MOON & WILLBANKS

[2019] FCCA 1206

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOON & WILLBANKS [2019] FCCA 1206

Catchwords:
FAMILY LAW – Application for extension of time – de facto property proceedings – hardship – adequate explanation for delay – no prejudice to the Respondent – leave to institute proceedings granted.

Legislation:

Family Law Act 1975 (Cth), ss.44, 90SB, 90SM

Cases cited:

Edmunds & Edmunds [2018] FamCAFC 121

Frost & Nicholson (1981) FLC 91-051

Gallo v Dawson (1990) 93 ALR 479

Hedley & Hedley [2009] FamCAFC 179

In the Marriage of Althaus (1979) 8 Fam LR 169

In the Marriage of Hall (1979) 5 Fam LR 411

In the Marriage of Perkins (1979) 4 Fam LR 634

In the Marriage of Whitford (1979) 4 Fam LR 754

Montano & Kinross [2014] FamCAFC 231

Pleym & Pleym (1986) FLC 91-762

Richardson & Richardson (2000) FLC 93-012

Tems & Tems (1990) FLC 92-169

Tormsen & Tormsen (1993) FLC 92-392

Walker & Walker (1984) FLC 91-564

Applicant: MS MOON

Respondent: MR WILLBANKS

File Number: MLC 563 of 2019

Judgment of: Judge C.E. Kirton QC

Hearing date: 12 April 2019

Date of Last Submission: 12 April 2019

Delivered at: Melbourne

Delivered on: 9 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Foo

Solicitors for the Applicant: Women's Legal Service Victoria

Solicitors for the Respondent: Mr Da Gama of Vernon Da Gama & Associates

ORDERS

1. The Applicant is granted leave pursuant to s.44(6) of the Family Law Act 1975 (Cth) to commence property proceedings against the Respondent pursuant to s.90SM of the Family Law Act 1975 (Cth).

2. The matter be adjourned to the Federal Circuit Court of Australia on 5 September 2019 at 9:30 am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 563 of 2019

MS MOON

Applicant

and

MR WILLBANKS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant seeks leave to commence property proceedings outside the two year time limit prescribed by s.44(5) of the Family Law Act 1975 (Cth) (Act).

2. The parties separated under one roof in October 2013 and the Applicant commenced receiving a parenting payment.  The Applicant moved out of the home with the four children of the relationship on 22 June 2015.  It was not until 18 January 2019 that the Applicant filed an Initiating Application seeking leave to commence property proceedings outside the two year time limit.  The application is therefore some three years and three months out of time.  The Respondent opposes the application.

Synopsis

1. I have determined that the Applicant should be granted leave pursuant to s.44(6) of the Act to commence property proceedings against the Respondent pursuant to s.90SM of the Act.

Background

1. The Applicant was born on … 1980 and is 38 years old.  The Respondent was born on … 1978 and is 40 years old. 

2. The parties first commenced cohabitation in about … 2006.  There are four children of the relationship: [X], born … 2006 ([X]), age 12; [Y], born … 2009 ([Y]), age 9; [Z], born … 2011 ([Z]), age 8; and [W], born … 2014 ([W]), age 5 (Children).

3. The parties separated on a number of occasions and resumed cohabitation.  The parties “separated financially while living under one roof” in about October 2013[1].  The Applicant advised Centrelink of her separation from the Respondent and she began to receive a parenting payment[2].

   [1] Applicant’s Affidavit, filed 18.1.19, at [7].

   [2] Ibid., at [7].

4. On about 22 June 2015 the Applicant left the home at Property A (Property) with the Children.

5. The Applicant deposed that during the relationship and after separation both she and the Children were subject to “emotional, physical and financial abuse” by the Respondent[3].  The Respondent denies all of the allegations of family violence made by the Applicant against him[4].

   [3] Ibid., at [8].

   [4] Respondent’s Affidavit, filed 31.3.19, at [51(gg)].

6. In about August 2018 the Applicant saw the Property listed for sale on ‘realestate.com.au’.  On 30 August 2018 a caveat was lodged over the Property on the Applicant’s behalf.  The Applicant later discovered that the Property had been sold on 16 August 2018.  The Respondent then agreed with the Applicant’s lawyers that the proceeds of the sale of the Property would be held in the trust account of … Conveyancing (Conveyancer), pending further instructions from the parties’ legal representatives.

7. On 27 September 2018 the Applicant’s lawyers withdrew the caveat over the Property and the proceeds of sale in the sum of $147,629.73 were placed into the Conveyancer’s trust account[5].  As of 9 October 2018 the balance of the Conveyancer’s trust account was $182,513.73[6]. 

   [5] Applicant’s Affidavit, filed 18.1.19, at [19].

   [6] Ibid., at [19] and Annexure “M-1”.

8. The Children live with the Applicant.  [Y], [Z] and [W] all attend School B Primary School.  [X] attends School C Secondary College. 

9. The Respondent has moved to Tasmania.  The Children have not spent time with the Respondent since about 12 June 2017[7].

   [7] Ibid., filed 18.1.19, at [57].

Procedural History

1. On 18 January 2019 the Applicant filed an Initiating Application, Affidavit (Applicant’s First Affidavit) and a Financial Statement (Applicant’s Financial Statement).  The first return date of the Initiating Application was 26 February 2019.

2. The Initiating Application sought interim orders that:

   a)The Applicant be granted leave to make the application out of time.

   b)The Applicant be excused from further particularising the final orders she seeks pending financial disclosure from the Respondent.

   c)There be a partial distribution of $20,000 to the Applicant from the proceeds of sale of the Property held in the Conveyancer’s trust account.

   d)The proceeds of sale of the Property continue to be held on trust by the Conveyancer pending agreement between the parties or Court order.

   e)The Respondent otherwise be restrained from transferring or disposing of his assets pending agreement between the parties or Court order.

   f)That within 28 days the Respondent provide to the Applicant’s solicitor by way of financial disclosure various specified documents. 

