Lynch & Lynch

[2023] FedCFamC1F 801

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lynch & Lynch [2023] FedCFamC1F 801

File number:

SYC 970 of 2019

Judgment of:

BRASCH J

Date of judgment:

19 September 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where husband seeks leave to commence s 79 of the Family Law Act 1975 (Cth) (“the Act”) proceedings out of time pursuant to s 44(3) of the Act – Where divorce order came into effect in 2010 – Where husband did not file an Initiating Application until 2019 – Where the wife opposes the application – Where husband failed to establish hardship – Application for leave to commence proceedings dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks a declaration about the title of property pursuant to s 78 of the Act – Where the parties have rights under s 66G of the Conveyancing Act 1919 (NSW) – Application for declaration dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 44(3), 44(4), 75(2), 78, 79

Conveyancing Act1919 (NSW) s 66G

Cases cited:

Atwill & Atwill (1981) FLC 91-107; [1981] FamCA 72

Frost & Nicholson (1981) FLC 91-051; [1981] FamCA 45

Hall v Hall (1979) FLC 90-679

Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216

Jacenko & Jacenko (1986) FLC 91-776; [1986] FamCA 25

Sharp v Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150

Skelton & Lindop (2022) 64 Fam LR 617; [2022] FedCFamC1A 47

Slocomb & Hedgewood (2015) FLC 93-678; [2015] FamCAFC 219

V and S [2006] FCWA 2

Division:

Division 1 First Instance

Number of paragraphs:

79

Date of hearing:

18 September 2023

Place:

Sydney

The Applicant:

Litigant in person

Counsel for the Respondent:

Dr Barnett SC

Solicitor for the Respondent:

Enza Ruscica Solicitors

ORDERS

SYC 970 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LYNCH

Applicant

AND:

MS LYNCH

Respondent

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	19 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The husband’s application pursuant to s 44(3) of the Family Law Act 1975 (Cth) for leave to commence proceedings out of time is dismissed.

2.The wife’s application for a declaration pursuant to s 78 of the Family Law Act 1975 (Cth) is 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).

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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BRASCH J:

1. These are my ex tempore reasons.  I will, if necessary, review the transcript, correct for grammatical error and make the written word more amenable to the spoken word.

2. This is an application brought by the husband pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) for leave to proceed with property proceedings out of time, wherein he would seek a 60-40 adjustment in his favour and “exemplary damages” for the wife’s uncooperative behaviour (Husband’s affidavit filed 7 May 2021, paragraph 28). The respondent wife opposes the granting of leave and instead seeks a s 78 declaration as to the title or rights that the parties have in the former matrimonial home. The wife then seeks consequential orders pursuant to s 78(2).

3. Section 44(3) of the Act provides as follows:

   (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.

   (Emphasis in the original)

4. Section 44(4) of the Act provides the criteria by which I must be satisfied prior to exercising the discretion to grant leave, or not:

   (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

   …

5. A divorce order came into final effect in 2010. The husband thereafter had one year to file his proceedings. The divorce order is attached to his affidavit. Page two of the Order highlights to the parties that if they wish to apply to the Court to exercise jurisdiction under the Act as to property or maintenance, the application must be made within 12 months from the date upon which the divorce order takes effect. The husband did not claim ignorance about that limitation period; he acknowledged it to be so.

6. However, the husband did not file his original Initiating Application until 19 February 2019.  Accordingly, it is almost eight years out of date.

7. It is the husband who holds the onus of proof as to whether he will suffer hardship if leave to proceed out of time is not given, but if he can, he still needs to persuade me that I ought exercise my discretion in his favour.

   Background

8. The husband was born in 1952.  The wife was born in 1960.  Both parties were born in Country B.  Both parties came to Australia in 1988.  The parties commenced cohabitation in 1989 (Husband’s Outline of Case Document filed 15 September 2023, p.5 paragraph 2). 

9. In 1990, the parties purchased a home at C Street, Suburb D for just under $200,000.  The property is shared two thirds to the husband and one third to the wife as tenants in common.  It is common ground the purchase was funded through a mortgage of $125,000. It is the former matrimonial home.

