M & VZ and Anor

[2006] FamCA 529

[2006] FamCA 529

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT PERTH  Appeal No. WA13 of 2005

File No. 2874 of 1979

IN THE MATTER OF:  M

Applicant Wife

AND:  VZ

Respondent Husband

AND:  VZ

Second Respondent

CORAM:  BRYANT CJ, WARNICK AND MAY JJ

DATE OF HEARING:  27 MARCH 2006

DATE OF JUDGMENT:  16 JUNE 2006

JUDGMENT OF THE FULL COURT

Appearances:           Mr Castiglione, one of Her Majesty’s counsel, instructed by Shaddicks Lawyers, 18 Adelaide Street, Busselton, Western Australia, 6280 appeared on behalf of the Applicant

Mr Childs of Counsel, instructed by Lander Hynes Lawyers, PO Box 422, Bunbury, Western Australia, 6231 appeared on behalf of the First and Second Respondents

Name of Appeal	M & VZ & VZ
Appeal Number	WA13 OF 2005
Date of Appeal Hearing	27 MARCH 2006
Date of Judgment	16 JUNE 2006
Coram	BRYANT CJ, WARNICK & MAY JJ

Catchwords:      APPEAL FROM DECISION OF FAMILY COURT JUDGE – PROPERTY SETTLEMENT – LEAVE TO FILE APPLICATION OUT OF TIME – The parties were married in 1955 and separated in 1978 – There were four children of the marriage, including the second respondent – During the marriage, the husband and wife purchased two adjacent lots of land, one of which was sold prior to separation – Following separation, the husband remained living on the property – In 1983, the second respondent built a house on the property and has lived there ever since – In February 2005, the husband transferred half his interest in the property to the second respondent – In July 2005, the wife lodged a caveat over the property and sought leave to institute proceedings for property settlement – The trial Judge dismissed the wife’s application and ordered that the caveat over the property be removed – On appeal, it was argued that despite finding that the wife would suffer hardship by refusing to give leave, the trial Judge placed too much weight on the reasons for the delay and failed to address the degree of hardship in comparison to the husband – It was further argued that too much weight was placed on the opportunities the wife had to obtain legal advice and the wife’s motivation in making the application (ie. to protect the interests of her children other than the second respondent) – There was no greater degree of comparison of hardship available to the trial Judge than that implicit in her Honour’s findings – The wife’s children were in a position to offer the wife some advice and there was no evidence that that capacity had been only recently acquired – It was well open to the trial Judge to make the findings that she did about the wife’s motivation.

APPEALS – FRESH EVIDENCE – At trial, the husband adduced a valuation of the property by the Valuer-General’s department, which was accepted by the wife – At the hearing of the appeal, the wife sought to adduce an alternative valuation of the property, which valued the property at $200,000 more than the original valuation – Despite the significant monetary difference between the valuations, the newer valuation went directly only to the current asset position of the husband rather than to the wife’s prospective claim to property settlement – Court refused to receive evidence on the basis of its limited materiality.

CDJ v VAJ (1998) 197 CLR 172
Whitford and Whitford (1979) FLC 90-612

Application for leave to appeal dismissed.  Applicant to pay the costs of the first and second respondents of and incidental to the application.

1. The husband and wife were divorced upon decree nisi granted in February 1980.  Consequently in March 1981, the time within which either could, without leave, institute proceedings for property settlement expired.  Over 24 years later, on 28 July 2005, the wife applied for leave to institute proceedings for property settlement.  Martin J heard and dismissed that application on 31 August 2005 and ordered that a caveat lodged by the wife be removed.  Against those orders the wife seeks leave to appeal.  The wife also seeks to put before us further evidence to support the proposed appeal.

2. The husband and wife’s fourth child, “MI”, who is now a co-owner of property with the husband, was respondent to the application of the wife and is a respondent also to the appeal.

3. We will say something of the question of leave to appeal and the principles applicable to such applications towards the end of these reasons, but those aspects did not loom large in the hearing before us, which, appropriately in our view, focussed on the proposed grounds of appeal.

