NELL & KOHLER

[2019] FCCA 281

FEDERAL CIRCUIT COURT OF AUSTRALIA

NELL & KOHLER [2019] FCCA 281

Catchwords:
FAMILY LAW – Application for an extension of time to file property proceedings under s.79 of the Act – where the Applicant would suffer hardship if leave was not granted – adequate explanation for the delay – no prejudice to the Respondent – leave to institute proceedings granted.

Legislation:

Family Law Act 1975 (Cth), ss.44, 79

Cases cited:

Edmunds & Edmunds [2018] FamCAFC 121

Montano & Kinross [2014] FamCAFC 231

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

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 NELL

Respondent: MR KOHLER

File Number: MLC 2999 of 2018

Judgment of: Judge C.E. Kirton QC

Hearing date: 13 July 2018

Date of Last Submission: 13 July 2018

Delivered at: Melbourne

Delivered on: 13 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Paul

Solicitors for the Applicant: ADN Lawyers

Counsel for the Respondent: Mr Foo

Solicitors for the Respondent: Rigoli Lawyers

ORDERS

1. The Applicant is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) to commence property proceedings against the Respondent under s.79 of the Family Law Act 1975 (Cth).

2. The costs of the parties of and incidental to the Applicant’s Applications in a Case filed on 23 April 2018 and 1 May 2018 be reserved.

3. The matter be adjourned to the Federal Circuit Court of Australia on 19 March 2019 at 9.30 am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2999 of 2018

MS NELL

Applicant

and

MR KOHLER

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter the Applicant seeks leave to institute property proceedings outside the 12 month time limit prescribed by s.44(3) of the Family Law Act 1975 (Cth) (Act). 

2. The parties were divorced on 9 October 2016 and therefore any property proceedings had to be instituted on or before 9 October 2017. The Applicant filed an Initiating Application on 20 March 2018 purporting to institute proceedings pursuant to s.79 of the Act. It was not until 23 April 2018 when the Applicant filed an Application in a Case, that the Applicant sought leave to commence property proceedings outside the 12 month time limit. The application for leave to proceed is therefore six and a half months out of time. The Respondent opposes the application.

Background

1. The Applicant was born in Country B on … 1985 and is 34 years old.  She has two children from a former relationship: [X], born … 2004 and [Y], born … 2006 (Children).  The Applicant is an Australian Citizen[1].

   [1] Initiating Application, filed 20.3.18, at [11].

2. The Respondent was born in Country A on … 1980 and is 38 years old.  The Respondent came to Australia on … 2007[2].

   [2] Affidavit of the Respondent, filed 21.5.18, at [10].

3. The parties were married on … 2012.

4. After the parties married the Respondent applied for an on-shore spouse visa with the Applicant as his sponsor.  The Respondent was granted the visa. 

5. On 25 April 2015 the Respondent entered into a contract of sale to purchase the property at Property C (Property) for the sum of $345,000[3] (Contract of Sale).  The Contract of Sale required that a deposit of $34,500 be paid in full by 11 May 2015.  Settlement of the Property took place on 3 July 2015 and the Property was registered in the name of the Respondent[4]. 

   [3] Affidavit of the Respondent, filed 21.5.18, at [36] and Annexure “K-3”.

   [4] Ibid., at [37].

6. On 8 September 2016 a Divorce Order was made by this Court (Divorce Order), taking effect on 9 October 2016[5].

   [5] Affidavit of the Applicant, sworn/affirmed 11 April 2018 and filed 23 April 2018, Annexure   “N-01”.

7. On 24 May 2017 the Applicant lodged Caveat … (Caveat) over the Property claiming an implied, resulting or constructive trust[6].  The Applicant’s current solicitors lodged the Caveat.

   [6] Affidavit of Laura Jane Avery, filed 25.6.18, at [17] and Annexure “LA-2”.

