Khaddour and Jaouhara
[2004] FMCAfam 287
•18 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHADDOUR & JAOUHARA | [2004] FMCAfam 287 |
| FAMILY LAW – Property – application for leave pursuant to section 44(3) – hardship – delay adequately explained – leave granted. |
Family Law Act 1975
Whitford & Whitford (1979) FLC 90-612
Jacenko (1986) FLC 91-776
Kercher (1981) 7 FLR 216
Althaus (1982) FLC 91-233
| Applicant: | GHIWA KHADDOUR |
| Respondent: | FAOUZI JAOUHARA |
| File No: | PAM1311 of 2004 |
| Delivered on: | 18 June 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 16 June 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Ms N Sowaid |
| Solicitors for the Applicant: | Papantoniou & Associates |
| Respondent: | No appearance |
ORDERS
Pursuant to s.44(3) of the Family Law Act 1975 leave is granted to the applicant to institute proceedings for property adjustment.
Within 14 days the applicant’s solicitors shall serve a sealed copy of these orders upon the respondent in accordance with Order 5 made
28 May 2004.The applicant shall file and serve any s.79 application including supporting documents, that she wishes to make within eight (8) weeks from the date of these orders.
The applicant has leave to rely upon those affidavits filed in support of the s.44(3) application in the s.79 application.
The respondent shall file and serve a response, affidavit and financial statement within a further four (4) weeks.
The matter is listed for further mention at 10.30 am on 27 August 2004.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1311 of 2004
| GHIWA KHADDOUR |
Applicant
And
| FAOUZI JAOUHARA |
Respondent
REASONS FOR JUDGMENT
The application
This is an application by Ghiwa Khaddour (“the applicant”) pursuant to s.44(3) of the Family Law Act 1975 (the Act) for leave to institute proceedings under s.79 of the Act. Leave is necessary because more than twelve months has lapsed since the Decree Absolute of the parties’ marriage was ordered.
The applicant commenced these proceedings by her application dated 10 March 2004.
On 30 April 2004 the court made the following directions as to service:
(1)The matter be listed for mention before me at 10 am on 28 May 2004.
(2)The applicant has leave to file an application to dispense with service in court.
(3)Personal service of the application filed on 10 March 2004 is dispensed with.
(4)By way of substituted service a sealed copy of the application filed 10 March 2004, affidavit in support and a copy of the orders made today be served by ordinary prepaid post upon Marsdens Law Group, P.O. Box 291, Campbelltown, NSW, 2560 with a letter requesting that the said application be forwarded to the respondent.
When the matter was listed on 28 May 2004 there was no appearance by or on behalf of Faouzi Jaouhara (“the respondent”). That day the court made the following directions.
(1)The s.44(3) application filed on 10 March 2004 be listed for final hearing before me at 10.00 am on 16 June 2004.
(2)I DIRECT that the respondent file and serve a response, affidavit and financial statement by 4 pm 14 June 2004.
(3)The question of costs of the applicant be reserved.
(4)If the respondent has not filed a response or fails to appear or there is non-compliance with the directions made, that the matter may proceed on an undefended basis on 16 June 2004 and final orders may be made in favour of the applicant.
(5)The solicitor for the applicant cause a sealed copy of these orders to be served on a person apparently over 16 years of age at 10/35 McDonald Street, Lakemba by 4 pm 4 June 2004 with a request to send a copy of the sealed orders to the respondent.
After numerous valiant attempts to comply with the court’s service orders made 28 May 2004, the applicant’s solicitor personally placed the relevant documents under the front door at 10/35 McDonald Street, Lakemba. Prior to that the applicant’s solicitor had had numerous discussions with the respondent’s eldest son Youseff. The substance of those conversations confirmed that Youseff continued to reside at 10/35 McDonald Street, Lakemba, that he was aware of the proceedings, he was in regular contact with his father and that his father was aware of the proceedings. Having left the documents at 12 noon on 7 June 2004, later that day Youseff telephoned the applicant’s solicitor and she told him that she had delivered the documents to his home.
The respondent has not filed any documents in these proceedings. Nor did he appear on 16 June 2004 or arrange for somebody to appear on his behalf. I am satisfied that the respondent is aware of the proceedings. I contemplated whether I should further adjourn the s.44(3) application in the hope that the respondent would participate. I decided against further adjourning as it seemed likely that all that would be achieved was that the applicant would incur additional legal costs yet the court would be left in the same position on the next occasion as it is today. That is determining the matter with the participation of the applicant and no participation by the respondent. Thus, the matter has proceeded.
Chronology
The applicant was born on 5 October 1970 in Tripoli.
The respondent was born on 5 October 1958 in Tripoli.
The parties married in an arranged wedding on 2 August 1989 after which the applicant migrated to Australia. Other than short trips to Lebanon, the applicant has resided in Australia ever since.
There are three children of the marriage, Allessa Jaouhara born 20 June 1990, Rolina Jaouhara born 22 June 1994 and Hadi Jouhara born 22 September 1996. The children live with the applicant.
At the commencement of cohabitation the applicant did not have assets, liabilities or any financial resources. It appears that the respondent owned a home at 76 Henry Street, Guildford, the value of which is not in evidence. Nor is there any evidence whether the home was encumbered. Throughout the marriage the applicant was fully engaged as a homemaker and did not have paid employment. The respondent was fully employed, firstly as a train guard and later as a train driver.
After the respondent sold the Guildford property, the parties purchased “the former matrimonial home” at 94 Duntroon Street, Hurlstone Park. Settlement of the sale of the former matrimonial home was effected on 12 September 1997. It sold for $285,000. After payment of the mortgage and perhaps also costs associated with the sale, $180,770.60 remained. The solicitor acting on the sale paid the nett proceeds to the respondent. The applicant did not receive any of the proceeds of sale of the property. If there were other matrimonial assets the applicant is not aware of them and did not receive them.
