Mynatt and Siddall and Anor (No 2)
[2019] FamCA 823
•7 November 2019
FAMILY COURT OF AUSTRALIA
| MYNATT & SIDDALL AND ANOR (NO. 2) | [2019] FamCA 823 |
| FAMILY LAW – DE FACTO PROPERTY – Where both the de facto wife and the de facto husband have case guardians appointed – Where the de facto wife sought leave to institute proceedings pursuant to 44(6) of the Family Law Act for a property settlement order – Leave granted. |
| Family Law Act 1975 (Cth) |
| Biltoft and Biltoft (1995) FLC 92-614 Gadzen & Simkin [2018] FamCAFC 218 Kennon& Kennon (1979) FLC 92-757 Rodgers & Rodgers (2016) FLC 93-703 Whitford & Whitford (1979) FLC 90-612 |
| APPLICANT: | Ms B Mynatt as Case Guardian for Ms Mynatt |
| RESPONDENT: | Mr Siddall |
| 2ND RESPONDENT: | Mr G Siddall |
| FILE NUMBER: | WOC | 411 | of | 2014 |
| DATE DELIVERED: | 7 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 23 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fowler |
| SOLICITOR FOR THE APPLICANT: | Rebecca Bailey & Associates |
| COUNSEL FOR THE RESPONDENTS: | Mr Gould |
| SOLICITOR FOR THE RESPONDENTS: | Unified Lawyers |
Orders
Order made 23 October 2019
Pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”), leave is granted to the Case Guardian for the applicant wife to apply for a property settlement order pursuant to s 90SM of the Act.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mynatt & Siddall and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC 411 of 2014
| Ms B Mynatt as Case Guardian for Ms Mynatt |
Applicant
And
| Mr Siddall |
Respondent
And
| Mr G Siddall |
2nd Respondent
REASONS FOR JUDGMENT
On 8 May 2014, the wife filed an Initiating Application seeking that leave be granted to institute final property settlement proceedings out of time and that an order be made pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). On 23 October 2019 I made an order that pursuant to s 44(6) of the Act, leave is granted to the Case Guardian for the applicant wife to apply for a property settlement order pursuant to s 90SM of the Act. I reserved my reasons for doing so and now provide those reasons.
Case Guardians have been appointed for both of the parties. The wife’s mother (“the applicant”) has been appointed Case Guardian for the de facto wife (“the wife”); the husband’s father (“the respondent”; who is also the 2nd respondent in these proceedings) has been appointed Case Guardian for the de facto husband (“the husband”).
The only significant asset is half of the property at Street D, Suburb E (“the Street D, Suburb E property”) which the husband holds as tenants in common with his father. The husband’s father has been joined to these proceedings in his own right as the 2nd respondent because the wife seeks a sale of the former matrimonial home.
The current evidence would disclose that the husband’s half interest in the Street D, Suburb E property is of gross value of $700,000. However, the title of that property discloses the registration of a first mortgage and five caveats. Four of those caveats are caveats relating to the husband’s interest. One of those caveats relates to the 2nd respondent’s interest (being a caveat by his former wife).
The parties were together for between 10 to 11 years and there is one child of the relationship, who is currently nine years of age. The child is currently living with the applicant (the maternal grandmother) pursuant to orders of the Children’s Court. The applicant’s application for a property settlement order involves a claim that the wife’s contributions were made significantly more arduous by serious family violence perpetrated by the husband (Kennon& Kennon (1979) FLC 92-757 (“Kennon”)). The parties’ relationship also involves a history of mental health and drug related issues.
Applications
The applicant seeks that leave be granted to file an application for a final property settlement order out of time. Upon granting that leave, the applicant seeks that the husband pay the wife an amount of $275,000 within a period of one month from the date of these orders. Further orders for the sale of the former matrimonial home are sought by the applicant in the event that the husband fails to comply.
The respondent and the 2nd respondent seek that the application to institute proceedings out of time be dismissed.
Chronology
In 1963, the husband was born and is currently 56 years of age.
