Lester & Lester
[2024] FedCFamC2F 1012
•12 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lester & Lester [2024] FedCFamC2F 1012
File number(s): ADC 4475 of 2023 Judgment of: JUDGE PARKER Date of judgment: 12 July 2024 Catchwords: FAMILY LAW – PROPERTY – Leave to institute proceedings out of time – Prima facie case not established – Hardship not established – leave refused Legislation: Family Law Act 1975 (Cth) ss 44, 60I, 72, 74, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 4.01
Cases cited: Althaus & Althaus [1979] FamCA 47; (1982) FLC ¶91-233
Arcand & Boen [2021] FamCAFC 155; (2021) FLC ¶94-046
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Chancellor & McCoy [2016] FamCAFC 256; (2016) FLC ¶93-752
Edmunds & Edmunds [2018] FamCAFC 121; (2018) FLC ¶93–847
Gadzen & Simkin [2018] FamCAFC 218; (2018) FLC ¶93-871
Hall & Hall [1979] FamCA 50; (1979) FLC ¶90-679
Lambertson & Lambertson [2021] FamCAFC 48; (2021) FLC ¶94-012
McDonald & McDonald [1977] FamCA 93; (1977) FLC ¶90–317
Skelton & Lindop [2022] FedCFamC1A 47
Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108
Whitford & Whitford [1979] FamCA 3; (1979) FLC ¶90-612
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 12 July 2024 Place: Adelaide Counsel for the Applicant: Self-Represented Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Eastern Legal ORDERS
ADC 4475 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LESTER
Applicant
AND: MS LESTER
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
12 JULY 2024
THE COURT ORDERS THAT:
Parenting
1.The Respondent’s application for summary dismissal with respect to parenting matters is dismissed.
2.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X, born in 2018 (the child) are directed to attend with a Court Child Expert (practising under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 16 December 2024, with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide on the morning of 17 December 2024. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
3.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
4.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
5.Not later than seven (7) days from the date of these orders the parties must provide their contact telephone numbers and email addresses to …@...
6.Pursuant to orders herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court;
(e)any other matters that the Court Child Expert considers important to the welfare
7.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
8.The Court Child Expert will be at liberty to inspect any material filed by the parties, and any material produced pursuant to section 67ZBD and 67ZBE order.
9.The Father is to file and serve an amended Initiating Application setting out with precision the final and interim orders sought by him with respect to parenting no later than 4.00pm on 1 November 2024.
10.All extant interim parenting applications are adjourned for interim hearing before a Senior Judicial Registrar on 23 December 2024 at 11.30am.
Property
11.The Husband’s application pursuant to section 44(3) of the Family Law Act 1975 (Cth) for leave to bring a financial proceeding out of time is refused.
12.All extant applications with respect to financial matters are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE PARKER:
INTRODUCTION
These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clearer and easier to read.
The applications before the Court are:
(a)The application of the Wife, MS LESTER, for summary dismissal of an application for parenting orders brought by the Husband, MR LESTER in relation to the parties’ child X, born in 2018; and
(b)The Husband’s application pursuant to section 44(3) of the Family Law Act1975 (Cth) (‘the Act’) for leave to institute proceedings for property orders under section 79 of the Act and spousal maintenance under section 74 of the Act after the expiration of the time limit provided for in that section.
Ultimately, the summary dismissal application with respect to parenting matters was not pressed and orders were made providing for the preparation of a child impact report and an interim hearing with respect to parenting matters.
The hearing proceeded in relation to the Husband's application for leave to institute financial proceedings more than 12 months after the date of the parties’ divorce. That application was opposed by the Wife.
The parties’ divorce became final in late 2022. The Husband's application was filed on 25 September 2023 and was therefore filed out of time.
The Husband is self-represented. Ahead of the hearing, he was provided with a copy of section 44 of the Act. He was offered the opportunity to speak with the duty lawyer on the morning of the hearing. He was unable to make arrangements do so before the hearing commenced and declined an offer for the matter to be stood down to enable him to do so. The process for the hearing was explained to the Husband before its commencement.
