Oxenham & Oxenham
[2009] FamCAFC 167
•15 September 2009
FAMILY COURT OF AUSTRALIA
| OXENHAM & OXENHAM | [2009] FamCAFC 167 |
| FAMILY LAW – PROPERTY – Appeal from a decision of a Federal Magistrate – Appeal against a discretionary judgment – Appeal against dismissal of an application pursuant to s 44(3) of the Act to commence property settlement proceedings out of time – Whether orders pursuant to s 44(3) of the Act are interlocutory or final – Whether leave to appeal is necessary – Consideration of the meaning of ‘hardship’ pursuant to s 44(3) and s 44(4) of the Act – Where the parties’ circumstances have changed – Where the Husband suffered a period of significant medical treatment – Where the Federal Magistrate did not make an error in relation to the principles which he applied to his determination of the application – Where the Federal Magistrate considered the issue of hardship relevant to when the leave proceedings were commenced – Appeal dismissed |
| Family Law Act 1975 (Cth) Family Law Regulations 1984 |
| Althaus and Althaus (1982) FLC 91-233 |
| APPELLANT: | MR OXENHAM |
| RESPONDENT: | MS OXENHAM |
| FILE NUMBER: | MLC | 6824 | of | 2008 |
| APPEAL NUMBER: | SA | 101 | of | 2008 |
| DATE DELIVERED: | 15 September 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 12 May 2009 |
| LOWER COURT JURISDICTION: | FEDERAL MAGISTRATES COURT |
| LOWER COURT JUDGMENT DATE: | 6 November 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1450 |
REPRESENTATION
| THE APPELLANT: | Husband in Person |
| THE RESPONDENT: | No appearance by or on behalf of the Respondent |
Orders
The appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Oxenham & Oxenham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 101 of 2008
File Number: MLC 6248 of 2008
| MR OXEHNHAM |
Appellant
And
| MS OXENHAM |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an appeal by Mr Oxenham (“the Husband”) against orders made by Federal Magistrate Phipps on 6 November 2008. The proceedings dealt with the Husband’s application pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to commence property settlement proceedings out of time. In summary that section provides that proceedings for property settlement shall not be instituted except by leave of the Court after the expiration of 12 months after the date on which the divorce order took effect. At the time of the hearing before the Federal Magistrate a period of about eight and a quarter years had expired since the expiration of the 12 months after the parties’ were divorced. The Respondent to the appeal is Ms Oxenham (“the Wife”).
The Husband appeared before me without legal representation. The Wife did not appear.
On 3 February 2009 the Chief Justice made an order pursuant to section 94AAA(3) of the Act that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge.
BACKGROUND
In reasons delivered on 6 November 2008 Federal Magistrate Phipps set out brief background facts which I will repeat. There are also various matters of relevant history set out in affidavits and written submissions of the Husband and the Wife which I will also endeavour to set out below.
The Husband was born in August 1964 and the Wife was born in November 1964. The parties were married in mid-1986. The parties were divorced in July 1999.
There are two children of the marriage, X born in 1992 and Y born in February 1998.
In 1988 the parties purchased a property at L for $88,000.00 and to pay the cost they obtained a mortgage loan for $81,000.00. Property L was the initial matrimonial home. The Wife contended that to pay the deposit the parties used savings and obtained a gift of $3,000.00 from her parents.
In 1994 the parties purchased a property at E for $123,000.00 and to pay the cost they obtained a mortgage loan for $123,000.00. At the time of acquisition of Property E the mortgage debt secured on Property L was about $70,000.00.
At one stage the parties were living in Gosford, New South Wales and they rented Property L to the Wife's brother Mr D and his then partner Ms S.
In April 1996 the parties sold Property L to Mr D and Ms S for $100,000.00. The Husband contended that he had no knowledge of the details of the sale or what happened to the proceeds of sale. The Wife contended that the net proceeds of sale were inadvertently placed into an account relating to the mortgage debt secured over Property E. There was no controversy that the Husband signed the relevant transfer of land. However there was an issue as to what happened to the proceeds of sale. At the hearing on 6 November 2008 the Husband contended that “there’s been no proper taking into account of the $100,000 on the property that was transferred to the brother”: (transcript, 6 November 2008, p 24).
In his reasons the Federal Magistrate noted at [8] that when Property L was sold, the property loan application for the purchase of Property E showed that as at 30 May 1994 there was either $70,000.00 or $70,500.00 owing on the loan secured on Property L. The Federal Magistrate continued at [8] and said that “[a] combination of affidavit evidence and oral evidence by [the Wife] shows that in 1996 when [Property L] was sold, the net proceeds of sale of [Property L] was paid into the mortgage account from [Property E]”. The Federal Magistrate observed at [9] that the Husband’s affidavits in support of his application did not show what happened to the $100,000.00 that was received from Property L, however the Federal Magistrate found that “it is clear now from a combination of the documents that [were] available and [the Wife]’s evidence that that went towards paying off the mortgage over [Property L] and paying off the mortgage over [Property E]”.
I observe that during the hearing on 6 November 2008, after the oral examination of the Wife, the legal representative for the Husband appeared to accept that the evidence demonstrated what happened to the proceeds of sale of Property L but contended that the Husband’s interest was greater than $19,500.00 and that consideration of the matters in s 75(2) of the Act would have given the Husband “a greater adjustment”: (transcript, 6 November 2008, p 42). I also observe that notwithstanding what happened during the hearing before the Federal Magistrate the Husband in his written summary of argument persists with the allegation that the details of the sale of Property L “remains a mystery”.
The Husband contended that in 1996 he first became ill with epilepsy and that he had his first “seizure” in October 1996. It was described in a report dated 9 April 1997 from Dr K, Neurologist, as a “generalised tonic/clonic seizure”. In the report Dr K said that on 8 April 1997 the Husband had a second “tonic/clonic seizure”. In a report dated 18 July 2000 Dr K said that the second seizure “related to missed medication and a late night”. In the report of 18 July 2000 Dr K said that the Husband had a third seizure in 1998 “again due to missed medication”.
The Husband contended that in 1997, as a result of his epilepsy, he lost his position as state manager of Supermarket Z in Victoria and in 1998 he was demoted to the position of a store manager.
The Federal Magistrate found that the parties separated in October 1997. I note that in an affidavit sworn on 25 July 2008 the Husband deposed that the parties separated in October 1997. This was also deposed by the Wife in her affidavit filed 2 September 2008. However, in an affidavit sworn on 5 November 2008 the Husband then deposed that the parties separated in March or April 1997.
I observe that the second child was born in February 1998.
On 17 April 1998 and 1 May 1998 the parties attended a Family Mediation Centre in Melbourne’s east to negotiate inter alia child support and property settlement arrangements.
As a result of the mediation the parties were able to reach agreement in relation to property settlement. The agreement provided that:
·the Wife pay $19,000.00 to the Husband;
·the Husband transfer his interest in Property E, subject to the mortgage, to the Wife;
·the furniture be divided as to 60 per cent to the Wife and 40 per cent to the Husband;
·the Wife retain a motor vehicle;
·each party retain his/her superannuation interests;
·the parties jointly pay a debt of $11,000.00 owed to the Husband’s father; and
·the Husband pay a credit card debt of $100.
The Wife contended in her affidavit of 2 September 2008 that the Husband “instigated the mediation” and she attached to her affidavit copies of the correspondence from the mediation centre confirming the parties’ attendance and the terms of settlement agreed to by the parties. One document was headed “Amended summary of mediation session between [Ms Oxenham] and [Mr Oxenham] at [a Melbourne east] Family Mediation Centre on Friday, 17 April 1998”. A further document was headed “Joint financial statement of [Mr Oxenham] and [Ms Oxenham] at [a Melbourne East] Family Mediation Centre on 17 April 1998”.
Shortly after the settlement was reached, with the agreement of the Wife, the Husband drew down an amount of $7,000.00 from the facility that was secured on the title of Property E and the Wife was to pay the balance of $12,000.00 by 5 April 2000. The Wife was only able to fully comply with the agreed property settlement once she resumed paid employment in 2000 which permitted her to take out a loan to pay the Husband the remaining sum.