4. We will discuss those grounds after:

   ·a short background and outline of the reasons of the trial Judge

   ·consideration of the application to adduce further evidence

   ·setting out the principles applicable to the proposed appeal

Short background and outline of the reasons of the trial Judge

1. The husband and wife married in Holland in November 1955.  In 1958 they emigrated to Western Australia: 

   “6.… Neither was then able to speak good English. They lived in country areas of Western Australia in fairly difficult and isolated circumstances.  In the early 1960’s, the parties purchased two 4 acre lots in [C].…

   7.     The husband had a motor bike accident on his way to work in about 1976 and thereafter was not in employment.” (trial Judge’s reasons)

2. In 1976 the husband sold one of the blocks for $750.

3. There were four children of the marriage, “BR”, “DE”, “DA” and MI, all over 40 years of age at the time the wife’s application was heard. 

4. The parties separated in January 1978.  The husband remained living on the remaining lot at C and the wife moved to Perth.  By that time, three of the children were at University.  At first, the two youngest children resided with the husband but they later moved to stay with the wife.  In 1979, the wife moved to B where she obtained a State Housing Commission home in which she still resided at the time of the hearing of her application.

5. The trial Judge found that:

   “9.    At the time of separation, in addition to the remaining [C] property, the parties owned two motor vehicles, some furniture and a life insurance policy in the husband’s name.  The husband was pursuing a personal injuries claim for the motorbike accident.

   10.    The husband received an insurance payout of $3,000 and a personal injuries payout of about $28,000 not long after separation.  He says he used this money to pay out debts and purchased a utility and a caravan.  His evidence is at that time, the monies received exceeded the value of the [C] property for which there was little demand.”

6. In 1983, the parties’ child, MI, who was then in a de facto relationship, commenced with her partner to build a house on the C property.  MI’s relationship subsequently broke down, but MI remained living at C at the time of hearing, with her two children.  In 1990 the husband’s original house on the property burnt down.  It was under-insured and the husband received only $10,000.  He used that money and his income over about 3 years to complete another house, doing most of the work himself.  The husband’s evidence was that he had undertaken a number of other improvements to the property.  MI had also undertaken improvements.  In relation to any financial arrangements between the husband and wife, the trial Judge said:

   “21.  There is no evidence to suggest that at any time there was any discussion about the financial arrangements between the parties, and any claim of the wife to property settlement.

   22.    The present problems in the family commenced in 2004.  The husband suffered minor strokes in 2003 and 2004.

   23.    There was concern in the family about the possible need for ongoing care for the husband including the appointment of an attorney.

   24.    The husband’s evidence is that he decided that he wanted [MI] and her children to take a share of the [C] property, and on Boxing Day 2004 asked [BR] about helping drawing a will making provision for them.  [BR] was upset and stated that she would contest the will.  [BR] consulted [DE] and [DA].  The husband’s future was discussed in his absence.  There is a dispute in the family as to whether [MI’s] relationship and contribution to her father justifies the provision he has made for her.

   25.    The husband took legal advice, and in February 2005, a half-interest in the property was transferred to [MI] as joint tenant.

   26.    Meanwhile, the wife obtained legal advice and, soon afterwards, lodged a caveat on the property.”

7. After the above paragraphs, Martin J turned to a discussion of the law and there is no challenge to what her Honour there said.

8. Her Honour noted the terms of subsection (4)(a) of section 44 of the Family Law Act, 1975:

   “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…”

   and that in accordance with the statement of the Full Court of the Family Court of Australia in Whitford and Whitford (1979) FLC 90-612 at p 78,144, on an application for leave under section 44(3):

   “…two broad questions may arise for determination.  The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted.  If the Court is not so satisfied, that is the end of the matter.  If the Court is so satisfied, the second question arises.  That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.”

9. As her Honour’s discussion of discretionary factors is the focus of grounds of appeal, relevant passages will be set out when discussing those grounds.  Presently, and in summary, her Honour found herself satisfied that:

   “31.  In the present case, I am satisfied that the wife would suffer hardship in the form of substantial detriment in that she would have a reasonable claim should leave be granted.…The wife presently has no assets of note, although she is properly accommodated, and maintained with the assistance of a pension.  In her financial circumstances, any limitation on her claim at all would constitute substantial detriment.”

10. However, her Honour said:

    “36.  …I am satisfied there is no satisfactory explanation for the delay.”