Procedural History

1. On 20 March 2018 the Applicant filed an Initiating Application, Affidavit[7] (Applicant’s First Affidavit) and Financial Statement (Applicant’s Financial Statement).  The Applicant also filed a Superannuation Information Statement.  The return date of the Initiating Application was 26 April 2018.

   [7] Affidavit of the Applicant, sworn/affirmed 20 March 2018 and filed 20 March 2018.

2. The Initiating Application seeks final orders that the Respondent pay to the Applicant 50% of the Respondent’s equity in the Property.  The following interim orders are sought:

   a)The Respondent provide full financial disclosure.

   b)A sworn valuation of the Property be obtained and be paid for          by the Respondent.

   c)The parties attend a conciliation conference.

3. An Affidavit of Service and Acknowledgement of Service was filed on behalf of the Applicant on 9 April 2018.  The deponent of the Affidavit of Service deposed that the Respondent was personally served on 27 March 2018 with: the Initiating Application, the Applicant’s Financial Statement, the Applicant’s First Affidavit and the Superannuation Information Statement.  In the Acknowledgment of Service the Respondent acknowledged being served with these documents.   

4. On 23 April 2018 the Applicant filed an Application in a Case (First Application in a Case) and a further Affidavit[8] (Applicant’s Second Affidavit).  The return date for the First Application in a Case was 26 April 2018.

   [8] Affidavit of the Applicant, sworn/affirmed 11 April 2018 and filed 23 April 2018.

5. The First Application in a Case seeks an order that the Applicant be granted leave pursuant to s.44(3) of the Act to “file her application for property settlement out of time”.

6. On 26 April 2018 the proceeding came before the Court in the Duty List.  The Applicant was legally represented and the Respondent appeared in person.  The proceeding was adjourned to the Duty List on 28 May 2018 and Orders were made by consent that the Respondent file and serve a Reply and Affidavit in Support within 21 days and that costs be reserved.

7. On 1 May 2018 the Applicant filed an Application in a Case (Second Application in a Case) and an Affidavit[9] (Applicant’s Third Affidavit).   The return date of the Second Application in a Case was 28 May 2018.  The content of the Second Application in a Case was identical to that of the First Application in a Case.  The content of the Applicant’s Third Affidavit was also identical to that of the Applicant’s Second Affidavit.

   [9] Affidavit of the Applicant, sworn/affirmed 11 April 2018 and filed 1 May 2018.

8. The Respondent filed his Response on 21 May 2018, together with an Affidavit[10] (Respondent’s First Affidavit) and a Financial Statement (Respondent’s Financial Statement).

   [10] Affidavit of the Respondent, sworn/affirmed 18 May 2018 and filed 21 May 2018.

9. In the Response the Respondent seeks interim and final orders that:

   a)The application be dismissed.

   b)Alternatively, there be no adjustment of the property of the             Applicant and the Respondent.

   c)Costs.

10. On 28 May 2018 the proceeding again came before the Court in the Duty List and the parties were both legally represented. The proceeding was adjourned to 13 July 2018 for an interim hearing of the application pursuant s.44(3) of the Act for the Applicant to have leave to commence property proceedings out of time. Procedural orders were made for the parties to file and serve any further affidavits.

11. On 25 June 2018 a further Affidavit of the Respondent was filed (Respondent’s Second Affidavit) together with an Affidavit of the Respondent’s solicitor Lauren Jane Avery.

Legal Principles

1. The Applicant has sought an order that she be granted leave, pursuant to s.44(3) of the Act, to file her application for property settlement out of time.

2. Section 44(3) provides:

   Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:

   (a)     a divorce order has taken effect; or

   (b)     a decree of nullity of marriage has been made;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not   being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:

(c)  in a case referred to in paragraph (a)—the date on which the divorce order took effect; or

(d)  in a case referred to in paragraph (b)—the date of the making of the decree.

The court may grant such leave at any time, even if the            proceedings have already been instituted.