3. The Initiating Application sought final orders that:

   a)There be a transfer of funds from the proceeds of sale of the Property being held on trust by the Conveyancer to the Applicant.

   b)There be a split of the Respondent’s superannuation to be transferred to the Applicant. 

4. On 19 February 2019 the Applicant filed an Application in a Case (Application in a Case) and an affidavit affirmed by the Applicant (Applicant’s Second Affidavit)[8].  The Application in a Case sought orders that the requirement that the Initiating Application, Applicant’s Affidavit and the Applicant’s Financial Statement be personally served on the Respondent be dispensed.  It also sought an order permitting substituted service of these documents on the Respondent by way of service on a specified email address associated with the Respondent. 

   [8] Applicant’s Second Affidavit, affirmed and filed on 19.3.19.

5. The Applicant’s Second Affidavit deposed to various attempts that had been made to request the Respondent disclose his current residential address and his refusal to do so[9].  The Respondent’s sister, Ms D, a solicitor at a law firm, contacted the Applicant’s lawyers on 31 October 2018 on behalf of the Respondent and requested information about the Property.  On 12 February 2019 the Applicant’s lawyers emailed Ms D to enquire whether Ms D was acting for the Respondent and whether she had received instructions to accept service on his behalf.  The Applicant’s solicitors were subsequently advised by a law firm that they did not have instructions to accept service on behalf of the Respondent.

   [9] Ibid., at [7]-[9]. 

6. On the first return date of this matter on 26 February 2019 both the Applicant and the Respondent were represented by solicitors.  It was ordered by consent that:

   a)The matter be adjourned to 12 April 2019 at 10.00 am for an interim hearing to consider the Applicant’s application for leave to commence proceedings outside the prescribed time. 

   b)The Applicant file and serve any affidavit on which she intended to rely on or before 12 March 2019.

   c)The Respondent to file and serve a Response, Financial Statement and an affidavit on or before 1 April 2019.

   d)The Application in a Case otherwise be dismissed.

7. The Court noted in the Orders made on 26 February 2019 that the Respondent had on that day instructed a solicitor to appear on his behalf and that a sealed copy of the Initiating Application, Financial Statement and the Applicant’s Affidavit were provided to the Respondent’s solicitor.

8. On 26 February 2019 the Respondent’s solicitors filed a Notice of Address for Service.

9. On 12 March 2019 the Applicant filed a further affidavit (Applicant’s Third Affidavit).

10. On 31 March 2019 the Respondent filed a Response, Affidavit (Respondent’s Affidavit) and a Financial Statement (Respondent’s Financial Statement).  In the Response the Respondent sought interim and final orders that the Initiating Application be dismissed and that the Applicant pay the Respondent’s costs.

11. The interim hearing of the Applicant’s application for leave to commence property proceedings against the Respondent out of time was heard on 12 April 2019.  The Applicant was represented by Counsel and the Respondent by a Solicitor.  It was ordered by consent that the funds held by the Conveyancer, being the proceeds of sale of the Property, be transferred to the Respondent’s solicitors to be placed in an interest-bearing trust account on behalf of the parties pending further orders of the Court.  Judgment was otherwise reserved. 

Legal Principles

1. The Applicant seeks leave to commence property proceedings against the Respondent pursuant to s.90SM of the Act. The Court may only make an order pursuant to s.90SM if it is satisfied of at least one of the factors in s.90SB of the Act. Section 90SB provides:

   A court may make an order under section 90SE, 90SG, or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:

   (a)that the period, or total of the periods, of the de facto relationship is at least two years; or

   (b)     that there is a child of the de facto relationship; or

   (c) that:

   (i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and

   (ii)a failure to make the order or declaration would result in serious injustice to the applicant; or

   (d)that the relationship is or was registered under a prescribed law of a State or Territory.

2. A claim pursuant to s.90SM of the Act must be brought within 2 years after the end of the de facto relationship. Section 44(5) of the Act provides:

   Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:

   (a)the application is made within the period (the standard application period) of:

   (i)     2 years after the end of the de facto relationship; or

   […] or

   (b)both parties to the de facto relationship consent to the application.

3. The Applicant sought an order that she be granted leave, pursuant to s.44(6) of the Act, to file her application for property settlement out of time. Section 44(6) of the Act defines the conditions upon which the Court may grant leave to commence proceedings out of time.

4. Section 44(6) provides:

   The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

   (a)hardship would be caused to the party or a child if leave were not granted;

   […]

5. If hardship is established, the Court’s discretion to grant leave is enlivened. The principles relevant to the granting of an extension of time in respect of a de facto relationship mirror those applicable pursuant to s.44(3) of the Act in respect of a marriage[10].

   [10] Montano & Kinross [2014] FamCAFC 231, at [5].

6. In In the Marriage of Whitford[11] (Whitford) the Full Court said:

   [O]n an application for leave under s 44(3), two broad questions may arise for determination. The first of these is whether the court is satisfied that hardship 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[12].

   [11] (1979) 4 Fam LR 754.

   [12] Ibid., at p.759; See also In the Marriage of Hall (1979) 5 Fam LR 411, p.416.

Hardship

1. The Full Court in Whitford considered the meaning of ‘hardship’ in s.44(4). The Full Court said:

   The hardship referred to in s 44(4) is the hardship which would be caused to the applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the   hardship, to which the sub-section refers.  It is with the consequences of the loss of that right, with which the sub-section is concerned. The     requirement, that the court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real possibility of success, then the court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the court is concerned is not whether the    applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted[13].

   [13] Ibid., at p.759.

2. The generally accepted interpretation of “hardship” in this context is “substantial detriment”[14].   The Full Court in Whitford said:

   In ordinary parlance, hardship means something more burdensome than ``any appreciable detriment''.  We consider that in sub-s 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. As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either sub-s 44(3) or 44(4) for saying that the right or entitlement lost must be a substantial one.

