PRESNELL & BROMLEY

[2019] FCCA 2059

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRESNELL & BROMLEY [2019] FCCA 2059

Catchwords:
FAMILY LAW – De Facto property and parenting dispute – short relationship – wife’s application pursuant to s 44(6) Family Law Act 1975 (Cth) to extend time to make property application – wife not meeting hardship test - wife’s examination for delay unconvincing – time not extended – clear family report – parenting orders made as brought by the mother.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Whitford v Whitford (1979) FLC 90 – 612

Applicant: MS PRESNELL

Respondent: MR BROMLEY

File Number: DGC 705 of 2018

Judgment of: Judge Burchardt

Hearing dates: 11 and 12 June 2019

Date of Last Submission: 12 June 2019

Delivered at: Dandenong

Delivered on: 5 August 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms Chia

Solicitors for the Respondent: Knight Family Lawyers

ORDERS

1. The applicants application pursuant to s 44(6) of the Family Law Act1975 (Cth) is dismissed

2. The parents have equal shared parental responsibility for the child [Y] born … 2009 (“the child”).

3. The child live with the mother

4. The child spend time and communicate with the father

   (a)In week 1 – from Friday after school to Monday morning before school and from Wednesday after school to 8:30pm.

   (b)In week 2 – from after school to 8.30pm on Wednesday, with the father to deliver the child to the mother.

   (c)As agreed between the parents

5. The child spend time with the father in the school holiday periods

   (a)In the short school holidays for half of each holiday.

   (b)In the longer summer school holidays – two weeks in the father’s care and this time to increase to equal time when Mr Bromley is also available to spend time with [Y] and the family.

6. Ms Presnell and Mr Bromley attend family dispute resolution services to support them make changes to the above arrangements should [Y]’s increasing maturity result in her wish to spend more time in her father’s care. CatholicCare Suburb C or Counselling Service, A Street, Suburb B.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 705 of 2018

MS PRESNELL

Applicant

And

MR BROMLEY

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property and parenting dispute.  So far as property is concerned, the applicant de facto wife seeks an extension of time in which to bring her application and, if the same is granted, seeks that the respondent pay her $31,200.  No methodology of any sort for this very precise figure has been advanced.  The respondent de facto husband seeks that the extension of time not be granted and, in the alternative, if it is, that there be no property adjustment in any event.

2. So far as parenting matters are concerned, the dispute is within a very narrow compass.  The wife seeks that the child, [Y], born … 2009, live primarily with her and spend time with the father in a two-week pattern, with Friday to Monday in week 1, and Wednesday after school to 8.30pm in week 2.  She also seeks that [Y] spend time in the school holidays in the pattern as recommended by Ms E, the family consultant.  The husband’s current position is that the time in week 2 should be from Wednesday after school till Thursdays before school, and that school holidays be week-about.

3. For the reasons that follow, I do not think that it is appropriate to grant the wife the extension of time she seeks in relation to bring her property application, but I am going to make the parenting orders that she seeks.

Agreed or Uncontroversial Relevant Matters

1. The wife was born on … 1988, and the husband was born on … 1987.  The parties appear to agree that a relationship between them commenced in either late 2008 or early 2009.  Cohabitation on both parties’ version appears to start in early 2009.  In … 2009 the husband bought the former matrimonial home, and the parties lived there thereafter for a period of time.  The husband says that the de facto relationship ended in June 2010.  The mother says that it ended in October 2014. 

2. The father re-partnered with Ms F in … 2016, and they bought a new home in Suburb G in … 2018.  Their child, [X], was born on … 2018.

3. The mother has re-partnered with a Mr H, although the date of the commencement of the relationship is in issue.  She and Mr H have a son, N, born on … 2018, who is, of course, a half-sibling to [Y].

4. The wife continues to receive a carer’s allowance in respect of [Y], whose health difficulties are a matter of dispute between the parties, and receives $137 per week in child support from the husband.

The Parties’ Affidavit Material

1. Much of what the parties have in their affidavit material is summarised above. 

2. In her first affidavit, filed on 2 March 2018, the wife deposed to the commencement of the de facto relationship and the birth of [Y].  She also denoted the birth of her then other child, J, born … 2008 to a different father.  She deposed to the father spending time with [Y] every second weekend, and to her receipt of Centrelink and child support.  I note that her financial circumstances at the time were undoubtedly straightened given that she had Centrelink benefits of $600 per week, child support of $120 a week, and rent $300 a week.  The mother deposed to the father being a labourer.  She deposed further to a disinclination on her part to return to employment (in which she is highly qualified).

