Olloran and Carselton

[2019] FamCA 895

FAMILY COURT OF AUSTRALIA

OLLORAN & CARSELTON [2019] FamCA 895

FAMILY LAW – PROPERTY SETTLEMENT – leave granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) to proceed after the standard application period.

Family Law Act 1975 (Cth) ss. 44

Beckham & Quarrington (2019) FLC 93-913
Gadzen & Simkin (2018) FLC 93-871
Whitford and Whitford (1979) FLC 90-612

APPLICANT: Mr Olloran

RESPONDENT: Ms Carselton

FILE NUMBER: BRC 7623 of 2017

DATE DELIVERED: 8 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 8 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Nita Stratton-Funk & Associates

THE RESPONDENT: Self-represented

Orders

1. That pursuant to Section 44(6) of the Family Law Act 1975 leave be granted for the Application for property settlement to proceed.

2. That within fourteen (14) days the Applicant produce to the Court, and the Court to retain such documents amongst the subpoena material in this matter, a copy of bank statements of the joint housing loan with F Bank that are in the Applicant’s possession and were produced to the Respondent’s former lawyers, likely between April 2010 and early 2015.

3. That on the documents produced pursuant to Order 2 herein the Applicant shall cause to be highlighted transactions set out in the records not less than $1,000, unless a combination of withdrawals equals that sum within seven (7) days, which the Applicant says he requires an explanation of.

4. That the Respondent have leave to inspect (and, if she wishes, copy at her own cost) and shall within thirty (30) days inspect the documents produced in accordance with Order 2 herein and file thereafter a statement under oath explaining, where she can, the highlighted entries.

5. That the Respondent shall, within thirty (30) days, take all reasonable steps and make all necessary inquiries and contacts to sell the Motor Vehicle 1 motor vehicle (currently housed at the former family home) to a registered used car dealer at the best price obtainable.

6. That pursuant to Rule 15.45 of the Family Law Rules 2004 Mr B of C Valuations is appointed as a Single Expert to:

   (a)inspect and provide a written report in relation to the property at D Street, Suburb E, in the State of Queensland within thirty (30) days;

   (b)the report should provide an opinion on:

   (i)the range of sale prices/market value of the property in its current condition;

   (ii)whether the price would be improved by doing some remedial works to the property and, if so, what works;

   (iii)the best strategies to effect an early sale of the property (e.g. private treaty, auction, tender etc.);

   (iv)the cost to the owners of the strategies identified; and

   (v)based on current market trends, the likely time frame to be able to effect a sale at market price.

7. That the Respondent shall provide to Mr B a copy of these Orders.

8. That within thirty (30) days the Respondent shall:

   (a)identify a conveniently located accountant/tax agent/bookkeeper who an assist her in completing her personal income tax returns for the last three financial years;

   (b)provide to the person so selected all records within her possession, power or control to allow the accountant/tax agent/bookkeeper to prepare financial statements; and

   (c)on the next occasion the Respondent will inform the Court when the returns will be completed.

9. That the Respondent produce within twenty one (21) days copies of her F Bank account from 1 January 2018 to the present.

10. That the husband produce within thirty (30) days:

    (a)any documents in his possession, power or control which set out the level of his Australian superannuation entitlements prior to the asserted transfer of those entitlements to New Zealand;

    (b)any documents in his possession, power or control which set out when and the amount of any Australian Superannuation entitlement transferred to New Zealand or otherwise accessed; and

    (c)any documents in his possession, power or control relating to where the funds transferred from Australia have been deposited and the conditions attaching to such funds release or use.

11. That the proceedings be listed for Case Management Hearing at 12.00pm on 9 December 2019 in the Family Court of Australia at Brisbane.

Conciliation Conference

1. That the parties and lawyers on the record must attend a conciliation conference at 11.00am on 4 February 2020 with a Registrar of this Court and make a bona fide attempt to reach agreement on relevant matters in issue between them, with such conference to be held at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.

2. That unless otherwise exempted from payment, the Applicant and the Respondent must pay and share equally the Conciliation Conference fee of $400 in accordance with the Family Law (Fees) Regulations 2012 by no later than 4.00pm on 28 January 2020.

3. That the Applicant have leave to attend the Conciliation Conference by telephone.

4. That the matter be mentioned at 2.00pm on 4 February 2020 in the Family Court of Australia at Brisbane should the parties fail to resolve all issues in dispute at the Conference.