   In an appropriate case, and depending on the circumstances of the applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value. In some cases, it may be a great hardship to an applicant if he or she is unable to gain something worth $1,000 or even less, whilst in other cases something of that value may be considered trifling[15].

   [14] In the Marriage of Hall (1979) 5 Fam LR 411, p.416; Whitford, at p.759.

   [15] Ibid., at p.760.

3. Hardship can be made out regardless of the financial circumstances of the applicant for an extension of time.  In Whitford the Full Court said:

   Hardship may be caused to an applicant if leave were not granted to institute proceedings, although the applicant is not in necessitous circumstances.  Whatever the financial situation of an applicant may be, his or her loss of a prospective entitlement to property including money, or his or her inability to have the    financial and property relations of the parties adjusted or    resolved, may constitute hardship[16].

   [16] Loc cit.  See also Frost & Nicholson (1981) FLC 91-051, at pp. 76,423-76,424.

A Reasonable Prima Facie Case

1. In determining an application for leave under s.44(6), the Court is not required to undertake a detailed hearing on the merits to determine whether the Applicant’s claim will succeed. Instead, as laid out by Evatt CJ (with whom Marshall SJ and Strauss J agreed) In the Marriage of Althaus[17]:

   The exercise is to determine whether there is a reasonable claim      to be heard.  That is the essence of the inquiry into whether     hardship will be suffered by denying the applicant the right to      litigate that claim [18].

   [17] (1979) 8 Fam LR 169.

   [18] Ibid., at p.172.

2. Recently the Full Court said in Edmunds & Edmunds[19]:

   Thus the Court, when considering the issue of leave and the    strength of the proposed case, will look to see whether, in the    event that the evidence remains the same at a final hearing, there is a probability that the applicant would succeed in obtaining a     property settlement adjustment in her favour.  The Court does not undertake a preliminary trial but looks to see whether there is  some or a fair or reasonable probability that relief will be      granted[20].

   [19] [2018] FamCAFC 121.

   [20] Ibid., at [20].

3. In property proceedings s.44(6) requires only a limited inquiry in relation to whether or not hardship would be caused to a party (or a child) if leave were not granted. In Hedley & Hedley[21] Cronin J said:

   It is not appropriate for the Court in a limited s.44(3) hearing to conduct the proceedings as if it were an application under s 79 of the Act. Each of the defined steps in s 79 carry subjective judgments. In a s 44(3) application, the applicant need only establish that there is a case to be argued bearing in mind those subjective judgments in s 79[22]. 

   [21] [2009] FamCAFC 179.

   [22] Ibid., at [219].

General Discretion

1. If the hardship criterion is satisfied, the Court must then consider whether an extension of time will enable the Court to do justice between the parties.

2. McHugh J said in Gallo v Dawson[23],

   In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time[24].

   [23] (1990) 93 ALR 479.

   [24] Ibid., at p.480.

1. In Whitford, the Full Court said:

   The determination of how this discretion should be exercised, must depend on the facts of the particular case. Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date of the decree nisi, and the general policy of the Act which appears from s 44(3) and s 81 that financial relationships between the spouses should, wherever possible be brought to finality within a reasonable time after the dissolution of the marriage. Hence, such matters as the length of the delay, the reasons for the delay and the strength on the merits of the applicant’s case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones[25].

   [25] (1979) 4 Fam LR 754, at p.761.

2. In Montano & Kinross the Full Court of the Family Court noted that in Whitford the Full Court:

   […] was at pains there to point out that those considerations were not exclusive of the matters to be considered in the exercise of the broad discretion; an overall requirement to do justice between the parties is the ultimate criterion.  The strength or weakness of, or the relative weight to be attached to, those various matters in the exercise of discretion must necessarily depend on the facts of the particular case[26].

   [26] Montano & Kinross [2014] FamCAFC 231, at [15].

Delay

1. The reason for the delay is a factor to be considered by the Court in determining whether to grant leave pursuant to s. 44(6)[27].   In In the Marriage of Hall[28] the Full Court said:

   It is a question basically of whether the applicant provides a   reasonable explanation in the circumstances of the delay, that is of the failure by her to take proceedings within the prescribed time[29].      

   [27]  In the Marriage of Hall (1979) 5 Fam LR 411; Whitford, at p.761.

   [28] (1979) 5 Fam LR 411.

   [29] Ibid., at p.419,13.

2. The significance of the delay will depend on the circumstance of the case.  There need not be an adequate explanation for the delay.  A lack of an explanation for the delay is merely a factor to be considered[30].  The entire period of the delay must be considered[31].  The failure to explain a portion of the delay is only a factor, together with all other relevant factors, in the exercise of the Court’s broad discretion[32].   

   [30] In the Marriage of Althaus (1979) 8 Fam LR 169; Tormsen & Tormsen (1993) FLC 92-392, at p.80,017; Richardson & Richardson (2000) FLC 93-012, at p.87,239.

   [31] In the Marriage of Perkins (1979) 4 Fam LR 634, p.639; Frost & Nicholson (1981) FLC 91-051, at p.76,424; In the Marriage of Althaus (1979) 8 Fam LR 169, p.172.

   [32] Montano & Kinross [2014] FamCAFC 231, at [32].

Balancing Hardship of Respondent   

1. The Court is required to consider any hardship faced by the Respondent and balance that with the hardship faced by the Applicant[33].  In Frost & Nicholson[34] Nygh J said that the Court should:

   […] in determining whether to exercise its discretion in granting     relief, consider the question of prejudice which the respondent     would suffer by reason of the delay in bringing the application[35].