1. Property applications are referred to in s.44(3) as “proceedings of a kind referred to in paragraph …(ca) of the definition of ‘matrimonial cause’ in subsection 4(1) (not being proceedings under section 78 or 79A)[…]”.   Paragraph (ca) of the definition of ‘matrimonial cause’ in s.4(1) provides:

   Proceedings between the parties to a marriage with respect to the   property of the parties to the marriage or either of them, being      proceedings:

   (i) arising out of the marital relationship;  

   […] 

2. Section 44(4) defines the conditions upon which the Court may grant leave to bring proceedings out of time. Section 44(4) states:

   (4)The court shall not grant leave under subsection (3) or    (3A) unless it is satisfied:

   (a)   that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; […]

   […]

1. If hardship is established, the Court’s discretion to grant leave is enlivened[11].   In In the Marriage of Whitford[12] (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[13].

   [11] Montano & Kinross [2014] FamCAFC 231, at [11].

   [12] (1979) 4 Fam LR 754.

   [13] 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[14].

   [14] Ibid., at p.759.

2. The generally accepted interpretation of “hardship” in this context is “substantial detriment”[15].   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[16].

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

   [16] 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[17].

   [17] 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(3), 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[18]:

   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 [19].

   [18] (1979) 8 Fam LR 169.

   [19] Ibid., at p.172.

2. Recently the Full Court said in Edmunds & Edmunds[20]:

   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[21].

   [20] [2018] FamCAFC 121.

   [21] Ibid., at [20].

3. In property proceedings s.44(3) 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[22] 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[23]. 

   [22] [2009] FamCAFC 179.

   [23] 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[24],

   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[25].

   [24] (1990) 93 ALR 479.

   [25] 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[26].

   [26] (1979) 4 Fam LR 754, p.761.

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(3)[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 upon 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].

   [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.

Balancing Hardship of Respondent   

1. The Court is required to consider any hardship to be suffered by the Respondent and balance that with the Applicant’s hardship[32].  In  Frost & Nicholson[33] 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[34].

   [32] 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.

   [33] (1981) FLC 91-051.

   [34] 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 any indication beforehand that she wished to seek a property settlement, leave might well be refused[35].  

Submissions of the Parties

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

Applicant

1. The Applicant relied upon the Initiating Application, the Applicant’s First Affidavit, the Applicant’s Financial Statement, the First Application in a Case and the Applicant’s Second Affidavit.

2. The Applicant deposed that she met the Respondent via social media and that she moved from Town D to Melbourne to live with the Respondent in about … 2010.  They first lived together in Suburb E where the Respondent was boarding at the time.  They then rented a flat at Suburb F[36].

   [36] Applicant’s First Affidavit, at [5].

3. The Applicant deposed that during this time, the parties were planning to purchase a home together, so she paid for food and all domestic expenses from the income that she received as a tradesperson, so that the Respondent could save money.  At that time the Respondent worked for the Employer as a tradesperson and also at the Employer as a professional[37].

   [37] Loc. cit.

4. The parties were married on … 2012, 28 days before the Respondent’s visa expired.  The Applicant deposed that the Respondent “insisted” on marrying her.  The Respondent then applied for an on-shore spouse visa, with the Applicant being his sponsor[38].

   [38] Ibid., at [6].

5. The Applicant deposed that after the marriage:

   “[…] we continued to live as a happy husband and wife. He    worked and I looked after our home and [the] children…We all  continued to save money for our matrimonial home”[39].

   [39] Ibid., at [7].

6. Counsel for the Applicant submitted that she was instructed that in about March 2015 the Applicant became aware that the Respondent was having an affair with one or more women and so the parties had a period of separation[40].

   [40] Transcript T8:12-35.

7. In May 2015, the Property was purchased.  The Applicant deposed:

   The Respondent told me that it would be easier to finance the purchase; if the house was registered in his name only. I believed and agreed. The deposit was [paid] from our saving money, and a mortgage was obtained from Westpac Bank. The purchase was     settled in July 2015, and we moved to live in that house after    settlement. I used my own money to purchase furniture, TV set and beds in total about $8000. The Respondent bought a      fridge[41].

