QUATTRO & GASPAR
[2018] FCCA 3405
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUATTRO & GASPAR | [2018] FCCA 3405 |
| Catchwords: FAMILY LAW – Application pursuant to s.44(6) for leave to commence proceedings out of time – application two years out of time – de-facto relationship – hardship – leave granted. |
| Legislation: Family Law Act 1975, ss.44, 90 |
| Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Whitford & Whitford (1979) FLC 90-612 |
| Applicant: | MR QUATTRO |
| Respondent: | MR GASPAR |
| File Number: | PAC 2940 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 23 May 2018 |
| Date of Last Submission: | 23 May 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton |
| Solicitors for the Applicant: | Aaron Legal |
| Counsel for the Respondent: | Ms Hamilton |
| Solicitors for the Respondent: | Glenn R Walters & Co |
ORDERS
Pursuant to section 44(6) of the Family Law Act 1975 leave is granted to the Applicant to commence property settlement proceedings out of time.
The matter is listed for directions at 9.30am on 1 March 2019.
IT IS NOTED that publication of this judgment under the pseudonym Quattro & Gaspar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2940 of 2016
| MS QUATTRO |
Applicant
And
| MR GASPAR |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to the application brought by the de-facto wife, Ms Quattro, that she be granted leave to commence property proceedings out of time.
The Respondent de-facto husband, Mr Gaspar, opposes such leave being granted.
The proceedings were commenced on 27 June 2016 in the Family Court of Australia. They were transferred to this Court by order dated 12 September 2016, and listed for the first time before this Court on 14 November 2016. On that date, the matter was readied for hearing in respect of the leave application and was to be listed for compliance check and allocation of a hearing date on 21 December 2016.
By consent on 28 November 2016, the 21 December 2016 listing was vacated and the matter was listed for directions to allow the parties’ time to attend mediation. There were further administrative adjournments on the parties’ joint application to allow time for negotiations and mediation. On 12 September 2017, the Court was advised that a mediation was to occur on 26 October 2017. The matter did not resolve. On 1 February 2018, the leave application was listed for hearing at 10am on 23 May 2018, when it was heard.
Documents relied on
The Applicant relied on the following documents.
a)Initiating Application filed 27 June 2016;
b)Financial Statement of Ms Quattro Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476, 476filed 27 June 2016;
c)Affidavit of Ms Quattro sworn 14 October 2016 and filed on 24 October 2016; and
d)Affidavit of Ms Quattro sworn 23 May 2018 and filed in Court with leave the same day.
The Respondent relied on the following documents:
a)Response filed 9 September 2017;
b)Affidavit of Mr Gaspar sworn and filed 9 September 2017; and
c)Financial Statement of Mr Gaspar filed 9 September 2017.
Chronology
The Applicant was born on 1946 and is currently aged 72.
The Respondent was born on 1948 and is currently aged 70.
The parties met in 1989. They do not have any children together.
The parties commenced cohabitation in approximately [date] 1990 with the Applicant moving to the Respondent’s home at Property A (“the Property A property”).
The Respondent at the commencement of cohabitation also owned land in Property B and partly owned a business in Suburb L and sundry vehicles and boats.
In approximately [date] 1990 the Respondent’s daughter moved to the Property A property.
The Respondent sold the Property A property in [date] 1992 for approximately $300,000 and purchased a property at Property C (“the Property C property”) for approximately $420,000. The Respondent sold his land in Property B to make up the shortfall in the purchase of the Property C property.
The parties separated on a final basis in 2012 and the Respondent has continued to pay all outgoings for the Property C property including land rates and insurance. The Applicant continues to reside in the main dwelling of the Property C property without making any financial contributions to the property.
The relevant legislative provisions
Section 44(5) of the Family Law Act 1975 (Cth) relevantly provides that subject to subsection (6), a party to a de facto relationship may apply for:
a)an order under section 90SE, 90SG or 90SM; or
b)a declaration under section 90SL;
only if the application is made within the period of two years after the end of the de facto relationship (“the standard application period).
Section 44(6) of the Act states that the Court may grant the party leave to apply after the end of the standard application period if the Court is satisfied that:
a)hardship would be caused to the party or a child if leave were not granted; or
b)in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
The discretion to grant leave to commence proceedings outside of the two year limitation period, is a discretion to grant, not a discretion to refuse.[1] The Applicant bears the onus of showing that the justice of the case requires the exercise of the discretion in her favour.[2]
[1] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 per Toohey & Gummow JJ
[2] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 per McHugh J, with Dawson J agreeing
Whilst the Full Court in Whitford & Whitford[3] considered that the power to extend time ought be exercised “liberally in order to avoid hardship” the Court also stated that it should be done
… in a manner, which would not render nugatory the requirement that proceedings should be instituted within … [the limitation period].
[3] (1979) FLC 90-612 at 78,146; in the context of proceedings between parties to a marriage
The Court must consider whether the Applicant has established[4]:
a)A reasonable prima facie case for relief had proceedings been instituted in time;
b)That denial of the claim would cause the Applicant hardship; and
c)An adequate explanation as to the delay.