   [33] Frost & Nicholson (1981) FLC 91-051, at p.76,422; In the Marriage of Hall (1979) 5 Fam LR 411; Walker & Walker (1984) FLC 91-564, at p.79,556; Pleym & Pleym (1986) FLC 91-762, at p.75,571; Tems & Tems (1990) FLC 92-169, at p.78,161.

   [34] (1981) FLC 91-051.

   [35] Ibid., at p.76,422.

2. In Frost & Nicholson Nygh J explained the nature of this prejudice by the following:

   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 sec. 44(3) without ever having given are any indication beforehand that she wished to seek a property settlement, leave might well be refused[36]. 

   [36] Ibid., at p.76,425.

1. In Montano & Kinross the Full Court of the Family Court said:

   Like many applications for indulgence, an application for leave to apply after the end of the standard application period requires the court to exercise its discretion in a manner that, ultimately, is consistent with justice being done to both parties. The potential for injustice to the applicant being unable to pursue the remedy precluded by the refusal to grant leave must be compared to the prejudice to the respondent in the granting of leave. So, too, good or legitimate reasons for failing to do that which the Act requires must be compared with wilful blindness or recalcitrance. Equally, a desire to pursue a remedy out of time must be compared to the necessity for parties to proceed with their post-separation lives free of the spectre of prospective litigation, (see, for example Gallo v Dawson (1990) 93 ALR 479, and the statutory requirements in section 81 of the Act)[37]. 

Submissions of the Parties

[37] Montano & Kinross [2014] FamCAFC 231, at [14].

Applicant’s Submissions

1. The Applicant’s Counsel relied upon the Initiating Application, the Applicant’s First Affidavit, the Applicant’s Third Affidavit and the Applicant’s Financial Statement.

Reasonable Prima Facie Case

1. Counsel submitted that the Applicant had a reasonable prima facie case for a property settlement pursuant to s.90SM of the Act.

2. Approximately six months after the parties commenced cohabitation in about … 2006 the Applicant stopped working as she was pregnant with [X][38].  The Applicant deposed that during the relationship she was responsible for the homemaker duties including doing most of the cooking, cleaning and shopping.  The Applicant attended to the Children’s wellbeing, including their day-to-day needs and taking them to any medical appointments[39].  She also took them to school most mornings and assisted them with their homework.

   [38] Applicant’s First Affidavit, at [40].

   [39] Ibid., at [49].

3. The Applicant deposed that at the commencement of the relationship the Respondent worked as a tradesman.  He later began working for Employer as a sub-contractor.  The Applicant would assist the Respondent by completing his administrative work when he was contracting through Employer including creating invoices[40].  In about 2012 the Respondent started working as an employee of Employer and the Applicant believes that the Respondent was earning about $70,000 at that time[41].  The Respondent also attended to the backyard maintenance at the Property, including mowing the lawns and often cooked meals on the weekends.  When the Children were babies he would assist the Applicant by washing them[42].  

   [40] Ibid., at [39] and [42].

   [41] Ibid., at [44].

   [42] Ibid., at [50].

4. At the time the Property was purchased on … 2013 the parties were separated.  Settlement of the Property occurred on … 2013 and the Applicant and the Children moved into the Property in … 2013[43].  A deposit of approximately $27,549.58 was paid in … 2013 and the Property was registered in the Respondent’s sole name.  The deposit was saved from the Respondent’s income.  The Applicant’s income from the family tax benefit payments was used for household expenses so that the Respondent’s income could be used to save for the deposit[44].  In 2012 the Applicant sold her car for $500 and her motorbike for $2,500 to assist with saving for a deposit for the purchase of the Property[45].

   [43] Ibid., at [45].

   [44] Ibid., at [47].

   [45] Ibid., at [43].

5. After the parties moved into the Property they completed a number of renovations including replacing the carpet.  They both painted the walls and pulled out a number of trees in the backyard before landscaping it.  The Applicant also put up curtains[46].

   [46] Ibid., at [46].

6. Counsel for the Applicant submitted that the Applicant had demonstrated she had a reasonable prima facie case and that she was entitled to a share in the increased equity in the Property, which was $182,513.73 at 9 October 2018[47].

   [47] Ibid., at [19] and Annexure “M-1”.

Hardship 

1. Counsel submitted the following matters in relation to the hardship that would be caused to the Applicant and the Children if leave was not granted.

2. The Applicant is the full-time primary carer of the Children.  She receives the following benefits from the Department of Human Services: a Parenting Payment and Family Tax Benefit in the sum of $825 and Carer’s Allowance in the sum of $64 per week.  The Applicant’s total weekly income is $889 a week[48].

   [48] Applicant’s Financial Statement, at [16].

3. The Respondent is currently assessed to pay $279.88 a week child support[49].   The Applicant has not received any child support payments from the Respondent since October 2018[50].  After separation in 2015 the Child Support Agency (CSA) assessed the Respondent to pay $1,256 per month as child support.  At the end of the 2016 financial year the CSA ascertained that the Respondent’s income was double that which the Respondent was reporting.  As a result the Respondent was assessed to be in arrears in child support payments to the Applicant in the sum of approximately $5,700[51].  A Certificate under sub-s.116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) certified that as of 8 March 2019 the sum of $8,135.49 was due and payable by the Respondent for child support owing to the Applicant[52]. 

   [49] Ibid., at [13].

   [50] Applicant’s First Affidavit, at [36].

   [51] Ibid., at [32].

   [52] Exhibit A1.

4. The Applicant spends $330 a week on rent, and the Applicant also spends $550 on all other expenses each week.  The Applicant’s total weekly expenditure is $887[53].  The Applicant therefore spends all of her income each week.

   [53] Applicant's Financial Statement, at [33].