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 Olloran & Carselton 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 BRISBANE

FILE NUMBER: BRC 7623 of 2017

Mr Olloran

Applicant

And

Ms Carselton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. In the unusual circumstances of this case, a property application that, together with parenting applications relating to the parties’ son X (born in 2013), has been, it seems, on foot since 25 July 2017.  To be fair, the parties’ attentions have been directed to the parenting application for their infant son.  To the parties’ credit, no doubt with the assistance of the Independent Children’s Lawyer and other reports, the parties have reached a final parenting order in relation to X that provides for the child to continue to live in Australia with the mother; for the parties to have equal shared parental responsibly and for, effectively, X to spend time with the father during school holidays in New Zealand and by electronic means.  I am not, today, dealing with parenting issues.  Whether they are being complied with or not, I do not know.  Those are merely the effect of the Orders made 8 August 2019.

2. I am satisfied from the evidence that the parties were in a genuine domestic relationship (otherwise colloquially called “a de facto relationship”) between cohabitation which commenced in New Zealand in 1998, until towards the end of 2014. The Applicant, Mr Olloran, says separation occurred on or about 1 August 2014. The Respondent, Ms Carselton, says it was more likely December 2014. Little turns on the difference other than, by operation of Section 44(5) of the Family Law Act 1975 (“the Act”), a person who wishes to seek property adjustment orders, who after being in a de facto relationship, is required to bring an application within the standard application period, which is two years from the date of the relationship ending.

3. On any of the dates of separation, a property application ought to have been brought by either party by the end of 2016.  It was not.  It was filed on 25 July 2017, which is less than 12 months after the date where the application could be brought without leave.  This becomes important because, notwithstanding, curiously, at least orders having been made, in my view, without jurisdiction properly having been founded, and without me being satisfied that the parties had consented to the jurisdiction in a formal way (there having been no application before the application filed by the new solicitor for Mr Olloran on 5 July 2019 seeking leave), the parties were engaged in discussions, and, as I say, orders were made not only for the sale of the major asset, being a home at D Street, Suburb E, but also in respect of discovery.  The parties also were ordered to attend a Conciliation Conference, although Mr Olloran says the Respondent did not attend.

4. Be that as it may, and quite properly so, the Application in a Case filed 5 July 2019 seeks leave to proceed pursuant to s 44(6) of the Act which provides, inter alia, that:

   “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; or

(b)…”

Sub section (b) is not relevant in this case.  In this case, the Registrar identified that the Application for leave to proceed at a time now having been brought, as I say, curiously despite the Federal Circuit Court of Australia having already made some orders without jurisdiction in 2017 and 2018, made directions for the filing of material by the Respondent, Ms Carselton.

1. As the record will reveal, earlier today I discussed with Ms Carselton, who appears before me without legal representation, as to why she has not filed any Affidavits dealing with the Application for leave to proceed.  She indicated that she was aware of her obligation to file material under the Registrar’s Orders by 16 September.  She says that at some time in September, I think associated with her business, a dog attacked her and that stopped her from being able to complete the forms.  Accordingly, she has no evidence before the Court today.

2. My concerns, as the record would reveal, were raised when I saw that the Applicant, Mr Olloran, who is a resident of New Zealand, suffers, and has suffered since 2006, the ravages of the debilitating illness called multiple sclerosis, for which he requires extensive care in New Zealand, the country in which he was born, as was the Respondent.  The Applicant appears by telephone today, but is represented by Ms Stratton-Funk, a solicitor here in Brisbane.  The Applicant swore and filed an Affidavit on 6 November that actually dealt with some of the principles for leave to proceed identified by the authorities.

3. When I inquired of Ms Carselton, as I said, representing herself today, had she read the Affidavit, she indicated that she had not.  I was satisfied she received the letter sent to her on 6 November 2019 through emails.  She says, perhaps not surprisingly as the sole-parent of a six year old little boy, she does not read her emails every day.  Nonetheless, the dilemma for the Court, procedurally, was that the Respondent had not had the opportunity to respond to the evidence set out in the Affidavit filed but two days ago.  I remedied that procedural problem by putting the Respondent in the witness box.  She, having had the opportunity over an hour or so to actually read the Affidavit, and allowed her to give, without cross-examination, her responses to the Applicant’s Affidavit, mostly associated with issues about contributions and the like.

4. For these reasons, I am satisfied that the Court can, today, deal with the Application for leave to proceed under s 44(6), and I propose to make an order in respect of that Application. I am not persuaded by the submissions of the solicitor for the Applicant that orders made before jurisdiction had been founded have any effect. In my view, they were made without jurisdiction.