3. The wife deposed that J regarded the respondent as a father figure.  She also deposed that she ceased the relationship following a discovery in … 2014 that the respondent was still communicating with a former girlfriend.  The wife deposed in considerable detail the history of [Y]’s health difficulties, including an assertion of multiple visits to the Royal Children’s Hospital.  She deposed to [Y]’s epilepsy and a number of brain and nose tumours, requiring some 36 operations.  The wife deposed, at paragraph’s 24- 26, relevantly:

   Given my limited insight into the legal system and the fact that I’m unable to engage a private solicitor.  I also assumed that I was not entitled to anything, given that I had made little to no financial contributions to the relationship.

   The exorbitant costs of [Y]’s medical bills has ultimately left and will continue to leave me in a constant state of financial hardship.  These costs are only expected to rise with the further surgeries that will most likely occur.

   Further, despite my love and support for my children, raising them has been harder than normal given the complicated medical conditions of [Y].  [Y]’s medical conditions makes it imperative for her to see a health care professional regularly.  This has put severe financial stress on myself.  Moreover, being the primary caregiver for [Y] has also taken a mental toll on me as this role is more burdensome than normal as a result of her medical conditions.

4. The wife deposed to her contributions to the welfare of the family during the relationship, and as to the paucity of the parties’ financial resources at the commencement of it.  She deposed that the father spent a considerable time away working as a labourer for some five to six days away from the home.

5. The wife went on to depose to what was described as the capital cost of the children which amounted to some $2160 of annual fees for school, and hobby classes for both children.  The wife went on to seek spousal maintenance paid for two years in the sum of $144 per week being the difference between her personal expenditure and her weekly income.

6. The husband’s responding affidavit deposed to the commencement of cohabitation in … 2009 at his parents’ home and to the birth of [Y].  He deposed to the purchase of the property at K Street, Suburb G in … 2009.  He deposed that the relationship came to an end in June 2010 when he discovered the wife was seeing another person, his friend Mr L.  He deposed that notwithstanding the end of the relationship, the wife continued to live at K Street, Suburb G.  He deposed that he had permitted this on the basis that the wife paid him money as a boarder.  He deposed that she moved out in … 2011 into a rental property with Mr L.  He deposed that that relationship came to an end in February 2012 whereupon the wife moved back into his property because she had nowhere else to go.  He deposed to a failure on the wife’s part to pay him the $150 per week board that they had agreed.  He deposed that the wife commenced a relationship with Mr H in … 2012 and that she moved out with him. 

7. The husband deposed that he paid the $32,000 deposit on the K Street, Suburb G property and contributed in total $60,000 of his own savings and resources for the home to complete the purchase.

8. The husband took issue with the state of [Y]’s health although he admitted that she had been diagnosed with epilepsy.  It was his understanding that the epilepsy was in remission and that [Y] was not likely to have more attacks. 

9. At paragraph 33 the husband’s case is encapsulated:

   The application for any property or of financial needs is without merit as Ms Presnell works and has good prospects of future work due to her skills in the health care industry.  She is in a long-term relationship with her partner, Mr H.

10. The husband went on to seek an equal time regime for [Y].  The husband’s affidavit is ungenerous in its tone and, in addition to taking issue with whether [Y] was really significantly ill, he deposed that [Y]’s treatment was free and thus so to speak not an operative matter.

11. The wife filed her next affidavit on 4 October 2018.  She deposed to having obtained employment at Employer O in … 2018, earning approximately $847 per fortnight as a health care worker.  She also disclosed superannuation not previously disclosed in her Financial Statement of some $3100.  She deposed to an annual income of some $9154.

12. The wife denied seeing Mr L in around June 2010.  She confirmed the parties did briefly split up in 2010 for two months but asserted that the relationship then resumed at K Street, Suburb G.  She repeated that the breakdown of the relationship was in October 2014 due to the husband’s communication with his previous partner.

13. She deposed that during 2012 to 2014, she paid approximately $150 board to the husband weekly and, additionally, purchased groceries for the children and prepared meals for them.  She deposed that she made these payments in cash to the husband, as they were still in a relationship.  She put in issue the husband’s attendance at [Y]’s medical appointments, in light of his work as a labourer.  Otherwise, the affidavit was solely concerned with parenting issues.

14. On 6 May 2019, the wife filed a final affidavit.  She deposed to the birth of her son N on … 2018.  She deposed to the commencement of her relationship with Mr H in 2016 and that in … 2018 she moved into a property owned by Mr H, which he bought in about … 2018 for $340,000 from his mother.  Since then she has paid rent of approximately $150 per week, as agreed with Mr H.  She has not had a tenancy agreement with him.  Mr H is employed as a tradesman, with an annual income of $118,425.  She deposed that Mr H does not contribute financially to the care of J or [Y].