11. She then turned to consider the question of hardship to the husband, after which she expressed her conclusion:

    “39.  Taking all these issues into account, I have determined that the application of the applicant for leave to institute proceedings out of time should be dismissed.  With it will fall the balance of the applicant’s application.”

Further evidence

1. The evidence which the wife seeks to adduce in support of the proposed appeal and therefore the application for leave to appeal is that of a valuation of the C property.  At trial, the husband adduced evidence of a valuation by the Valuer-General’s department at $450,000, which was accepted by the wife.  Martin J, however, noted:

   “31.  …although there is some dispute as to whether the homes built since separation have added any value of note. …”

2. The valuation now proferred assesses the worth of C at $650,000.  Though originally in his oral submissions, counsel for the wife seemed to suggest that the material proferred supported a potential for even greater value, he ultimately conceded that the evidence was of the current market value of the property, including an assessment of any potential for subdivision.  To some degree the valuation proferred also answers the question of whether the homes on the property have added value to the land, in that a summation analysis has been provided.

3. Receipt of the further evidence is opposed, counsel for the husband and the daughter saying that to some minor extent issue might be taken with the value, but that his opposition was primarily based on the lack of materiality of the further evidence.

4. The further evidence goes to the current asset position of the husband and less directly to quantification of the prospective claim of the wife to a property settlement, in so far as that exercise could or should be undertaken.  With regard to any such exercise, the monetary difference from the valuation at the hearing before Martin J, that might be established by the receipt of the further evidence, becomes at least arguably somewhat diluted, in relation to its ultimate impact on the prospective claim of the wife.  Firstly, there is the question of the claims of the daughter MI, currently a half-owner of the C property.  If, after determination of any proceedings seeking orders against her, she remained a half-owner, then the difference in value produced by the further evidence is halved, when regard is had only to the husband’s interest.  Further, in submissions to Martin J, the then legal representative for the wife referred to her claim as being at the maximum of 50 per cent, so on such a basis the impact on the wife is again halved.  Finally, we later refer to the many matters arising at separation, such as identification of the net assets and their division at that time, and in the long period subsequently, which would affect any assessment of the wife’s claim.

5. Senior counsel for the wife conceded that the essential exercise, in addressing the issue of hardship to the wife resulting from a refusal of her application, was the assessment of whether she had “a reasonable claim to be heard”.  The question of the value of the C property can thus be seen to be but one of a number of factors relevant to that assessment, which was not one which required precise quantification.

6. The principles applicable to the receipt of further evidence on appeal were discussed in CDJ v VAJ (1998) 197 CLR 172. At paragraph 109 their Honours said:

   “109.One consideration in construing s 93A(2) is its remedial nature.  Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous.”

7. Having regard to the limited materiality of the further evidence and to the availability to the wife of valuation evidence at the hearing of the application at first instance, had she chosen, we do not consider that we should now receive such evidence.

Principles applicable to the appeal

1. The judgment which the wife seeks leave to appeal is a discretionary one.  The circumstances in which an appellate Court should interfere with such a judgment were set out in House v The King (1936) 55 CLR 499 at 504‑505 where Dixon, Evatt and McTeirnan JJ said:

   “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

2. With particular regard to a challenge based on the weight given by a trial Judge to factors relevant to an exercise of discretion, in Bellenden (formerly Satterthwaite)  v Satterthwaite [1948] 1 All ER 343 at 345, Asquith LJ said:

   “… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

Grounds of appeal

Overview

1. An unopposed application to amend the grounds of appeal was granted, with the result that the grounds pursued are found annexed to an application filed 13 March 2006.

2. There is now only one ground, but it has six paragraphs, most of which in turn have a number of subparagraphs.  It is convenient to deal with each of the paragraphs of ground 1 individually.  The early paragraphs contain the gravamen of the argument, later paragraphs being to some extent repetitious.

Ground 1(a)

“1. Having found that the wife was suffering hardship the Learned Trial Judge erred in the exercise of her discretion to dismiss the wife’s application for leave to commence proceedings out of time under Section 44(3) of the Family Law Act 1975 by:

(a)Having found substantial detriment as being synonymous with hardship and having considered the hardship suffered by the respondent, her Honour did not address the degree of hardship, in a comparative sense, suffered by the wife, and if she had done so such finding may have outweighed the explanation of the delay which was found by her Honour to be inadequate.”