10. It is also common ground that the property is unencumbered and has been since around separation.

11. In 1992, the parties married in Country B. 

12. In 1994, the parties purchased a property at F Street, Suburb E for $386,000 with a mortgage of $340,000 secured against the former matrimonial home and the Suburb E property.

13. In 1997, the parties’ daughter Ms G was born.  Obviously, she is now an adult.

14. In September 2008 (Husband’s Outline of Case Document filed 15 September 2023, p.5 paragraph 5) or sometime in 2009 (Husband’s affidavit filed 7 May 2021, paragraph 12) the parties separated.  No one asked me to determine the specific date of separation.  I do not need to; it is not critical to any of the matters that I must decide. 

15. It is clear on the evidence that from 2008, the wife was represented by Ms H of J Lawyers and the husband was represented by Mr K (Annexure B to the wife’s affidavit filed 27 November 2020, p.24).

16. The husband contends that after the parties had lawyers, they agreed to document an agreement themselves.  Thus, the husband says the parties entered into a Deed of Agreement which provided for, amongst other things, the transfer of the wife’s one third interest in the matrimonial home to the husband.   The husband deposed:

    27.We agreed to put-together an agreement on a property settlement.  It was further agreed that since I had some legal knowledge and [Ms Lynch] had none, I would prepare an initial draft of her for her consideration: we had both agreed that we could save money on lawyers as, up to that point, we each engaged independent lawyers.

    (Husband’s affidavit filed 7 May 2021, paragraph 27)

17. The husband worked as a professional.  He also holds several degrees.  It cannot be said that the husband is an uneducated person. 

18. The husband says the Deed was signed by both parties, but the wife denies that.  The two documents put into evidence by the husband are problematic.  For a start, the documents that are attached to the husband’s affidavit are not signed by anybody.  For one of them, someone (the husband says the wife) has added some notations onto the document.  I also have no idea when the agreement was struck, other than the husband telling me it was after they had lawyers.   Looking at the correspondence attached to the wife’s affidavits, the lawyers were on the scene in at least late 2008.

19. Even if I accept the document was signed as the husband contends, the Deed does not constitute a Binding Financial Agreement which might otherwise oust the jurisdiction of this Court.  At best, it demonstrates what the parties thought was fair some 14–15 years ago, but much water has passed under the bridge since then.   

20. At some unknown time, the husband said when he asked the wife to sign her portion of the matrimonial home over to him, she said “[n]o way…When I agreed to do that, I was only joking” (Husband’s affidavit filed 7 May 2021, paragraph 30).  Taking the husband’s assertion at face value, that should have been a very clear signal to him that all was not well with his understanding of the deed, or the parties apparent agreement. 

21. I return to the basic chronology.  The husband says that after separation, in 2009 the investment property at Suburb E was sold for $710,000 less costs of sale and mortgage.

22. Consequently, post separation on 2 October 2009, the wife bought a property at L Street, Suburb N for $660,000 with a mortgage of almost $435,000.  Matrimonial funds of about $290,000 were used, by agreement, to fund the balance (Husband’s affidavit filed 7 May 2021, paragraph 24(c)). The wife has a slightly different figure and says $250,000 in her material but little turns on this. There is no suggestion the husband has paid anything for the wife’s mortgage thereafter.

23. In early 2010, the divorce order was made and a short time later the divorce order came into effect.

24. In the meantime, the husband lived and continues to live in the unencumbered former matrimonial home since 2009. 

    The material

25. Both parties filed helpful Outline of Case Documents.

26. In his Outline of Case Document the husband initially listed many affidavits and Financial Statements both of himself and the respondent wife.  We worked through those documents and at the end of the day the husband relied upon the following:

    ·Amended Initiating Application filed 24 May 2021;

    ·Affidavit of the husband filed 7 May 2021; and

    ·Financial Statement filed 28 January 2021.

27. As set out in her Outline of Case Document, the wife relied upon:

    ·Amended Response filed 1 December 2020;

    ·Affidavit of the wife filed 27 November 2020; and

    ·Financial Statement filed 21 July 2023.