   [41] Applicant’s First Affidavit, at [8].

8. Counsel for the Applicant submitted that the Husband moved into the Property when the purchase was settled in July 2015.  It was also submitted that between July 2015 and January 2016 the Applicant and the Children would visit the Respondent and sleep at the Property on the weekends, as the parties were in the process of re-establishing their relationship. In January 2016 the Applicant and the Children commenced living at the Property on a full time basis[42]. 

   [42] Transcript T8:36-42.

9. The relationship between the parties again became problematic from the beginning of 2016. The Applicant attributes this deterioration to the Respondent having obtained Permanent Residence[43].

   [43] Applicant’s First Affidavit, at [10].

10. The Respondent went to Country A in about March 2016 to visit his family.  Counsel for the Applicant submitted that it was originally planned that the Applicant would go to Country A as well, but the Respondent decided that he would go on his own[44].

    [44] Transcript T9:13-15.

11. The Applicant deposed that whilst the Respondent was away in Country A she paid for the whole of the inside of the house to be repainted and for other improvements. The Applicant also deposed to planting trees and improving the garden at the Property[45].

    [45] Applicant’s First Affidavit, at [9]

12. Counsel for the Applicant submitted that when the Respondent returned from Country A in June 2016, he advised the Applicant that he was going to marry another woman from Country A and that he wanted a formal separation.  Counsel submitted that the Applicant says that separation then occurred from 1 June 2016[46]. 

    [46] Transcript T9:23-25.

13. The Applicant deposed that she:

    […] left our matrimonial home at Property C in about the end of 2016; after the Respondent (my ex-husband) told me that he had to marry a girl from Country A; as his family asked him to do so[47].

    [47] Applicant’s Second Affidavit, at [2].

14. The Applicant also deposed:

    The Divorce Application was made by the Respondent[48]. 

    [48] Applicant’s Second Affidavit, at [3].

15. Counsel for the Applicant noted that it was “of concern” that the date of separation in the Application for Divorce, signed by both parties and dated 21 June 2016 had been amended[49] (Application for Divorce).  The date of separation had originally been hand written on the Application for Divorce as “01/06/2016”.  However the “6” in 2016” had been written over and transformed into a “5”, which caused the date of separation to appear as “01/06/2015”.

    [49] Respondent’s Second Affidavit, at [20] and Annexure “K-2”

16. Counsel for the Applicant submitted that at the time that the Respondent was “pushing for a divorce” the Applicant was “emotionally quite fragile” and was experiencing “a time of great instability”[50].  This was because the Applicant:

    a)Was experiencing significant difficulties in caring for [X].          These difficulties:

    […] resulted in DHS removing [X] from my care in June 2017.  Our son currently lives with his foster parents in Canberra. I have not been able to see him since then, though we spoke via telephone about once a week[51].

    b)Was suffering from bipolar and ongoing, stress and anxiety and       was not stable on her medication[52].

    c)After moving out of the Property, the Applicant and the Children     went to live with a friend at Suburb G.  They were unable to live there for long and in July 2017 the Applicant and [Y] had moved to rented accommodation in Suburb G[53].

    [50] Transcript, T9:33-34.

    [51] Applicant’s Second Affidavit, at [5(c)].

    [52] Transcript, T9:44-46.

    [53] Applicant’s Second Affidavit, at [6].

17. The Applicant deposed that when the Divorce Order was made:

    […] I did not understand that I had a 12-month limit to apply for a property settlement[54].

    [54] Applicant’s Second Affidavit, at [3].

18. The Applicant attributes her delay in making the application for property settlement to:

    a)My lack of understanding of the time limit which applies;

    b)Personal difficulties in my life since August 2016, those include the fact that I suffer from bi-polar and suffer ongoing stress and anxiety;  

    c)Further, I have had significant difficulties caring for my son…[55]

    [55] Applicant’s Second Affidavit, at [5].

