Kucera and Kucera - [2007] FMCAfam 1187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUCERA & KUCERA

[2007] FMCAfam 1187

FAMILY LAW – Leave to bring property settlement proceedings out of time – husband bankrupt at time limitation period expired and since discharged – whether he could demonstrate a reasonably arguable claim.

Family Law Act 1975, ss.44(3), (4)

Whitford v Whitford (1979) FLC 90-612, (1979) 4 Fam LR 754
Hall v Hall (1979) FLC 90-679, (1979) 5 Fam LR 411
Althouse & Althouse (1979) 8 Fam LR 169, (1982) FLC 91-233
Carlon & Carlon (1982) 8 Fam LR 729, (1982) FLC 91-272
Neocleous & Neocleous (1993) 15 Fam LR 557, (1993) FLC 92-377
Walker & Walker (1984) FLC 91-564 (1984) 9 Fam LR 983
Jacenko & Jacenko (1986) 11 Fam LR 341, (1986) FLC 91-776
Howard & Howard, (1979) 8 Fam LR 178, (1982) FLC 91-234
Guirgis v Guirgisand Official Trustee in Bankruptcy, (1997) 21 Fam LR 356, (1997) FLC 92-726
O'Neill v O'Neill & Ors (1998) 23 Fam LR 326, (1998) FLC 92-811
Cummings v Claremont Petroleum NL (1996) 185 CLR 124

Applicant:

MR KUCERA

Respondent:

MS KUCERA

File number:

SYC3588 of 2007

Judgment of:

Halligan FM

Hearing date:

17 December 2007

Date of last submission:

17 December 2007

Delivered at:

Parramatta

Delivered on:

17 December 2007

REPRESENTATION

Counsel for the Applicant:

Ms Judge

Solicitors for the Applicant:

Eugene Lepore and Associates

Counsel for the Respondent:

Mr Kenny

Solicitors for the Respondent:

Coleman and Greig

ORDERS

The time within which the husband may institute property settlement and spouse maintenance proceedings under the Family Law Act 1975 is extended to 18 January 2008.
Pending further order the wife is restrained from selling, mortgaging or in any way dealing with the property known as Property F without first giving the husband at least 28 days written notice of her intention to do so.
If the husband fails to institute property settlement proceedings in accordance with order (1) then order (2) shall stand discharged on the expiry at the time referred to in order (1).