1. As to hardship suffered by the husband, the learned Judge said:

   “38. It is also necessary to consider any hardship caused to the respondent by the granting of leave.  The respondent is a pensioner who is not in good health.  There is a risk of hardship to the respondent is having to go to (sic) through the unpleasant experience of legal proceedings and the possibility that he may have to sell the property in which he has resided for about 40 years to meet an entitlement of the wife. There would be difficulties in adducing evidence of events that happened 25 or more years ago and problems in producing documentary evidence. In Frost and Nicholson (1981) FLC 91-051, Nygh J said:

   “Prejudice here 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.  To give an extreme example, if after 10 years a wife sought leave under section 43(3) without ever having given an indication beforehand that she wished to seek property settlement, leave might well be refused.”

2. As to hardship suffered by the wife, as already seen, the learned Judge found:

   “31…The wife presently has no assets of note, although she is properly accommodated, and maintained with the assistance of a pension.  In her financial circumstances, any limitation on her claim at all would constitute substantial detriment.

3. In his written submissions, senior counsel for the wife wrote:

   “●     No finding on Degree of Hardship:

   -       Her Honour does not anywhere appear to deal with the extent or degree of the hardship to the wife as compared to the husband – ie wife has virtually nothing and husband has a very valuable property, notably the property has not altered – it is the same property that existed at separation.  The only rearrangement of his affairs included registering [MI] on the title which had been done very recently;

   -       The prejudice to the wife was and is manifestly much greater tha[n] that to the husband and her Honour did not make a finding in this regard – had her Honour done so the outcome may well have been different in that her findings relating to the absence of a satisfactory explanation of delay may have been outweighed by the degree of hardship.  Without such an overt weighing up it is difficult to be confident that her Honour did not misdirect herself;

   -       With respect, Family Law proceedings are rarely pleasant;

   -       Any sale would be after the benefit of unrestricted use spanning 25 years;

   -       He too could have commenced proceedings – he effectively concedes he was aware of the limitation period;

   -       Adducing evidence from many years before is routinely dealt with by the Family Court especially in long marriages;

   -       Her Honour found the [C] property was worth at least $450,000 and if leave as sought in relation to adducing additional fresh evidence of value, is accepted, the value is, in fact, considerably higher.”

1. In oral submissions senior counsel did not much expand on the submissions above quoted.

2. In so far as the submissions imply that her Honour should have quantified the wife’s claim under section 79 to a greater extent than she did, thereby more sharply identifying the hardship suffered by the denial of that claim, senior counsel offered no submissions as to how that might have been done.

3. The wife’s material in support of the application addressed at some length her contributions during the cohabitation but, as seen, the long period of cohabitation was of about the same duration as the period between separation and the wife’s application for leave.  In short, events during the period post-separation may have greatly diminished the wife’s position based on contributions pre-separation.

4. Relevant to the assessment of the wife’s claim would have been firstly, the position of the daughter MI, which may have had the effect of halving the husband’s estate.  The constitution of the compensation for personal injury received by the husband not long after separation may also have borne upon the assessment of any extent to which the wife might have shared in that compensation.  The precise identification of the net financial position of the parties at the time of separation, bearing in mind that the husband said that, as well as purchasing a utility and a caravan from the insurance payout and personal injuries monies, he had paid debts, might be an important factor in gauging a comparison of the parties’ positions at the time of separation.  The impact of the improvements to the C property effected by the husband, was also important to the assessment of the wife’s claim.

5. We have not seen for ourselves and have not been taken to, evidence about these matters before Martin J which would have enabled her to arrive at more than she did, namely, as seen, the finding that:

   “31.  In the present case, I am satisfied that the wife would suffer hardship in the form of substantial detriment in that she would have a reasonable claim should leave be granted.”

6. A further difficulty affecting the prospect of a comparison of hardship to each party arises because, although in each case a large element of hardship to each party is financial loss, the other bases of hardship to the husband are not identical to those of hardship to the wife.

7. In circumstances where the financial loss was difficult to quantify, and the other detriments were not all of the same character, we are not satisfied that any greater comparison than is implicit in her Honour’s findings about respective hardship was available to her.