The Wife annexed to her affidavit copies of correspondence between her then solicitors, Anthony Raso and Associates, Barristers and Solicitors and the then solicitors for the Husband, McDonald Slater and Lay, Legal Practitioners.
By letter dated 12 August 1998 the solicitors for the Wife wrote to the Husband and confirmed that the parties had reached agreement “on property and financial matters on the basis that you will transfer to [the Wife] your interest in the former matrimonial home at [Property E] in consideration of which she will pay to you the sum of $19,250.00, of which you acknowledge that you have already received the sum of $7,000.00”. I am not going to repeat all of what was said in the letter, however, enclosed with the letter was an application for consent orders, a minute of proposed consent orders and a transfer of land document. The solicitors strongly recommended that the Husband obtain independent legal advice “in relation to the nature of the documents that you are signing”.
By letter dated 13 August 1998 the solicitors for the Wife wrote to the Wife confirming her instructions that agreement had been reached on property and financial matters. The letter detailed the agreement that inter alia the Husband would, in due course, transfer his interest in the former matrimonial home to the Wife in consideration of which the Wife would take all necessary steps to release the Husband from the mortgage and pay to him the sum of $19,250.00, of which the sum of $7,000.00 has already been provided to him. I observe that the solicitors of the Wife also advised that the agreement on property and financial matters which had been reached should be incorporated in consent orders to be filed at the Family Court and confirmed the Wife’s instructions to proceed on that basis.
By letter dated 8 October 1998 the solicitors for the Husband wrote to the solicitors for the Wife and advised that the Husband had given them the Application and Minute of Consent Orders that was prepared by the Wife’s solicitors. The consent orders also dealt with time that the Husband would spend with the children. These were the documents that on 12 August 1998 had been sent to the Husband by the solicitors for the Wife.
The letter of 8 October 1998 from the solicitors for the Husband advised of changes the Husband sought to the consent orders relating to time he would spend with the children. In relation to “property” the solicitors sought that a further clause be inserted which would provide that the Wife would indemnify the Husband “in respect of any liability associated with the property” and advised that subject to the amendment sought the Husband would sign the minutes.
By letter dated 26 October 1998 the Wife’s solicitors wrote to the Husband’s solicitors and on behalf of the Wife made suggestions as to the proposed alterations sought by the Husband to the proposed minute of consent orders. I observe that in the letter the solicitors for the Wife noted that “the parties are still some way from reaching agreement on the contact to be had by [the Husband]” but that the Wife was in a position to “effect settlement of the property Orders” and requested advice as to whether the Husband wished to “attend to those matters” notwithstanding the unresolved issues relating to the children. The solicitors for the Wife also advised that they had documents from the Bank of Melbourne to be signed by the parties to release the Husband from his obligation pursuant to the mortgage and that the funds to be paid to him were available.
In May 1999 the Wife obtained, at the Magistrates Court at Dandenong, an Intervention Order against the Husband.
In 1999 a Divorce Application was filed on behalf of the Wife in the Federal Magistrates Court at Dandenong. The application was served on the Husband on or around 20 April 1999. As seen, the parties were divorced on 5 July 1999.
The Wife resumed part time paid employment in 2000. The Wife is a teacher and in her affidavit of 2 September 2008 she deposed that she is teaching the equivalent of two or three days per week.
The Wife contended that there were numerous attempts made by her solicitors for consent orders to be filed with the court confirming the agreement the parties had reached in relation to property settlement. The Wife contended that “[u]nfortunately, despite continual follow-up” by her solicitors to the Husband’s then solicitors, the Husband failed to sign the consent orders.
By letter dated 10 April 2000 the then solicitors for the Wife wrote to her and confirmed in relation to the “Family Law Matter” that settlement of the property and financial matters took place on 5 April 2000. The solicitors advised that the “matter is now complete” and said that at settlement a Transfer of Land document was handed to the Bank of Melbourne and a bank cheque for $12,250.00 made payable to the Husband was collected. The solicitors advised that pursuant to the Husband’s instructions they deposited the bank cheque into the Husband’s bank account with the Commonwealth Bank of Australia and enclosed a copy of the deposit receipt with the letter.
By letter dated 10 April 2000 the solicitors for the Wife also wrote to the Husband confirming that “this matter has now settled” and advised that pursuant to the Husband’s instructions given to the Wife a bank cheque made payable to the Husband in the sum of $12,250.00 was deposited into his bank account with the Commonwealth Bank of Australia. A copy of the deposit receipt was also enclosed with the letter.
I interject here to say that during the hearing on 6 November 2008 the legal representative of the Husband conceded that the Husband signed the Transfer of Land and that the main contention of the Husband was that he suffered hardship “by there not being a proper adjustment of property as between the parties” and that “he is still suffering hardship as a result of his medical condition”: (transcript, 6 November 2008, p 25).
On 3 August 2001 consent orders were made by the Family Court in Sydney in relation to the living arrangements of the children. The orders provided that the children spend time with the Husband inter alia one weekend a month and for one week of each school holiday. The Wife deposed in her affidavit of 2 September 2008 that despite the orders of 3 August 2001 the Husband has “generally only seen the children on a rather ad hoc basis since separation”. Since separation the Wife has remained living in Victoria whilst the Husband has primarily lived in New South Wales. The Wife has been the primary carer of the children.
It appears from a report dated 19 April 2004 from Dr C, Consultant Neurologist, that as a result of a “SPECT scan in November 2002” a temporal lobectomy was performed on the Husband. In the report Dr C also said that the Husband was “totally and permanently disabled” and was “likely never to be engaged in gainful occupation”.
The Wife contended in her affidavit of 2 September 2008 that in or around 2004 the Husband received approximately $336,000.00 (less tax) as settlement of an insurance claim. The Wife claimed that with these funds the Husband acquired an investment property on the mid north coast of NSW. The Wife annexed to her affidavit a Notice of Decision from the Child Support Agency dated 19 January 2006. In the decision it was said that on 30 June 2004 the Husband was paid from his superannuation interest a gross amount of $336,253.00 and a net amount of $310,494.00. In the decision it was also recorded that “I understand that [Mr Oxenham’s] position is that the parties completed their property settlement and that this stipulated that no claim would be made on his superannuation”. In the decision it was also said that the Husband stated that he lived in rental accommodation on an unencumbered property on the mid-north coast valued at $210,000.00 and had $30,000.00 cash in the bank. A decision was made that there would be no change in administrative assessment of child support for the period of 1 July 2004 to 30 June 2005. The Husband’s annual rate of child support then increased to $12,267.00.
By letter dated 20 March 2005 the Husband wrote to the Wife requesting that she “negotiate” a property settlement.
By letter dated 17 May 2005 Moroney Rutter and Mantach, Solicitors, on behalf of the Husband, wrote to the Wife and referred to an “alleged property settlement” and a letter dated 12 August 1998 that had been written to the Wife’s previous solicitors. It was said that as a result the Husband had instructed that he had not signed the consent orders nor any transfers in relation to Property E or Property L but did acknowledge the receipt of $19,250.00. It was contended that the Husband did not sign the consent orders because he was awaiting independent legal advice concerning the orders. Confirmation of certain matters was also sought in relation to service on the Husband of the Divorce Application filed on behalf of the Wife. The Wife then contacted the Husband’s solicitors and explained that on 20 April 1999 the Husband had been served with the Divorce Application and after this conversation the Wife heard nothing further from the solicitors.
I observe that in his reasons the Federal Magistrate said:
4.The file in this court goes back to 10 October 2006, where a contravention application was filed. There were proceedings started in the Local Court of New South Wales at Wyong, which was also in October 2006. They were transferred to the Federal Magistrates Court of Australia at the Sydney Registry and then transferred to the Dandenong Registry. There is quite a history since then, including some contravention applications, but the children's application which is fixed for final hearing today was filed on 18 October 2006.