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

SYC3588 of 2007

MR KUCERA

Applicant

And

MS KUCERA

Respondent

REASONS FOR JUDGMENT

These are proceedings brought by the husband to extend time in which to bring property settlement and spouse maintenance proceedings under the Family Law Act 1975. The application is opposed by the wife.
If he is successful in his application to extend time in which to bring property settlement proceedings, the husband also seeks an injunction to restrain the wife from selling, mortgaging or in any way encumbering Property F in which she currently lives, without the husband's prior written consent. That application too is opposed.
The orders that the husband seeks leave to bring out of time are firstly in relation to property settlement that the wife transfer to him, unencumbered, all her interest in the property at Property F, and in relation to spouse maintenance, that she pay him the sum of $150 per week.
The parties commenced cohabitation in November 1971 according to the wife. They were married in 1972 and finally separated on in 1998.
According to the wife there were four prior separations, each of about one month's duration. They occurred in about September/October 1992, April 1994, June 1995 and January 1996.
A decree nisi dissolving the parties' marriage was pronounced on 28 January 2000. It became absolute on 29 February 2000. Thus the limitation period for the bringing of property settlement or spouse maintenance proceedings, which the husband acknowledges he was aware of at the time of the divorce, expired on 1 March 2001. The husband's application to extend time was filed on 18 May 2007. It is thus some six years, two months and 17 days out of time.
There are three children of the parties' marriage, all of whom are now adult; V, L and S.
The husband gives no evidence of property of the parties at cohabitation. The wife says that she had no property and that the husband had a half share in a property at Fxxx, being a property other than the one to which these orders relate. She says it was heavily encumbered. The parties lived there, according to her, until it was sold in mid 1973. The wife claims to have helped service the mortgage. As I understand it, the husband concedes that the wife was in employment during the marriage other than at times she was caring for the children. His evidence is that she worked during the marriage with time off caring for the children.
The wife's evidence is that at the time the husband sold his interest in Property F he netted about $2000. In 1975 the parties jointly purchased Property C for $18,000. The wife says that they also purchased a relocatable home which they moved onto the property for $6000. The parties then renovated the home.
In 1976 to 1982 the wife's evidence is that the parties lived with her parents at S. It is unclear what the financial arrangements, if any, may have been between the parties and the wife's parents in relation to the sharing of the premises and I am left to infer that the parties tenanted Property C during that period.
The wife received a $40,000 workers' compensation payment for a work related injury in 1982. In that year it seems that the parties purchased Property F which is the subject of the husband's application. The wife's evidence is that it was purchased for $52,000 and she says she contributed her compensation moneys, holiday pay of $2500, and $5000 savings that she had together with $6000 obtained by way of a personal loan from the Commonwealth Bank. This property was purchased in the joint names of the parties.
The wife asserts as a fact but gives no evidence to support the contention that the husband went on the title jointly with her in relation to this property because it was necessary for him to be a co-borrower of the personal loan of $6000. It does not seem to logically follow that because an unsecured personal loan was to be in joint names that therefore the property had to be in joint names. I can take that matter no further.
The wife claims that she asked the husband to transfer Property F to her in 1987 and that he said he would only do so if she paid him $50,000. The wife says that from 1987 to 1994 she paid the husband $50,000. She says she paid between $6000 and $7000 legal fees on behalf of the husband for a property dispute in South Eastern Europe over that period of 1987 to 1994. She says she paid $7000, which she says she obtained by way of long service leave and superannuation entitlements, to the husband in 1991. She says that in 1992 she paid $10,000 for an overseas trip by the husband. She says she paid the balance by "cash instalments".
These are matters not commented upon in any way directly by the husband. The extent to which they contradict the husband's contentions as to matters that might go to determining a reasonably arguable claim for property settlement, or for that matter spouse maintenance, it is appropriate that I proceed upon the basis of the husband's evidence simply for the purposes of determining whether time should be extended.