In around 1963, the husband’s parents purchased the Street D, Suburb E property.
In 1977, the wife was born and is currently 42 years of age.
In 1987, Mr A, a child of the husband’s previous relationship, was born and is currently 32 years of age.
In 1989, the husband’s parents separated and they agreed to put half of the title of the Street D, Suburb E property into the husband’s name as tenants in common with the husband’s father. The husband obtained a mortgage of $65,000 to purchase his half and the husband’s father paid the stamp duty on the transfer.
In 1996, Mr F, a child of the wife’s previous relationship was born and is currently 23 years of age.
The parties commenced cohabitation in 2000 (according to the wife) or 2002 (according to the husband) when the wife moved into the Street D, Suburb E property. Mr F lived with the parties.
On 17 November 2003, the wife was diagnosed with Adjustment Disorder with Depressed Mood.
On 10 August 2004, an incident occurred which resulted in the wife calling police.
On 2 October 2004, the police attended the Street D, Suburb E property.
In 2005, a mortgage was obtained over the Street D, Suburb E property for $60,000.
In 2008, the husband says that Mr A obtained a personal loan for $20,000 to support the parties.
In 2010, X, the child of the relationship, was born and is currently nine years of age.
On 30 July 2010, a further incident occurred between the parties and police.
On 14 November 2010, the husband was charged by the police with assaulting the wife and her son Mr F.
In January 2011, the husband was convicted of assault and was fined. An ADVO was issued against the husband for a period of 12 months.
On 2 May 2011, according to the husband, he was incarcerated for five weeks for alleged domestic violence. The husband asserts that this was the date of separation.
On 3 May 2011, the husband was charged by police with assault of the wife and breach of ADVO. The husband was denied bail.
On 9 June 2011, the husband was convicted of assault and breach of ADVO and was placed on a 12 month supervised bond.
On 10 June 2011, the husband was released from gaol.
On 19 August 2011, the wife says the husband punched her in face, knocking her front teeth out, and continued to assault her over the next four days.
On 24 August 2011, the husband was charged with assault occasioning actual bodily harm, common assault and contravening his ADVO. The husband was refused bail.
In October 2011, the husband was convicted of assault and contravening his ADVO and received an eight month suspended term of imprisonment. The husband was released from gaol.
In December 2011, Mr F moved to live with his biological father.
On 20 December 2011, the husband says the wife was admitted to a mental health institution, however, there was an incident of the wife escaping and she was then admitted to hospital for drug-induced psychosis.
On 23 December 2011, the husband was charged by police with assault. The wife says this is the date of separation.
On 28 December 2011, X was removed from the parties’ care by Family and Community Services (“FACS”).
In January 2012, X was placed in the care of Mr A and then into the care of the wife’s parents.
In January 2012, the wife undertook intensive counselling with Domestic Violence and Community Counselling Service and commenced a live in rehabilitation course at the Watershed Program for 4 about weeks.
On 3 January 2012, FACS filed a Care Application in the Children’s Court for X.
In March 2012, the wife commenced a 6 week outpatient rehabilitation program.
In 2012, the husband commenced a new de facto relationship with Ms H.
In February 2013, X was restored to the wife’s full time care pursuant to orders made in the Children’s Court. The wife moved in to live with her parents.
On 7 May 2013, orders were made in the Children’s Court permitting the husband to have supervised contact with X six times a year for two hours at FACS.
In July 2013, the wife participated in the “Staying Home Leaving Violence Support Program”.
On 6 September 2013, the husband filed an application to rescind the care orders made by the Children’s Court.
In October 2013, the wife started counselling with Child Protection Counselling Service.
On 12 February 2014, the Children’s Court dismissed the husband’s application to rescind orders and made orders extending the number of times the husband had supervised contact with X from 6 to 12.
On 8 May 2014, the wife commenced proceedings in the Federal Magistrates Court.
On 13 May 2014, the husband filed an appeal against the Children’s Court orders in the Court of Appeal.