There have been a considerable number of contravention applications filed by the Husband against the Wife all of which have been dismissed. The Husband contended that the applications were discontinued. The Wife annexed to her affidavit of 2 September 2008 a document titled “Contravention Orders” and thereafter provided the dates on which contravention applications were dismissed. She identified perhaps 23 such applications between 9 August 2006 and at least 17 February 2008.
On 18 October 2006 the Husband filed an application seeking a departure from child support assessment. On 26 February 2008 Federal Magistrate Walters ordered that the child support departure application be dismissed. On 20 March 2008 the Husband filed an appeal. On 30 June 2008 directions were made by Mushin J in relation to the hearing of the Husband’s appeal. Then on 28 July 2008 Mushin J dealt with an application by the Husband for an extension of time to comply with the directions made on 30 June 2008 and his Honour made directions in chambers to inter alia vacate the hearing date fixed for 6 October 2008 and list the matter for hearing on 20 October 2008.
On 28 July 2008 the Husband filed in the Federal Magistrates Court an Initiating Application (Family Law) in which he sought the following final and interim or procedural orders regarding property and spousal maintenance:
Final Orders sought
1.That the wife pay the Husband 50% of the value of the matrimonial home and 50% of the proceeds of the sale of the former matrimonial home at [L].
2.That the wife pay the husband lump sum spousal maintenance
Interim or procedural orders sought
1.That the Husband have leave to apply for a property settlement out of time pursuant to 5.79 of the FLA
2.That the orders of the Federal Court in Sydney 32 [sic] August 2006 be varied so that the children of the marriage every second weekend for Friday until Sunday and for half of all school holidays.
In his reasons the Federal Magistrate said at [5]: “The application I am dealing with was filed on 28 July 2008, supported by an affidavit by the husband filed on the same day. He has a further affidavit filed today. I gave him leave to file an affidavit, and the wife filed an affidavit on 2 September 2008, which was the first court date”.
The Husband filed an affidavit on 28 July 2008. He deposed that he is a part time student studying for a Master of Business Administration degree at Macquarie University.
The Husband filed a Financial Statement on 28 July 2008. In his reasons at [33] the Federal Magistrate observed that the Husband's income is a disability pension, “although his material does show that he is enrolled and studying for a Masters of Business at Macquarie University”. The Federal Magistrate observed at [35] that the Husband's property position is that he has a property which has a net value of $191,000.00. Further, “[t]here is an amount of $11,000 arrears in child support as a consequence of a decision by Walters FM in the child support proceedings which he brought”. In the Financial Statement the Husband disclosed property of a total value of $197,050.00 and liabilities of a total of $22,600.00. The Husband disclosed a total weekly income of $424.00 and total weekly expenses of $773.00.
The Husband contended in his affidavit sworn 5 November 2008 that in August 2008 he returned to Melbourne “to live permanently”.
On 2 September 2008 a Response was filed on behalf of the Wife and she sought that the Husband’s application filed on 28 July 2008 be dismissed. The Wife also sought an order for costs.
On 2 September 2008 the Wife filed an affidavit and a Financial Statement.
In his reasons, when dealing with an application for costs, the Federal Magistrate at [33] and [34] said that the Wife had a gross weekly income of $1,094.50 “but she then has the expenses of a mortgage over the property and the care of the two children of the marriage, who are now aged 15 and 10”. The mortgage on the house secures a debt of $162,000.00. The assessed child support from the Husband is $38.00 a week. The Federal Magistrate observed that the Wife has a 2002 Hyundai motor vehicle of an estimated value of $8,000.00. The Wife has $1,000.00 in the bank and a credit card debt with weekly payments of $10.00. The Federal Magistrate observed that the Wife “is in what might be described as a steady financial position”.
In the Financial Statement the Wife disclosed a total average weekly income of $1,094.50 which included child support of $6.50. The Wife disclosed a total average weekly expenditure of $1,454.00. The Wife disclosed property of a value of $315,000.00 and liabilities of $162,000.00. The Wife also disclosed a superannuation interest.
On 20 October 2008 Mushin J dismissed the Husband’s application for leave to appeal the decision of Federal Magistrate Walters. His Honour found that the Husband could not establish that his substantive rights were affected by an error of principle.
On 3 November 2008 an Application in a Case was filed by the Husband in the Federal Magistrates Court in which he sought an order that he be granted leave to file an application for property settlement out of time. The application was filed by a lawyer or lawyers called Hallett West.
On 5 November 2008 an affidavit was sworn by the Husband in which he purported to give evidence in reply to the affidavit of the Wife of 10 September 2008. I observe that in this affidavit the Husband deposed that he lived in Melbourne at W. Referring to his “course at Macquarie University” the Husband also deposed that he had “almost completed [the] course and have only to take the exam”. The Husband attached to this affidavit inter alia the reports of Dr K and the report of Dr C which I have earlier identified.
The hearing before Federal Magistrate Phipps occurred on 6 November 2008. At the commencement of the hearing the Husband sought leave to file in court the affidavit he swore on 5 November 2008. A copy of the affidavit was only served on the Wife’s lawyers about “15 to 20 minutes” before the commencement of the hearing. The Husband had failed to comply with previous directions for the filing of material. The Federal Magistrate, over objection by the Wife, granted the Husband leave to file the affidavit.
I have read the transcript of the proceedings on 6 November 2008. At the hearing the Husband was legally represented. The Wife had the benefit of legal representation in relation to the hearing of the application pursuant to s 44(3) of the Act but represented herself in relation to the hearing of the applications for parenting orders.
On 6 November 2008 the Wife also gave oral evidence in relation to the property transactions and was cross-examined.
At the conclusion of the hearing on 6 November 2008 ex tempore reasons were given and the following orders were made:
(1)The husband's application filed 28 July 2008 for leave to commence property proceedings out of time is dismissed.
(2)The husband pay the wife's costs of the application fixed at $5,750.
(3)That all previous Orders in regards to the children [X] born [date] 1992 and [Y] born [date] 1998 are discharged.
(4)That in these orders “the last weekend of each month” means the weekend commencing on the last Friday in each month.
(5)That the parties have equal shared parental responsibility for the children [X] born [date] 1992 and [Y] born [date] 1998.
(6)That the said children live with the Wife.
(7)The husband spend time and communicate with the child [X] born [date] 1992 in accordance with the child's wishes.
(8)The husband spend time and communicate with the child [Y] born [date] 1998 as follows:
(a)On the last weekend of each month from 6.00pm Friday until 6.00pm Sunday;
(b)On Father’s Day weekend from 6.00pm Friday until 6.00pm Sunday with the husband foregoing the weekend time preceding if Father’s Day weekend falls on a non-contact weekend.
(c)The first week of the first term and September term holidays from 6.00pm on the last day of school to 6.00pm the following Friday.
(d)From Christmas Day at 5.00pm for a period of one week in the long summer holidays.
(e)On the father’s birthday as follows:
(i)If it is on a week day, from after school until 8.00pm;
(ii)If it is on a non-contact weekend, from 6.00pm Friday to 6.00pm Sunday of that weekend and to forego his weekend contact immediately preceding.
(f)Telephone contact on Wednesday and Sunday, between 7.30pm to 8.30pm and if any telephone contact is missed the husband be entitled to makeup time on the next available day between 7.30pm and 8.30pm
(g)Such other times as agreed.
(9)To affect changeover the wife deliver and collect the said child at the husband’s residence at [W] save for any changeover after school which the husband will attend.
(10)The husband is entitled to attend any school ceremony and events involving the said child and to obtain school reports. The husband is to obtain information about these events himself. The wife has no obligation to give the husband information about school events.
(11)Both the husband and the wife to notify the other in writing at least 7 days before either of them take the said child out of the State of Victoria or overseas.
AND THE COURT NOTES THAT:
(12)The husband has the children’s passports and will make them available to the wife upon her giving the husband notification of her intention to take the children on an overseas holiday and the husband will deliver the passports to the wife in sufficient time to enable her to make bookings and purchase tickets. The passports will be returned to the husband at the
On 4 December 2008 a Notice of Appeal was filed by the Husband. The Husband appeals against orders 1, 2, and 11 of the orders of 6 November 2008.