The husband's evidence, beyond a suggestion that he worked as a tradesman throughout the marriage and contributed his income, again made a bald assertion and not evidence of the fact, effectively starts in 1992 when he says that in April of that year the company, M Pty Limited was formed with the parties as directors and the wife as the secretary. The husband thereafter worked full time in the business of the company. He says that he was sued by someone and while that action against him was unsuccessful, he became concerned that if he were successfully sued, they may lose the real estate jointly owned by them. The husband claims it was for that reason that he transferred both the properties that is at Property F and Property C into the wife's sole name. At that point Property F was being used as the parties' matrimonial home and Property C was tenanted.
The wife says that on 27 October 1994 the husband transferred Property F to her and at that time a property valuation was obtained. It was a valuation as at 20 October 1994, and valued the property at $100,000. That seems to be a strange coincidence as it is exactly double the amount that inferentially the wife suggests some seven years previously she had agreed to pay the husband for the half interest in the property. How that $50,000 was in fact arrived at is really not explained. It remains to be tested in the further proceedings if time is extended.
The wife suggests, as I understand it, that Property C was transferred to her by virtue of a property settlement entered into between the parties at that time. She suggests the terms of settlement were prepared and she annexes to her affidavit an unsigned copy of terms of settlement. That document is unsigned and I note of course that the wife's evidence is that the parties were only separated for a total of one month in that year. It apparently seems to be the case that the wife was seeking to contend that the parties separated, saw solicitors, engaged in negotiations, reached agreement as to a property settlement, instructed a solicitor to prepare the terms of settlement and then carried that settlement into effect, absent signatures to the terms of settlement, all within that one month's separation. It seems a fairly tall order. Nonetheless, that is her contention. I am not entitled to disregard it as neither of the parties has been tested on their evidence.
Of course the husband denies that there was any property settlement effected at that time. He gives an entirely different explanation for the reasons why the properties were transferred into the wife's name and as I say, he was not tested either. Ultimately, in my view, because of the conflict on the evidence, I am not entitled to make a finding as to precisely why these properties were transferred into the wife's sole name.
I note that the wife says that she was the subject of a number of assaults, as were the children. Again this is an assertion of fact, not evidence to prove it. She suggests that the husband assaulted V at aged 18 in 1991 and there were criminal proceedings that flowed. She said V then left the parties' home to live independently. She says in September 1992 the husband assaulted her and she separated from the husband for one month. The following month she says that L left the former matrimonial home then aged 15, to live with V. In April 1994 she alleges that the husband assaulted her and S. Again, she left but returned after one month.
In 1995 she says that again the husband assaulted herself and S, then aged 13. She says S left home and shortly afterwards was placed in foster care. She says she returned to the matrimonial home and reconciled with the husband again after one month. In January 1996 she says that S returned to the matrimonial home and about a week later she claims that the husband assaulted both S and herself. Again, she left the home but returned after one month.
I can take these matters no further in assessing the matter today. As I say, the wife simply makes assertions of fact. She provides no evidence on which the Court could make any findings of fact. The assertions of assaults are conclusions and are not probative.
Apparently to further the scheme that the husband says that the parties agreed upon to in effect put the two items of realty beyond the reach of any creditors that he might have, the husband says that on solicitor's advice the wife signed a company cheque to him. He gave no indication for how much. He banked it and then when the cheque cleared he returned the money to the company account. I can only infer that evidence is to suggest how there was ostensible consideration for the transfer of these properties to the wife.
On 21 June 1996 the husband became bankrupt. He was not discharged for more than eight years later.
In May 1997 the parties' daughter, L, became a director of M Pty Ltd in place of the husband. As I say, the parties separated in mid December 1998.
In 1999 it seems that the husband's bankruptcy trustee, at that stage having caveated both the properties, sought to extend the husband's bankruptcy for five years and pursued Supreme Court action against the wife in relation to those properties. In November of 1999 settlement was reached between the wife and the husband's bankruptcy trustee in relation to the claims by the trustee under which the wife was to pay $20,000 and the caveats were to be lifted.
The husband suggests that in 1999 he sold building materials belonging to M Pty Ltd for $60,000. He suggests that $30,000 went to the wife, $20,000 went to what he refers to as the "bankruptcy people", presumably the husband's trustee in bankruptcy in relation to the claims on the properties, and the husband suggests he spent $10,000 on living expenses. There is no indication as to whether the husband disclosed receipt of that $10,000 sum to his trustee in bankruptcy.