5. Counsel submitted that money was “very tight” for the Applicant[54].The Applicant has some debts that she has been unable to pay.  These are to:

   a)Energy Australia in the sum of $2,960 for gas and electricity[55].

   b)Centrelink in the sum of approximately $590.  The Applicant received an advance payment from Centrelink of $1,100 in October 2018 when the Respondent stopped paying child support.  The Applicant also received approximately $500 in February 2019 from Centrelink to pay for school fees.  These amounts are being repaid to Centrelink by deductions from the Applicant’s Centrelink payments[56].   

   [54] Transcript T9:27-28.

   [55] Applicant’s Third Affidavit, at [31].

   [56] Ibid., at [32].

6. Counsel submitted that there were other expenses for the Children that the Applicant had not been able to meet or has had difficulty meeting.  These expenses include the following:

   a)The Applicant has been unable to pay for [X] to have a compulsory school laptop computer or a scientific calculator this year[57].

   b)The Applicant has had to use the state school relief program to pay for school uniforms for the Children.  She has been unable to afford to pay for [X] to have a school uniform jumper or jacket[58]. 

   c)[X] and [Y] each play sports.  The Applicant is on a payment plan to pay for these fees and she volunteers her time as a coach, which reduces some of their fees.  The Applicant has been unable to pay for [X] and [Y] to have club socks which they are expected to wear[59].  

   d)The Applicant receives money for each of the Children from the Camps, Sports and Excursions Fund to pay for some their school sport and trips.  However these expenses usually exceed the yearly amount provided by the Fund, which means that the Applicant has to meet the shortfall of the cost or the Children are unable to participate.  This year the Applicant will be unable to pay for [X] to go on school camp[60].

   e)The Applicant is unable to pay for [Z] to attend upon a paediatrician, psychologist and a speech and occupational therapist.  [Z] was diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder in June 2017 and she requires these professional services[61].  

   [57] Ibid., at [33].

   [58] Ibid., at [34].

   [59] Ibid., at [35].

   [60] Ibid., at [36] and [37].

   [61] Applicant’s First Affidavit, at [29].

7. Counsel submitted that the Applicant has great difficulty in providing for the Children.  These difficulties include:

   a)The Applicant sold her Motor Vehicle E in February 2019 to meet ongoing expenses.  The car required expensive repairs which she was not able to afford[62].  The Applicant therefore does not have a car.

   b)The Children do not usually attend their friends’ birthday parties as the Applicant is unable to pay for birthday presents for their friends[63].

   c)The Applicant cuts the Children’s hair herself so that she doesn’t have to pay for hairdressers[64].

   d)Since January 2019 the Applicant has been using the local food bank every fortnight to supplement food for herself and the Children.

   e)The Applicant does not have support from her family and she does not have friends who could assist her financially[65].

   [62] Applicant’s Third Affidavit, at [43].

   [63] Ibid., at [38].

   [64] Ibid., at [39].

   [65] Ibid., at [45].

8. Counsel for the Applicant submitted that his client’s financial position was “very poor”[66].

   [66] Transcript T11:44.

Delay

1. Counsel submitted that there were two views about the extent of the delay in this matter.  It was the Applicant’s position that final separation took place on 22 June 2015 when she left the Property with the Children.  On this basis Counsel contended that the application for property settlement should have been made by 22 June 2017.  As the Initiating Application was filed on 18 January 2019, this made the application approximately seven months out of time.

2. Counsel submitted that the alternate position which the Respondent adopted, was that separation had taken place in about October 2013, when the parties “separated financially while living under one roof” and the Applicant became the recipient of a parenting payment[67].   On this basis the application for property settlement should have been made by October 2015.  This made the filing of the Initiating Application on 18 January 2019 approximately three years and three months out of time.

   [67] Applicant’s First Affidavit, at [7].

3. In both of the Applicant’s Affidavits the Applicant deposed to a history of family violence perpetrated by the Respondent upon both herself and the Children during the periods of cohabitation[68].  The violence was emotional, physical and verbal and often perpetrated when the Respondent was intoxicated.  An Intervention Order was made for two years on 29 July 2009, although the Applicant later applied to remove the Intervention Order when the parties later resumed their relationship in early 2010[69].  [X] and [Y] have attended therapy for anxiety management associated with the family violence and other behavioural issues[70].    

   [68] Ibid., at [8] and [52]-[56]; Applicant’s Third Affidavit, at [4]-[19].

   [69] Applicant’s First Affidavit, at [14]-[16]; Respondent’s Affidavit, at [24] and [25].

   [70] Applicant’s First Affidavit, at [30].

4. The Applicant deposed that during the time that she was living separated under the same roof with the Respondent:

   I was scared that if I attempted to start property proceedings during this time that [the Respondent] would become more violent towards me and the children[71].

   […] due to the family violence I was focussed on keeping me and the children safe and did not consider a financial settlement[72].

   [71] Ibid., at [8].

   [72] Applicant’s Third Affidavit, at [46].

5. The Applicant had an appointment to obtain family law advice in 2015.  The Applicant deposed that as she had the care of four children and was only receiving single parenting payments, she did not have the capacity to get any further legal advice.  The Applicant was also:

   […] scared that if I pursued property matters that [the Respondent] would become angry and take the children away from me, which he has threatened to do on several occasions.  I had experienced his violent and threatening behaviour during the relationship.  This added to my reluctance to pursue a financial settlement[73]. 

   [73] Applicant’s First Affidavit, at [12].

6. The Applicant deposed that in 2015 she was advised to “focus on the children” and that she did not recall being advised of a legal time limit to make an application for financial settlement[74].

   [74] Applicant’s Third Affidavit, at [48].

7. In December 2016 the Applicant suffered an accident in which she sustained significant injuries to her right hand.  This has limited her ability to lift and write with her right hand[75].   Counsel submitted that this accident contributed to the delay, as the Applicant had to wear a cast and undergo physiotherapy for more than six months[76]. 

   [75] Applicant’s First Affidavit, at [24].

   [76] Transcript T13:5-10.