15. The wife deposed that since December 2018 she has been on unpaid maternity leave following the birth of N.  I note that at paragraph 24, the wife deposed that at the time of her initiating application, her Motor Vehicle P Financial Services car loan was $20,000.  This figure had reduced to $5500.  The wife gave details of the annual school-fees and other expenses for 2019.  These include $280 for both [Y] and J in school-fees.  [Y]’s hobby class is $400, and her sports class is $250.  J’s hobby class is $300.  And J’s sports class is $250.

16. The wife’s Financial Statement filed 6 May 2019 details income of $776.80 and total personal expenditure of $341.  In addition to salary of $176, she receives $399 in carer payment and $64 in carer’s allowance.  Additionally, the father pays $136 child support for [Y].  The Financial Statement details rent to Mr H of $150 and is otherwise unremarkable save that the Motor Vehicle P Financial Services loan is estimated at $107.  The wife at that time had almost $5000 savings, and her superannuation was now worth just under $5000.

17. The husband filed a final affidavit on 30 May 2019.  He deposed that [Y]’s health is now wholly unremarkable.  At paragraph 10, he asserted, “Her condition has subsequently improved and she is no longer on any medication and requires no medical expenses.”

18. Much of the material is a repeat of his earlier affidavits.  I note that he put in issue the wife’s alleged absences at weekends for what he described as parties.  He deposed that the wife commenced a relationship with Mr H in … 2012 and moved in with him in 2014.  He further deposed to the purchase of a second property in Suburb G in … 2017 by himself and Ms F. 

19. His total assets, including $82,000 worth of superannuation, were just under $1,200,000, and his liabilities some $846,000.  He also gave estimates as to the parties’ property pool at the time of separation in 2010.  I note that at paragraph 51, the husband deposed to paying for surgery for M, to whom he is a stepfather.  Nothing more seems to be said about M, but it would appear from the terms of the affidavit that he is another child of Ms F.  It should be noted that the terms of the affidavit, when looked at fairly, remain somewhat carping and ungenerous.  I note that the husband’s Financial Statement discloses a weekly income of $2028 and personal expenditure of $1761.  His partner apparently earns some $450 per week. 

The family report of Ms E

1. Ms E’s report is an annexure to her affidavit affirmed 21 May 2019.  I note that Ms E was unable to observe [Y] with her step-parents, maternal half-sister and paternal step- and half-brother.  The wife told Ms E (paragraph 2) that she plans to return to part-time work at the end of 2019.  I note the wife reported that [Y] prefers to spend most of her time in J’s bedroom and the two girls choose to sleep together in J’s double bed on most nights.

2. Although I have had regard to the entirety of the report, it is probably sufficient, in light of the narrowness of the dispute, to turn to the recommendations that Ms E made.  I do, however, note that [Y]’s health problems were described by the mother as having largely resolved (paragraph 21) and that [Y] and J’s relationship was identified as one of the strongest that [Y] has (paragraph 26).

3. I note that [Y] impressed as being completely uncoached in her answers (paragraph 47), and at paragraph 48:

   In particular, [Y] spoke of her worry that she may hurt her father’s feelings by placing a stronger emphasis on her wish to spend time with her older sister rather than increasing the time that she spent in the care of her father’s family. 

4. At paragraph 51, the report noted:

   [Y] reported her main concern was that when at her father’s home she missed J and her teddies. 

5. She noted (paragraph 52) that she wanted Wednesday night for dinner and that every second weekend she return to her mother’s home on Sunday night to spend time with J. 

6. Ms E noted at paragraph 56, “[Y]’s sibling bond with J impressed the writer as being strong.”

7. At paragraph 57, Ms E observed:

   The writer has placed weight on [Y]’s wishes based on the writer’s concerns that at [Y]’s young age, and given her close relationship with J, [Y] would be emotionally compromised by her sense of loss should she be required to spend extended periods of time away from J.

8. Ms E went on to recommend equal shared parental responsibility, that the child live with the mother and spend time with the father in the two-week pattern, being Friday school to Monday school and Wednesday after school till 8.30 pm in week 1, with week 2 being after school Wednesday to before school Thursday morning.  She also recommended in the term school holidays, a pattern of three days in one parent’s care and four days with the other parent, the pattern reversed in the second week, and two weeks in the long summer holidays, to increase to equal time when the husband was also available to spend time with [Y] and the family.  This pattern of time was to occur in shorter timeframes, as in the term holidays, unless otherwise agreed. 