On 12 February 2009 the matter first came before me for a directions hearing and I made the following orders:
1. On or before 4.00 pm on Friday 6 March 2009 the Appellant Husband file and serve a list of the documents that were before Federal Magistrate Phipps upon which the Appellant Husband seeks to rely.
2. On or before 4.00 pm on Friday 6 March 2009 the Appellant Husband obtain those parts of the transcript of evidence of the hearing before the Federal Magistrate which may be relevant to the appeal and provide copies of such transcript to the court and to the Respondent Wife.
3. The Appellant Husband file and serve a written summary of argument and list of authorities (if any) on or before 4.00 pm on Friday 6 March 2009
4. The Appellant Husband file and serve any application to lead further evidence and any material in support thereof on or before 4.00 pm on Friday 6 March 2009.
5. The Respondent Wife file and serve a list of any further documents that were before the Federal Magistrate, not included in the Appellant Husband’s list, upon which she seeks to rely, together with a written summary of argument and a list of authorities (if any) on or before 4.00 pm on Friday 20 March 2009
6. The appeal be listed for hearing before the Honourable Justice O’Ryan at 10.00 am on Wednesday 25 March 2009.
7. The costs of today's proceedings be reserved.
8. Liberty be granted to the Respondent Wife to apply in relation to the orders made on this day.
9. Liberty be granted to the Appellant Husband to apply if he is unable to meet the requirements of the timetable set out in these orders
The Husband did not comply with these orders. On 18 March 2009 the Husband filed a document, which excluding attachments comprises 13 unnumbered pages.
On 23 March 2009 the Southern Appeals Registry received an email from the Wife (Exhibit A) and she contended that she did not receive the Husband’s summary of argument until 19 March 2009 although she appeared to concede that it may have been placed in her “letterbox sometime on the evening” of 18 March 2009. The Wife also made some brief submissions as to why the application by the Husband should be dismissed. The Wife submitted that “even though there was no stamped copy of Property Settlement” the Husband “received his share of all of the assets of the marriage”. The Wife also gave notice that she would not be attending the hearing on 25 March 2009.
In the email that the Wife sent to the Appeal Registrar on 23 March 2009, the Wife also made some brief submissions in opposition to the appeal by the Husband, which I have taken into account. The Wife did say that the Husband incorrectly stated that the Wife had assistance from Legal Aid. The Wife said that at no point did she have assistance from Legal Aid. The Wife had applied for such aid but her application was refused. The Wife contended that her solicitors and barristers bills total over $9,000.00 which she is still paying off.
On 25 March 2009 the hearing of the Husband’s appeal was listed before me but did not proceed. To summarise the events as to what occurred on that day, the Appeals Registry received a phone call from a Melbourne Hospital emergency department and was advised that the Husband was there after suffering an epileptic seizure. Later that day I directed that enquiries be made with the Melbourne Hospital as to the condition of the Husband. After ascertaining that the Husband was not going to be in attendance at court I put on record the events that occurred and adjourned the matter to 8 April 2009 for mention and ordered that the hearing of the appeal be listed for 12 May 2009.
On 8 April 2009 the Husband attended before me by telephone conference link. During the hearing I inquired of the Husband whether he would like to have the hearing of his appeal heard in the Sydney Registry of the Family Court as he stated that his usual place of residence is Gosford. The Husband declined this offer and said that he would make arrangements to be in Melbourne on 12 May 2009 when the hearing of the appeal was listed.
REASONS OF THE FEDERAL MAGISTRATE
At the outset of his reasons the Federal Magistrate briefly considered the parties’ background history as discussed above and then at [4] said that “[t]he file in this court goes back to 10 October 2006, where a contravention application was filed”. The Federal Magistrate briefly traversed the history of the proceedings from the Local Court of New South Wales at Wyong to the ultimate transferral to the Dandenong Registry of the Federal Magistrates Court in Victoria and noted at [4] and [5] that two applications were before him for hearing. The Federal Magistrate also noted that at the trial he granted leave to the Husband to file a further affidavit.
The Federal Magistrate then at [7] – [9] turned to the history of property dealings and as I have already observed he made findings in relation to the disposition of the proceeds of sale of Property L.
The Federal Magistrate said at [10] that after separation the parties went to the Family Mediation Centre in Melbourne’s east and he noted the Wife’s contention that the parties’ had “reached agreement about property matters or at least got to the stage where they had what could be taken to solicitors and put into the proper form”. The Federal Magistrate said that the Husband could not recall this at all.
The Federal Magistrate at [11] identified the documents which were produced as part of the mediation process in 1998, copies of which were annexed to the Wife’s affidavit of 2 September 2008. I have already described the documents. One document was headed "Joint financial statement …”. The Federal Magistrate said at [12] that the joint financial statement put a value of $130,000.00 on Property E, a mortgage of $84,000.00 with a net equity of $46,000.00. The Federal Magistrate said that because it was so long ago, all the bank statements and other documents were not available.
The Federal Magistrate at [12] said that the bank loan that was taken out in 1994 for Property E was a 30 year loan with an interest rate of 6.95 per cent and at [13] said that normal payments on that loan would not have reduced the amount owing on the mortgage, from $123,000.00 to $84,000.00, which was $39,000.00. The Federal Magistrate then reiterated that the property loan application that was signed by both the Husband and the Wife revealed the loan at $70,000.00 or possibly $70,500.00 in 1994. The Federal Magistrate said at [14] that if it was assumed that the amount of the debt had reduced even further by 1996 when Property L was sold then those figures were consistent “because whatever the net balance was from [Property L] went as a credit against the mortgage owing over [Property E]”. The Federal Magistrate said that “[a] figure of $30,000 or even a little bit more is consistent with a reduction of $39,000 in that loan between 1994 and 1998, whether it is a full four years or something under four years”. The Federal Magistrate concluded the issue at [15] and said that notwithstanding the fact that 10 years had passed or the fact that all documents were not available to him, he was satisfied that all the money had been accounted for and that there was no money missing.
The Federal Magistrate then summarised at [16] the assets of the parties as they appeared in the joint financial statement dated 17 April 1998. The joint financial statement showed that there was a net equity in Property E of $46,000.00, a motor vehicle, furniture, chattels, shares in Dairy Farmers and bank accounts. The Federal Magistrate observed that both parties had a bank account and a joint account “with a few thousand dollars” and superannuation “was about equal, at just over $15,000.00 each”. The Federal Magistrate also noted a loan to the Husband’s father and a small credit card debt.
The Federal Magistrate then set out at [17] what was revealed as the income of the parties. The Wife had child support of $200.00 a week, plus the sole parent benefit. The Husband had wages of $57,000.00 per annum.
The Federal Magistrate observed at [17] that the document entitled “summary of mediation session” summarised the “calculations as a cash payment settlement”. The Federal Magistrate said that there was a settlement that the Wife “keeps the house at [E]. There is a splitting of the bank accounts and payment of [the Husband]’s father. [The Wife] was responsible for the credit card. So that provided for a cash payment of $18,400 by [the Wife] to [the Husband] and a transfer of the property.”
The Federal Magistrate then said at [18] that the property was transferred to the Wife and an amount of $19,000.00 was paid to the Husband in two separate amounts. The Federal Magistrate referred to the correspondence between the solicitors, copies of which were annexed to the Wife’s affidavit of 2 September 2008, and found that two separate amounts were received by the Husband. First, when he drew $7,000.00 out of the mortgage account before settlement, and second, when the Wife drew down a further $12,250.00 out of the mortgage account after settlement and paid it to the Husband. The Federal Magistrate also relied upon a copy of the deposit receipt which was annexed to the Wife’s affidavit dated 2 September 2008, relating to the deposit into the Husband’s bank account.
The Federal Magistrate observed at [19] that the Husband contended that he had no recollection of the mediation session or of the transfer of Property L. The Federal Magistrate said that the Husband’s explanation was that he suffered an epileptic seizure in October 1996 and then underwent specialist treatment and as a consequence had to cease work part-way through 2001. The Husband then had a lobotomy in 2002. The Federal Magistrate observed that the Husband had not been able to work since and at the time of the hearing was in receipt of a disability pension.