In February 2000 the husband suggests he ceased work for M Pty Ltd. This was shortly after the divorce. In 2000 the wife sold Property C and the husband believes that the wife acquired an interest in a property at S. The wife has not filed a financial statement in these proceedings, though I note she gives her address as an address at S. Whether or not she owns that property is not disclosed by her.
In February 2001 M Pty Ltd was de-registered and in the same year the husband says the mother's cousin formed a company, D Pty Ltd, for which the husband worked as he had done for M.
The husband was ultimately discharged from his bankruptcy on 10 August 2004. Almost immediately thereafter he became the sole director of D Pty Ltd and thereafter operated the company and its business.
There seems to be no issue that the wife at no point asked the husband to vacate the Property F property, at least not before last year. Last year the husband saw solicitors who wrote to the wife seeking that she transfer the property to him. An exchange of correspondence then occurred between the parties' respective solicitors which failed to resolve the matter and hence the application before the Court now.
The husband currently is on a Centrelink benefit. I infer that it is the New Start Allowance, although he does describe himself in his documents as a company director/carpenter. Although he says he still attempts to work when he can and discloses his income to Centrelink, he discloses no actual income from that enterprise in his financial statement. His disclosed income is $235 per week. His disclosed property comprises $11,000 approximately in bank accounts, two motor vehicles which he believes are worth in total $800, and household contents which he believes are worth in total $300. He has interests in two superannuation funds worth a total of $4658 and has two credit cards, both in debit balances, a total of $9393.
In determining whether or not to grant the husband's application to extend time the matter is governed by sub-ss.(3) and (4) of s.44 of the Family Law Act which provide:
“(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a)     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; 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.”
Of significance of course is that the Court, whilst having power to extend the usual limitation period for property settlement and spouse maintenance proceedings, is enjoined by sub-s.(4) of s.44 not to extend that time unless it is satisfied of one of two things; that is firstly that hardship would be caused to a party of the relevant marriage or a child if leave were not granted, or in the case of proceedings in relation to maintenance, that at the end of the period within which the proceedings could have been instituted without 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.
So far as that last point is concerned in relation to the leave application for spouse maintenance, I will resolve it quite quickly. It was put that the evidence suggested the husband could not have supported himself at the expiry of the limitation period without such a benefit. The evidence is that he ceased work at about the time of the divorce. There is no evidence that he was not working 12 months later. In fact, the evidence is that he was working and in fact conducting the business of D Pty Ltd as if it were his own. The evidence therefore satisfies me that he could support himself at that stage. It was open to him to disclose the income he was in fact earning if it was of such a low level that he was entitled to income support. His failure to do so raises the inference that that evidence would not have assisted his case. I am not satisfied the ground under para.(4)(b) of s.44 exists.
The Full Court in Whitford v Whitford (1979) FLC 90-612 at 78,144 (1979) 4 Fam LR 754 at 759 said:
“On an application for leave under s.44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship will be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied then 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 in the sense used in s.44(4)(a) means substantial detriment (Hall v Hall (1979) FLC 90-679 at 78,627, (1979) 5 Fam LR 411 at 416).
In deciding whether hardship would be caused to the applicant or a child of the marriage if leave were not granted, the Court must consider:
a)“whether on the applicant's material he or she has a reasonable case to be heard by the Court” (Hall (above) FLC at 78,627, Fam LR at 417);
b)the financial and other circumstances of both parties; and
c)any other facts of a particular case relevant to the issue of hardship.
If satisfied of hardship, the Court must then consider matters relevant to the exercise of its discretion to grant or refuse permission to bring proceedings out of time. Those matters would usually include:
a)the length of delay in bringing proceedings;
b)whether there has been a reasonable explanation for delay;
c)the prejudice to the respondent that granting permission may cause; and
d)any other facts of the particular case relevant to the exercise of the Court's discretion, for example, any prior order or provision made between the parties.