19. The Applicant deposed that if the application for leave to file the application out of time was not granted “[…] it would cause me significant financial hardship and would be unfair...”[56].  The Applicant said:

    My present income is $330 per week which is the Centrelink    Disability Support Pension.  I lived (sic) in a rented unit with 2   bed rooms (sic).  I have difficulty paying the usual costs of living from     the income I receive[57].

    [56] Ibid., at [8].

    [57] Ibid., at [7].

20. Counsel submitted that the Respondent was able to save the $34,500 for the deposit for the Property (Deposit), through the efforts of both the Applicant and the Respondent[58].  It was estimated that the value of the Property was currently $554,000 and that it had a mortgage of $341,000, leaving an equity of $213,000[59].  

    [58] Transcript T10:19-21.

    [59] Transcript T10:15

21. Counsel for the Applicant submitted that if the application for leave was not granted it would create a significant hardship on the Applicant[60].  This was because the Applicant:

    a)Has no other assets of significant value[61].

    b)Remarried in … 2017 however her husband “is quite     unwell…” and was only able to work part-time [62]. 

    c)Receives a Disability Support Pension from Centrelink as she suffers from bipolar and ongoing stress and anxiety[63].

    d)Is the full-time carer of [Y][64].

    [60] Transcript T10:4-5.

    [61] Applicant’s Financial Statement, at [35]-[45].

    [62] Transcript T10:6-8.

    [63] Transcript T9:44-46; Applicant’s Second Affidavit, at [5(b)].

    [64] Transcript T9:46-10:2.

Respondent

1. The Respondent relied upon the Response and his Financial Statement[65], the Respondent’s First Affidavit, the Respondent’s Second Affidavit and the affidavit of the Respondent’s solicitor Lauren Jane Avery.

   [65] Respondent’s Financial Statement, filed 21.5.18.

2. The Respondent deposed that the parties met thorough an online website and began living together when the Applicant moved from Town D in around … 2011[66].

   [66] Respondent’s First Affidavit, at [16].

3. When the Applicant and the Respondent began living together the Respondent says that he owned a motor vehicle 1, a motor vehicle 2 and nominal savings.  He had no liabilities.  The Respondent deposes that the Applicant had no assets.  He says that the Applicant had liabilities but that he does not know what they were[67]. 

   [67] Ibid., at [21]

4. The Respondent deposed that the parties separated at the beginning of March 2015, when the Applicant moved out of the rental property at Suburb F, leaving the Respondent to look after the Children[68].   The Respondent deposed further that:

   We separated officially on 1 June 2015, when we both agreed that the marriage was over and there was no prospect of reconciliation between us.  At this time, the children returned to     [the Applicant’s] care[69].

   [68] Ibid., at [18].

   [69] Ibid., at [19].

5. On 25 April 2015 “approximately one or two months after separation”[70] the Respondent entered into the Contract of Sale and was required to pay the Deposit in full by 11 May 2015.  The Respondent moved into the Property on 10 July 2015. 

   [70] Ibid., at [36]

6. The Respondent has paid the mortgage payments, insurance and maintained the Property[71].  The Respondent denies that the Applicant made:

   […] any contributions, financial or non-financial, to this    property[72].

   [71] Ibid., at [39].

   [72] Respondent’s Second Affidavit, at [33].

7. The Respondent said that in about January 2016 the Applicant asked if she and the Children could stay with him at the Property as boarders.  The Applicant told the Respondent that she had had a fight with her boyfriend and had nowhere else to live.  The Respondent deposed that he “allowed” the Applicant and the Children to stay at the Property for about 5 weeks.  The Applicant returned to live with her boyfriend on about 3 March 2016, as they had reconciled and the Respondent was travelling to Country A to visit his family[73].   The Respondent said:

   At no time during the 4 weeks [the Applicant] resided under my roof did we ever live as a couple.  Further, I did not consider      that we had reconciled or were in a relationship and was simply     trying to do the right thing and prevent her children from being homeless[74].