The submissions made and evidence given at Court

1. What follows is taken from my notes.  It is obviously not a transcript but records matters I found significant.

2. The wife’s counsel opened the case.  She indicated that she seeks $31,200, this being less than 10 per cent of the pool. It should be noted that counsel was not able to offer any methodology to identify why the figure of $31,200 rather than any other figure was being sought, nor why it was just and equitable in all the relevant circumstances.

3. The wife was called and adopted her affidavits as true and correct.  In evidence-in-chief, she confirmed that the relationship commenced in … 2008 and ended in October 2014.  She said she moved out for two months but they reconciled.  She said she could not afford to make an application for property adjustment earlier.  She is on maternity leave with no pay and has been since … 2018.  She denied gambling or partying during the relationship.  She denied that the husband had done any housework at all.

4. Under cross-examination, the wife repeated that she had not been able to afford to bring her application.  The lawyer is undertaking the work pro bono.  In 2014, she was trying to find a lawyer, but it took her four years to find Deakin Law.  She was told she could file documents by herself.  She read the documents and found this difficult.  Legal Aid refused to assist.

5. It was put to the wife that she had discovered the husband was in a new relationship, and she confirmed that this was in 2017.  Her daughter had told her that they were married this year.  She had found out they bought a property in 2018, which is around the same time that she made her application to the Court. 

6. Her relationship with Mr H was on and off.  They started a relationship, broke up and then started again.  Mr H knew she was in Court.  She lives with him.  He pays gas and electricity and gives the children Christmas and birthday presents.  Mr H provides assistance for his child.  He pays all the bills, and she pays the groceries.  She went on maternity leave in … 2018.  Her partner makes $2200 per week, and the mortgage is paid by him.  She was not sure how much the mortgage is. 

7. She was aware that the husband says the relationship ended in 2010.  They had different rooms for a little while.  It was a few weeks.  It was not correct to say there was no sex thereafter.  She said there was “a bit”.  She pays rent to Mr H and contributes to the house.  She had about $4000 in the bank when she swore her affidavit on 6 May 2019, but that is not there now. 

8. When cross-examined about ANZ bank records showing Sportsbet of $8500 dollars and Tabcorp of $150, the wife said her partner borrowed her card and gambled on it.  She knew her partner was gambling with her card, but this has stopped.  Her partner banks with the Commonwealth Bank.  His card was not working at the time.  She denied gambling herself. 

9. The wife confirmed that there will be a job for her when she returns from maternity leave.  She was, however, not sure if she would return to work.  She said she had a lot of debts.  She owes $7000 on her car, $5000 on her credit card, and school fees and uniform costs.  She obtained a credit card in about 2016 and had purchased her car in 2013. 

10. When cross-examined as to whether she was in a relationship as a couple with the husband between 2010 to 2014, the wife said some friends saw them as a couple.  They went to birthday parties.  She would try and produce photographs (two photographs were subsequently tendered).  Exhibit A1 is the photograph taken at [Y]’s first birthday which was in … 2010 and shows the couple together at what is plainly some sort of social engagement.  Exhibit A2 is a photograph taken, it would seem, at Christmas 2011 and uploaded in 2012.  It shows the father with [Y] in his arms and, it appears, numerous members of the wife’s family. 

1. The wife confirmed that she found the paperwork  for an application to court too hard in 2014.  She has only ever worked in health care, although she is a qualified health care worker. 

2. The wife was cross-examined about the time [Y] spends with the husband.  She confirmed that the current arrangement is overnight on Wednesday in week 1 and till 8.30 in week 2.  She confirmed that a week about arrangement with holidays was acceptable.  The only issue was whether the second Wednesday should be overnight.  The school is five to 10 minute walk from the father’s home and three minutes by car, and 15 minutes by car from her home.  She still has to drive the other children to the school.  [Y] wants other children to drive to the school with her.  [Y] and J sleep together.  Bedtime is 8 pm with lights out at 8.30.  [Y] comes back later at 9.15pm once per fortnight.  [Y] says this is not what she wants and wants to be at home.  J will not stay overnight and does not want anything to do with the husband.  Noteworthily, the wife said that Mr H has taken over the parental role, and J no longer considers the husband as her father.  [Y] likes both parties.  There could be FaceTime with J, but [Y] just wants to be at home.  The wife conceded that [Y] could be telling her one thing and the husband another. 

3. When it was put to her that the husband assisted with the children, the wife conceded this, but said he was at work for majority of the time.  She conceded that child support would diminish if there was one less night with her, but this was not the reason she oppose further overnight time.