About one month after the parties sold the former matrimonial home, the husband said he was going to Brisbane. The applicant has not seen him since.
In about December 1998 the applicant instructed solicitors to act on her behalf in family law proceedings. The solicitors set about attempting to establish the nature and distribution of matrimonial assets held by the respondent. The applicant explains, “I could not go ahead with the Family Court proceedings after March 1999 because I did not have a car and I had three young children and I did not want to travel on the train because my ex-husband was a train driver and I was too scared that he might see me. I found it too hard emotionally to continue because every time I tried to do something good for myself and the children there seemed to be too many obstacles in my way”. There were no Family Court proceedings, this appears to be a short hand way of describing possible future action.
On 9 February 1999 a Decree Nisi was pronounced.
The applicant explains that she was unable to speak English and started English language classes in 2002. She gives a graphic account of severe domestic violence, which if accurate is highly likely to have impinged upon her capacity to pro-actively pursue her s.79 entitlement.
On 1 November 2002 the applicant instructed Papantoniou & Associates to act on her behalf. The solicitors took action on her behalf, but did not advise her that she should make a s.44(3) Family Law Act 1975 application. On 11 September 2003 the solicitors filed a Statement of Liquidated Claim in the District Court against the respondent, the Commonwealth Bank and also the solicitors who acted on the sale of the former matrimonial home. Those proceedings are continuing.
In about February 2004 the applicant was advised by her solicitors that she should seek relief pursuant to the Family Law Act 1975.
In the years since separation the respondent has not seen the children, initiated proceedings served upon the applicant in order to do so and paid little and irregular child support. The applicant has supported the children on social security benefits since separation.
Relevant Law
In Whitford v. Whitford (1979) FLC 90-612, the Full Court of the Family Court said: “on an application for leave under s44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings”. Hardship to the applicant or a child of the parties is thus an essential pre-condition of the exercise of discretion. The nature of hardship is also discussed in Whitford (supra). It is a comparative concept that is concerned with the consequences of the loss of the right to litigate the claim. An applicant must demonstrate that they have a reasonable claim to be heard. See Jacenko (1986) FLC 91-776. Otherwise the applicant carries the onus of additionally explaining the delay in bringing the application. The absence of an adequate explanation, despite what was said by the Full Court in Kercher (1981) 7 FLR 216, is no more than a factor to be considered in the circumstances of the case. See Althaus (1982) FLC 91-233. It alone is not determinative of the application.
Finally, if all the above elements point to leave being given the court must balance the hardship to the respondent with the applicant’s hardship. Hardship to the respondent can result in the respondent’s inability to prepare and present their case; also because the respondent has ordered his or her financial affairs assuming that no s.79 claim was to be commenced. This list is not exhaustive.
Conclusion
The respondent does not challenge the applicant’s evidence. I am satisfied that I should and do for the purposes of these proceedings accept her unchallenged evidence contained in her affidavit sworn 9 March 2004.
The applicant’s sole income is $900 per fortnight paid by Centrelink. She and the children reside in a three bedroom Department of Housing home. She struggles financially to support herself and the children and I accept the submission made by the applicant’s solicitor to the effect that the applicant lives in parlous circumstances. The applicant has no assets of significance. Hardship may be caused by the loss of a comparatively modest sum. See Whitford (supra). The applicant seeks 80 per cent of the nett proceeds of the former matrimonial home and depriving her of that opportunity would clearly equate to hardship.
An applicant must show that they have a reasonable claim. The applicant made a significant contribution as a homemaker and parent prior to the parties’ separation. Subsequently and over many years the applicant has made a significant post-separation contribution to the welfare of the family. That is, in her care of the parties’ three children. The applicant seeks an outcome which depending upon the respondent’s income, other assets and financial future may be achievable. She has proper grounds for making a claim for a significant share of the matrimonial assets and I am satisfied that she has reasonable prospects of achieving an amount within the range contended for.
The applicant’s explanation of the delay in bringing her application is quite simple. Firstly, social isolation and fear of the respondent deprived her of the emotional strength needed to pursue her s.79 claim when she first instructed solicitors. She was in parlous circumstances and the totality of her circumstances overwhelmed her. Having acquired English language skills and grown in confidence, the applicant instructed solicitors who did not advise her to bring this application until early 2004. Once she received advice that there were statutory time limits she brought this application. In this regard she received poor legal advice, which advice was plausible to a lay person. It is not a situation where the advice received was so improbable that the court would reasonably have expected the applicant to seek a second opinion. I accept that because she was unaware of her rights after she had taken reasonable steps to ascertain them, that the applicant has explained her delay to the court’s satisfaction.
The final component of the exercise is balancing hardship. The respondent has lived the years since the decree of dissolution of marriage became absolute in the belief that no s.79 claim was to be made by the applicant. The respondent presents no evidence about the ramifications to him if leave is granted. In Whitford (supra) the Full Court said, “Having regard to the nature of the jurisdiction which this court exercised 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”. At p 78 146. I have already made findings concerning the applicant’s financial circumstances. The hardship to the applicant as compared to the hardship to the respondent is substantial. Indeed, on one view it is severe.
For these reasons I am satisfied that the applicant should have leave pursuant to s.44(3) and that her s.79 application should proceed.
The court will make directions for the future conduct of the matter. These orders and directions must be served in accordance with the court’s directions made 28 May 2004 within two weeks.
For these reasons I make the orders set out at the start of this judgment.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 17 June 2004
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