   [73] Respondent’s First Affidavit., at [28]-[30].

   [74] Ibid., at [32].

8. It is contended by the Respondent that the Applicant did not engage in any employment throughout the relationship and that she was occupied with home duties and looking after the Children.   The Respondent was employed on a full-time basis as a tradesperson and he also worked part-time at the Employer[75].

   [75] Ibid., at [41] and [42].

9. The Respondent denies that the Applicant and the Children ever lived at the Property, apart from a period of four to five weeks in early 2016.  The Respondent also denies that the Applicant undertook any landscaping at the Property, as it was a new home and was purchased fully landscaped[76].

   [76] Respondent’s Second Affidavit, at [32] and Annexure “K-3”.

10. During the relationship the Respondent says that the parties:

    […] kept entirely separate finances, except for 1 (sic) joint bank  accounts (sic) with the Bendigo Bank[77].

    [77] Ibid., at [36].

11. The Respondent has deposed that when the parties separated it was agreed that the Applicant would take all the household contents.  In 2016 the Applicant also took motor vehicle 1 which was registered in her name.  The Respondent values this car at $10,000[78]. 

    [78] Ibid., at [29].

12. The Respondent denies that he was granted permanent residency in early 2016.  He became a permanent resident on … 2015 and a citizen on … 2017[79].

    [79] Respondent’s First Affidavit, at [58] and Annexure “K-5”

13. The Respondent has remarried and has one child [Z], born … 2017.  The Respondent supports both his wife and child financially.  The Respondent has deposed that he does not have the funds to continue to support his family and to fund ongoing litigation[80].

    [80] Respondent’s Second Affidavit, at [14].

14. The Respondent is currently working as a tradesperson and earning approximately $1,100 per week[81].  He also receives the Family Tax Benefit A and B, making a total average weekly income of $1,269[82].

    [81] Respondent’s First Affidavit, at [48].

    [82] Respondent’s Financial Statement, at [9], [12] and [16].

15. Counsel for the Respondent submitted that:

    a)“A lot” of the Applicant’s evidence was “given from the bar    table” and was objected to on that basis [83].

    [83] Transcript T13:9-10.

    b)The Applicant had failed to describe what the detriment would be to her if she did not obtain leave to proceed[84].

    c)The Applicant had failed to disclose:

    i) “[…] any of her financials in her financial statement”[85].

    ii)That she had a new partner and that she was married to    him[86].

    iii)Any evidence about the resumption of the relationship with the Respondent from March 2015 to 2016[87]. 

    d)The Applicant’s current solicitors lodged the Caveat for her.  It was a matter between the Applicant and her solicitors about the advice she received about property settlements and financial issues[88].

    e)No independent medical evidence had been produced to verify that the Applicant suffered from bipolar and ongoing stress and anxiety[89].

    f)In response to the Applicant’s claims that she has had significant      difficulties caring for [X]:  the Children were not children of the relationship and the Respondent has no financial obligation for the Children[90].

    [84] Transcript T15:12-15.

    [85] Transcript T15:19.

    [86] Transcript T15:16 and 20.

    [87] Transcript T15:20-22.

    [88] Transcript T15:27-33.

    [89] Transcript T15:33-43.

    [90] Transcript T15: 44-47.

16. Counsel for the Respondent contended that the Applicant had failed to make a prima facie case for hardship and that the application should be dismissed with costs. 

Consideration

Hardship

1. The first question that I must consider is whether I am satisfied that pursuant to s.44(4)(a) of the Act, hardship would be caused to the Applicant if leave were not granted pursuant to s.44(3) of the Act[91].

   [91] Whitford, at p.759.