On 9 July 2014, orders were made permitting the wife to lodge a caveat on the Street D, Suburb E property.
On 14 August 2014, Judge Altobelli made interim orders which permitted the husband to obtain a mortgage of $200,000 and for the caveat to be removed to facilitate the registration of the mortgage and then for the caveat to be re-lodged by the wife.
On 30 September 2014, the husband’s company N Pty Ltd took out a $200,000 mortgage with S Bank on the Street D, Suburb E property. S Bank registered their mortgage on the Street D, Suburb E property. The husband and the husband’s father are guarantors of the loan.
On 2 October 2014, the wife re-lodged her caveat over the Street D, Suburb E property.
On 24 October 2014, the Court of Appeal heard the husband’s appeal against the Children’s Court orders and on 19 December 2014, the husband’s appeal against the Children’s Court orders was dismissed.
On 17 December 2014, the matter was transferred from the Federal Circuit Court of Australia to the Family Court of Australia.
On 30 December 2014, the husband filed a s 90 Application in the Children’s Court seeking to reopen the case.
In 2015, the wife’s father passed away.
In March 2015, S Bank commenced proceedings in the Supreme Court due to the husband’s default on the loan.
On 15 May 2015, the husband’s s 90 Application was refused.
In September 2015, the wife’s solicitor became aware that no repayments had been made to the S Bank mortgage and that the mortgage had increased to the sum of $300,000.
In October 2015, the wife suffered a psychotic breakdown.
On 8 October 2015, FACS filed an Application to remove X from the wife’s care, the wife was admitted to hospital and the wife’s mother collected X at the request of FACS.
In January 2016, the wife was diagnosed with a major depressive disorder and PTSD by Dr O.
In December 2016, the Children’s Court made an order placing X in the care of the wife’s mother.
On 20 June 2017, the wife filed an Application in a Case seeking that the net proceeds of sale of the Street D, Suburb E property be set aside and be subject to further orders under the Act.
On 21 August 2017, McClelland J made orders that required S Bank to deposit $300,000 into the wife’s solicitor’s trust account in the event that the Street D, Suburb E property was sold by way of mortgagee sale.
On 29 May 2018, I made a notation that the husband “will be conceding a de facto relationship between 2000 and 2011”.
On 12 November 2018, orders were made in the Supreme Court, including judgment entered in favour of S Bank in the sum of $280,000 and leave was granted to S Bank to issue a Writ of Possession, with the Writ to lay in the Registry until 1 November 2019. I was informed, during this hearing, that S Bank had indicated that they will await the outcome of these proceedings before acting upon their Writ.
On 18 December 2018, the husband’s father, Mr G Siddall (who is also the 2nd respondent), was appointed Case Guardian for the husband.
On 29 May 2019, the wife’s mother, Ms B Mynatt, was appointed Case Guardian for the wife.
In 2019, the wife was scheduled into the Mental Health Ward at Town Q Hospital where she remained for about three weeks. She has not participated as a witness in this hearing.
Leave
The wife asserts that the parties separated on 23 December 2011. The husband asserts that the parties separated on 2 May 2011.
Section 44(5) of the Act provides that parties may apply for a property order pursuant to s 90SM only if that application is made within a period of two years from the date of separation.
The wife filed her Initiating Application on 8 May 2014. If the date of separation, as asserted by the wife, is accepted by the Court, the wife would be four months and 15 days out of time. If the date of separation, as asserted by the husband, is accepted by the Court, the wife would be 12 months and 6 days out of time.
Pursuant to s 44(6) of the Act, the Court may grant leave to a party to apply out of time if the Court is satisfied that “hardship would be caused to the party or a child if leave were not granted”.
The authoritative pronouncements regarding s 44(3) of the Act (whether hardship would be occasioned to a party of a marriage), for all practical purposes, are the same as the requirements for parties in a de facto relationship pursuant to s 44(6) of the Act (Gadzen & Simkin [2018] FamCAFC 218 (“Gadzen”) at [29]).