28. Two Exhibits came into evidence, the first being a valuation of the former matrimonial home dated early 2021.  The second Exhibit comprises bank statements of the husband from 31 May 2020 to 30 November 2020 listing many pages of small debits at the M Hotel. The wife said this demonstrated the husband can make discretionary lifestyle expenditure contrary to what he said in his affidavit about not having holidays or going out.  Little turns on this. 

29. The husband’s affidavit that I have just mention was filed on 7 May 2021 that is some six months or so after the wife filed her November 2020 affidavit upon which she relies.  That is to say, the husband had plenty of time to understand, consider and respond to the wife’s 2020 affidavit when crafting his May 2021 affidavit.  It was Dr Barnett’s submission that whilst I should take the husband’s case at its highest on an application of this kind, where he did not join issue with something deposed to by the wife in his subsequent 2021 affidavit, then I would accept the wife’s unchallenged evidence.  There is much force in that submission.  However, much of the background and property and mortgage values are not in issue.

    The hearing

30. At the start of the hearing, I explained to the husband how the matter would be heard; that is, he would make oral submissions on the s 44(3) application, Dr Barnett of Senior Counsel for the wife would make her submissions, and then he had some opportunity to reply. I determined to deal with the s 44(3) matter first and then turn to the s 78 declaration issue. I did so, so the husband could keep focused on each separate issue. I also gave the husband a fairly recent decision of the Appeal Division of this Court, the matter of Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216 (“Hardwick”). I stood the matter down for just over 20 minutes so the husband had an opportunity to read the legal principles in that decision so he could be clear on the principles relevant to his s 44(3) application. The husband also confirmed he received Dr Barnett’s outline that had been filed on Friday and had read it, including the recitation of the principles that arise in applications such as this.

31. When it came time for the husband’s reply to Dr Barnett’s submissions on the s 44(3) application, he said he was not aware the matter was being heard today. I do not accept that. The order listing this matter is in the following terms:

    1.The matter is listed for hearing before the Honourable Justice Brasch of the Federal Circuit and Family Court of Australia (Division 1) at 10.00 am on Monday 18 September 2023, in person at the Sydney Registry where an appearance will be required by and on behalf of all parties, with respect to the follow issues:

    (a) the competing section 44(3) application to commence proceedings out of time; and

    (b) the s 78 (2) orders sought by the wife

    (Emphasis in the original)

32. The husband could have been under no illusion as to the purpose of yesterday’s hearing.  He had not raised any doubts about the hearing being conducted when the matter came on yesterday morning, or during his initial submissions.

    Legal principles

33. As was said in Slocomb & Hedgewood (2015) FLC 93-678, at [41]:

    41.It is essential for the proper operation of a system of justice for time limitations to be imposed. In an application such as this the central consideration is that justice must be done between the parties (see Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479).

34. The decision of Hardwick, which I gave to the husband (along with time to read it), usefully summarises the principles that arise in an application such as this at [23]–[25]:

    23.The decision as to whether leave should be granted to commence or continue proceedings pursuant to Pt VIII of the Act essentially involves balancing two competing principles of public policy. The first is that the Commonwealth Parliament has stated that, ordinarily, such proceedings should be commenced within 12 months of the date of the divorce. The second is that relief from the operation of s 44 of the Act should nonetheless be granted out of time in order to avoid hardship to a spouse or a child of the relationship.

    24.In respect to that second consideration, s 44(4)(a) of the Act provides that an extension of time should not be granted under s 44(3) of the Act unless the Court is satisfied “that hardship would be caused to a party to the relevant marriage… if leave were not granted”.

    25.      In Whitford & Whitford (1979) FLC 90-612 at 78,145, the Full Court said:

    In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.

35. In Sharp v Sharp (2011) 50 Fam LR 567 the Court said at [18]:

    18.It is well accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.

36. The Hardwick Appeal Court continued at [27]:

    27.The applicant for relief’s prospects of success in the proceedings, if leave is granted, is relevant to both the question of hardship and the second task undertaken by the Court, which is to consider matters going to the exercise of discretion generally. This is because “[if] the probable result of the hearing on the merits is that hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant would suffer hardship if leave were not granted”: V and S [2006] FCWA 2 (V and S), per Thackray J at [6].