8. As to the other submissions, that Family Law proceedings are rarely pleasant, that any sale caused by the wife’s claim would come after the benefit of unrestricted use by the husband spanning 25 years, and that the husband too could have commenced proceedings, we think that these observations, while true enough, do not diminish the hardship to the husband as assessed by Martin J.

9. As to the submission that a need to adduce evidence from many years ago is a problem routinely met in Family Court proceedings, especially in long marriages, again this observation does not detract from a conclusion that, as a result of delay caused by one party, difficulty in obtaining evidence may well be suffered by the other.  In this regard, we have indicated above a number of factors which we consider likely to be highly relevant to the assessment of contributions and which, even though arising at the end of the parties’ cohabitation, would require evidence of events about a quarter of a century ago.  The hardship of that situation is highly relevant to an application for leave, notwithstanding that, where a claim is brought as of right, parties may have some of the same problems.

10. We consider that there is no merit in this ground.

Ground 1(b)

“(b)   Placing too much weight on the reasons for such a delay;

.1without balancing the same against the severity of the prejudice to the wife;

.2although not accepting the wife’s explanation of the delay, without making any findings that her evidence in relation to the delay was not incredible, inherently improbable, unbelievable or contradictory;

.3by essentially accepting the evidence of the husband in arriving at her conclusion on evidence which was similarly untested and was not incontrovertible;

.4without considering that the husband had equally failed to apply for property settlement within the required time;”

1. Passages of her Honour’s judgment dealing with delay and possible reasons for it include paragraphs 21 to 24 previously set out and:

   “11.  The wife’s evidence as to what occurred at the time was:

   “Because I left the matrimonial home I believed I could do nothing about the divorce…I did not oppose the divorce.  I did not seek legal advice. I was living in [B] with the children [MI] and [BR] when the husband came to see me with the divorce papers in 1979.  He asked [me] to sign them which I did.  I did not know that I could have refused and I did not know I had any property rights.  I did not know anything about my rights.  I did not know a lawyer and in any event I could not have afforded a lawyer.  At that time, [BR] who was only 15 told me that I should have stayed at [C] and let her father move out to rent somewhere else.  However, this did not happen.  I did not know I had any such right to stay in the home and I did not see it as a possibility.”

   12.    [DE’s] evidence was that the wife was guilty about leaving the marriage, and this may well have been the case.

   13.    The husband’s evidence was:

   “When [the wife] and I discussed a property settlement [the wife] stated that she wanted a “peaceful divorce”.  [The wife] took a car and the pieces of furniture and personal items that she wanted to.  I asked [the wife] on several occasions whether she wanted a share of the [C] property, my insurance money or the compensation money I expected to receive.  I contemplated having to pay [the wife] out so that I was able to stay at the [C] property by giving her a share of my insurance money or the personal injuries payout.

   [The wife] insisted that she did not want anything further by way of a property settlement and told me that I could keep the [C] property, my insurance money and the compensation payout.”

   14.    He went on to say:

   “…[The wife] was aware that she was entitled to a property settlement, however as the [C] property was worth very little and as we had substantial debts, [the wife] stated that all she wanted was a “peaceful divorce”.  [The wife] did not wish to pay any legal fees to obtain the divorce and requested that I do so.  After being requested by [the wife] to see a solicitor to arrange the divorce I did so and [the wife] was happy when the divorce went through.”

   …

   34.    Despite the fact the concerns of the family were raised by the end of 2004, the wife did not see a solicitor until May 2005 at which time the solicitor undertook a search of the [C] property and discovered there had been a transfer of ownership from the name of the husband alone into the name of the husband with [MI] as joint tenants.  At para 27 of her affidavit, the wife said:

   “my lack of English and my lack of understanding of the legal system and the law and my legal entitlements worked against me.  It is through ignorance of the process that I have done nothing until now to sort out my entitlements.  I just did what I had to, to keep the family functioning as a family.””

2. In relation to some of the arguments in support of parts of this ground and in respect of other grounds it is noteworthy that neither party sought to cross-examine any deponent.

3. As to subparagraph .1 of this ground, at the hearing of the wife’s application senior counsel for the wife did not contend that her Honour did not balance the question of delay against the prejudice to the wife arising from denial of her claim.  Rather, the argument depended much on the same contention put in respect of ground 1(a) and as such suffers from the same deficiency, namely, that we are not persuaded that Martin J could have done any more than she did in relation to the quantification of the detriment to the wife, if her claim be denied.