As stated in Whitford & Whitford (1979) FLC 90-612 (“Whitford”) at 78,144:
The loss of the right to institute proceedings is not the hardship, to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection 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 probability 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. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
The Full Court in Gadzen discussed the relevant law in respect to the question of hardship:
33. In Althaus and Althaus [(1982) FLC 91-233 at 77,266 – 77,267] Evatt CJ (with whom Marshall SJ and Strauss J agreed) observed of earlier cases:
…Now to some extent there may be an exercise of semantics involved here. The case of McDonald referred to a reasonable prima facie case as the test. Other cases such as McKenzie and Whitford suggest that the applicant needs to show that she would probably succeed. In the case of Perkins and Perkins (1979) FLC 90-600, Lindenmayer J. suggested that the test was that there was a reasonable probability of the claim being successful…
In my opinion, sec. 44(3) and (4) are not intended to require a detailed hearing on the merits to determine whether the applicant’s claim will succeed. 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.
34. In Hall and Hall [(1979) FLC 90-679 at 78,627; see also McCoy and Chancellor [2014] FamCAFC 62] the Full Court said:
Fundamental to that [a finding of hardship] is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept…
35. In Sharp [(2011) 50 Fam LR 567] the plurality of the Full Court observed:
17.It is well-accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.
18.In assessing hardship in this context the well-established test is that the applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exits is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
36. In Edmunds [(2018) FLC 93-847] the Full Court recently cited with approval the judgment in Sharp and said:
47.As the Full Court pointed out in Sharp at [18], “the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
48.That involves a consideration, but not a final determination, of the nature of the applicant’s claim. In doing so, the Court must weigh the applicant’s case against that of the respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.
37. It follows from these authorities that the starting point in determining an application for leave is to consider the question of hardship which requires for its existence a conclusion that an applicant has a prima facie or arguable case of substance having regard to all of the circumstances of the case. That must take into account the costs or likely costs to be incurred in pursuing the claim.
As outlined above, it is not the loss of the right to commence proceedings which the Court must consider but the consequences of that loss. Therefore, in determining what hardship could be occasioned to the wife, the Court must consider, although not finally, the strength of the wife’s claim if leave was granted. It is also important to consider in the context of hardship, whether or not, if leave were granted, any order that could be made would, in fact, alleviate that hardship.
In determining how the Court should exercise its discretion, Whitford at 78,146 found that it depended on the facts of the particular case and that:
Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year [relevantly, two years pursuant to the current s 44 of the Act] from a date of the decree nisi, and the general policy of the Act which appears from sec. 44(3) and sec. 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 prejudice occasioned to the respondent by reason of 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.
Consideration of the wife’s case
Whilst the husband owned his one half interest in the Street D, Suburb E property at the date of cohabitation, there is no objective evidence as to the value of the property or the amount owing on the mortgage as at that date. The husband says that at the date of cohabitation the mortgage was $22,000 which he says he discharged in 2003 solely from his own wages.
During the relationship, the husband was reliant on a disability pension.
The wife worked as a customer service officer until the birth of X for a period of four years. The husband says that this was for a period of 6 months and that he never received any benefit from the wife’s wage.
In about 2005, the husband took out a further mortgage on the Street D, Suburb E property in the sum of $60,000. The applicant gave evidence that, from the conversations she had with the wife and the husband at the time, that money was applied to the husband’s father’s heart surgery, a holiday for them in Country R for two weeks and improvements to the property. The husband contends that the monies were applied to three treatments of IVF, holidays and a new car for the wife.
