Lynch & Lynch

Case [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…

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Lynch & Lynch [2023] FedCFamC1F 801
Case
[2023] FedCFamC1F 801
Decision Date

CaseChat Overview and Summary

In the case of Lynch & Lynch, the husband sought leave to commence proceedings out of time under section 44(3) of the Family Law Act 1975 (Cth) and a declaration concerning property titles under section 78 of the same Act. The wife opposed these applications. The parties had a lengthy relationship, culminating in a divorce order in 2010. The husband filed an Initiating Application in 2019, and the wife raised objections to the application for leave to proceed out of time, arguing that the husband had not established any hardship warranting such leave.

The court had to decide whether the husband's delay in filing the Initiating Application constituted a sufficient hardship to warrant leave under section 44(3) of the Act. Additionally, the court needed to determine if the wife's application for a declaration regarding the title of property was meritorious under section 78 of the Act. The husband contended that the wife's refusal to transfer her interest in the former matrimonial home to him constituted a significant hardship, warranting the grant of leave. The wife, on the other hand, argued that the husband's delay in filing the application was due to his own actions and inactions, and that there was no demonstrated hardship.

The court found that the husband had not established the requisite hardship to warrant leave to commence proceedings out of time. The court noted that the husband had been aware of the wife's case and had ample opportunity to dispute her evidence, but had not done so. The court also found that the husband's argument that the wife had cynically taken advantage of his generosity was not persuasive. As for the wife's application for a declaration regarding the title of property, the court found that the application was not warranted, given the parties' rights under section 66G of the Conveyancing Act 1919 (NSW).

The husband's application for leave to commence proceedings out of time and the wife's application for a declaration were both dismissed. The court ordered that the husband's application under section 44(3) of the Family Law Act 1975 (Cth) for leave to commence proceedings out of time was dismissed, and that the wife's application for a declaration under section 78 of the Family Law Act 1975 (Cth) was also dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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 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). 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. It is also common ground that the property is unencumbered and has been since around separation. In 1992, the parties married in Country B. 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. In 1997, the parties’ daughter Ms G was born. Obviously, she is now an adult. 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. 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). 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) The husband worked as a professional. He also holds several degrees. It cannot be said that the husband is an uneducated person. 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.

Evidence

Evidence Before The Court

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 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. 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. 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. 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)) 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. 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. 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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