8. From June 2015 to June 2017 the Respondent continued to see the Children and was consequently in regular contact with the Applicant in relation to the Children.  The Applicant deposed that the Respondent continued to subject both herself and the Children to family violence perpetrated by the Respondent[77].  When the Children were spending time with the Respondent there were several incidents which resulted in intervention by Child Protection[78].  The Applicant said that during this time:

   Due to the family violence, I was scared of what [the Respondent] would do if I asked for any financial assistance in addition to the child support he paid[79].

   [77] Applicant’s First Affidavit, at [57]-[62].

   [78] Ibid., at [61].

   [79] Applicant’s Third Affidavit, at [50].

9. The Applicant retained her solicitors in November 2017, who agreed to investigate whether there was any property to pursue[80].  Counsel submitted that from April 2018 the Applicant’s solicitors have been asking for financial disclosure.  The Respondent has refused to provide financial disclosure[81].  The Respondent indicated that he would only provide his financial information if it was ordered by a court[82].    

   [80] Applicant’s First Affidavit, at [13].

   [81] Transcript T12:45-13:8.

   [82] Applicant’s First Affidavit, at [16].

10. The Applicant deposed that after the settlement of the Property her lawyers again sought the Respondent’s financial information from him.  The Applicant wanted to resolve the matter without the necessity of going to court, however the Respondent again refused to provide his financial information without a Court order.[83]

    [83] Ibid., at [21].

Prejudice to Respondent

1. Counsel for the Applicant submitted that the Respondent had been aware that the Applicant had been trying to obtain financial disclosure from the Respondent since April 2018 and he had refused to provide disclosure unless ordered by a Court. 

2. Counsel also submitted that the Respondent had already sold the Property prior to the filing of the Initiating Application and therefore the Respondent would not be prejudiced by having to sell his home.

Respondent’s Submissions

1. The Solicitor for the Respondent’s relied upon the Response, the Respondent’s Affidavit and the Respondent’s Financial Statement.

Reasonable Prima Facie Case

1. The solicitor for the Respondent submitted that the nature of the relationship between the parties was important and he summarised the separations and reconciliations referred to in the Respondent’s Affidavit.  It was submitted that it was significant that the Property was purchased when the parties were separated[84].  The reason for this significance was not explained to the Court.

   [84] Transcript T21:11-13.

2. In relation to this issue the Respondent deposed:

   In or about … 2013, I alone negotiated and signed a contract for the purchase of a property situated at Property A, Victoria […]. The [Property] was purchased in my sole name during the time of our third separation.  The purchase price of the [Property] was $282,188.30 and the deposit paid by me for the said price was $27,549.60.  The entire deposit sum for the purchase of [the Property] came from the funds held in my bank account.  At the time when I purchased the [Property], the Applicant was residing at the Property A premises and made no contribution to the acquisition of the [Property] as we were separated at this time[85].

   [85] Respondent’s Affidavit, at [32].

3. The Respondent also deposed:

   All renovations and upgrades to [the Property] came to be made solely by me[86].

   [86] Ibid., at [54(q)(b)].

Hardship

1. It was submitted that separation of the Applicant and the Respondent for the purposes of this application took place in October 2013.  At that time the Respondent’s income was “pretty large […] around $70,000”[87].  It was contended that as a result of the separation under one roof in October 2013 the Applicant became the recipient of a “significant financial benefit”, being the “single parenting payments and the family tax benefits”[88].  It was submitted that the Applicant did not receive either of these payments prior to October 2013[89].

   [87] Transcript T21:33.

   [88] Ibid., T21:30-43.

   [89] Ibid., T22:1; T23:15-18.

2. The Solicitor for the Respondent also submitted that the Applicant had the benefit of living “rent free” at the Property until she vacated in June 2015.  The Respondent:

   […] had the duty to look after his children, but the applicant did have the benefit of not paying for rent for her accommodation, not paying for utilities, and basically living debt free while receiving the Centrelink benefit.  In addition […] the respondent’s generosity extended to purchasing the Motor Vehicle F in late 2014[90].

   [90] Ibid., T22:1; T23:38-42.

1. The Respondent deposed:

   Since October 2013 and until 22 June 2015, the Applicant has had the benefit of residing rent-free at [the Property] and has not made any contribution towards the rates, mortgage or outgoings of [the Property][91].

   [91] Respondent’s Affidavit, at [54(q)(e)].

   […]

   The Applicant has had the benefit of the use of the motor vehicle F until the said vehicle was repossessed in 2017[92].

   [92] Ibid., at [54(q))(f)].

2. It was submitted that the Court should take into account the Centrelink benefits, living rent free and not having to pay utilities until October 2013 and the provision of the motor vehicle F by the Respondent in late 2014, when assessing the Applicant’s hardship.

Prejudice to Respondent

1. It was contended that the application was three years and two months out of time and had been brought just “way too late”[93].  It was submitted that when the parties were separated under one roof the Respondent encouraged the Applicant to commence property proceedings and she did not.  It was the Respondent’s view that the Applicant did not commence proceedings at that time because she was receiving Centrelink benefits, living rent free and did not have to pay for utilities.  If she commenced proceedings that would all come to an end[94].

   [93] Transcript T24:24-25.

   [94] Ibid., T24:34-36.

2. The Respondent would suffer prejudice as he had continued to pay the mortgage on the Property since October 2013.  It was contended that the Respondent would also suffer prejudice as the equity in the property was much greater now.  Had the Applicant brought the proceedings earlier there would have been less equity in the Property to divide[95]. 

   [95] Ibid., T26:29-33.

3. The Respondent would also suffer prejudice because he made payments for the motor vehicle F.  It was submitted that the Respondent is now burdened with the liability of outstanding parking fines relating to this vehicle[96].

   [96] Ibid., T26:13-20.

Consideration

1. The preliminary question that I must consider is whether I am satisfied in relation to at least one of the matters in s.90SB of the Act. In this case there are four children of the relationship. Therefore I am satisfied in relation to s.90SB(b) of the Act.