4. As to subparagraphs .2 and .3, senior counsel for the wife accepted that authority supported the proposition that when addressing the first limb of a leave application, namely the question of whether an applicant for leave had a reasonable claim to be heard under section 79, it was appropriate to take the applicant’s evidence bearing on that question at face value. Counsel similarly accepted that in determining other issues directly relevant to the exercise of discretion in the second limb, the assessment of the evidence would take place in the usual way, upon weighing of all of the evidence from all parties, leading to findings on the balance of probabilities.  In other words, contrary to the implications in subparagraphs .2 and .3, the wife was not entitled to have her evidence as to delay accepted, which included the sub-question of her knowledge of time limitations and of her rights, unless her evidence was found not to be incredible, inherently improbable or contradictory.

5. Notwithstanding this concession, senior counsel took us to the evidence, in particular that of the husband, accurately pointing out a great deal of inadmissible material, mostly opinion or comment, by the husband.  Senior counsel acknowledged that there is no indication that objections to that evidence had been taken below.  That may be sufficient to dispose of the argument but in any event, it does not seem to us that her Honour placed reliance on the evidence which, had objection been taken, might not have been admitted.  It is noteworthy that no mistake of fact in any of the trial Judge’s findings is asserted in this ground.  It follows that the reference to the evidence in support of the argument here is only to persuade us that too much weight or too little weight has been placed on factors.

6. The findings to which these arguments were directed were those set out in paragraphs 35 to 37 of the trial Judge’s reasons as follows:

   “35.  For the husband, it was submitted that the wife had provided no adequate explanation for the delay.  She had not been entirely frank in her affidavit in support of her application since she did not disclose in the affidavit that her son [DA] is a barrister, who was admitted to practise as a barrister and solicitor in 1982.  At the time the parties divorced, he was still at law school.  He studied family law in 1980, although he has not practised in this area at all.  In addition, all her other children are university graduates.

   36.    I am satisfied that the wife had the ability to pursue settlement of property many years ago, but was not concerned about it at the time.  There was no suggestion of any agreement, promise or undertaking from the husband which may have affected her actions.  It would have been a very simple matter to seek advice from any of her competent and well-educated children, particularly her son.  In these circumstances, any problems with English are of little import.  I am satisfied there is no satisfactory explanation for the delay.

   37.    I consider it likely that she took no action because she was not concerned for herself, but expected the property to eventually be left to all the children.  She took action only when she learnt this might not occur.”

7. Senior counsel referred us to the evidence of the parties’ son DA, which was provided in an affidavit filed by the wife, but only on the day of hearing and after the husband and wife had filed their affidavits.  DA deposed that he had never tried to discuss family law with his parents and he did not ask his parents about the property settlement arrangements and was never told.  We do not see how this evidence affects the weight which might have been given by Martin J to the unchallenged finding of fact that “it would have been a very simple matter to seek advice from any of her competent and well educated children.…”.

8. As to sub-paragraph .4, we have already observed that we do not think that the proposition that the husband might have applied for property settlement would or should have in any way assisted the wife to obtain a favourable exercise of discretion.

Ground 1(c)

“(c)   Placing too much weight on the opportunities the wife may have had to obtain legal advice;

.1By making assumptions that the children would assist their mother (if she had asked them for such assistance) or were aware of the need to give her advice in the fist place, or indeed that the wife would have been aware of the need to ask anyone for advice;

.2In the light of the unequivocal evidence from the son [DA] of his express desire and conscious effort not to take sides.”

1. This ground asserts that the trial Judge made certain assumptions.  In our view, senior counsel did not take us to anything in her Honour’s reasons which supports the proposition that all of the assumptions asserted were made.  The sentence quoted above that “[i]t would have been a very simple matter to seek advice…”, says no more than appears from a reading thereof.

2. In any event, part of the wife’s own deposition, namely:

   “9.    …I became aware from comments made to me by the children that I should seek legal advice to find out what my rights were with respect to a property settlement notwithstanding that it has been so long since the divorce.”

   makes it apparent that the wife’s children were in a position to offer the wife some advice.  Albeit that advice was only recently offered, there seemed no evidence that the ability to offer such advice had been only recently acquired.