THE LEGAL FRAMEWORK
Pursuant to section 44(3) of the Act, where a divorce order has taken effect, proceedings under section 74 or 79 shall not be instituted except by leave of the Court in which the proceedings are to be instituted after the expiration of 12 months after the divorce. Subsection 44(4) provides, relevantly, that the Court shall not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted.
Consideration of an application under section 44(3) effectively involves two stages:
(a)Consideration of whether hardship is demonstrated; and
(b)Consideration of whether the Court's discretion should be exercised so as to permit the application to proceed.
The onus is on the Applicant, in this case the Husband, to demonstrate hardship and to persuade the Court that the discretion should be exercised in his favour.[1]
[1] Arcand & Boen [2021] FamCAFC 155; (2021) FLC ¶94-046.
Statutory time limits, such as the one in section 44(3), serve a legitimate public purpose and should not be arbitrarily disregarded, but the discretion should be exercised in favour of an extension of time where to do so will avoid hardship.
As the Full Court held in Gadzen & Simkin,[2] the Applicant is required to demonstrate that if leave is not granted, then he will deprived of a reasonable chance of success in the prospective proceedings and that will occasion hardship. The Applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success and leave will not be granted if to do so would not, in the substantive result, alleviate that hardship.[3]
[2] [2018] FamCAFC 218; (2018) FLC ¶93-871.
[3] Edmunds & Edmunds [2018] FamCAFC 121; (2018) FLC ¶93-847.
In order to undertake this assessment, it is necessary to make a summary assessment of the prospective claim of the applicant in order to determine whether or not the onus has been discharged.[4] The Court must weigh the applicant’s case against that of the respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.[5]
[4] Edmunds & Edmunds [2018] FamCAFC 121; (2018) FLC ¶93-847; Althaus & Althaus [1979] FamCA 47; (1982) FLC ¶91-233.
[5] Edmunds & Edmunds [2018] FamCAFC 121; (2018) FLC ¶93-847.
In accordance with the Full Court's decision in McDonald & McDonald, [6] confirmed more recently in Edmunds & Edmunds, [7] I must consider whether the applicant has established:
(a)Firstly, a reasonable prima facie case for relief had proceedings being instituted in time;
(b)Secondly, that denial of the claim would cause the applicant hardship; and
(c)Thirdly, an adequate explanation as to the delay.
[6] [1977] FamCA 93; (1977) FLC ¶90–317.
[7] [2018] FamCAFC 121; (2018) FLC ¶93–847.
Establishment of the first two of these elements, that is, that hardship will flow if the Applicant is deprived of the right to bring proceedings for substantive relief, is a threshold issue. If the Applicant does not establish those matters, there is no need to proceed further.[8] As the Full Court held in Whitford&Whitford (‘Whitford’),[9] the establishment of hardship is a prerequisite to the exercise of the discretion in the Applicant's favour. If there is no real probability of success of the application, the Court cannot be satisfied that hardship would result if leave were not granted. The stronger the prima facie case, the greater the likelihood of hardship if the application is refused.
[8] Arcand & Boen [2021] FamCAFC 155; (2021) FLC ¶94-046.
[9] [1979] FamCA 3; (1979) FLC ¶90-612.
If the threshold issue is overcome, it is necessary to consider, in the exercise of the Court’s discretion, whether there is an adequate explanation as to the delay, together with other relevant considerations including the length of the delay and any prejudice which the Respondent would suffer by reason of the delay in bringing the application.
For the purpose of consideration under section 44(3), the Applicant's evidence is to be taken at its highest.[10] That does not mean, however, that it is the only evidence to which the Court can have regard.
[10] Skelton & Lindop [2022] FedCFamC1A 47.
These principles were explained to the Husband at the hearing, and he made submissions in relation to each of them.