The Federal Magistrate said at [19] that the findings that were made by him came from the Wife’s evidence but that there was no reason to doubt what she had contended. I assume that the Federal Magistrate was referring to his findings in relation to the property transactions.
The Federal Magistrate referred at [20] to the correspondence between the Wife and Husband’s solicitors, copies of which were annexed to the Wife’s affidavit of 2 September 2008, and to other documents tendered in court. The Federal Magistrate observed that minutes of proposed consent orders and a proposed application to the Family Court for consent orders were drawn up by the Wife’s then solicitors but were never signed by either party, that there was no evidence of either party doing so and that no consent order was made. The Federal Magistrate confirmed that the transfer of Property E to the Wife and the payment of the money to the Husband in two separate amounts did take place. The Federal Magistrate observed that the Husband clearly signed a transfer of the land even though he had no recollection of it. The Federal Magistrate further noted that even though the transfer was not one of the documents produced that “there must have been one. Why it took until April 2000, from mid-1998 when the mediation session had taken place, is not clear. But it did happen.”
The Federal Magistrate then set out at [21] the relevant principle for determining an application to commence property proceedings out of time. The Federal Magistrate noted the relevant provision as s 44(4)(a) of the Act and said that the Husband needed to show that he would suffer hardship if he could not bring the property proceedings. The Federal Magistrate observed that the fact that the Husband had not brought property proceedings, or could not because of the time limit did not amount to hardship in itself. The Husband would have to show a substantial detriment. The Federal Magistrate said that he did not see the need to discuss the case law relied upon by the Wife.
The Federal Magistrate said at [22] that the Husband submitted that there was no valuation for Property E even though at the mediation session an amount of $130,000.00 was put down as the value of the property. The Federal Magistrate noted that at the time of the mediation session in April 1998 the Husband was suffering from epilepsy which deteriorated. The Federal Magistrate referred to medical reports, copies of which were annexed to the Husband’s affidavit of 5 November 2008, which recorded that the Husband’s first epileptic attack occurred in October 1996, with the Husband suffering from “auras, predecessors to the attack prior to that stage”.
The Federal Magistrate at [23] observed that the sale of Property L was in April 1996 which was prior to the Husband’s first epileptic seizure but still at a point where the condition had already commenced. The Federal Magistrate concluded however, that the evidence did not show that the Husband “was not capable of dealing with his own affairs at that stage.”
The Federal Magistrate at [24] said that “in 1998 it is clear that [the Husband] had legal advice” and he referred to the letter from the Husband’s then solicitors dated 8 October 1998 in which it was advised that they acted on behalf of the Husband and that he had handed to them a copy of the application and minutes of consent orders prepared by the then solicitors for the Wife. At [25] the Federal Magistrate observed the number of proposed changes sought by the Husband’s solicitors in relation to the children’s matter and more relevantly the proposed change sought in relation to the terms of the settlement of the property settlement issues. The Federal Magistrate then quoted from the letter of the solicitors and at [26] said:
The inference from the documents is that the parties, having separated, went to a Family Mediation Centre, went through the process of compiling a list of assets and liabilities; that they then both sought legal advice. The inference from the letter from McDonald Slater and Lay is that the husband had received advice that the property proposal was satisfactory subject to ensuring that he had an indemnity against any liability associated with the property.
The Federal Magistrate observed at [27] that the settlement at that point was a “60:40 split” and that if the parties were subject to “the four-stage property process” then the property had been identified and “[t]he second stage of the process seemed relatively clearly a fifty-fifty assessment of contributions”. The Federal Magistrate at [28] observed that when it came to the “s 75(2) factors the husband was in employment, the wife was not”. The Federal Magistrate was referring to what has been described as the preferred approach to the resolution of applications pursuant to s 79 that has been discussed in various authorities such as Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.
The Federal Magistrate continued that the Wife had the care of the two young children of the marriage. The Federal Magistrate observed that the Wife also had the prospect of employment as a qualified teacher once the children were old enough. The Federal Magistrate concluded that “on that basis, a 10 per cent adjustment for needs in the wife’s favour would be well within the range of what was a likely result and it would have been a just and equitable result”.
The Federal Magistrate said at [29] that the Husband submitted that his illness became “much worse than was apparent at that stage” and that “[t]hree to four years later he was at a point where he could not work, and he had suffered some demotion in his work prior to that time”. The Federal Magistrate observed at [30]: “If that was something to be taken into account in 1998 when this settlement was negotiated, the factors then would have been the husband’s medical condition, the likelihood of it deteriorating”. The Federal Magistrate continued that balanced against this was the fact that after 2002 the Husband received a sum of over $300,000.00 for a disability benefit for an insurance policy and that “[t]his is something which would have had to have been taken into account”.
The Federal Magistrate then concluded at [31] and said “[t]he conclusion I reach therefore is that there is no hardship suffered by the husband. There is no money missing. The settlement which was reached and put into effect by the transfer of property and payment of money finally in 2000 was fair and reasonable. The husband will suffer no hardship now by not being able to bring a property application. The application is dismissed”.
The Federal Magistrate then at [32] commenced to deal with the issue of costs. The Federal Magistrate referred to the financial circumstances of each party as disclosed in their respective Financial Statements. At [36] the Federal Magistrate observed that neither party had legal assistance. At [36] the Federal Magistrate said that the conduct of the parties was relevant, and then dealt with what was contained in certain correspondence that was tendered. The Federal Magistrate then at [39] observed that “[t]he other matter is whether any party to the proceedings has been wholly unsuccessful in the proceedings” and said that the Husband had “been wholly unsuccessful”. The Federal Magistrate said “[t]he basis of his application would seem to have been that he had no memory of what happened and therefore he commenced the application. However, I consider that the material which was ultimately available shows that it was really close to a hopeless application”. At [40] the Federal Magistrate said: “It is regrettable that the husband has no memory of these events. He has suffered some disastrous medical conditions, but that does not justify putting the wife to the expense that he did. The balance of those considerations mean that there should be an order that the husband pay the wife's costs”. The Federal Magistrate then assessed the quantum of the costs.
In his reasons at [42] – [82] the Federal Magistrate dealt with the applications for parenting orders. The Husband however only complains about Order 11 which imposed on each party an obligation to give to the other party seven days notice of intention to take a child out of Victoria or overseas. In his reasons the Federal Magistrate said:
82.The husband and wife to notify the other in writing at least seven days before either of them take the children out of the state of Victoria or overseas. The husband has the children's passports and will make them available to the wife should she notify him of her intention to take the children on an overseas holiday and will make them available to the wife upon her giving him written notification of her intention to take the children on an overseas holiday and the husband will deliver the passports to the wife in sufficient time to enable her to make bookings and purchase tickets. The passports will be returned to the husband at the conclusion of the holiday.
GROUNDS OF APPEAL
Introduction
In Part D of the Notice of Appeal where the “Grounds of appeal” are to be set out the following appears:
1.The right of every Australian citizen to have a legal, Court approved ‘property settlement’, which is done in a fair, honest manner and sited, signed, and authorised by both parties. Then processed through the Legal Justice System of Australia. This also falls under the Human Rights and Equal Opportunity Act, where all Australian citizens despite suffering an Disability or not have the rights of equal treatment. There is no Court Approved (stamped) Property Settlement and during seperation [sic] and then divorce a ‘make up’ property settlement was done by the Respondent while the Appellant suffered the onset and further effects of Epilepsy.
In Part E of the Notice of Appeal where the orders sought are to be specified the Husband said:
1.A property settlement Application to be approved, whereby the true value and division of property is done in a fair honest and equal manner. The Court is to understand the circumstances of the Appellant in these circumstances to be taken into account and allowed for, when making a decision.
2.Each party to pay their own costs …
In the orders sought the Husband also stated “seven days notice is not sufficient when booking airline tickets, to take advantage of lower fares, saving both parties costs. This also does not allow time for changes if the other party refuses or disagrees”.