The evidence of the husband (counsel elected to make no opening)

1. The husband confirmed that he is a contractor labourer.  He confirmed that the relationship commenced towards the end of 2008 or the beginning of 2009.  He seeks one extra night on Wednesdays.  The child is showered and ready for bed by 8 pm, and then could go to school the next day.  The children get up at 7 to 7.30 am and just a three-minute drive to school.  He was adamant that during the relationship, the wife made no contributions except some small amounts of groceries and her own expenses.  He paid all the bills and paid the wife’s car off.  Her income and lifestyle are well above hardship.  She got her pension in 2010 and receives child support. 

2. Under cross-examination, the husband confirmed that his hours are generally 6 am till 2.30 pm.  He is paid per job.  He can finish as late as 6.30 pm.  His partner takes [Y] to school.  He worked full-time during the relationship and similar hours, 6 till 2.30.  He does not work on weekends.  He said overnight work was once in a blue moon, and he was never away for a week.  I interpolate and say this evidence was given with emphasis and was plainly true.  The children were in child care for three days a week even though the wife was not working from when [Y] was two.  He would go to work and she would go out.  There were dishes everywhere and nothing was done.  So he said the– the wife very rarely did household duties and he did all the laundry and cooked every night.  The house was never clean.  I interpolate again and say there was a palpable meanness of spirit in this passage of the husband’s evidence. 

3. He conceded that the mother took care of [Y] to an extent, but said she went out to parties.  Every single Friday, his mother would get the children from school and she was not at home on Friday to Sunday.  He said he attended most of [Y]’s medical appointments and all the major appointments till she was three.  There were not 35 operations as the wife asserted, but only seven or eight.  He has said he paid all the medical bills to the extent that they were not covered by the Royal Childrens Hospital. 

4. The husband conceded, however, that the wife loves and cares for her children and that [Y] is doing well in her care.  He denied separation took place in October 2014.  The wife moved out of his house where she was a boarder and moved out with Mr L in 2010 for six months.  He allowed her back in.  $150 per week was never paid.  She refused to move out and lived in the spare room.  In … 2010, he found birthday messages.  She moved to the spare bedroom and moved out in late 2010. 

5. When it was put to him that his first affidavit had said the wife moved out in September 2011, the father could not recall.  He had heard that she had a rental property in Suburb Q and lived with Mr L.  (This was clearly hearsay). The father’s answers about his first affidavit were entirely unconvincing.  He denied any sexual contact after 2010, and denied that they spent birthdays or Christmas together.  He wanted an extra night of time. 

6. He said that they were not a couple to other people and had no sex and no social life.  Exhibit A1 being the photograph of the birthday was put to him.  He said they were photographs taken when the children were born.  It was a family birthday with both sides of the family present.  He still wanted the house to be happy.  He was not sure about the photograph in … 2012, but accepted, in the end, that it was from Christmas 2011.  He was holding [Y].  They were not a couple.  He had tried to attend family things, but that he and the wife were never together. 

7. When cross-examined about the Wednesday time he was seeking, the father said all he wanted was equal time with both families.  He said with emphasis that there are 10 nights that he did not put his daughter to bed.  He wanted one night in the middle.  He did not agree with the family report.  The father’s evidence about his absence from his child was totally self-oriented. 

8. The father believes that the mother misled the report writer.  [Y] had been questioned about J, rather than the whole family.  It was important to pay regard to [Y]’s fears. 

9. The husband confirmed his wage is $1200 per week, and that he earns $400 from his rental property also.  This was take-home pay.  The household has a net income of $2288.  The husband was cross-examined about the value of his business.  I would interpolate and say that I accept that it has no real net worth.  He was not too sure of the mother’s income.  When he was taxed with his allegation that the mother was addicted to gambling, the husband said he had no proof.  It was just his recollection.  He has seen receipts lying around.  This was not in his affidavit. 

The evidence of Ms E

1. Ms E adopted her affidavit and report. 

2. Under cross-examination by counsel for the wife, Ms E confirmed that [Y] wanted less time with the father because she missed J.  One extra Wednesday might not be too difficult, but it depended on school holidays and weekends.  The Friday to Monday regime she had recommended was to balance Wednesday nights.  Should be school pick up on Friday and drop off on Monday.  If it was every Wednesday, then there should be Friday to Sunday, or if Mondays, no Wednesday nights. 