2. I now turn to consider each of the issues that I must consider in relation to the application for leave to commence property proceedings outside the two year time limit prescribed by s.44(5) of the Act.

3. The first question that I must consider is whether I am satisfied that pursuant to s.44(6) of the Act, hardship would be caused to the Applicant or the Children if leave were not granted[97].

   [97] Whitford, at p. 759.

4. The Full Court said in Whitford the hardship which is being considered is not the loss of the right to institute proceedings, it is the consequences of the loss of the right.  As discussed in paragraph 30, the Full Court said that:

   a)It must appear that the applicant would probably succeed if the substantive application was granted; and

   b)The matter with which the court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted[98].

   [98] Ibid., at p.759.

5. I will consider first whether the Applicant has a prima facie case which is reasonable.

6. It is apparent from the Applicant’s First Affidavit, the Applicant’s Third Affidavit and from the Respondent’s Affidavit, that each party gives a significantly different account of the history of their relationship during cohabitation and after cohabitation.  Neither party sought leave to cross-examine the other at the interim hearing[99]. The Respondent did not attend the interim hearing.  At an interim hearing it is not possible to determine matters of credit on the basis of competing affidavits and without cross-examination.

   [99] Cf. Whitford, p. 758.

7. The case put by the Applicant is essentially that the parties first commenced cohabitation in … 2006 and they separated under one roof in about October 2013.  Final separation occurred on 22 June 2015 when the Applicant and the Children left the Property.  Between … 2006 and October 2013 the Applicant and the Respondent separated and reconciled on a number of occasions.  Between … 2006 and … 2014 the Children were born.  The Applicant has been the primary caregiver of the Children throughout the relationship.  The Applicant has been in receipt of the family tax benefit since [X] was born on … 2006. 

8. The Applicant submits that she has made contributions to the Property that fall within s.90SM(4)(a), (b) and (c) of the Act. I otherwise refer to the discussion in paragraphs 46 to 51.

9. The Respondent denies that the Applicant made any financial contribution to the purchase of the Property[100].  The Respondent does not deny that the Respondent was the primary carer of the Children throughout the relationship.  The Respondent’s Affidavit focuses upon the Respondent being the “sole breadwinner in the household”[101].

   [100] Respondent’s Affidavit, at [51(cc)] and [51(m)].

   [101] Ibid., at [51(ee)].

10. Further, the Respondent’s Affidavit and the submissions made during the interim hearing did not respond in any meaningful way to the Applicant’s claims of contributions pursuant to 90SM(4)(c) of the Act, being her contribution to the welfare of the family.

11. In this regard the Respondent places weight upon the claim that all of the deposit money for the Property of $27,549.60, which was paid in … 2013 came from funds held in his bank account[102].  The parties had separated in late 2012, when the Respondent went to live with his parents in Suburb G[103].  At that time the parties had three children, [X], [Y] and [Z].  The Respondent provides no explanation and no evidence as to how he was able to accumulate the sum of $27,549.60 in the months between late 2012 and … 2013.  Prior to the separation in late 2012 the parties had lived together since early 2010, during which time [Z] was born[104].  Therefore the parties had been living together for a period of almost three years prior to the separation in late 2012.

    [102] Ibid., at [32].

    [103] Ibid., at [29].

    [104] Ibid., at [26]-[28].

12. I am satisfied that at the final hearing there is a probability that the Applicant will obtain a property settlement adjustment in her favour.  In such circumstances there is a fair or reasonable probability that relief will be granted[105].  I therefore determine that the Applicant has demonstrated that she has a prima facie case which is reasonable.     

    [105] Edmunds & Edmunds [2018] FamCAFC, at [20].

13. I will now consider the question of hardship within the meaning of s.44(6) of the Act.

14. If the Applicant is unable to commence proceedings she would not be able to obtain the benefit of any successful claim that she makes against the Respondent for property settlement pursuant to s.90SM of the Act. The Applicant has demonstrated by reason of the matters discussed in paragraphs 52 to 59 that the financial circumstances of the Applicant and the Children are extremely modest.

15. The Respondent’s submissions referred to in paragraphs 76 to 78 failed to address this issue.  The Respondent’s Affidavit also does not address this issue.  The Respondent’s submissions failed to address the relevant legal principles set out in Whitford and discussed in paragraphs 30 to 32.  The submissions focus upon perceived benefits that the Applicant may have received from October 2013 until 22 June 2015.  In this regard the Court also notes that during the period … 2013 until … 2015 the Applicant was pregnant with the parties’ fourth child and gave birth to [W] on … 2014.   The Court also notes that whilst the Applicant and the Children were living at the Property, the evidence indicates that the Respondent was not paying child support.  After the Applicant left the Property on 22 June 2015 the Applicant sought child support from the Respondent.  I reject the Respondent’s submissions in paragraphs 76 to 79.        

16. The Applicant is the full time primary carer of the Children and her sole source of income is Centrelink benefits.  The Applicant owns no assets of any significant value and recently had to sell her car.  The Respondent has not paid child support since October 2018 and is in arrears of $8,135.49[106]. 

    [106] Exhibit A1.

17. In the context of the Applicant and the Children’s financial circumstances, I determine that to deny the Applicant the right to litigate a claim for property settlement would be likely to cause substantial detriment to the Applicant and the Children financially[107].  

    [107] In the marriage of Hall (1979) 5 Fam LR 411, at p.416; Whitford, at p. 759.

18. I am satisfied that for the purposes of s.44(6) of the Act, hardship would be caused to the Applicant and the Children if leave is not granted.

General Discretion

1. I will first consider the Applicant’s delay in making an application for property settlement within the time required by s.44(5) of the Act.

