NAIRN & PAISLEY

[2019] FCCA 3830

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAIRN & PAISLEY [2019] FCCA 3830

Catchwords:

FAMILY LAW – Application to proceed out of time – section 44(3) of the Family Law Act 1975 (Cth) – where the applicant had not placed sufficient information before the Court to show a reasonable prospect of success – request for an adjournment to provide further evidence in support of the applicant’s claim – where the applicant had prior opportunity to provide such material.

Legislation:

Family Law Act 1975 (Cth), ss.44(3), 44(4)

Cases cited:

Whitford & Whitford (1979) FLC 90-612
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Applicant: MS NAIRN

Respondent: MR PAISLEY

File Number: DGC 1617 of 2018

Judgment of: Judge McNab

Hearing date: 11 December 2019

Date of Last Submission: 11 December 2019

Delivered at: Dandenong

Delivered on: 11 December 2019

REPRESENTATION

Counsel for the Applicant: Ms Brenton of Counsel

Solicitors for the Applicant: Ravi James Lawyers

The Respondent appearing in person.

ORDERS

1. The Amended Initiating Application filed 27 July 2018 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1617 of 2018

MS NAIRN

Applicant

And

MR PAISLEY

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. This proceeding has been on foot since 16 May 2018. The applicant wife, by her case outline (filed 9 December 2019), seeks orders that:

   1. Pursuant to section 44(3) of the Family Law Act 1975 (Cth), the Wife be granted leave to proceed with her Application for property settlement and maintenance orders out of time;

   2. That there be such alteration of property interests as this Honourable Court deems just and equitable;

   3. That the Applicant be excused from further particularising her claim for a property settlement until such time as discovery and inspection is complete.

   4. That the Husband pays to the wife for her maintenance the sum of $200.00 per week.

   5. That the Husband pay the Wife’s cost of and incidential [sic] to these proceedings.

   6. Such further and other orders this Honourable Court deems appropriate.

2. The application was brought out of time by about, as I understand it, 39 days. Leave is required to proceed out of time pursuant to section 44(3) of the Family Law Act 1975 (Cth).

3. The principles in relation to extension of time are well settled and, largely, are set out in Whitford & Whitford (1979) FLC 90-612 (‘Whitford’), a decision of the Full Court of the Family Court. The matters that the applicant must establish is proof of hardship, as stated at [78,144] of Whitford:

   Thus, on an application for leave under sec. 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.

   In establishing hardship, the applicant must show more than the loss of a right to commence proceedings: there must be a prima facie case or a real possibility of success.

4. At [78,145] in Whitford, the Court stated:

   Section 44(4) inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused.

5. At [78,146] in Whitford, the Court further stated:

   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 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.

6. I accept that the delay is not great and I also accept that there was correspondence passing from the wife to the respondent husband prior to proceedings being issued. However, the Court made orders on 2 October 2018 which included the setting down of this matter for final hearing initially on 23 July 2019 and I understand it has been adjourned to this day.

7. The orders made on 2 October 2018 included that each party must file and serve, no later than 4pm two days prior to the final hearing, an outline of case document that includes:

   (a) a list of the documents to be relied upon;

   b) a brief chronology;

   c) a list of all of the assets, liabilities and financial resources claimed to be part of the asset pool;

   d) a list of contributions claimed or contended for;

   e) a list of other factors relied upon (s.75(2) factors);

   f) the percentage adjustment contended for;

   […]

The applicant’s evidence

1. The applicant has filed an affidavit of 27 November 2019 which sets out the history of her relationship with the respondent.