37. That decision also, usefully, examines the differing authority as to the test to be applied in determining the prospects of success.  Some cases speak of the need to establish a prima facie claim, whilst others talk about a real probability of success.  The Hardwick Appeal Court respectfully acknowledged and adopted the reasoning of Austin J in Skelton & Lindop (2022) 64 Fam LR 617 (“Skelton & Lindop”) at [16]–[21], that the appropriate test to apply is whether the applicant for relief had “sufficient likelihood of success” as part of the assessment of hardship.

38. It is also the case that the loss of a right to institute proceedings is not in itself a hardship in the sense of s 44(4)(a) (Hall v Hall (1979) FLC 90-679).

39. If I conclude the husband will not suffer hardship as that concept is understood, then I need go no further.  However, if I accept that he had sufficient likelihood of success as part of my assessment of hardship, then it is necessary for me to consider matters that go to the exercise of discretion.  In V and S [2006] FCWA 2, Thackray J said at [7] the other potentially relevant considerations may include the following:

    •The extent of the delay and the reasons (or absence of reasons) for the delay. Althaus & Althaus (1982) FLC 91-233.

    •The extent of the hardship the applicant would experience if leave were not granted. Carlon & Carlon (1982) FLC 91-272.

    •The extent of the prejudice that would be caused to the respondent if leave were granted…

40. It has long been settled that prejudice in this context “means that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought” (Frost & Nicholson (1981) FLC 91-051 at 76,425 per Nygh J). In the same year Nygh J also said in Atwill & Atwill (1981) FLC 91-107 (“Atwill”) at 76,794 that the relevant prejudice would need to be “distinctly observable hardship such as financial commitments made on the basis that no liability existed”.

41. The Hardwick Appeal Court identified those two authorities at [30], concluding the extent of any prejudice is simply one of the relevant factors to consider and that Nygh J’s comments in those two cases should be read as descriptive of circumstances where prejudice is likely to be a weighty factor, not a test for the relevance of evidence of prejudice.

42. Atwill also reminds that the fact the respondent will suffer prejudice does not necessarily mean the discretion will be exercised in the respondent’s favour.

43. Finally, applications such as these are generally dealt with on the basis that the applicant’s evidence is presumed to be correct “unless it is inherently unbelievable or contradictory” (Jacenko & Jacenko (1986) FLC 91-776 at [14]; Skelton & Lindop at [36]). This is not to be confused though with a determination, if leave were granted, at a final hearing with respect to the accuracy or otherwise of the parties competing factual contentions.

1. A gloss on this matter is that the husband filed his affidavit some six months or so after the wife filed hers.  The parties have had many court appearances and attendances which would explain the applicant filing after the respondent with respect to the material that was before me.  What that means though is that the husband was abundantly aware of the wife’s case and had the clear opportunity to dispute anything she said in her affidavit.  I will, as Dr Barnett of Senior Counsel submits, take into account the wife’s unchallenged evidence.  But as also observed, the parties had few factual disputes.

   The evidence

2. The gist of the husband’s affidavit is that at the time of cohabitation, they each owned real property, and had some personal savings, clothing and personal effects.  Taking the husband’s evidence as is, nothing turns on this.  The husband also said during the relationship they both worked hard and shared household chores between them, and shared homemaking and parenting responsibilities.  The wife disputed this but understood that in an application such as this I would take the husband’s evidence at its highest, and more so, it was accepted this was a long relationship of some 18–19 years.

3. The husband also deposed to property purchases and sales which I have included in the background part of these reasons.  He deposed to the Deed of Agreement and to the compliance and non-compliance with the Deed of Agreement.  I have already set out the limitations of that document.  It is unenforceable and does not oust the jurisdiction of this Court. At best, taking the husband’s case at its highest, the Deed is what the parties thought was just and equitable in or around 2009.

4. The husband deposed to his many requests to the wife, over about a decade, that she transfer her one third interest in the former matrimonial home to him. He was rebuffed on all fronts.

5. The husband concluded that he had been generous in giving the wife $290,000 (of matrimonial funds) to purchase the property in which she resides and added:

   41.      …

   (e)Had I been less generous, and insisted that [Ms Lynch] sign her interest in the matrimonial property to me before I released these funds, this entire situation that I now confront would not have arisen: [Ms Lynch] should not be allowed to take such cynical advantage of my compassion, goodwill and good faith. 