The absence of an explanation for delay is no more than a factor to be considered in the circumstances of the case. It does not necessarily mean an extension of time will be refused (Althouse & Althouse (1979) 8 Fam LR 169, (1982) FLC 91-233, Carlon & Carlon(1982) 8 Fam LR 729, (1982) FLC 91-272, Neocleous & Neocleous (1993) 15 Fam LR 557, (1993) FLC 92-377).
Having regard to the nature of the jurisdiction which the Court exercises, the power to extend time under s.44(3) 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 (Whitford & Whitford, above, Fam LR at 761, FLC at 78,146).
Of relevance to this particular case, in Althouse & Althouse(above), Evatt CJ, with whom Marshall J agreed, said (Fam LR at 173, FLC at 77,268):
“The Family Law Act in s.81 encourages finality and a determination of financial relationships but looking at the Act as a whole it should not be seen as pushing people into commencing litigation where this is unnecessary. So long as the wife was content to rely on her husband continuing to provide her with accommodation she had no need to pursue a claim against him.”
It was put on behalf of the husband that the evidence demonstrates a reasonable case to be determined for property settlement relief. As I have indicated, the order that he seeks is a transfer of the Property F property to him and also for $150 per week spouse maintenance.
On behalf of the wife it is put that the husband has not demonstrated a reasonable case to be heard. It is put that the time at which a reasonable case is to be determined is the time at which the normal time limit for bringing such an application expired. It is put that at that stage the husband was a bankrupt and it is further put, as I understand it, that his right to bring property settlement proceedings vested in his bankruptcy trustee and he could not have brought such proceedings himself.
As to the date at which an arguable claim for property settlement relief is to be assessed for the purpose of determining hardship under s.44, there is certainly authority in Walker & Walker (1984) FLC 91-564 (1984) 9 Fam LR 983, a single judge decision of Asche SJ, that the time for testing whether the applicant has a reasonable claim to be heard is the time for filing the application. In that case his Honour found that at the time the limitation period expired the applicant – the wife in that particular case - did not have a demonstrated reasonable claim to be heard but because of circumstances that subsequently arose, by the time her application to extend time was filed, she could demonstrate a reasonable claim to be heard. His Honour dismissed the wife's application to extend time.
On behalf of the husband reliance is placed on a later Full Court decision in the matter of Jacenko & Jacenko (1986) 11 Fam LR 341, (1986) FLC 91-776, where Nygh J delivered the lead judgment with which Fogarty and Walsh JJ concurred. Nygh J said, (Fam LR at 343, FLC at 75,644) said:
“The applicant must establish three principle matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time; secondly, that denial of the wife's claim would cause her hardship; and thirdly, an adequate explanation as to her delay.”
His Honour went on to acknowledge “that the third requirement must be read subject to the decisions of the Full Court in Althouse (above) and Howard & Howard, (1979) 8 Fam LR 178, (1982) FLC 91-234, which indicate that in appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay”. His Honour also said that if the three elements he had identified were satisfied, a Court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice to the respondent as a result of the delay in bringing the application.
As was acknowledged by counsel for the husband in his submissions, the formulation in Jacenko has been overtaken by subsequent authorities and the preferred view would seem to be that there are two broad questions, as I have already referred to, and within those two broad issues the various considerations referred to in Jacenko ought to be taken into account.
But of course the point that is relied upon by the wife is the reference to the need to demonstrate a reasonable prima facie claim for relief had the applicant instituted proceedings in time. That is a curious proposition if in fact what is to be determined is, in accordance with s.44(4), that hardship would be caused to a party to the relevant marriage if leave were not granted. That clearly contemplates things at the time the matter is heard. And certainly an arguable claim for relief is not the only matter in relation to determining hardship but, as I say, if the matter would be heard if leave were granted at a date after the determination of the leave application, it seems strange indeed that the Court would be prevented, if that in fact is the true effect of Jacenko, from taking into account the current situation of the parties.
But ultimately I am satisfied that I do not need to take this matter any further because I am not satisfied on the other submission that was made on behalf of the wife and that went hand in glove with the submission as to the time at which the reasonably arguable claim is to be assessed. And that is that at the time the limitation period expired; the husband being then an undischarged bankrupt, his right to bring proceedings vested in the trustee.