HAS THE APPLICANT ESTABLISHED A PRIMA FACIE CASE?
In assessing whether the Applicant has established a prima facie case, I am to consider whether, in the event that the evidence remains the same at the time of the final hearing, there is a probability that the Applicant would succeed in obtaining a property settlement in his favour[11] or whether he has established that he has a reasonable claim to be heard.[12] In addition to the likely strengths and merits of the case and whether there is a real possibility of success, the likely costs involved in pursuing a claim are relevant to this assessment.[13]
[11] Edmunds & Edmunds [2018] FamCAFC 121; (2018) FLC ¶93-847.
[12] Hall & Hall [1979] FamCA 50; (1979) FLC ¶90-679.
[13] Whitford & Whitford [1979] FamCA 3; (1979) FLC ¶90-612; Gadzen & Simkin [2018] FamCAFC 218; (2018) FLC ¶93-871.
The Wife's position is that the Husband has not established a prima facie case.
The Husband seeks a payment of $150,000 from the Wife which was said, at first, to constitute ‘recompense’ for time he says he spent as primary carer for the child X; household manager; gardener and handyman. This was more recently reframed to be restitution for tortious conduct allegedly engaged in by the Wife. He also seeks an unspecified payment of spousal maintenance on the same basis.
I have regard to and make appropriate allowances for the fact that the Husband is self-represented, but I cannot ignore the fact that this approach does not align with the manner in which the Court would approach a property application under section 79 or an application for maintenance under section 74 of the Act.
Doing the best I can to distil the matters relevant to the Husband’s case from the evidence before the Court, I note the following:
(a)The only evidence before the Court of the Husband's initial contributions is the evidence of the Wife, which is that he had a car and approximately $200,000 in super.
(b)It is an agreed fact that the major asset, being the home in which the parties resided during their marriage, was owned by the Wife prior to the commencement of their relationship.
(c)The Husband deposed that during the relationship, the Wife made the mortgage payments with respect to the former matrimonial home while he incurred debt from studying while being in receipt of study allowance. The evidence of both parties is that the Husband did not make any direct contributions to repayment of the mortgage.
(d)The Wife's evidence is that the Husband made no contributions towards any household bills during the relationship and that she paid him approximately $10,000 towards his expenses during that period. There is nothing in the Husband's evidence to indicate the contrary.
(e)It is an agreed fact that the Husband was a university student during the parties' relationship while the Wife worked in paid employment throughout.
(f)The Husband deposed to having brought $25,000 per annum into the relationship, which he said, from the Bar table, was from working ‘a couple of jobs,’ although there is no evidence before the Court to demonstrate that he was engaged in gainful employment.
(g)The Husband told the Court that he had paid for the majority of groceries and holidays.
(h)Although the Husband made assertions to the contrary from the Bar table, the evidence does not reveal that the parties maintained joint bank accounts or merged their finances.
(i)The Husband's daughters from a previous relationship spent time with the parties during the relationship, which represents a contribution made by the Wife.
(j)The Husband received an inheritance from his late father shortly prior to separation but specifically deposed to not having applied it to the mortgage, a fact which he emphasised on a number of occasions during the hearing. The inheritance was retained in its entirety by the Husband for his sole benefit.
(k)The Husband claims to have put significant labour into the garden at the former matrimonial home and performed maintenance and repairs.
(l)The Husband asserted that he was the child X's primary carer during the period between her birth and the parties’ separation.
(m)The Wife has made the entirety of the post-separation parenting contributions, though I note that the Husband says that this is a circumstance that was opposed on him against his will. Those contributions were rightly described by the Wife's counsel as ‘overwhelming,’ and it is apparent from the evidence that she does not receive any child support of significance from the Husband.
(n)The Husband deposed to having had to draw down on his inheritance following separation after he was, as he described it, ‘evicted.’
(o)His Financial Statement demonstrates that:
(i)He holds $93,250 in assets. He asserted, from the Bar table, that this has been reduced, but there is no evidence before the Court to that effect.