3. Counsel for the husband pressed Ms E as to every Wednesday night not be in [Y]’s best interests.  Ms E said that this was because the relationship with J was strong.  [Y] wants nights with her.  She was to have Wednesday afternoons with her father.  When it was put to her that both parties agreed for week about arrangement during school holidays, Ms E said that this was a significant change, but she would still not increase Wednesday nights.  She confirmed that she had not specifically inquired as to both parents’ routines on Wednesday nights.  [Y] was distressed if away from J.  It was a very strong relationship.  3.30 pm to 8.30 pm on Wednesdays is five hours.  [Y] has a strong bond.   She can do her homework and cook meals.  If she was resentful at being at the father’s home, this could cause problems in the relationship between the father and the child.  The father is a good parent and the family is a good family, but there is an exceptional relationship between [Y] and J.  It is not in [Y]’s best interests if she is made to go when she does not want to.  Ms E thought things might settle down after the conclusion of this case.  She made it clear that [Y] did not want to stay for an extra night if there was a public holiday on the Monday.  Ms E had no recommendations to make, save those in the report.  She still thought a three-four arrangement in school holidays was better.  If J was not there, this might be a difficulty. 

4. It should be noted the mother was recalled for further cross-examination in light of the tender of exhibits A1 and A2, but this was unremarkable. 

Final submissions

1. Counsel for the husband referred to s 44(5) of the Family Law Act
    (“the Act”).  The question was whether the relationship ended in 2010 or 2014.  There was, of course, a child of the relationship.  The wife  said she could not afford lawyers – or could not understand the paperwork.  She brought an application for $31,200 once she discovered the husband was in a new relationship.  Her credit card debts were post-relationship.  She has re-partnered and has a child with Mr H who has an income in excess of $128,000.  Counsel submitted that she did not meet the financial hardship test.  If the application for leave was granted, the question was, again, when did the relationship end.  It was submitted that the wife only moved back in as a boarder and was paying rent and the relationship ended in 2010. Both parents have re-partnered and have new children and both have mortgages.  There should be no adjustment at all. 

2. In regard to parenting matters, counsel submitted that the recommendations of Ms E should be adopted, but that there should be a week about in school holidays. 

3. Counsel for the wife referred to s 44 and cited authority as to the meaning of hardship.  The wife had provided reasons for the delay.  [Y] has special needs and numerous hospital attendances.  The wife had received some chattels when the relationship ended, but had made substantial contributions including non-financial contributions by raising [Y].  It is submitted the mother’s partner’s income was irrelevant and that the mother was in receipt of carer’s allowance.  If leave to grant the application was given, the husband should pay $32,0000 being a modest amount, less than 10 per cent of the pool.  Counsel referred to the definition of de facto relationship in s 4AA of the Act.  It was submitted that the court should believe the wife.  It was only two months separation in five years.  The husband said he did all the cooking and household duties, but would not have done this for a boarder.  There was a child of the relationship.  There should be an order.

4. So far as parenting was concerned, counsel submitted it was a narrow dispute.  Counsel laid emphasis on the Ms E’s report and the evidence of [Y]’s wishes. 

Findings of the disputed facts

1. I should say at the outset that I thought both of the primary witnesses were, in the main, good witnesses.  They both appeared to answer the questions put to them directly to their best of their memory.  Nonetheless, their competing versions of the facts are not readily reconcilable, and it is necessary for the Court to making findings in order to embark upon both the property and parenting disputes.

2. The parties met and commenced cohabitation in late 2008 or early 2009.  At that time, neither of them had anything in the way of property resources, and the wife was recently the mother of J by a different man.  They lived together on any view of the matter till mid-2010.  Unremarkably, given that [Y] was born in late 2009, the husband was the main provider and the wife was essentially stay at home.  As a labourer, he would have been away on some occasions although I accept that he was never away for as much as a week.  It is clear, however, that the wife was the primary carer.  I have seen and heard her give her evidence, and in this respect, I accept it.

3. Plainly, some sort of disruption to the relationship occurred in about mid-2010.  Whether this was because the mother was in a relationship with Mr L is, in the ultimate, in my view, immaterial.  The fact is that they separated for a period of time.  Following that separation, the wife moved back in because she had nowhere else to go.  The husband’s evidence that he, in effect, did all the housework and that the wife was a profligate who spent the weekends partying is not evidence I am prepared to accept.  It is her case that she was a border (albeit not paying the posited rent), but he would not have done all of the work that he did do for somebody with whom he was not in any kind of a relationship.  I think the truth of the matter is somewhere between the parties’ competing positions.  I am satisfied, having heard the parties give their evidence, that the parties had intermittent but by no means frequent sexual relations after mid-2010 and that the relationship, so to speak, limped along until 2014.  Quite what this means in terms of the definition in the Act is a matter to which I shall return, but it is plain that the parties attended at least some social occasions in 2010 and 2011 because that is what exhibits A1 and A2 show.  Nonetheless, and unsurprisingly given that the father thought that the mother had been unfaithful to him, the relationship did not have about it the measure of commitment one would ordinarily expect from a couple in a committed domestic relationship.  In circumstances where people conduct themselves in an anomalous fashion, which is what I find occurred here, the application of legal tests is rendered more difficult, but, as I say, some sort of co-habitation subsisted until 2014.