In support of that proposition counsel for the wife relied upon commentary in Australian Family Law & Practice (CCH Australia), particularly as I understand it at pages 29,822 to 29,823 in Volume 2. There the commentators refer to two Full Court decisions, Guirgis v Guirgis and Official Trustee in Bankruptcy, (1997) 21 Fam LR 356, (1997) FLC 92-726 and O'Neill v O'Neill & Ors (1998) 23 Fam LR 326, (1998) FLC 92-811. Those cases both concerned whether or not a bankrupt appellant spouse had standing to appeal orders made under Part VIII of the Family Law Act. In each of them, following the High Court decision of Cummings v Claremont Petroleum NL (1996) 185 CLR 124, the Full Court found that the appellants did not have sufficient standing because of their bankruptcy.
The authors of CCH at page 30,014 suggest that the High Court in Cummins held:
“… that a bankrupt has no right to bring or prosecute proceedings to protect, enhance or add to the property of which he has been divested on bankruptcy.”
Of course this begs the question of what property is a bankrupt divested on bankruptcy? As I understand it, it was submitted on behalf of the wife that the learned authors of the CCH practice were suggesting, in reliance on the authority of the High Court decision in Cummings, and the Full Court decisions in Guirgis and O'Neill, that a right to seek relief under s.79 of the Family Law Act was a right that vested in the trustee on bankruptcy.
However, if that is what they are suggesting, in my view that is not, with the greatest of respect to the learned authors of the CCH practice, a correct analysis of Cummings or Giurgis or O'Neill. In fact, it seems to ignore parts of the Full Court decision in O'Neill. The Full Court in O'Neill referred to a number of prior cases dealing with whether or not a right to seek an adjustment of property interests under s.79 vested in the trustee on bankruptcy. There is a line of authorities that hold that it is not such an interest as vests in the trustee on bankruptcy (O’Neill, above, Fam LR at 342-346, FLC at 85,173-85,177). Further, the Full Court in O'Neill, in acknowledging explicitly the line of authorities that are against the submission that was put on behalf of the wife, did not overrule those decisions (Fam LR at 347, FLC at 85,177).
O'Neill did not concern a right to seek an adjustment of property interests under s.79. It was concerned with whether or not an undischarged bankrupt had sufficient standing to appeal against orders made under Part VIII. It was found that the appellant in both O'Neill and Giurgis did not have sufficient standing. But significantly, in my view, their Honours, although having the opportunity to do so, did not overrule the other line of authorities. In my view, I should follow them.
I am therefore not satisfied that the husband’s right to bring a claim under s.79 vested in his trustee in bankruptcy on him becoming bankrupt or at any point during his bankruptcy. According to the authorities, it was a personal right which, under the Bankruptcy Act, did not so vest.
That being the case, and proceeding upon the basis that one is to assess the prospective claims of the husband as at the time his right to bringing them expired, it means the Court is to consider the matter as at effectively 1 March 2001. At that point the parties, having commenced cohabitation in November 1971, having had three children, having both contributed financially and non-financially during the period of their cohabitation, and, having started with very little indeed, during that period of cohabitation having acquired two items of realty, in my view it is trite to say, having regard to the matters the Court would take into account under s.79(4)(a), (b) and (c) that a result giving the wife effectively one hundred per cent of the realisable property is a result that the husband would clearly have a claim to challenge.
Put another way, where one hundred per cent of the realty is in the wife's name and there is no evidence to suggest that there was any other realisable property at that time of the parties, the husband, in my view, would have had a reasonably arguable claim to a significant share of that aggregate property. I can certainly see it would be arguable that he would have a claim for one half. I say that, even taking into account the fact that there does not appear to be an issue that the wife during the period of cohabitation contributed a significant worker's compensation payment.
As I say, I am therefore satisfied that the husband has a reasonable or prima facie arguable claim to be heard. He had it as at the expiration of the limitation period and there is no evidence to suggest that there has been such a change of circumstances since that it does not now subsist. Clearly, if circumstances had changed such that now the claim may be tenuous or for only a token amount, then in my view the Court would not find hardship. But that is not the case in this particular matter.
Otherwise in assessing hardship the Court, needs to consider the parties' financial circumstances. I have indicated what the husband's are. He is, prima facie, in a precarious financial position. The wife chooses not to disclose her full financial circumstances to the Court. She does appear to be in employment as a cleaner. She is the registered proprietor of at least one property and perhaps two. If she is not the registered proprietor of two properties, she has certainly received and had the benefit of the proceeds of the sale of Property C and I am satisfied that to refuse to extend time at this stage would in fact cause the husband hardship.