The wife was also in receipt of approximately $500 per month by way of child support payments from her previous relationship. Exhibited to the applicant’s affidavit are a number of statements provided by the Child Support Agency, which show the deposit of the wife’s child support payments into the following accounts:
a)From 1 March 2002 until 15 February 2003, an amount of $5,146,31 was paid to the Westpac mortgage account in the husband’s name for Street D, Suburb E property;
b)From 25 March 2003 until 13 November 2004, an amount of $9,510.24 was paid to an unknown Commonwealth Bank account;
c)From 11 December 2004 to 18 May 2009, an amount of $25,157.29 was paid directly into the parties joint Commonwealth Bank account and applied to the mortgage, insurances and other living expenses;
d)From 16 June 2009 to 20 September 2010, an amount of $7,719.89 was paid into a Commonwealth Bank account in the husband’s name and was applied to living expenses such as groceries, petrol and furniture, as well as numerous cash withdrawals;
e)From 17 July 2010 to 19 July 2010, an amount of $467.56 was paid to a St George account in the wife’s name; and
f)From 16 October 2010 to 20 December 2011, an amount of $8,012.81 was paid into a Commonwealth Bank account in the wife’s name which she applied to various living costs.
The Court was also taken to a number of letters which the husband had sent to the wife when he was in gaol in late 2011 which stated “Thank you so much for taking care of things homes, bills etc.” and “I thank you with all my heart for looking after the house for me, and making sure the home loan is paid for me… you are the only one who has stood by me.”
Counsel for the applicant submitted that the wife undertook the majority of the homemaking and parenting duties during the relationship and made improvements to and maintained the Street D, Suburb E property. The husband disputes this, stating that both he and the wife shared domestic duties. Further, counsel for the applicant also argues that the wife is entitled to a further adjustment due to the husband’s “frequent and significant violent conduct” which made her contributions to the relationship significantly more arduous (See Kennon).
Following separation, the wife did not retain any asset from the Street D, Suburb E property. The husband retained his 50 per cent interest in the Street D, Suburb E property, subject to a mortgage of around $50,000 to $58,000, a Motor Vehicle P (which the husband disputes) and household furniture and contents.
The wife has been diagnosed with major depressive disorder and PTSD and is unable to work. She is currently living in housing commission and is in receipt of government benefits. The husband is currently in receipt of a disability pension. He lives with his current partner at the Street D, Suburb E property.
The current asset pool
On 14 August 2014, Judge Altobelli made orders that the wife withdraw the caveat which she had lodged on the Street D, Suburb E property in July 2014, that the husband be permitted to obtain a mortgage over the property and that upon the husband being able to secure a loan for not more than $200,000, the wife be entitled to lodge a further caveat on the property. The husband was also restrained by injunction from further dealing with the property.
On 30 September 2014, following separation, the husband’s company N Pty Ltd took out a $200,000 mortgage with S Bank on the Street D, Suburb E property. The husband said he applied those funds to the discharge of the previous mortgage and legal fees. That mortgage is now in the sum of $310,000.
On 2 October 2014, the wife re-lodged her caveat over the Street D, Suburb E property. That caveat is based upon the order made by Judge Altobelli on 14 August 2014 and a claim for a constructive trust (subject to any claim that might otherwise be made under s 90SM, which does not create a caveatable interest).
The husband and his father failed to meet mortgage repayments in respect to the S Bank loan. As already mentioned, during Supreme Court proceedings between the respondents and S Bank, judgment was entered in favour of S Bank in the sum of $280,000 and leave was granted to S Bank to issue a Writ of Possession, with the Writ to lay in the Registry until 1 November 2019.
Further, the husband gave evidence that he also owes $137,000 to T Lawyers (his former lawyers), $110,000 to his mother and $65,000 to his son, Mr A. All of these debts relate to legal fees, paid or owing, associated with Supreme Court, Children’s Court and Family Court proceedings. As detailed above, all of these debtors, plus the wife, have lodged caveats against the Street D, Suburb E property. This is in the circumstances where the husband had been restrained from further encumbering the property pursuant to orders of 14 August 2014. The wife’s caveat is the first in time to be lodged on the title of the Street D, Suburb E property.
According to the respondents, the Street D, Suburb E property is currently valued at $1.4 million (a one half interest being $700,000). Counsel for the respondents argued that when taking into account the husband’s debts, the current property pool only amounts to some $78,000 and when considering all the circumstances of the case, this would mean that the wife’s alleged hardship could not be alleviated even if leave were granted.