4. Thereafter, each of the parties has re-partnered, and they have each had further children.  As things now stand, both of them are now in what appear to be committed relationships.  The wife has been with Mr H on her version of the events since 2016, and after three years and the birth of a further child, it would seem that that relationship is secure and established, especially since it would also seem that Mr H has taken over the parental role in respect of J.

5. The financial circumstances of the Mr H/Presnell household seem relatively secure.  They have a home with a mortgage, and Mr H’s income well exceeds $100,000.  The wife continues to receive a carers allowance, which suggests that whatever improvements have occurred to [Y]’s health, they are not so complete as the husband puts them.  The State does not pay carers allowance where it is not warranted.

6. Conversely, the circumstances of the husband are also good.  His partner makes an appreciable income of some $450 per week, and his own income is substantial, and it seems, if I have not misunderstood the matter, that they own two properties rather than one.

7. With these findings in mind, I turn now to the property issue.

Should the Wife Be Granted Leave to Apply After the End of the Standard Application Period?

1. Section 44(5) of the Act relevantly prescribes that a party to a de facto relationship may apply for an order pursuant to s 90SM of the Act if the application is made within a period (the standard application period) of, relevantly, two years after the end of the de facto relationship.

2. Section 44(6) of the Act provides:

   The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

   (a) hardship would be caused to the party or a child if leave were not granted;  or

   (b) -(which is irrelevant in this case). 

3. It should be noted that although maintenance was mentioned, as I have recorded, in the wife’s earlier materials, no such application was pressed before the Court. On one view, the application for a figure of $32,000 (or $31,200) as a round figure might at one level be thought to be referrable to maintenance, but the manner of the submissions made in support of the application indicated, at least to me, that this was an application for a property division pursuant to s 90SM even though counsel did not refer in terms to the legislation.

4. Unsurprisingly, the meaning of the terms of s 44(6) has been the subject of authority. In the Marriage of Whitford (1979) 4 FLC 90-612 at p 78,144, the Full Court of the Family Court said:

   on an application for leave under sec 44(3), two broad questions may arise for determination.  The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted.  If the Court is not so satisfied, that is the end of the matter.  If the Court is so satisfied, the second question arises.  That is whether in the exercise of its discretion, the Court should grant or refuse leave to institute proceedings.

5. In the same case, the Full Court considered the meaning of hardship in s 44(4) and said at p 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 possibility of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted.  Further, the matter with which the Court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted.

6. In Whitford, the Court also said at p 78,145:

   In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”.  We consider that in subsec 44(4) the word should have its usual, though necessarily its most stringent, connotations.  It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.  As a general proposition it might be said that the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship.  Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warranty in either subsec 44(3) or 44(4) for saying that the right or entitlement loss must be a substantial one.

7. It should be noted finally that in Whitford the Court also said at p 78,145

   Hardship may be caused to an applicant if leave were not granted to institute proceedings, although the applicant is not in necessitous circumstances.  Whatever the financial situation of an applicant may be, his or her loss of a prospective entitlement to property including money, or his or her inability to have the financial and property in relation to the parties adjusted or resolved, may constitute hardship.

8. It should be noted that in exercising the general discretion if the hardship criterion is satisfied, the Court is to bear in mind, noting that these are not exhaustive, the prima facie requirement for compliance with the standard time period, any explanation for the delay, the hardship that may be occasioned to the respondent, and, of course, the question of the likely merits of the case itself.

9. Here, the wife’s Financial Statement filed as recently as 6 May 2019 puts her total weekly income at $776 and her total personal expenditure at $341.  I note further that in the time since she filed her original initiating application in March 2018, the wife’s car loan has reduced from $20,000 to $5000.  She is in a relationship now of almost three years with a partner who has a very substantial income and who pays the bills.  Although it puts the matter shortly, I cannot distrain from these pertinent facts any notion that would realistically be described as satisfying the test of hardship.

1. That, however, is not the end of the matter.  As the Court pointed out in Whitford, the fact that the wife’s circumstances are not necessitous is not a bar to success.  The Court is required to make some sort of prima facie assessment of the likelihood or otherwise of the success of the application were leave to be granted.  It should be noted in passing that by the consent of all parties, the Court took all the evidence in the case rather than seeking to confine the evidence only to the preliminary application for an extension of time.