3. As to the wife’s own awareness of the need to seek advice, the trial Judge has not made an assumption, but rather a finding that:

   “…she took no action because she was not concerned for herself…”

4. This finding is further considered below.

Ground 1(d)

“(d)   Placing too  much or any weight on the motivation of the wife in making the application (which in any case was an irrelevant matter); by relying almost entirely on the evidence of the husband.”

1. It was the finding in paragraph 37 of Martin J’s reasons, repeated here:

   “37.  I consider it likely that she took no action because she was not concerned for herself, but expected the property to eventually be left to all the children.  She took action only when she learnt this might not occur.”

   which was described by counsel for the wife as being about the wife’s motivation for the application for leave.  In criticism of this finding, senior counsel pointed to the husband’s opinions contained in his affidavit, about the wife’s motivation, counsel for the wife suggesting that they provided a deficient foundation for the finding.  We do not consider that it is established that the husband’s opinions formed the basis of the findings in paragraph 37.

2. The wife’s own material included evidence of the situation which had led to her seeking leave.  Relevant passages include:

   “9.    It was not until the beginning of this year I became aware that I needed to protect my own financial situation and interest in the property which was the former matrimonial home.  I became aware from comments made to me by the children that I should seek legal advice to find out what my rights were with respect to a property settlement notwithstanding that it has been so long since the divorce.

   …

   11.    The children [DE], [DA] and [BR] and myself have discussed the husband.  They have expressed concern about their father.  This raised the issue of what was to happen with the property.

   …

   13.    My situation was discussed with [MI] by my son [DA].  [MI] became aware that I was concerned and was intending to take legal advice.  I did not see a solicitor until May 2005 at that time my solicitor undertook a search of the title to the [C] property.  I was devastated to see that there has been a transfer of ownership from out of the name of the husband alone into the name of the husband with [MI] as joint tenants.

   14.    I am now anxious to proceed with my Application for leave for a property settlement out of time.  Pending that leave I seek the injunction and other orders as referred to.

   …

   18.    I was living in [B] with the children [MI] and [BR] when the husband came to see me with the divorce papers in 1979.  He asked me to sign them which I did.  I did not know that I could have refused and I did not know that I had any property rights.  I did not know anything about my rights.  I did not know a lawyer and in any event I could not have afforded a lawyer.  At that time [BR] who was only 15 told me that I should have stayed at [C] and let her father move out to rent somewhere else.  However this did not happen.  I did not know I had any such right to stay in the home and I did not see it as a possibility.”

3. We agree with the submission of counsel for the husband that passages in paragraph 18 of the wife’s affidavit are inconsistent with, or at least sit uncomfortably with, passages in paragraph 9.  In paragraph 18, the wife said that at the time of separation or when served with divorce papers, she knew nothing about her rights, yet in paragraph 9, she deposed that at the beginning of 2005 she became aware that she needed to protect her own financial situation and interest in the property.  As counsel for the husband submits, it was significant that the wife did not depose that the belief that she allegedly had at separation continued throughout the 24 years nor whether she had made at any time any endeavour of any nature to seek or obtain advice about her position.

4. We think it well open to her Honour to make the findings that she did about the wife’s motivation.

5. As to the argument that the motivation of the wife for the application for leave was an irrelevant matter, we think that paragraphs 35-37 of her Honour’s reasons earlier quoted make it plain that her Honour did not regard the wife’s motivation of itself as a factor disentitling the wife to leave, but merely took her finding about motivation into account in considering the validity of elements of the wife’s explanation for delay, namely an alleged ignorance of her rights, of which she was allegedly only informed of in recent times, upon which allegedly she moved to exercise those rights for her own benefit.  We think this ground is without merit.

Ground 1(e)

“(e)   Placing too much weight on the potential prejudice suffered by the husband and having regard to irrelevant considerations when assessing the potential prejudice suffered by the husband:

.1The husband could equally have filed an application but failed to do so;

.2Had enjoyed uninterrupted use of the subject property for many years without having to account to the wife;

.3.Would face the normal inconvenience of other litigants if the wife’s application were allowed to proceed;

.4Evidentiary problems caused by the passage of time were not unique to this type of case only.”