5. The principles to be applied in respect of seeking leave to commence property proceedings for a de facto relationship are well settled.  Recently the Full Court in a decision called Beckham & Quarrington (2019) FLC 93-913 delivered 20 August 2009, referred and adopted earlier statements of a different Full Court in Gadzen & Simkin (2018) FLC 93-871 at pages 29 to 37:

   “16.    The applicable principles were recently discussed by the Full Court of this Court, by reference to authority, in Gadzen & Simkin (2018) FLC 93-871 (“Gadzen”). These relevant passages from that judgment bear repetition. After setting out the relevant statutory provisions, the Full Court continued from [29] as follows:

   29.The statutorily expressed requirements for the grant of leave in s 44(3) of the Act are in identical terms, for all practical purposes, as those requirements with the grant of leave under s 44(6). It follows that authoritative pronouncements as to the principles applicable to the operation of s 44(3) apply equally to s 44(6). In Whitford and Whitford the Full Court stated:

   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.

   30.Self-evidently, the Full Court there and subsequent Full Courts (as will be discussed) have emphasised that hardship within the meaning of the section must first be established for the discretion to grant leave to arise.

   31.      In discussing hardship the Full Court in Whitford said:

   The hardship referred to in sec. 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 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.

   32.The Full Court then proceeded to discuss the meaning of “hardship”.  In the course of that discussion the Full Court said:

   In our view the meaning of “hardship” in subsec. 44(4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment. Cf. the meanings assigned to “hardship” in the Shorter Oxford Dictionary and in Webster’s New International Dictionary…

   …

   In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 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 subsec. 44(3) or 44(4) for saying that that the right or entitlement lost must be a substantial one.

   (As per original)

   33.In Althaus and Althaus 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 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 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 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.

6. The principles as I say are well-known.  In this case, I am satisfied that hardship would arise if the application was not allowed to proceed.

7. The evidence in this case is not particularly controversial.  As I have indicated, the Applicant de facto husband suffers multiple sclerosis; relies entirely on Government benefits, a combination it seems of money from Australian and New Zealand Government authorities; and the only asset of any consequence is a property at D Street, Suburb E which I will refer to shortly.  Whilst there are allegations of other property interests, they are also very modest.  The husband seeks an alteration of property interest to more than 50% of that pool of assets.  The Response filed by the Respondent when she had a lawyer was in 2017, seeks an alteration of property interests in her favour of 70%.  In my view, if leave were not granted the Applicant would suffer hardship, but potentially the Respondent may suffer hardship as well.

1. That is not only because of the loss of the interest to litigate, but because the only property they own is a jointly owned property at D Street, Suburb E, and it would not allow the Court to take into consideration other factors which are relevant in this case including the s 90SF factors and other property which is alleged to be available.  I am satisfied there is a case worth determining although as I will soon try to explore with the parties we need to be proportionate in discovery and other steps because the pool seems to be less than $300,000 nett.

2. The house at D Street, Suburb E requires repairs.  I note that the parties earlier sought to have the property listed for sale, in fact there was a consent order to that effect made in 2017.  It has not been sold yet and each party blames the other party for some of that delay.  The house may have a value in the order of $560,000.  The Respondent gave evidence today that there were repairs required to the home including fixing the driveway, mulching the garden, repairing the hot water system and repairing the septic tank.  I am not satisfied there is any money to do these things other than the Motor Vehicle 2 which appears to have sat in the driveway not driven by anybody which can probably be sold to do those repairs.

3. There is other property other than the interest in the former matrimonial home or the former family home, bearing in mind that it is equity with a loan of around $380,000.  So with the equity of probably less than $150,000 after sales costs, there are other interests including a business, some cars, the Respondent has an interest in superannuation of less than $100,000, and something curiously called “Kiwi Entitlement” in the Applicant’s evidence.  There is a property adjustment order that will need to be made in my view to achieve just and equity for these parties and that merely relying upon an equal division of the nett proceeds of one asset would not be fair to either of them necessarily.

4. There is an explanation for the delay that arises from the focus of these parties on, it seems to me, the parenting issues which I say were resolved and which initially included an application for international relocation to New Zealand, that was resolved by final orders on 8 August 2019.  It seems to me that the Application to seek leave to proceed which has only been brought on 5 July 2019, seems to have only occurred because new solicitors turned their mind to the law and saw that the application needed to be made.  The parties had seemingly blissfully and ignorantly, and for property settlement I do not mean that in the personal sense, continued on with their Applications and the Federal Circuit Court of Australia did so as well because they made orders.

5. In terms of the authorities, therefore, I am satisfied there is hardship.  I am satisfied there is a case to be heard and just and equity requires the case to be heard.  I am satisfied that there is an explanation for the delay in bringing the Application and also for not filing within the required two year standard application period.  I am not satisfied that the Respondent will be prejudiced by the Application proceeding and in fact she may benefit from the application proceeding.

6. I make an order that, pursuant to s 44(6) of the Act, leave be given for the application for property settlement to proceed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 8 November 2019.

Associate: 

Date:  4 December 2019