As I have observed, on about 18 March 2009 the Husband filed a document that purports to comply with the orders I made on 12 February 2009.
Relevant principles
This is an appeal against a discretionary judgment. The circumstances in which I should interfere with a discretionary judgment are well known and need not be repeated: House v The King (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ; Gronow v Gronow (1979) 144 CLR 513 at 519 per Stephen J; Mallet v Mallet (1984) 156 CLR 605 and Norbis v Norbis (1986) 161 CLR 513.
In this case the Husband filed a Notice of Appeal in accordance with r 22.02 of the Family Law Rules 2004 but did not include an order seeking leave to appeal. The appeal therefore purported to be pursuant to s 94 of the Act. The Husband did not seek leave to appeal pursuant to s 94AA of the Act. Section 94AA provides that leave to appeal a prescribed decree of the Federal Magistrates Court is required: see Item 4 of s 94AA. Regulation 15A of the Family Law Regulations 1984 defines prescribed decree as an interlocutory decree. The issue that arises is whether the Husband should have sought leave to appeal pursuant to s 94AA of the Act on the basis that the order dismissing his application for leave under s 44(3) was interlocutory. The issue as to whether an order refusing leave pursuant to s 44(3) of the Act to commence proceedings for property settlement is interlocutory or final is open to some doubt.
The question whether an order is interlocutory or final has been discussed in many cases including in the High Court: see Carr v Finance Corporation of Australia Ltd (No.1) (1981) 147 CLR 246 at 248 per Gibbs CJ and at 256 per Mason J and Bienstein v Bienstein (2003) 195 ALR 225 at 230 per McHugh, Kirby and Callinan JJ. The usual test is whether the order finally determines the rights of the parties in the principal cause pending between them.
In Thallon and Thallon (1992) FLC 92-322 the Full Court (Baker J delivered the principal reasons with whom Fogarty and Maxwell JJ agreed) concluded that orders under s 44(3) of the Act whether granting or refusing leave, were final. That is, they finally determined that particular proceeding. If leave was granted and property or maintenance proceedings were instituted that is a separate proceeding. However in Emamy and Marino (1994) FLC 92-487 the majority of the Full Court (Ellis and Baker JJ) concluded that the orders were final if they dismissed an application for leave pursuant to s 44(3), but were interlocutory if leave was granted because maintenance or property proceedings would then be instituted. The Full Court said at 81,075:
Whilst it may appear strange that the classification of an order under s44(3) should depend upon whether the court grants or refuses leave, it seems consistent with the High Court authorities cited above. If an order is made granting leave, then the substantive property rights of the parties under s79 remain to be determined. If, on the other hand, leave is refused, that is the end of the matter, except in so far as a further application for leave may be instituted at a later time. It is unnecessary for us finally to decide this question in the present case, since it appears that, on any view of the authorities, an order granting leave under s44(3) is interlocutory, as it does not determine the parties' rights to property under s79.
It seems to us, therefore, that Thallon and Thallon (supra) was wrongly decided in so far as it appears to be authority for the proposition that an order granting leave under s44(3) is a final order.
The issue was briefly considered by the Full Court (Finn, Warnick and Boland JJ) in Richardson & Richardson [2008] FamCAFC 107. In that case the Appellant Husband filed an application for leave to appeal (and if leave was granted) an appeal against orders of Moore J dismissing an application for a review of the orders made by a Judicial Registrar. Moore J had in effect confirmed the orders of the Judicial Registrar which had granted the Wife leave under s 44(3) of the Act to institute proceedings against the Husband for property settlement, notwithstanding a delay of 13.5 years. The Full Court said at [6] that it was well-established by authorities that an order granting leave pursuant to s 44(3) to institute proceedings is an interlocutory order and that therefore leave is needed to appeal such an order and referred to Emamy and Marino (supra). It was also accepted that in order to obtain leave to appeal, the Appellant Husband had to establish that there had been an error of principle in the making of the order or that the order worked a substantial injustice towards him.
The issue was not raised by me and obviously there were no submissions made by either party. I am therefore going to proceed on the basis that the Husband did not require leave to appeal against the order dismissing his application for leave pursuant to s 44(3) of the Act.
Sub-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.
Sub-section 44(4) then provides:
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; or
(b) in the case of proceedings in relation to the maintenance of a party to a marriage--that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
Although s 44 of the Act does not state what principles should guide the exercise of the discretion to grant or refuse leave to extend time the discretion is not wholly unfettered. As the Full Court (Asche and Pawley S.JJ and Strauss J) said in Whitford and Whitford (1979) FLC 90-612 at 78,144 “two broad questions may arise”. First the discretion is subject to the requirement in s 44(4) that the court must not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted. Thus if such hardship is not established then the application for leave must be dismissed. Second, if the court is satisfied that hardship would be caused, it should proceed to consider whether leave should be granted: see also Hall and Hall (1979) FLC 90-679 and Cox and Cox (1981) FLC 91-068. The applicant for leave bears the onus on the balance of probabilities.
In relation to the first question, as to what constitutes hardship, there is considerable authority. In Whitford and Whitford (supra) the Full Court said at 78,144-78,145 that although “[i]t is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense” the applicant for leave must demonstrate not merely an appreciable detriment but a “substantial detriment”. The Full Court also said at 78,144:
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.
The applicant may establish hardship although the applicant is not in poor or necessitous circumstances: Whitford and Whitford (supra) at 78,145 and Frost and Nicholson (1981) FLC 91-051 at 76,423. However, the inquiry is not concerned per se with whether the applicant for leave may be suffering hardship. Hardship is not established by showing that the applicant would be marginally better off if leave were granted.
In Hall and Hall (supra) the Full Court (Evatt CJ, Fogarty and Yuill JJ) said at 78,627-78,628:
The case[s] … have considered what is meant by the term “hardship” in this context, and the term “substantial detriment” seems to be the generally accepted interpretation of that word.
Fundamental to that 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. For example in Swallow's case (unreported Emery J., 16 September 1977; referred to in McDonald's case ) it was said to be “a prima facie case which is in the circumstances substantial”; the Full Court in McDonald's case differed from that by stating that it ought to be “a reasonable prima facie case”. In Mackenzie's case it was described as being “a probability of success”, and in Whitford's case the distinction was said to be that the applicant would need to show that she would “probably succeed” to be contrasted with a situation where she had “no real probability of success”. In Perkins' case (1979) FLC 90-600 Lindenmayer J. described it as “a reasonable probability of the claim being successful in some measure”.
These varying phrases may tend to suggest different shades of meaning whereas in reality they are directed to the same fundamental inquiry which basically is in the context whether on the applicant's material he or she has a reasonable claim to be heard by the court. It is not necessary to further categorize the nature or quality of that claim, subject, however, to the qualification referred to by Lindenmayer J. in Perkins' case at p. 78,054 when he said:
“I would add only this qualification, that if the applicant's evidence as to merits of his or her proposed claim is in itself inherently improbable or self contradictory in important respects, or if it is clearly shown by other impeachable evidence (such as undisputed documentary evidence or the testimony of independent witnesses) to be false, then the applicant may be held to have failed to establish a prima facie case notwithstanding that if his or her evidence were accepted there would be a reasonable probability of success.”
As Lindenmayer J. said, an application under sec. 44 is not intended to be a detailed hearing of the merits of the proposed claim itself. In Whitford's case the Full Court also referred to this and indicated the sort of procedure that would generally be involved on such an application (see p. 78,143). It is not a proceeding to determine whether and to what extent the proposed application will ultimately be successful. It is a procedure to determine whether the applicant would suffer hardship if leave were not granted and whether otherwise it is appropriate to grant leave.
Similarly it needs to be borne in mind that the prospect of success need not relate to the whole of the proposed claim. It is sufficient if it relates to some part or aspect of it which in the context of the facts of the individual case is of significance.