2. If the Applicant was 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.79 of the Act. I do not accept the submission made by Counsel for the Respondent referred to in paragraph 74(c)(i). The Applicant has demonstrated that she is living in very modest circumstances. The Applicant is receiving a Disability Support Pension from Centrelink and she deposed that she is living in a two bedroom rented unit and owns no assets of significant value.

3. In the context of the Applicant’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 financially[92].  

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

4. I next turn to consider whether the Applicant has a prima facie case which is reasonable.

5. It is apparent from the summary of the evidence of the Applicant and the Respondent discussed above, that each give significantly differing accounts of the history of the relationship.  At the interim hearing neither party sought leave to cross-examine the other[93].  At an interim hearing it is not possible to determine matters of credit on the basis of competing affidavits and without cross-examination.

   [93] Cf. Whitford, p.758.

6. The Applicant’s First Affidavit and Second Affidavit were brief in detail and Counsel for the Applicant provided further detail of the history of the parties’ relationship in submissions.  I note Counsel for the Respondent’s submission referred to in paragraph 74(a).  The Applicant was present in Court during the interim hearing and provided instructions to her Counsel, so I regard Counsel’s submissions as enhancing the essential facts concerning the relationship which are included in the Applicant’s Affidavits.

7. The case put by the Applicant is a relatively simple one and it is sufficiently deposed to in the Applicant’s First Affidavit and Second Affidavit. The Applicant commenced living with the Respondent in about … 2010 and she separated finally from the Respondent in April 2016. During the period of cohabitation there was a period of separation.  During the time that the parties cohabitated the Respondent was able to accumulate the Deposit which he paid in part on 24 April 2015 and in full by 11 May 2015.  The Applicant deposes that she contributed to the accumulation of the Deposit, as she paid for food and all domestic expenses from her income.  She also made other financial and non-financial contributions to the improvement of the Property after the Property was purchased.  She contributed to the welfare of the family by undertaking home duties.

8. The Respondent contends that the Deposit was paid one or two months after final separation.  Even if this is found to be the case, the Respondent would have accumulated the Deposit during the relationship and applied it towards the purchase of the Property. On the Respondent’s own case the Contract of Sale was entered into on 25 April 2015 and the Deposit was paid in full by 11 May 2015, before the parties “officially separated” on 1 June 2015.[94]

   [94] Respondent’s First Affidavit at [19].

9. A concerning aspect in this case is the amendment to the Application for Divorce[95], referred to in paragraph 53.  It is the view of the Court that both parties will need to provide an explanation as to the circumstances of the amendment of this document.   

   [95] Respondent’s Second Affidavit, Annexure “K-2”.

10. The competing accounts of the parties’ history will only be able to be determined after the parties have made discovery of any relevant documents and by cross-examination at trial.

11. In the event that the evidence of the Applicant is the same at the final hearing, there is a probability that the Applicant would obtain a property settlement adjustment in her favour.  In such circumstances there is a fair or reasonable probability that relief will be granted[96].  I therefore determine that the Applicant has demonstrated that she has a prima facie case which is reasonable.

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

12. I do not accept the submission made by Counsel for the Respondent referred to in paragraph 74(b). I am satisfied that the Applicant would suffer hardship for the purposes of s.44(4)(a) of the Act.

13. I will now consider whether in the exercise of my discretion an extension of time should be 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(3).

2. The Applicant has partially attributed her delay to: “my lack of understanding of the time limit which applies”[97].  The Applicant provides no explanation as to when she sought legal advice or what advice she received, if any, about the one year time limit.  It is apparent that the Applicant consulted her current solicitors within the one year time limit, as they lodged the Caveat on her behalf on 24 May 2017[98]. It is also apparent that the Applicant’s solicitors had not turned their mind to the one year time limit when the Initiating Application was filed, as no interim orders were sought seeking leave pursuant to s.44(3). Further the Applicant’s First Affidavit made no reference to the matters relevant for a leave application. It was not until a month later when the First Application in a Case was filed did the Applicant’s solicitors seek leave pursuant to s.44(3). The circumstances of the filing of the Second Application in a Case and the Applicant’s Third Affidavit remain wholly unexplained by the Applicant’s solicitors or Counsel for the Applicant.