(ii)His only liability of significance is a Higher Education Loan Program (HELP) debt which reduces his after-tax income, but which will not be called in.
(iii)He has a surplus of income over expenditure of $63 per week.
(iv)He holds $153,000 in superannuation entitlements.
(p)The Wife's Financial Statement demonstrates that she holds $714,836 in assets of which $700,000 is the property in which the parties resided, which is subject to a mortgage of $193,000, leaving equity of $507,000.
(q)The Wife also holds approximately $334,000 in superannuation.
(r)The Husband is a qualified educator, and he works full time.
(s)The parties' respective incomes, according to their financial statements, are not significantly different from one another.
(t)The Wife has the full-time care of the parties' young daughter and would continue to have the overwhelming majority of the responsibility for her care, even on the Husband's case in relation to parenting.
(u)The parties are of similar ages and both appear to be in good health.
On the Wife's case, should leave be granted, it would not, in any event, be just and equitable for there to be any adjustment of property. She relies on the similarities between the facts of this case and those in Chancellor & McCoy.[14]
[14] Chancellor & McCoy [2016] FamCAFC 256; (2016) FLC ¶93-752. See also Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108.
The period of the parties' cohabitation was of short duration. They formally resided together for just over three years, as confirmed in the Husband's Initiating Application, although that document was later amended. The Husband asserts that they were effectively living together across two residences prior to formally moving in together, such that the total duration of their cohabitation was around seven years, although he told the Court at the hearing that he had ‘reluctantly’ moved in with the Wife when the parties were married.
Based on the circumstances revealed by the available evidence as outlined above, both contributions and section 75(2) factors significantly favour the Wife. While the Husband may well succeed in establishing that he made some contributions during the course of the parties’ relationship, it would appear unlikely that he could establish contributions such as would lead to any adjustment in his favour once the factors outlined in section 75(2) of the Act were also taken into account. It also does not appear that he would succeed in establishing that he is unable to support himself adequately, as would be required for a successful spousal maintenance application.[15]
[15] Family Law Act 1975 (Cth) s 72.
I do not consider that the Husband has established a prima facie case with respect to either the property or the maintenance aspects of his application, and certainly not to the point where the cost of the litigation, were he to obtain representation, would not outweigh any potential outcome.
HARDSHIP
The establishment of hardship requires more than simply the loss of the right to bring proceedings. Rather, the Court must consider the consequences to the Applicant of not being able to institute proceedings.
Hardship has been defined in the authorities, including Hall & Hall[16] and Whitford,[17] to mean severity, privation and substantial detriment. Hardship does not require poverty, and loss of a prospective entitlement to property can constitute hardship. The word should have its usual, though not necessarily its most stringent, connotations. Although the right or entitlement that would be lost if leave were not granted should not be trifling or likely to be outweighed by the cost of the proceedings, the loss does not have to be a substantial one.[18]
[16] [1979] FamCA 50; (1979) FLC ¶90-679.
[17] [1979] FamCA 3; (1979) FLC ¶90-612.
[18] Whitford & Whitford [1979] FamCA 3; (1979) FLC ¶90-612.
The Husband submitted that hardship arose from the existence of his HELP debt which has reduced his after-tax income and therefore his earning capacity and borrowing capacity. He asserted from the Bar table, but adduced no evidence to demonstrate, that this has led to a consequential inability to purchase a home. It is questionable whether this is hardship in the relevant sense, but, in any event, given my conclusion that the Husband has not established a reasonable prima facie case, it follows that he has not established that any hardship would follow from a refusal of leave to seek orders out of time.
In any event, the Husband has left the marriage with a substantial earning capacity, he had the significant benefit of financial support from the Wife while he undertook university studies, he holds substantial superannuation entitlements, and he has retained the entirety of his inheritance which was received during the relationship, albeit very late. I am therefore not satisfied that the Husband has established hardship in the relevant sense.