It is therefore an inquiry as to whether in the particular circumstances of the case in question the applicant would suffer hardship by the refusal to grant leave which sec. 44(4) permits the court to grant. As all of the authorities point out, the fact that the applicant demonstrates that he or she has a reasonable claim to present to the court is not necessarily the same thing, although that is an important aspect of the matter. That circumstance must then be considered in the light of all of the facts in determining whether at this particular stage the applicant would suffer hardship by the application being refused. That involves amongst other matters some consideration of the then financial and other circumstances of both parties.
If hardship of the required type is established then the court may grant the leave but it has a discretion to refuse to do so and in considering the exercise of that discretion it would take into account any other relevant matters, but basically the question whether there is a reasonable explanation of the delay and the question of prejudice which may have occurred to the respondent as a consequence. Other facts may be relevant in an individual case, such as, for example, any prior order or provision made, and the discretion has to be exercised on the basis of the facts of that particular case.
In Frost and Nicholson (supra) Nygh J said at 76,424:
I have already indicated my view that had she brought action in time she would have been entitled to a substantive order even if falling short of 50 per cent of the joint assets. To deprive a party of a right to institute proceedings is not per se hardship, but to deprive the wife of a right to action in the present circumstances is to work an injustice, and that is a “substantial detriment”. As the Full Court said in Hall and Hall (1979) FLC 90-679, at p. 78,627, fundamental to the enquiry as to hardship is the question whether the applicant has a reasonable claim to be heard by the court. That is not by itself necessarily the same thing as hardship, but the stronger the applicant's prima facie claim, the greater the likelihood of hardship if leave were refused. The issue depends on the circumstances of each case, as Strauss J. so aptly pointed out in Mackenzie and Mackenzie (supra).
See also Althaus and Althaus (1982) FLC 91-233, at 77,267 per Evatt CJ.
In summary, in order to establish hardship in the relevant sense the applicant for leave must have a prima facie case to be heard by the court on the merits. This does not require a detailed hearing of the merits of the substantive application, but a consideration of whether there exists a prima facie case on the strength of the applicant’s material.
As to the second part of the exercise the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties: Gallo v Dawson (1990) 93 ALR 479. In Gallo v Dawson McHugh J referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or the refusal of the extension of time. The authorities and principles were discussed in Tormsen and Tormsen (1993) FLC 92-392: see also McMahon and McMahon (1976) FLC 90-038; Van der Kreek and Van der Kreek (1978) FLC 90-421, and Coombs and More (1990) FLC 92-175. In summary in considering the second question the court may have regard to a number of factors that include whether the applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the respondent to the application for leave or other persons.
CONCLUSION
Because of the absence of any or any adequate articulation in the Notice of Appeal of appellate error by the Federal Magistrate I observe that in the written submissions filed on behalf of the Husband on 18 March 2009 the Husband said:
The Appeal against the decision made by Magistrate Phipps, will display to the Court that Magistrate Phipps was not only incorrect in not allowing the Applicant an application “That pursuant to that S44(3) of the Family Law Act 1975, leave be granted to the husband to apply for a property settlement more than 12 months after the divorce in this matter, became final”. But will also display to the Court that Magistrate Phipps did not take into account the fact that there is no, nor has there ever been a Property Settlement completed between the parties, nor is there or has there been Court Sealed Property Settlement between the Parties.
This is due to the fact that throughout the period of separation and eventual divorce of the parties the Applicant had suffered a number of medically recorded Epileptic Seizure from early 1996. The Applicant eventually went on to undergo Temporal Lobe Brain surgery in 2002, medical evidence has been filed by the Applicant and was available for viewing by Magistrate Phipps on and before the date of the final hearing. This disability had a major effect on the life of the Applicant and also had a major effect on the Ability of the Applicant being able to comprehend and even negotiate a Property Settlement. It is displayed by the way of evidence that the Respondent took advantage of the situation and attempted to display to the Applicant that there in fact had been a Property Settlement negotiated by legal representatives and approved by the Court.
The Applicant is [sic] this matter is requesting by the way of Appeal, that the Court to allow the Applicant the right as any/all Australian Citizens have and that is to allow the Applicant the legal right to have a Court Approved and Court Sealed Property Settlement for property owned between and during the marriage of the Respondent [Ms Oxenham] and the Applicant [Mr Oxenham]. A settlement that is negotiated fairly and with the properties owned between the parties during the marriage to be valued correctly by professional property evaluators.
This matter is not to debate to whether any form of Property Settlement was Discussed or to whether a Proposed Property Order had been Set Out by the Respondents Legal Representative, rather that the matter now before the Court is to ensure each Party receives an equal share of the Property/Properties owned between the Parties whilst the Parties were joint owners of the Properties in dispute.
Whether by Design or by Pure Coincidence it is clear by the studying of documents and evidence in the matter of Property Settlement that a Lawful and Correct Property Settlement between the Respondent and the Applicant never did occur, nor was the value of the properties completed by a professional property evaluator.
This alone with all evidence aside must allow the Applicant the right of a Legal Property Settlement, which is to be completed following the correct Lawful procedures.
Out of Time — only because the Applicant had a Horrendous change of circumstance with the Applicants health, which in fact firstly became evident during the marriage between the Parties. The changes of health, Epilepsy, lead to the Applicant having to undergo a Temporal Lobe brain operation in 2002.
Evidence will clearly display that the Applicant was not given any possibility of receiving a fair and final outcome for Property Settlement during the separation and subsequent divorce between the parties as the Respondent had not acted in a manner that displayed compassion and fairness to the outcome of a Property Settlement.
The Applicant requests that the Court make a decision to allow the process of a Property Settlement between the Respondent and the Applicant to take place in a fair and just manner. This will allow each party that equal right as every Australian Citizen has, which is the right to have a Legal binding, Court Approved and Sealed Property Settlement. The Applicant requests that the Court order that the property settlement to be conducted in a legal manner with experienced and certified property estimators, placing a sound value on the properties owned between the Respondent and the Applicant.
It is very difficult to identify precisely what appellate errors the Husband contends the Federal Magistrate made. I have no doubt that the Husband is of the view that what the Federal Magistrate did was wrong but his dissatisfaction with the outcome is not sufficient to support the appeal. For this reason I have set out above some of what appears in the written submissions of the Husband. Elsewhere in the written submissions, on more than one occasion, the Husband contended that the Wife defrauded him of his right to a property settlement and took advantage of his situation.
In this case the Federal Magistrate determined that he was not satisfied that hardship would be caused to the Husband if leave to institute property settlement proceedings pursuant to s 79 of the Act was refused. The Federal Magistrate, in the circumstances, did not have to consider the broad discretionary matters that would have to be addressed if he had been satisfied that hardship would be caused to the Husband if leave was refused. In other words, in the circumstances, it was not necessary for the Federal Magistrate to address the second question posed in Whitford and Whitford (supra) and other authorities.
Notwithstanding the extent and detail of what I have already said in these reasons in relation to the background history, the reasons of the Federal Magistrate and the relevant principles to be applied, in my view the appeal can be shortly dealt with. In the Notice of Appeal, the written summary of argument filed on 18 March 2009 and the oral submissions of the Husband on
12 May 2009, the Husband failed to demonstrate any appellate error by the Federal Magistrate.
However, given that the Husband is unrepresented, I have considered in some detail all of the relevant material and the reasons of the Federal Magistrate in order to ascertain if there is any foundation for any complaint of appellate error on the part of the Federal Magistrate.
Excluding superannuation interests and personalty comprising motor vehicles, furniture, shares and bank accounts, at the date of separation, and at the time of the mediation in April 1998, the parties only had one item of real property being Property E. As to this property the Husband and the Wife agreed that the equity in the property was $46,000.00. In 1998 the parties reached agreement in relation to property settlement issues and each had the benefit of legal advice. In consequence of the informal settlement the Husband transferred his interest in Property E to the Wife, subject to the mortgage debt, and the Wife paid $19,250.00 to the Husband. This achieved for the Husband an entitlement which was 42 per cent of $46,000.00 and for the Wife an entitlement of 58 per cent or $26,680.00 being a difference of only $7,430.00. This was clearly, on the evidence available, an appropriate outcome given that at that time the Wife had the care of two very young children and was not in paid employment and the Husband was in paid employment and paying an appropriate level of child support. In fact, the Wife may have achieved a greater outcome having regard to the “other factors”, being the matters in s 79(4)(d), (e), (f) and (g) of the Act, if the dispute had proceeded to an adjudicated outcome.