   (Husband’s affidavit filed 7 May 2021, paragraph 41(e))

6. As said, the wife puts the amount at $250,000 (not $290,000) which came from matrimonial funds to purchase the Suburb N property some 14 years ago in 2009.  As already said, nothing turns on this difference.

7. The husband deposed that he has lived a “life of relative penury over the past 12 years” (Husband’s affidavit filed 7 May 2021, paragraph 41(f)) and that has taken a toll on his health because he is uncertain as to whether he will continue to have a roof over his head. 

8. The husband concludes “this matter has dragged on now for over 10 years and, with some modesty, I suggest that I have shown very great patience throughout, before finally commencing proceedings in early 2018” (Husband’s affidavit filed 7 May 2021, paragraph 41(g)).  It was 19 February 2019, not 2018, when he filed.

   HARDSHIP

9. The husband submitted that he had given (matrimonial) money to the wife to buy a property out of kindness at separation.  In return, he expected the wife to sign over her one third interest in the former matrimonial home to him.  He said he did not have money for lawyers to bring proceedings, yet he had lawyers in or around 2008.  He also acknowledged they each had “independent lawyers” in his affidavit (Husband’s affidavit filed 7 May 2021, paragraph 27).  He said he will suffer greatly if not allowed to proceed and his health is not good.  He acknowledged that on the 2021 valuation at Exhibit 1, he currently holds a two thirds interest in a $1.6 million property, or $1.06 million using a valuation which is more than two years old.

10. He also submitted it would cause him hardship if he had to buy somewhere else and having to move out would cause him disruption.  He submitted the proceeds of the two thirds of $1.6 million (or whatever sale price the house might reach) would mean he would have to downsize.  He said all of the other items of property that they each kept on dividing up their assets 14–15 years ago would all “go to the wind” if not now considered. 

11. He added that if leave was given to proceed, then his health, age and income disparity would be taken into account as part of his maintenance under s 75(2) of the Act. The husband does not have a spouse maintenance claim on foot, but I accept those kinds of matters to which he referred are some of the many considerations the Court would take into account on a s 79 assessment, if the leave were granted.

12. The wife submitted that at the time of separation, the parties divided their assets about 53 per cent to the wife (but with the wife then taking on a new mortgage of almost $435,000) and 47 per cent to the husband (living in an unencumbered home).  The husband did not challenge this. I calculate the percentages as 52 and 48 per cent but nothing turns on this very small difference. It was said I would not accept there is any hardship in that outcome, given the length of the relationship.  The husband did not cavil with the percentages in his submissions in reply.

13. The wife also submitted that the husband stands possessed of just over $1 million in matrimonial assets which, using the husband’s pool, now represents 40 per cent to the husband of the non-superannuation pool.  It was submitted that given the wife’s overwhelming post‑separation contributions, that outcome could not yield to a finding of hardship. The same was said of the 20 per cent differential on such an outcome.  Similarly, it was submitted without demur from the husband, that on the total pool (including superannuation and using the husband’s figures) the husband stands possessed of about 28 per cent.  When I say no demur, I mean as to the calculation.

14. Whilst this might look a measly outcome in what had been a long relationship of some 18–19 years, it was common ground, or not otherwise disputed by the husband, that in the 14–15 years since separation:

    ·The wife has salary sacrificed and increased her superannuation by $650,000;

    ·The husband stopped working outside of the home for remuneration at separation.  I accept he has applied for jobs, but he ceased earning (and therefore the ability to make financial contributions) from not long after separation.  He took issue with the wife’s Senior Counsel referring to him as retired, but that is what he deposed to in his affidavit, “I retired on or about July 2010” (Husband’s affidavit filed 7 May 2021, paragraph 3);

    ·Conversely the wife has continued in employment and thereby able to make direct financial contributions to assets and liabilities;

    ·The wife reduced the mortgage on her property from post separation income/resources from $435,000 to nil;

    ·The husband has lived in the former matrimonial home mortgage free;

    ·The wife received the benefit of a $500,000 inheritance although it was appropriately conceded some of this was bestowed upon the parties’ daughter. The wife did however use this money to pay out her mortgage and have some savings;

    ·The husband has not maintained the former matrimonial home, saying he did not have the funds to do so, but it is now in a, to quote Dr Barnett, “dilapidated state” (Exhibit 1);

    ·The wife received no Child Support payments post-separation; and

    ·The child resided with the wife (Husband’s affidavit filed 7 May 2021, paragraph 14).