2. In circumstances where the husband and wife had nothing of any meaningful moment by way of property at the start of the relationship and the only significant material asset of that relationship is the former matrimonial home and the matrimonial home was wholly bought by the contributions of the husband, it is immediately apparent that the substantive application would face considerable difficulty.  This is all the more so since the length of the relationship was at its absolute most some five or so years and, as I have found, somewhere between two and five years although it is not possible to say exactly how long.  There is, of course, a child of the relationship, but I note that the husband pays child support as assessed.

3. This was, on any view of the matter, a short relationship in which the husband made the overwhelming measure of such contributions as were made.

4. As the Full Court emphasised in Whitford, at the stage of considering whether or not to extend time, it is not a matter that the Court form a definitive view of the applicant’s chances of success if leave is granted.  As a matter of impression, however, and putting the matter perhaps at its lowest, the application would always face very considerable difficulties.

5. Bearing in mind the happy outcome as it has transpired in financial terms for the applicant wife given her new relationship and current financial circumstances and the overarching weakness of the case, I am not prepared to find that the wife satisfies the hardship criterion.

6. Even if I were wrong in this respect, however, I would not be minded to extend time.  The weakness of the wife’s case counts against her.  Furthermore, I do not accept her evidence about the explanation for the delay.  The wife was plainly aware in 2014 of her right to bring proceedings.  She went so far as to obtain Court documents but says that she could not understand them.  She said she was unable to find a lawyer to work for her pro bono until she obtained the services of Deakin Lawyers after some four years.

7. I do not accept this evidence.  The wife has a degree in health care and is a highly educated woman who struck me as being articulate and intelligent.  I do not accept that she was unable to bring proceedings but, rather, that she chose not to do so at the time.

8. I accept that the evidence suggests that [Y]’s health was a major preoccupation for her at the relevant time although it would seem that the demands arising from this have diminished somewhat over time, but I simply do not find the explanation satisfactory.  I think it is more probable than otherwise that this was provoked by a combination of the knowledge that the husband had entered into a new relationship together with her improved financial situation from her relationship with Mr H’s.  Even if I am wrong as to her motivation, I am simply not satisfied as to the explanation for the delay.

9. I am also required to consider the prejudice to the respondent.  Given the amount sought, it might be thought in the scheme of things that the prejudice to the respondent is relatively slight.  It is less than 10 per cent of the available property pool.  Nonetheless, that property pool was overwhelmingly contributed to by the husband.  The prejudice to him now, five years after the end of the relationship at its absolute latest, is self-evident.

10. Balancing all these considerations together, it is quite clear, in my view, that even were the wife to be found to have satisfied the hardship criterion, which I repeat she has not, it would be inappropriate to extend the standard application period.

Childrens Issues

1. Given the narrowness of the dispute, I do not propose, as is my general custom, to set out the statutory pathway in paragraph 65 of the decision of the Full Court in Goode & Goode and to address both the primary and additional considerations seriatim.

2. As I understand it, the parents accept that school holidays should be week about.  If I am mistaken as to this conclusion, I will need to hear further submissions from the parties about this discrete issue.

3. The only other matter raised is whether the time in the second week should be Wednesday night overnight or not.  It should be noted that the wife gave evidence that she would in many ways prefer there not to be any time in Wednesday nights but she has been prepared to accommodate it, so to speak, as a balancing matter.

4. The evidence of Ms E was clear and unequivocal.  She was not effectively challenged in cross-examination.

5. It is quite clear that [Y] has a particularly close relationship with J.  She does not want to be away from her.  It appears that she can just about sustain the Friday to Monday in alternate weeks and the Wednesday 3.30pm to 8.30pm period of time.  The evidence could really scarcely be clearer.  She wants to be at home with J.  Indeed, it would seem that she would prefer this on Sunday nights also, but the mother to her credit, in promoting the relationship between [Y] and the father, has not sought to reduce the time.

6. The father’s very strong emphasis in his evidence about his need to put the child to bed and the deleterious effects upon him of not being able to do so for 10 days speaks for itself.  It is wholly self-oriented and not child oriented.  Whatever [Y] has told either the father or the mother, what she told Ms E and what Ms E deduced from her observations is entirely clear, [Y]’s age and the strength of the attachment as recorded by Ms E, are overwhelmingly in favour of the mother’s position

7. Time on Wednesdays should be reduced to being 3.30 pm to 8.30 pm  This is plainly the order that is in [Y]’s best interest.

Conclusion

1. I have drawn orders to reflect these conclusions and which take on board the recommendations of Ms E’s report.  As indicated, if there is not agreement as to the holiday regime, I will give the parties an opportunity to be further heard.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  5 August 2019