So far as the spouse maintenance claim is concerned, the husband suggests that he is now deriving little income. How that comes about is not well explained. As I understand it there is some suggestion by him that because of the effects of a long working life of hard physical labour he is now not as capable of performing the kind of work that he did previously in the building industry and his employment prospects are therefore more limited. It is difficult on the evidence that he proffers to see precisely how that came about in any more detail and there is no medical evidence to support any possible contention that he cannot support himself on medical grounds.
Nonetheless, I note that subject to consideration of the issues concerning the exercise of discretion, that leave would otherwise be granted in relation to property settlement. In my view, if it is to be granted in relation to property settlement, then there is sufficient evidence to warrant the Court accepting that there is at least an arguable claim for some potential periodic spouse maintenance for the husband. I am satisfied that to deny him the right to bring that claim would be a hardship to him.
Turning then to the balance of convenience and potential prejudice to the wife, she proffers no direct evidence in relation to her financial circumstances. There is nothing upon which I could find that it would be an unreasonable burden or imposition financially upon her to extend time as the husband seeks, and otherwise I can see nothing in the evidence, and specifically in the length of time since the limitation period expired, to suggest that the Court ought not exercise its discretion to extent the time as the husband seeks.
It was submitted on behalf of the wife that there was no explanation of the husband’s delay in bringing proceedings. But in fact the wife acquiesced in the husband's uninterrupted occupation of the property of which she was the sole registered proprietor from the time of the parties' separation up until very recently indeed. That is a very long period of uninterrupted occupation of a property that the wife apparently suggests was hers by virtue of a property settlement that occurred many years ago. She suggests in her evidence that the reason she did not seek to disturb the husband's occupation was because of fear of the husband as a result of the suggested history of family violence. However, this contention is not supported by admissible evidence on which I could make any findings of family violence.
But even if it were, the fact remains of course that the wife has acquiesced in the husband's continued occupation of those premises until last year when the husband sought to have the property transferred to him. Hence the significance of the passage from Althouse that I cited earlier.
The husband was content to rely upon the wife continuing to provide him with accommodation in Property F. He thus had no need to pursue a claim against her for property settlement. That, to my mind, is a complete explanation of the delay until last year. Since then the husband retained solicitors who wrote to the wife. She retained solicitors and there was an exchange of correspondence and relatively promptly after that matter reached an impasse the current proceedings have been instituted.
In the circumstances, I am satisfied there is a satisfactory explanation of the significant delay in this particular case. I can see no matter otherwise why in the exercise of discretion the Court would not extend time. I will therefore do so.
Turning then to the injunction, the husband seeks to restrain the wife dealing with the property at Property F without his prior written consent. That application is opposed. The wife has dealt with the two properties as she was free to do - Property C was registered in her sole name. However, the property at Property F is a property against which the husband is making a claim in specie. It is the property in which he has lived uninterrupted since the parties separated. The wife has dealt with the other property and in my view, in the circumstances, in the exercise of discretion, there is sufficient evidence to give rise to some concern that, absent some limitation on the wife’s ability to deal with this property, there is a risk, based on the wife dealing with the other property, that she may do so in relation to this property. This is particularly a concern where the wife fails to make any disclosure of her financial circumstances at this point.
However, I am not satisfied the evidence goes far enough to support the specific restraint that the husband seeks. In my view the evidence shows that a sufficient restraint would be one that restrains the wife from dealing with this property in any way without having first given the husband at least 28 days notice of her intention to do so. While there is some concern that absent some restraint the wife may deal with the property, in my view that concern is not especially high and the restraint should go no further than is warranted on the evidence and that, in my view, is as far as the evidence would warrant.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 4 March 2008