15. It was submitted that the contributions set out just above – matters accepted or not disputed by the husband – means the wife’s post-separation contributions are overwhelming.  Accordingly, it was submitted that the husband does not have a sufficient likelihood of success if leave was granted to proceed. In turn, it was submitted that hardship was therefore not made out. 

16. It was also submitted that the husband’s 60 per cent adjustment in his favour was so outside of the boundaries of justice and equity that I would discount it.  Further, it was submitted that the husband could in fact end up with less than his current two thirds interest in the former matrimonial home, given the wife’s superior post-separation contributions for the lengthy post separation period.

17. It is for the husband to discharge the onus upon him with respect to hardship.  In assessing that hardship, he is to establish a “sufficient likelihood of success” in the proceedings, if leave is to be granted.  The husband has not persuaded me so.  The wife’s post separation contributions are, I accept, overwhelming. 

18. For example, the parties cohabited for about 18–19 years.  The post separation period is some 14–15 years.  Over that post-separation period, I accept the wife has reduced the mortgage through post-separation income/resources from $435,000 (Husband’s affidavit filed 7 May 2021, paragraph 24(c)) to nil (Husband’s affidavit filed 7 May 2021, paragraph 41(d)).  She has salary sacrificed and increased her superannuation (and thus the potential superannuation pool) from $229,000 (Wife’s affidavit filed 27 November 2020, paragraph 47.6) around time of separation to almost $880,000 now (Wife’s Financial Statement filed 21 July 2023, p.2).  That $650,000 increase is a significant proportion of the superannuation pool.  It is common ground that the husband paid no child support meaning the wife was the sole financial contributor to the child’s many costs (see wife’s affidavit filed 27 November 2020, paragraphs 52, 54, 62 and 70.6–70.9) none of which the husband took issue with although I accept he tutored the child and cooked her meals (even if evidence from the bar table).  On the husband’s case, the child resided with the wife. In the meantime, the husband has been living in the former matrimonial home without having to meet a mortgage.

19. I am also entitled to consider the costs of going forward. To date the parties have paid more than $110,000 in legal fees albeit $85,000 of that referable to the wife. Whilst the husband may continue to self-represent, the wife has been represented since the inception of the proceedings. She is entitled to representation but that will come at a cost to her going forward. I observe that costs do not follow the event in this Court; see s 117(1) of the Act.

20. I accept the husband’s health is not good and I accept he will have to buy somewhere else if the home is sold. Moving out of the home will of course be a disruption and whether he has to downsize is a matter for him. But these are normal exigencies of life which does not sound in a conclusion of hardship. I also do not accept the husband’s maintenance claim (as he called it) in relation to s 75(2) factors in any way outweighs the overwhelming contributions the wife has solely made post separation.

21. Given the assets of the parties at the date of separation, the overwhelming post separation financial contributions made by the wife over 14–15 years, the absence of financial support of the child of the marriage by the husband, the husband’s continued interest in the former unencumbered matrimonial home, and the likely costs to be borne by the parties (or the wife) in pursuing the substantive s 79 application, I am of the view that the husband has not established that if leave is not granted he will suffer the requisite hardship. In all of the circumstances, it is not apparent that the husband would receive any more money or property by way of property settlement once these factors are considered. I am of the view that he has not demonstrated there is a reasonable claim to be heard.

22. That is the end of the matter. 

    DISCRETION

23. If I am wrong on the issue of hardship, then as to the second part of the exercise, I would decline to exercise my discretion to grant leave for the following reasons. 