2. In my view the end of the parties de facto relationship for the purposes of s.44(5) of the Act took place in October 2013. I agree with the submissions made by the Solicitor for the Respondent in this regard. In October 2013 the Applicant and the Respondent separated their financial affairs and the Applicant commenced to receive Commonwealth benefits by way of single parenting payments[108].  The parties slept in different rooms[109].

   [108] Applicant’s First Affidavit, at [7].

   [109] Respondent’s Affidavit, at [37].

3. Therefore pursuant to s.44(5) of the Act the Applicant should have filed an application for a property settlement pursuant to s.90SM of the Act by October 2015. The Initiating Application was not filed until 18 January 2019, some three years and three months out of time.

4. The reasons that the Applicant has given for the delay are summarised in paragraphs 60 to 69.  For the whole of the period from October 2013 until June 2017 when the Respondent ceased having contact with the Children, the Applicant has deposed to her fear of the Respondent or her fear that the Respondent would take the Children from her, as being a reason for not pursuing a financial settlement.  It is a plausible explanation.

5. The Respondent denies all allegations of family violence made by the Applicant against him[110].  It is not possible to determine matters of credit on the basis of competing affidavits and without cross-examination. 

   [110] Respondent’s Affidavit, at [51(gg)].

6. It is apparent from the evidence that the parties had a volatile relationship, with a number of separations and reconciliations. The Respondent deposed that he was:

   […] subjected to manipulation at the hands of the Applicant which took a toll on my emotional wellbeing and mental health[111]. 

   [111] Ibid., at [6].

7. The Respondent has not provided any evidence of mental health issues.  The Respondent is presently employed with Employer in Tasmania. 

8. For the period from 22 June 2015 to June 2017 I accept as plausible the Applicant’s explanation for her delay.  The Applicant has not specifically provided an explanation for the period between June 2017 until November 2017 when she retained her current solicitors.  However I accept that the circumstances of her accident in December 2016, together with being responsible for the care of four young children in difficult financial circumstances, as a reason for delay until November 2017.  In Montano & Kinross[112] the Full Court said that the failure to explain a portion of the delay is only a factor, together with all other relevant factors, in the exercise of the Court’s broad discretion[113].

   [112] (2014) FLC 93-623.

   [113] Montano & Kinross [2014] FamCAFC 231, at [32].

9. From November 2017 the Applicant consulted her current solicitors.  The Applicant has deposed to her desire to have negotiated a property settlement without the need for Court proceedings.  I am unable to form any view as to why the Applicant’s current solicitors did not commence proceedings in November 2017 after conducting a title search of the Property.   A title search will however not indicate what equity, if any exist in a property.  In the event that there has been some inadequacy in the advice that the Applicant received from her solicitors, for the period from November 2017 I intend to adopt the approach articulated by Nygh J in Frost & Nicholson[114] where His Honour said:

   If the applicant is a lay person, as she is in the present case, her power of supervising the solicitor and of choosing a competent     and diligent solicitor are clearly limited.  I am satisfied that in      the present case the applicant did all she reasonably could have      been expected to do to have the matter brought on for action and    that any delay was not the fault of her personally[115].

   [114] (1981) FLC 91-051.

   [115] Ibid., at p.76,424-76,425. See also Evatt CJ (with whom Marshall SJ agreed) in In the Marriage of Althaus (1979) 8 Fam LR 169, p.174.

10. I also consider the extent of the delay.  The length of the delay is three years and approximately three months.  However, the Respondent has been on notice since April 2018, twelve months ago, that the Applicant had retained solicitors and was seeking financial disclosure from him for the purposes of a property settlement.  In considering the length of the delay I am cognisant that due weight must be given to the expressed legislative intention that ordinarily proceedings should be commenced within two years from the end of the de facto relationship.

11. In this case having regard to all the circumstances of the case the delay is significant.

12. Taking into account each element of the Applicant’s explanation for the delay, I conclude that she has provided a plausible explanation and by doing so, I determine that the Applicant has provided an acceptable explanation for the delay.

13. I now consider any prejudice the Respondent would suffer by reason of the delay commencing the proceedings pursuant to s.90SM of the Act.

14. The Respondent deposed that he has made all mortgage payments and maintained the Property[116]. These are matters that would be taken into account in a property adjustment pursuant to s.90SM of the Act.

    [116] Respondent’s Affidavit, at [54(q)(c)].

15. The Respondent deposed that the Applicant had the benefit of a motor vehicle F until it was repossessed in 2017. This again is a matter that would be taken into account in a property adjustment pursuant to s.90SM of the Act.

16. The Respondent has deposed that the Applicant incurred $4,454.70 in road toll fines in relation to the motor vehicle F[117]. No evidence or particulars of this allegation was provided. This again is a matter that would be taken into account in a property adjustment pursuant to s.90SM of the Act.

    [117] Ibid., at [51(p)(iv)] and Respondent’s Financial Statement, at [53].

17. The Respondent claimed prejudice on the basis that had the Applicant commenced the proceeding earlier, there would have been less equity in the Property to divide.  In my view this is a flawed argument.  As a result of the delay, each of the parties have had the benefit of any increase in the value of the Property, subject to an adjustment for the payment of the mortgage after separation by the Respondent.  This argument is also an unfortunate one to be made by the Respondent, as the father of the Children where the evidence is that they are suffering financial hardship.    

Conclusion

1. Having concluded that the Applicant and the Children would suffer hardship for the purposes of s.44(6) of the Act, I must now decide whether in the exercise of my discretion to grant or refuse leave to institute proceedings.

2. Having considered the matters above, I have determined to exercise my discretion to grant the Applicant leave pursuant to s.44(6) of the Act to commence property proceedings against the Respondent pursuant to s.90SM of the Act and intend to make orders accordingly.

I certify that the preceding one hundred and nineteen (119) are a true copy of the reasons for judgment of Judge C.E Kirton QC

Date: 9 May 2019