Paparone and Paparone

[2014] FCCA 2836

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAPARONE & PAPARONE [2014] FCCA 2836

Catchwords:
FAMILY LAW – Practice and procedure – application to extend time to apply for property settlement – where Applicant wife makes an application for property settlement nearly three years out of time – leave to commence proceedings out of time – whether hardship would be caused if leave were to be refused – delay – satisfactory explanation for delay – leave granted.

Legislation:

Family Law Act 1975 (Cth), ss.44, 78, 79, 90MT

Cases cited:
Althaus & Althaus (1979) 8 Fam LR 169; (1982) FLC 91-233
Atwill & Atwill (1981) 7 Fam LR 573; FLC 91-107
Bevan & Bevan (1993) 19 Fam LR 35; (1995) FLC 92-600
Carlon & Carlon (1982) 8 Fam LR 729; FLC 91-272
Emamy & Marino (1994) 18 Fam LR 44; FLC 92-487
Frost & Nicholson (1981) 7 Fam LN 9; FLC 91-051
Kinkead-Weekes & Kinkead-Weekes [2001] FamCA 1277
Hall & Hall (1979) 5 Fam LR 411; FLC 90-679
Slater & Slater (1985) 10 Fam LR 381; FLC 91-641
Whitford & Whitford (1979) 4 Fam LR 754; FLC 90-612

Applicant: MS PAPARONE

Respondent: MR PAPARONE

File Number: SYC 6036 of 2010

Judgment of: Judge Scarlett

Hearing date: 2 December 2014

Date of Last Submission: 2 December 2014

Delivered at: Sydney

Delivered on: 2 December 2014

REPRESENTATION

Applicant: In person

Respondent: In person

ORDERS

1. The Applicant has leave to institute proceedings against the Respondent under sections 79 and 90MT of the Family Law Act 1975, in accordance with s.44(4) of the Act.

2. The Respondent is to file and serve a Response, a financial statement and an affidavit setting out the facts upon which he relies within 28 days.

3. The Applicant and the Respondent are to attend a Conciliation Conference with a Registrar at 11:00 am on 22 January 2015.

4. The application is adjourned 2 February 2015 for further mention at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6036 of 2010

MS PAPARONE

Applicant

And

MR PAPARONE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the wife for property settlement. The Application is out of time and the Applicant will require leave of the Court to bring her Application. The husband opposes a grant of leave, saying in a written submission handed up on the first return date:

   I would like to say that I am surprised that leave of the court has been granted to hear this matter given the insignificant amount of assets/property involved, the amount of unsubstantiated claims within the affidavits and the fact that I have made a considerable effort over a number of years to finalise this matter including within the statutory timeframe.

Background

1. The parties were married on [omitted] 1994 and separated on 20 September 2009. There are two children of the marriage, a boy who was born on [omitted] 1994 and a girl who was born on [omitted] 1996.

2. The parties’ son is now 20 years of age and is in employment. Their daughter is now aged 18 years and is in Year 12 at school.

3. The parties were divorced by Order of this Court on 4 November 2010. The divorce became effective one month later, on 5 December 2010.

4. On 12 August 2014 the wife filed an Initiating Application seeking:

   a)a declaration under s.78 of the Family Law Act 1975 (Cth) that the parties are sole and absolute owners of the furniture, monies and motor vehicles currently in their possession; and

   b)a superannuation splitting order under s.90MT of the Act relating to the husband’s superannuation interest.

5. The Application is supported by a Financial Statement and two affidavits, each affirmed by the wife on 12 August 2014.

6. The Application was returnable before the Court on 3 November 2014.

7. Both the wife and the husband attended Court on that day. Neither party was represented by a lawyer. The husband handed up a written submission addressed “To Whom It May Concern” in which he set out his opposition to the property orders sought by the wife and a grant of leave to commence proceedings out of time.

8. The husband was directed to file and serve a Response, a Financial Statement and an affidavit in support of his Response within seven days and the Application was adjourned to 2 December 2014 for mention.

9. Both parties attended Court on the adjourned date. The husband had not filed a Response or the other documents ordered, explaining that he had been away from Sydney for much of the intervening time due to the requirements of his employment. The question of leave to proceed out of time was canvassed with the parties and they each made submissions.         

The Relevant Law

1. Applications for financial orders are required to be made within 12 months of the date that a divorce order comes into effect unless the Court grants leave or the other party consents. The Respondent does not consent.

2. Subsection 44(3) of the Family Law Act 1975 imposes this limitation:

   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 and 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.

3. Subsection 44(4) provides, relevantly, that:

   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;

4. Applications for leave to institute proceedings under subsection 44(3) are interlocutory applications (see Emamy & Marino[1]; Kinkead-Weekes & Kinkead-Weekes[2]).

   [1] (1994) 18 Fam LR 44; FLC 92-487

   [2] [2001] FamCA 1277

5. The Full Court of the Family Court has made it clear that it is not necessary for a detailed hearing on the merits of the claim to be undertaken before the question of leave is to be decided. The Court does not have to decide whether the substantive claim will succeed (Althaus & Althaus[3]). Where the applicant establishes a claim proper to be heard, the court should generally be reluctant to refuse to allow the claim to proceed where the delay has been explained and there is no real prejudice to the respondent (Hall & Hall[4]; Frost & Nicholson[5]).