24. First, the length of delay is considerable, but the explanation for that delay is inadequate.  For example, it was clear to the husband from early upon separation that the amicable commitment to a settlement “quickly dissipated”.  That is in 2009 (Husband’s affidavit filed 7 May 2021, paragraph 38(b)).  He also deposed that on the lead up to physical separation in 2009, the wife took carloads of property from the former matrimonial home “in contravention of the deed of agreement” (Husband’s affidavit filed 7 May 2021, paragraph 38(c)).  It seems he should have turned his mind to whether the wife considered herself bound by that alleged document from this very early point in separation. 

25. The husband also deposed that he “continued for years” requesting the wife transfer her interest in the former matrimonial home to him.  He complains the wife never got back to him and some envelopes were returned to him “return to sender”.  For an intelligent person, it is a complete curiosity why he did not take steps to secure what he thought were his interests.

26. After he continued these requests “for years” (Husband’s affidavit filed 7 May 2021, paragraph 34(a)), he then said the wife changed tack in September 2017 by seeing some financial and/or legal advisors (Husband’s affidavit filed 7 May 2021, paragraph 35(a)).  The husband’s affidavit continues on complaining about the wife’s lack of engagement with him in 2017 and thereon.  He complains that the wife fobbed him off for the better part of a decade but sat on his hands. 

27. The parties had lawyers in 2008. I do not accept the husband’s lack of funds for a lawyer is a reasonable explanation for delay. He acted for himself before me yesterday and did a sterling job. Many people act for themselves. Section 44(3) does not say that the time limit only applies where a party can afford a lawyer.

28. It must have been apparent to the husband even before the divorce order was granted that the wife was not playing ball as the husband wanted.  Why he did not file until February 2019 is not adequately explained.  This does not assist the husband in exercising the discretion in his favour (if I am wrong on hardship). 

29. Second, there would be considerable prejudice to the wife if I granted leave. As far as she was concerned, if they could not work out how to deal with their respective interests in the former matrimonial home she said in an email of October 2017 “we ride it out and see who dies first” (Annexure Y to the husband’s affidavit filed 7 May 2021, p.84). Both have rights under s 66G of the Conveyancing Act1919 (NSW) (“the Conveyancing Act”).

30. In the meantime, the wife salary sacrificed to increase her superannuation with no hint the husband would bring this application.  Similarly, she applied post-separation earnings/ resources to reduce the mortgage on her home, again in circumstances where there was no hint the husband would bring this application.  At times, she made double mortgage payments. By the time of this hearing, she will have spent E$85,000 in legal fees, with much more to come if the matter proceeds.  The husband deposes he has spent $27,000 (Husband’s affidavit filed 7 May 2021, paragraph 28).  As said, in this Court, costs do not follow the event.

31. It is apparent that the wife “got on with her life” paying down debt in her name, financially supporting the child of the marriage and took steps to enhance her superannuation since the separation and divorce. I am of the view that a grant of leave to the husband would work a substantial prejudice to the wife and could not be mitigated by the Court in substantive property proceedings.  These factors of prejudice do not assist the husband on the discretionary aspect of the exercise (if I am wrong on hardship).

32. I do not however accept the wife’s submission that the husband has failed to prosecute the matter diligently, and therefore, I ought be concerned about future conduct. I accept that this is the parties’ nineteenth appearance, but it is not clear to me why the s 44(3) application was not determined in 2019. I will not sheet this home to the husband.

33. That said, if I am wrong on the hardship aspect, I would not exercise my discretion in the husband’s favour due to his delay in filing, his inadequate explanation for same, and the prejudice to the wife. 

    Section 78

34. It is well settled that s 78 of the Act is not time limited. That section provides:

    (1)  In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.

    (2)  Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.

35. Thus, the wife seeks a declaration about the title of the property, and then consequential orders. The husband opposes this. It was said on the wife’s part that the orders sought arise out of a pragmatic and convenient approach to tying up all loose ends. Appropriately, it was accepted that the wife has delayed in seeking this relief and that she has rights under s 66G of the Conveyancing Act.

36. Whether to make a s 78 declaration is a matter of discretion. I decline to exercise my discretion in favour of the wife, the respondent herein. I will not because it is ironic, if not a little disingenuous of the wife to rely upon the husband’s inordinate delay in resisting his s 44(3) claim, but do the same with respect to her own options for relief in this Court or in the Supreme Court.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch.

Associate:

Dated:       19 September 2023