband’s submissions
The husband said that after the wife relocated to England there had been almost two years of silence until her application turned up out of the blue and he submitted that she had not provided any explanation for her delay in filing. He disputed that X had the health problems the wife claimed and disputed that the need to attend to his health issues would have prevented the wife filing an application for a property settlement within time.
The husband said that the wife received a large amount of the cash available at separation and there was very little property now available to divide between the parties. He submitted that the costs the wife would incur, which included not just the estimated costs to the conclusion of a trial of $35,000.00 but included $440.00 per hour for any additional work, would considerably exceed any cash she could hope to receive.
Whether the wife has established hardship
In Edmunds & Edmunds the Full Court discussed the nature of the Court’s task when determining an application for leave to proceed and said as follows:
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.
……………….
….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.[5]
[5] Edmunds & Edmunds (2018) FamCAFC 121
On the figures in the tables above the parties have non-superannuation assets of $197,651.75 and superannuation of $176,639.10, a total of $374,290.85.
The wife has about 45% of this pool overall. On the information available to the court it is likely that contributions to the pool would be assessed as equal, even if the husband has accrued superannuation since separation, and that there would be an adjustment in the wife’s favour for s. 75(2) matters. She is working and has property but an outcome of between 60-70% in her favour could well be the result if the matter went to trial.
There is therefore a probability that the wife would succeed in obtaining a property settlement in her favour but in the event the evidence remains the same it would largely be in the form of superannuation. The husband currently has net equity in property of only $38,000.00. The wife’s legal fees to the date of a hearing are estimated to be $34,980.00 and even if the wife received all of the real assets he now owned she would have little net gain.
The wife is only 47. I do not know at what age she will be able to access her superannuation, but legal proceedings might cause the wife hardship rather than alleviate it. She might receive a superannuation splitting order which might assist her in 15 or 20 years’ time but have to borrow money to pay legal fees to obtain it. The wife has only about $12,000.00 in savings.
The wife’s solicitor submitted that there was a prospect of the pool being bigger than it currently seemed. He submitted that the husband’s South Australian property may be worth much more than he estimated. However the wife went into the hearing of this application well knowing that she bore the onus of proving hardship. She had ample time to obtain a drive by valuation or take other steps which might cast doubt on the value put forward by the husband. Submitting pictures designed to show the property in an attractive light for rental or asking me to make inferences about it being a luxury property because of the amount being charged per night for accommodation in it is not a substitute for the wife making some effort to put information before the court about the value of the property.
The wife’s counsel raised the spectre of undisclosed assets but he was not able to point to any sign of that and at the same time he suggested that the husband was a profligate spender.
The wife could have addressed in her affidavit the fact that she might have to spend cash she did not have to obtain superannuation she could access in fifteen or twenty years’ time and explained why she still considered it worth her while to proceed, but she simply failed to address the issue and I cannot be satisfied on the balance of probabilities that the wife would suffer hardship if she was not permitted to proceed.
Whether in the exercise of the court’s discretion the wife should be given leave to proceed
If the wife cannot establish hardship that is the end of it but even if hardship had been established I would not in the exercise of my discretion have granted leave.
When considering whether to exercise its discretion in favour of a party seeking an extension of time the court always takes into account whether there is an explanation for the delay in filing[6] and this case is unusual in that the Applicant provided no explanation at all for the delay.
[6] Carlon & Carlon [1982] FamCA 60
The solicitor who acts for the wife now is the same solicitor who was acting for her in 2017 and 2018. He had already negotiated extensively on her behalf. He is an accredited family law specialist and he is well aware of time limits and of the option to commence court proceedings.
The wife did not suggest that he ever became unavailable to her. The highest the evidence in her affidavit went was to say that she had a number of things to attend to in England, but she did not suggest that she was so overwhelmed that she was unable to think of anything else. She did not suggest that she was suffering from anxiety and depression. She did not suggest that she was so overborne by the need to establish herself in England that she was unable to think rationally or make business decisions. She purchased an interest in a home in England in August 2018.
The wife’s solicitor skated over this and suggested that it did not really matter because there would be no prejudice to the husband if the wife was permitted to proceed. He had not re-arranged his affairs or made any decisions which meant that he would suffer hardship if the wife was allowed to bring her application now she had decided to get around to it.
However in Sharp & Sharp the Full Court said as follows:
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:
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.
The fact that the wife’s application was filed only fourteen months out of time does not help the wife. S. 44 (3) contains a time limit, and parties to a marriage are entitled to expect that it will be complied with and that once it has passed they do not have to be indefinitely looking over their shoulder in case an application is filed.
From the husband’s perspective there was simply two years of silence after the wife went to England and in Sharp & Sharp[7] the Full Court said as follows:
[7] Sharp & Sharp (2011) 50 FamLR 567
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.
The wife did not make even a token effort to explain her delay in filing an application and she cannot expect to just come to this court at a time of her choosing. The husband did not say or do anything to mislead the wife. She had retained in excess of 50% of the real assets in 2017 and that was followed by extensive correspondence between solicitors. He was entitled to assume that her silence after she went to England meant that there would be no further application. Therefore even if I had been satisfied that the wife had established hardship as that word is meant in the context of s. 44 (3) I would not have been prepared in the exercise of my discretion to grant her an extension of time to bring an application.
I intend to dismiss the wife’s application filed on 4 March 2020.
| I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry. |
Associate:
Dated: 3 August 2021
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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