Since the informal settlement in 1998 changes have occurred and they included:
a)limited paid employment by the Wife, even though the children were still young;
b)the cessation of paid employment by the Husband;
c)a period of significant medical treatment of the Husband;
d)disability of the Husband;
e)the receipt by the Husband of a significant capital sum by way of insurance to reflect his disability;
f)the purchase by the Husband of an unencumbered investment property on the mid north coast of New South Wales;
g)a reduction in the amount of child support; and
h)the continuing responsibility of the Wife for the care and support of the children.
I also observe that the Husband is now undertaking studies or may have even completed studies for a Masters of Business Administration degree.
At the time of the filing by the Husband of the application for leave, namely on 28 July 2008, the changes described above had occurred and reflected the position of the parties at that time.
For the purposes of the hearing of the Husband’s application each party filed a Financial Statement giving evidence as to their respective financial circumstances which the Federal Magistrate took into account. The Wife had a greater income than the Husband however she has the care and support of the two children. At the time of the informal settlement the Wife was receiving child support of $200.00 per week and according to her Financial Statement is now receiving $6.50 per week. According to the Financial Statements, subject to valuation, the Wife has property interests of a net value of $153,000.00 plus a superannuation interest and the Husband has property interest of a net value of $174,450.00.
The Federal Magistrate, in my view, adequately set out the relevant history. He made findings, which were clearly open to him to make on the evidence, in relation to the disposition of the proceeds of sale of Property L. Often the hearing of such applications will proceed in a truncated way with no oral examination of either party. However, in his case the Wife was orally examined which included cross-examination by the Husband’s counsel in relation to the disposition of the proceeds of sale of Property L. In the result, and I am of the view that the Federal Magistrate was entitled to come to a conclusion that there was no missing money.
The Federal Magistrate identified the relevant legal principles and although what he said was very brief, there was no complaint that what he said was wrong, or that he made any error in relation to the principles which he applied to his determination of the application.
The Federal Magistrate proceeded to determine whether the Husband had a prima facie case. The Federal Magistrate analysed the informal settlement that occurred after separation of the parties’ and he did so in the context of considering whether the Husband would have a prima facie case to obtain a different outcome if an application was heard on the merits. The Federal Magistrate also considered what had occurred after the informal settlement and in particular the Husband’s state of health and cessation of paid employment. The Federal Magistrate also had regard to the receipt by the Husband of a capital sum. In other words the Federal Magistrate considered the issue of hardship relevant to when the leave proceedings were commenced. In my view it is clear that the Federal Magistrate determined that in the relevant sense the Husband did not have a prima facie case to be heard by the court on the merits.
In my view, the Federal Magistrate in his reasons adequately dealt with the issue of hardship and the order he made was as a result of the application of correct principles. The finding that the Federal Magistrate made in relation to hardship was open to him on the evidence and therefore no error of principle has been demonstrated. I find no error on the part of the Federal Magistrate in relation to this matter. Applying the principles established in House v The King (supra), and the authorities I have referred to, the appeal should be dismissed.
Costs
As to the appeal against the order for costs there are no relevant grounds of appeal. However, in his written submissions filed on 18 March 2009 the Husband in summary contended that the Federal Magistrate failed to take into account the Husband’s financial circumstances and also that the Wife either had or should have had assistance of Legal Aid. The second matter is irrelevant. As to the first matter I am satisfied that the Federal Magistrate did consider and place appropriate weight on the evidence as to the Husband’s financial circumstances. The order the Federal Magistrate made was within his discretion. I am going to dismiss the appeal in so far as it relates to the order for costs.
Parenting order No 11
As to the appeal by the Husband against order 11, again there are no grounds of appeal. However, in the written submissions of the Husband filed on 18 March 2009 he contended that “7 days is not a workable span of time, is not a fair or a reasonable period of notice for each party to give to the other party, to take the child [Y] for interstate and/or overseas travel”. Further that “7 days does not assist in panning [sic] a trip, planning accommodation and/or booking travel as if one party does not agree then there would be a financial loss to the other party”. Further, although it is not in the orders sought in the Notice of Appeal, in the written submissions the Husband requested that “the notice of interstate and/or overseas travel should be no less than 90 days and with written consent from the other party that the travel is thereby agreed upon”.
In the email that the Wife sent to the Appeal Registrar on 23 March 2009, the Wife made a brief submission in relation to Order 11. The Wife submitted that:
This order is fine if the child is taken out of Victoria or overseas in the contact time of the parent wishing to have the holiday as it would not affect the other parent in any way. If however the parent wanted to take the child during the other parents time then it is only courteous for them to request permission from the other parent and then abide by their decision. This is how most reasonable parents would handle this situation. Instead [the Husband] wants to add to the order “liable for prosecution” not a statement which should be included in parenting orders.
At the commencement of the hearing of the children's matters (transcript, 6 November 2008, p 49) counsel for the Husband handed up to the Federal Magistrate an original of the proposed orders and “a separate set of proposed minutes that [were] certainly not agreed upon”.
Counsel for the Husband then proceeded to take the Federal Magistrate through parts of the proposed orders that were agreed upon and those that were not agreed upon. He identified approximately nine proposed orders that were not agreed upon by the parties (transcript, 6 November 2008, pp 49-52) including but not limited to whether the parties would have access to the children on the first or last weekend of each month, access to the children on Father’s Day, Christmas Day and the youngest child’s birthday, telephone contact at the maternal grandparent’s house, contact with the younger child every second weekend, access to the children’s school reports, a mutual non-denigration order and a recommendation that the eldest child attend counselling. He also identified proposed orders that were by consent and this included “[n]umber 4, both husband and wife to notify the other in writing, at least seven days before either of them take the said child out of the state of Victoria” (transcript, 6 November 2008, p 51, line 40). At the end of counsel’s summation of the proposed orders the Federal Magistrate finally said, “I’m quite sure [counsel for the Husband] has stated everything as agreed, but is the way [counsel for the Husband] put what’s agreed and what’s in dispute right? Do you want to add anything?” The Wife replied, “It’s fairly accurate” (transcript, 6 November 2008, p 52, line 39-41)
Counsel for the Husband further proposed to call upon both the Husband and the Wife to address the contested issues during oral examination. The Husband gave oral evidence (transcript, 6 November 2008, pp 55-73). The Wife also gave oral evidence (transcript, 6 November 2008, pp 75-91). The order that is currently the subject to this appeal was not raised or examined on by counsel for the Husband. In fact, the only time the order was referred to again, was after judgment was pronounced when counsel for the Husband was prudently clarifying each order with the Federal Magistrate (transcript, 6 November 2008, p 94-100). Counsel for the Husband suggested a few amendments to the orders made by the Federal Magistrate but did not suggest any revision to the order that is currently subject to this appeal (transcript, 6 November 2008, p 98, line 30-39).
I infer from the above that the said order was not a matter of dispute and was therefore an order made by consent. I am going to dismiss the appeal in so far as it relates to Order 11.
Parenting order No 5
Order 5 made on 6 November 2008 provides that the parties have equal shared parental responsibility for the two children In the Notice of Appeal the Husband did not appeal against Order 5 made by the Federal Magistrate. However, in the written submissions of the Husband filed on 18 March 2009 the following appears:
The Applicant asks that Justice O'Ryan clarify the meaning of this Order to the parties on 26 March, 2009.
The Applicant father believes that he does not get equal shared parental responsibility for the children.
In the circumstances, I do not propose to deal with what the Husband said in relation to Order 5.
I certify that the preceding one hundred and twenty five (125) paragraphs are a true copy of the reasons for judgment of the Appellate Division of the Family Court of Justice O’Ryan
Associate:
Date:15 September 2009
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