2. In summarised form, that evidence is:

   a)she was born in 1993.

   b)she is currently 26 years of age and is in good health.

   c)she and the respondent married in 2013 in Country B.

   d)she arrived in Australia in 2014 and then lived with the respondent and his parents.

   e)the relationship started to deteriorate due to instances of family violence perpetuated by the respondent and his parents towards her.

   f)after she arrived in Australia, she obtained work at the Employer A.

   g)the respondent and his parents accused her of being involved with a son of the respondent’s family friend.

   h)the respondent and his parents forced her to resign from her employment.

   i)the money she earned from working was deposited into a joint account.

   j)in total, she deposited about $2,200 into the joint account.

   k)on 25 August 2015, she was thrown out of the home by the respondent and his father.

   l)she obtained an intervention order on 31 May 2015.

   m)that the marriage was dissolved by orders made on 7 March 2017 to take effect from 8 April 2017.

   n)she arrived in Australia on a temporary spouse visa and ‘had to wait further processing after two years from date of application to be given permanent spouse visa (subclass 801)’. She deposes that with the breakdown of the marriage the respondent withdrew the sponsorship for the visa and the visa was refused.

   o)she has subsequently made an application to the Federal Circuit Court for judicial review of the Minister’s decision not to grant the permanent spouse visa, with a directions hearing scheduled on 1 April 2020.

   p)she further depose to financial hardship as a result of not having a visa.

3. The application made on 16 May 2018 was filed after the expiry of the limitation period. The applicant says that on 18 November 2016 she wrote, through her lawyers, to the respondent’s solicitors seeking discovery of financial documents. She says she did not receive those documents from the respondent. A further letter was sent on 17 May 2017.

4. She deposes that on 16 October 2018 her solicitors received financial documents from the respondent’s solicitors and inquiries were made in relation to matters arising from the correspondence.

The issue at hearing

1. The matter came on for hearing today. The applicant is seeking an adjournment of the hearing in order to place material before the Court which would set out the basis of her claim that she has an entitlement to a favourable financial adjustment as a result of contributions made.

2. The husband opposed the application for an adjournment. He addressed the Court regarding the stress  and anxiety that he was experiencing as a result of the application and referred to an affidavit that he swore on 13 July 2018 in which he says, at [17], that:

   My current financial circumstances are quite parlous. I have been out of a job since December and after being diagnosed with cancer earlier this year, my future is totally uncertain and is dependent upon the success of cancer treatment I am currently undergoing.

3. The husband exhibited a report from a psychologist which referred to him having been referred to psychological therapy to address Depression and Anxiety Disorder on 6 June 2018.

4. Whilst the husband did not provide fresh evidence to the Court, the husband disclosed to the applicant’s counsel, medical information in relation to his father, who apparently is very ill. The respondent told the Court that he is expecting shortly to be acting as a full time carer for his father. Despite the evidence not being in an admissible form and having been provided to the applicant’s counsel and not the Court, I accept what was said from the bar table about that. I was told by the applicant’s counsel that the respondent provided a medical report or a letter from the doctor confirming the substance of what was said by the husband.

Consideration

1. The applicant’s affidavit of 27 November 2019 does not contain sufficient information to enable the Court to make a decision that there was a reasonable prospect of success of the applicant’s application. That much was acknowledged by counsel for the applicant who accepted that further affidavit material would have to be placed before the Court in relation to the financial contributions made by the wife to any assets owned by the husband.

2. The fact is that this proceeding has been on foot for a considerable period of time. The applicant has had ample opportunity to place before the Court material which might place the Court in a position of making the determinations that it needs to make in order to grant an extension of time. The Court is mindful of the fact that this litigation is extremely stressful and the applicant has had every opportunity to place before the Court material such as to establish a claim. She has not done this, and I have regard to what was said by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27: that the Court has to be mindful of the effects of litigation on parties and also be mindful of the public interest in proceedings being conducted in an effective and efficient way.

3. That is not to be say that case efficiency trumps the administration of justice, but in my view, there is simply not enough material placed before the Court to provide a basis for the Court to make the orders sought by the applicant. No sufficient explanation was provided as to why evidence had not been filed.  For those reasons, I will dismiss the application for an adjournment and I order that the amended initiating application filed on 27 July 2018 be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 20 January 2020