   [3] (1979) 8 Fam LR 169; (1982) FLC 91-233

   [4] (1979) 5 Fam LR 411; FLC 90-679

   [5] (1981) 7 Fam LN 9; FLC 91-051

6. It is not necessary to show that the applicant is in penurious circumstances (Bevan & Bevan[6]).

   [6] (1993) 19 Fam LR 35; (1995) FLC 92-600

7. The Full Court considered the meaning of hardship in Whitford & Whitford[7]at 759:

   The hardship referred to in s 44(4) is the hardship which would be caused to the applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the hardship to which the subsection refers. It is with the consequences of the loss of that right, with which the sub-section is concerned. The requirement that the court must be satisfied that hardship would be caused if leave were not granted implies that it must be made to appear to the court that the applicant would probably succeed if the substantive application were heard on its 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.[8]

   [7] (1979) 4 Fam LR 754; FLC 90-612

   [8] (1979) 4 Fam LR 754 at 759 per Asche and Pawley SJJ, Strauss J

8. The question if hardship to the Respondent is also a matter for the Court to consider in exercising its discretion to grant leave. In Frost & Nicholson[9], Nygh J said:

   This leads me to the final question as to the exercise of my discretion. That is to say, whether in the circumstances the husband would suffer prejudice if leave to institute proceedings were granted to the wife. Prejudice her means that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought.[10]

   [9] supra

   [10] FLC 91-051 at 76,425

Conclusions

1. It is the Applicant’s case that the parties were together from 1989 until separation in 2009, during which time she made contributions not only as a homemaker and mother to the parties’ two children but direct financial contributions as well during various periods of employment. She claims that the Respondent dissipated a number of assets due to his heavy drinking and gambling. She also claims that she discovered during the marriage that the Respondent was receiving more by way of income than she had been aware.

2. The Applicant claims that the total assets remaining in the joint asset pool are:

   Furniture and Household Effects approx   800

   H’s shares in [P] Pty Ltd approx   25,000

   W’s [1] Superannuation Scheme approx   8,000

   H’s [2] Superannuation approx   6,800

   H’s [3] Superannuation approx.  30,000

   H’s [4] Superannuation Scheme approx   100,000

   TOTAL ASSETS  170,600

   NET ASSETS  166,100[11]

   [11] Affidavit of Ms Paparone 12.8.2014 at paragraph [110]

3. In my view, the Applicant has at least an arguable case, for a property settlement, although it would be imprudent to predict what amount she would be likely to receive.

4. As a result, I am satisfied that the Applicant would suffer hardship if leave were not to be granted. The Respondent will not, to my mind, suffer prejudice if the Applicant were to be granted leave. In his submission to the Court handed up on 3 November, the Respondent refers to the fact that he consulted a solicitor about property proceedings in 2011 and a letter was sent to the Applicant about settlement of property issues on 21 October 2011. There were some negotiations with the solicitor instructed by the Applicant, a Mr Adamson, but no agreement was reached and the Respondent withdrew his offer.

5. As to the question of delay, the Applicant deposed that when she received the letter from the Respondent’s lawyers, which she claimed was dated 24 October 2011, this was the first time that she had “heard of property settlement”.[12] She immediately sought legal advice and applied for a grant of legal aid. Eventually she was given a grant of aid for a mediation conference.

   [12] Affidavit of Ms Paparone 12.8.2014 at [5]

6. The Applicant was assigned a solicitor, a Mr Adamson. A mediation was organised to take place on 29 May 2012, but no resolution was reached at the mediation. The Applicant set out in her affidavit a lengthy process of dealing with her solicitor over negotiations for a property settlement, which proved fruitless.

7. The Applicant stated that she received a letter dated 28 November 2012 from her solicitor saying that her grant of aid had expired and Legal Aid NSW had refused an extension. She made an appointment with Mr Adamson for 20 May 2013, which was postponed until 22 May. The solicitor’s office telephoned to postpone the appointment until 23 May, but on that day they cancelled the appointment altogether.

8. Later, the Applicant received a letter dated 28 June 2013 saying that Mr Adamson had ceased to hold a practising certificate. The Applicant then consulted another firm of solicitors, who applied for legal aid on her behalf, but legal aid was refused.

9. The Applicant deposed that she continued to attend Legal Aid appointments but was unsuccessful in obtaining a grant of aid. Eventually, in 2014 the Applicant obtained pro bono legal assistance from Wesley Mission, who helped her to prepare her documents but told her that they were unable to represent her.

10. It is the Applicant’s case that in 2010 she became severely depressed following the breakup of the marriage and commenced attending counselling. She continued to attend counselling. The Applicant deposed:

    I have not been able to make this application without help as I have been struggling with depression, anxiety and health problems for more than seven years and have found managing ordinary tasks difficult as I am over whelmed by the situation I am in. I found myself going from being financially controlled to suddenly having to take on all tasks by myself.[13]

    [13] Affidavit of Ms Paparone 12.8.2014 at [35]

11. It is relevant that the Applicant consulted a solicitor for legal advice once she had become aware that her former husband wished to negotiate about property matters. It appears from her evidence that the solicitor was not able to negotiate a settlement and certainly did not bring a property application before the limit in s.44(3) commenced. This failure should not be ascribed to the Applicant, in my view. As Nygh J held in Frost & Nicholson at 76,425:

    …so far as the question of delay is concerned, a delay by the applicant’s solicitors in carrying out instructions given in time should not necessarily be ascribed to the applicant. If the applicant is a lay person, as she is in the present case, her power of supervising the solicitor and of choosing a competent and diligent solicitor are clearly limited. 

12. I am satisfied that the Applicant has established an adequate explanation for the delay in instituting proceedings.

13. It is also a relevant consideration that the Respondent told the Court that he was happy to make a property settlement based on his superannuation.

14. I intend to grant leave to institute proceedings out of time. The matter will be referred to a conciliation conference with a Registrar.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  4 December 2014