1. The matters in subparagraphs .1, .3 and .4 have already been discussed in relation to paragraph 1(a).

2. As to the fact of the husband’s uninterrupted use of the subject property post-separation, this was a factor which, while it might be set against the hardship likely to flow against the husband if leave to institute property proceedings was granted, certainly did not remove or counter-balance that hardship.  Counsel for the wife did not suggest it would.

3. It was but one of many factors bearing upon the question of hardship to the husband.  Bearing in mind the general principles applicable to an exercise of discretion, we are not satisfied her Honour’s discretion miscarried in her assessment of hardship to the husband.

Ground 1(f)

“(f)   Having regard to irrelevant considerations such as the interests of the children of the husband and wife in the prospective deceased estates of the husband and the wife;

.1without apparently considering the evidence of the son [DA];

.2By relying exclusively, or almost exclusively, on the evidence of the husband;

.3In any event even if the wife was attempting to protect the interests of the adult children this was not a relevant consideration.”

1. As previously said, we do not accept that her Honour placed weight on the motivation of the wife, as involving protection of the interests of the children, except in relation to reaching a conclusion about whether the explanation for the delay was satisfactory.

2. There was one other aspect of her Honour’s judgment which related to the interests of the children, that being the final paragraph in which she said:

   “40.  As I indicated to counsel at the time of making the orders, although I have determined the Family Court is not a suitable place to resolve this dispute, I would strongly encourage the parties and the other children to pursue a negotiated settlement rather than further litigation perhaps pursuant to the Inheritance Act (Family & Dependants Provision) Act 1972.  The situation calls for sensible negotiation and compromise.”

3. We do not consider that in this paragraph her Honour was doing any more than endeavouring, by obiter, to offer the parties some useful advice after having decided the application before her.

4. That her Honour had already determined the application and set out her reasons before making her final remarks is apparent from the preceding paragraph which was:

   “39.  Taking all these issues into account, I have determined that the application of the applicant for leave to institute proceedings out of time should be dismissed.  With it will fall the balance of the applicant’s application.”

Ground 1(f).1

1. We have already discussed the substantial immateriality of the evidence of DA, to the issues which her Honour was required to decide.

Ground 1(f).2

“2.    By relying exclusively, or almost exclusively, on the evidence of the husband.”

1. We have already discussed and rejected submissions that are repeated in support of this sub-paragraph.

Ground 1(f).3

“3.    In any event even if the wife was attempting to protect the interests of the adult children this was not a relevant considerations.”

1. We have already discussed and rejected the submissions that are repeated in support of this sub-paragraph.

Conclusions about proposed grounds of appeal

1. While we have dealt with the sub-paragraphs of ground 1 individually, we are mindful that, as structured, the contention in the ground is that, having found that the wife would suffer hardship if her claim was denied, the trial Judge erred in the balance of her task, in each of the particulars enumerated.  Accordingly, it is appropriate to consider the contentions cumulatively, as well as individually.  Even taking that approach, we are not satisfied that there is any merit in the proposed ground 1, for the reasons given in respect of each of the sub-paragraphs.

2. Thus, we find no merit in the proposed grounds of appeal.

Leave to appeal and applicable principles.

1. Whilst initially the applicant wife sought to appeal without leave by Notice of Appeal filed on 28 September 2005, by her application in form 2 filed on 8 November 2005, she sought both permission to appeal and leave to apply for that permission out of time.

2. Counsel for the respondents suggested that leave was not necessary.

3. We think it unnecessary to resolve this issue, as we effectively heard this appeal.  Had we been satisfied that there was merit in any of the proposed grounds, we think we would have been readily satisfied, having regard to the nature of the wife’s application and the consequences of its refusal, that a substantive injustice had been demonstrated and leave should be granted.

4. Conversely, however, no error having been found in her Honour’s judgment, if leave be necessary, we are not satisfied that it should be granted.

Costs

1. Counsel for the respondents sought an order for costs in the event of the failure of the application for leave to appeal, or the appeal should the former be considered unnecessary by this Court.  Senior counsel for the wife accepted that in the event of failure, costs would follow the event.  In the circumstances, we propose to make a costs order.

ORDERS

1. That the wife’s Application in form 2 filed 8 November 2005 be dismissed.

2. That the applicant pay the costs of the first respondent and of the second respondent of and incidental to the application as agreed and in default of agreement, as assessed.

I certify that the 73 preceding
 Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: 

Associate