   [97] Applicant’s Second Affidavit, at [5].

   [98] Affidavit of Laura Jane Avery, filed 25.6.18, at [17] and Annexure “LA-2”.

1. I am unable to form a concluded view on the basis of the evidence that is presently before me, as to whether the Applicant’s solicitors were unaware of the one year time limit or whether at the time of filing the Initiating Application the solicitor with the conduct of the matter had not turned his or her mind to the time limit.  

2. In the event that there has been some inadequacy in the advice that the Applicant received from her solicitors, I intend to adopt the approach articulated by Nygh J in Frost & Nicholson[99] 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[100].

   [99] (1981) FLC 91-051.

   [100] 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.

3. The Applicant has also attributed her delay to:

   Personal difficulties in my life since August 2016, those include the fact that I suffer from bi-polar and suffer ongoing stress and anxiety[101].

   [101] Applicant’s Second Affidavit, at [5].

4. I do not accept the submission made by Counsel for the Respondent referred to in paragraph 74(e).  The Applicant has deposed that she is in receipt of a Disability Support Pension from Centrelink and that she is suffering from bi-polar, stress and anxiety.  For the purposes of an application of this nature, I accept this evidence. 

5. The Applicant has also attributed her delay to: “[…] significant difficulties caring for my son […][102]”.   

   [102] Loc.Cit.

6. I do not accept the Respondent’s submission in response referred to in paragraph 74(f).  The Applicant deposed that [X] was ultimately removed from her care in June 2017 and placed with foster parents in Canberra and that she had then been unable to visit him.  This would no doubt have been distressing for the Applicant.  I accept the Applicant’s evidence in relation to this matter.   

7. I also consider the extent of the delay. The length of the delay is five and a half months if filing of the Initiating Application is considered. However the Applicant did not seek leave of the Court pursuant to s.44(3) until the filing of the First Application in a Case thus making the length of the delay six and a half months. In considering the length of the delay I am cognisant that that due weight must be given to the expressed legislative intention that ordinarily proceedings should be commenced within a year from a date of the decree nisi[103]. 

   [103] Whitford, at p.761.

8. In this case having regard to all the circumstances of the case in my view the delay is not long. 

9. 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 adequate explanation for the delay. 

10. I now consider any prejudice to the Respondent would suffer by reason of the delay in bringing the application for leave to commence proceedings pursuant to s.44(3).

11. The Husband has deposed that he does not have the funds to continue to support his family and to fund ongoing litigation[104]. 

    [104] Respondent’s Second Affidavit, at [14].

12. The Respondent also deposes that has made all the mortgage payments and paid the insurance and maintained the Property[105]. These are matters that would be taken into account in a property adjustment pursuant to s.79 of the Act.

    [105] Ibid., at [31], [33] and [34].

13. The Respondent does not otherwise identify any prejudice he would suffer by reason of the Applicant’s six and a half month delay in commencing property proceedings outside the one year time limit.

14. I therefore determined that the Respondent has not demonstrated that he would suffer any hardship other than that of the usual costs of litigation.  These would have been incurred in any event if the proceeding had been commenced within the one year time limit.  I have reserved both parties’ costs of this application, in the event that the Applicant’s solicitors have caused unnecessary costs to the Husband by not seeking leave to commence the proceedings at the time of filing the Initiating Application.

Conclusion  

1. Having concluded that the Applicant would suffer hardship for the purposes of s.44(4)(a) of the Act, I must now decide whether in the exercise if 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(3) of the Act to commence property proceedings against the Respondent under s.79 of the Act and intend to make orders accordingly.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge C.E. Kirton QC

Date: 13 February 2019