However, counsel for the applicant submitted that if leave were granted, he would seek to challenge the legitimacy of a number of the debts which the husband says he owes to family members. It was also argued that due to the order of the caveats and the order made by McClelland J on 21 August 2017, that requires S Bank to deposit $300,000 into the wife’s solicitor’s trust account in the event that the property was sold by way of mortgagee sale, the wife would have the second priority (after S Bank) to the receipt of the proceeds of sale.
Further, counsel for the applicant made the submission that the majority of the debt attributed to the husband (save for approximately $58,000, which was the value of the mortgage at the time of separation) has no nexus to the de facto relationship and therefore, would either not be included on the balance sheet or be added back against the husband during final property proceedings (see Biltoft and Biltoft (1995) FLC 92-614 and Rodgers & Rodgers (2016) FLC 93-703). I accept that the wife has an arguable case in respect of having priority over a number of other debtors in relation to any future sale proceeds of the Street D, Suburb E property.
Overall, I find that the wife has a prima facie case for a property settlement order in her favour.
The wife’s hardship
The wife has left a 10 to 11 year relationship without any assets. I have made a finding that she has a prima facie case for a property settlement order.
Counsel for the respondents argued that if leave were not granted the wife would not suffer significant hardship as she currently resides in housing commission and is supported by government benefits. Those facts speak to the wife’s current financial situation and her receipt of Government benefits do not significantly mitigate the hardship which would result if she was not able to pursue her application for a property settlement order.
Whilst there was no evidence as to the current or anticipated costs, it is clear that the continuation of this litigation will result in the wife incurring further legal fees. However, when considering the wife’s prima facie case as set out above and taking into account what I infer the cost of further litigation might be, I find that the wife still has a reasonable claim which, if realised, would alleviate her hardship if that claim was successful.
Discretionary considerations
In respect of delay, the applicant gave evidence of the wife’s fragile mental and physical state post separation. As mentioned above, X was removed from the parties’ care by FACS and the wife commenced a six week, live in rehabilitation program. Children’s Court proceedings in respect of the care and living arrangements for X began on 3 January 2012 and proceeded throughout the two year post separation period. Paragraph 111 of the applicant’s affidavit states that:
By 28 December 2013 [the wife] did not feel capable of addressing the property settlement and giving her solicitor detailed instructions about it. She was afraid of filing the application. She was afraid of how [the husband] would react and how she would cope. Her ability to focus was not on dealing with a property application. [The wife] was very focused on the Children’s Court proceedings and X…
Counsel for the applicant also took the Court to a report by the wife’s social worker, dated 6 November 2013, which stated that the wife had self-referred to the Domestic Violence and Community Counselling services on 9 January 2012 (on the wife’s case, approximately two weeks post separation). The report detailed that in the duration of the wife attending the counselling services (almost 22 months) she had been “experiencing difficulty coping with [the husband’s] ongoing behaviour.” The wife’s significant psychological problems during that time were also described in the report.
I find in those circumstances, the length of delay of four and a half months (and even on the husband’s case at 12 months) is not excessive.
The husband argued that if leave were granted he would suffer hardship. He submitted he would be forced to sell his share of the Street D, Suburb E property and be left with very little equity and no residence. Neither the respondent nor the 2nd respondent, however, have provided evidence that it would be possible to refinance the debt owed to S Bank and satisfy the other debts, particularly, the debt owed to T Lawyers and thereby, avoid a sale.
Conclusion
Having regard to all the above circumstances, I find that the wife has an arguable case of substance and would suffer hardship as a consequence if her application for leave was not granted. I also find that the alleged hardship suffered by the wife could be alleviated by a final property settlement order if found in her favour. It is appropriate to exercise discretion to grant leave under s 44(6) of the Act.
I certify that the preceding One hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 November 2019.
Associate:
Date: 7 November 2019
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