EXERCISE OF DISCRETION
As a result of the conclusions I have reached with respect to the Husband’s failure to establish a prima facie case or hardship, the Husband has not met the threshold requirement and it is therefore unnecessary to go on to consider whether the discretion should be exercised in his favour. Nonetheless, for the sake of completeness, I will consider whether, if I am wrong with respect to the earlier conclusions, this is a matter which warrants the exercise of the Court’s discretion in favour of the Husband.
Explanation for delay
As to the explanation proffered for the delay, I note that the Husband deposes that he was aware of the time limit prior to its expiration. The Husband's explanation for the delay has a number of components.
One such component is the need for compliance with the pre-action procedures, which of course apply in every case and not just the present one. The Husband says he had commenced undertaking the pre-action procedure process prior to the expiry of the time limit. I note that Rule 4.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out exceptions to the need for compliance with the pre-action procedures, which include urgency and prejudice, both of which could have been utilised in this case.
The Husband deposed that at the time of expiry of the relevant time limit, he lived in a regional area and did not want to involve a local Justice of the Peace, so he elected to wait for the next Magistrates Court circuit sittings to have his documents witnessed. This was a choice made by the Husband and was not an adequate reason for failure to comply with a statutory time limit. In any event, I note that the parties had been separated for over two years by the time the time limit expired and the Husband had had ample time during which to have his documents prepared, including travelling to another location to have them witnessed if he elected to do so.
The Husband also deposed that the timing of filing his application prior to the expiry of the statutory time limit did not line up with returning to B Centre to obtain an updated certificate pursuant to section 60I of the Act for the parenting aspect of the proceedings following his discovery that the previous one had expired. However, that is of no moment because returning to B Centre and obtaining a further section 60I certificate is something that he did not in fact do. In any event, it would have been perfectly possible for the Husband to file his application with respect to financial matters within time and then later amend his application to seek parenting orders upon the issue of a section 60I certificate. The absence of a section 60I certificate did not present a barrier to the timely filing of the application pursuant to sections 74 and 79 of the Act.
The Husband asserted that he could not afford the services of a lawyer and that he had been through a difficult time, including being displaced from the family home. He also said from Bar table that he had started preparing the application in August 2023 but had taken some time to consider whether it was ‘the right thing to do,’ and had not become aware of the time limit until around eight days prior to its expiry and had then needed to provide procedural fairness and give the Wife notice pursuant to the pre-action procedures.
I have regard to the length of the delay, which was only a matter of days. In particular, I have regard to the fact that it is not a case in which many years have passed and there are consequent difficulties in establishing a connection between the parties' present circumstances and the circumstances of their relationship. Nonetheless, I do not consider that the Husband has adequately explained his failure to file his application prior to the expiration of the time limit provided for in section 44(3) of the Act, being a time limit of which he was aware at the relevant time.
Prejudice to the Respondent
I take into account the authorities recording that a Respondent is entitled to believe that a cause of action has expired and to arrange their affairs accordingly,[19] and that allowing an action after the expiration of the statutory time limit is prima facie prejudicial to the Respondent.[20] I am satisfied that there would be prejudice to the Wife, who is privately funded, in allowing the application to proceed in circumstances in which, as already discussed, it appears to have limited prospects of success.
[19] Lambertson & Lambertson [2021] FamCAFC 48; (2021) FLC ¶94-012.
[20] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; Lambertson & Lambertson [2021] FamCAFC 48; (2021) FLC ¶94-012.
Conclusion regarding exercise of discretion
Having regard to these matters, even if the Husband had met the threshold requirement of satisfying the Court that hardship would flow from refusal to grant leave, I would not have been satisfied that the exercise of discretion should be exercised in favour of doing so.
CONCLUSION
In all of the circumstances, I am not satisfied that the Husband has met the requirements of section 44(4) of the Act, and his application for leave to issue his financial applications out of time is refused. As a consequence, the extant financial applications before the Court will be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Associate:
Dated: 2 August 2024
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