[4] Jacenko & Jacenko (1986) FLC 91-776 at 75,644; referred to in Slocomb & Hedgewood [2015] FamCAFC 219 at [43]
In appropriate cases the degree of hardship to be suffered by the Applicant may well outweigh an inadequate explanation of delay.[5]
[5] Slocomb at [43] in Jacenko
Once the three elements are satisfied, in determining whether to exercise its discretion to grant relief, the question of prejudice which the Respondent would suffer by reason of the delay in bringing the application ought be considered.[6]
[6] Slocomb at [43] in Jacenko
Once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the Respondent who would otherwise have the benefit of the limitation.[7]
[7] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J
Even if the Court came to the view that there was no significant prejudice to the Respondent, the Court may consider whether in all of the circumstances, it is just and reasonable to grant the extension sought.[8] It might be said that the fundamental issue to be considered in any application for extension of time is whether this will enable the Court to do justice between the parties by reference to the relevant discretionary considerations.[9]
[8] Sharp & Sharp (2011) 50FamLR 567; [2011] FamCAFC 150 at [57]
[9] Gallo v Dawson (1990) HCA 30
Finally, the appropriate approach to a determination for leave to commence proceedings out of time necessitates a clear distinction to be made between the proof of hardship and a consideration of the consequential exercise of discretion.[10]
[10] Sharp & Sharp at [27]
Hardship
Hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship.[11]
[11] Sharp at [17]
In Sharp & Sharp the Full Court said:
[18] In assessing hardship in this context the well established test is that the Applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.[12]
[12] In the context of ss 44(3) and (4) of the Act
In considering the meaning of hardship, in Whitford & Whitford [13] the Court said:
... 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 … 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.
… As a general proposition it might be said that, the inability of an Applicant to pursue a claim which in the circumstances of the Applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the Applicant will have to bear himself or herself are about as much or more than what the Applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant… for saying that the right or entitlement lost must be a substantial one. (emphasis in original)
In an appropriate case, and depending on the circumstances of the Applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value …
[13] (1979) FLC 90-612 at 78,144-5 quoted by the Full Court in Sharp at [19] – [21], in the context of ss 44(3) and (4)
It will only be if the Applicant is successful in demonstrating hardship of the type discussed that she must then persuade the Court that in the exercise of its discretion, leave should be granted.
Discretion
In Whitford the Full Court continued[14]:
Section 44(4) [[15]] inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused … Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within … [the limitation period]… Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the Respondent by reason of the delay, and the strength on the merits of the Applicant’s case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones…
On the other hand, [the relevant sections]… point to the conclusion that the legislature intended to confer power on the court to grant leave to institute proceedings in order to avoid hardship. Having regard to the nature of the jurisdiction which this court exercises, this power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within… [the limitation period].
[14] At 78,145 to 78,146
[15] Note in de facto proceedings it is s44(6) which is relevant
Evidence of the Parties
Prior to cohabitation, the Applicant worked full time at the [employer omitted].
The Applicant provided care to the Respondent’s children when they were living with them at the Property A property. The Respondent does not dispute that the Applicant provided care for his children but says he also provided a level of care to them during times that they were spending with them.
The Applicant contributed to food and incidental costs during annual family holidays and cleaned and tidied up after the Respondent and his children.
Following a fall from the Respondent’s boat in 1989, the Applicant ceased work at the [employer omitted] in 1990 at the request of the Respondent and moved to the Property A property. The Respondent says that he does not recall the Applicant falling from his boat and sustaining any injuries and that he did not request her to cease her employment.
The Applicant asserts that she had $9000 in savings at the time of cohabitation which was used for personal expenses such as medication and clothes. The Respondent disputes this and says the Applicant had $1000 at the time of cohabitation.
The parties agree that the Respondent gave the Applicant housekeeping money of $160 per week and a personal allowance of $30 per week.
In 1992 the parties established a [farm] on the Property C property and the Applicant asserts that she was responsible for running the [farm] whilst the Respondent worked full time at the business.
The Applicant says that the [farm] work was intense physical work five days per week and involved carrying 24kg bags of feed, daily cleaning of the sheds, caring for [animals], cutting tails and giving injections to the [animals] and attending sales with the Respondent. The Respondent says that the Applicant did some bookkeeping for the business and on occasion carried some buckets of feed and that she would help with cleaning the [animal pens]. The Respondent says that the substantial physical work was done by a tenant Mr B who tended to these tasks in lieu of paying rent.
In 1993 the Applicant commenced working part time at a [employer omitted] in Town 1 five hours per day on Mondays and Fridays and also a [employment omitted] for three hours per week. The Applicant does not state what she was paid for these jobs however says that she applied her income to housekeeping and personal expenses. The Respondent agrees with this.
In 1993 the Applicant received $30,000 in compensation for a fall she had at [property].
In 1997 the Applicant received an inheritance of $125,000.
The Applicant says that that both of these payments were contributed to the Property C property.
In 1994 the Applicant received a settlement in the amount of $120,000. She asserts that $20,000 was paid towards solicitor fees, $40,000 was paid to the Respondent to be applied to the mortgage on the Property C property and $15,000 was gifted to the Respondent.
In 2005 the Applicant received an inheritance from her mother’s estate in the amount of $104,000 which she says she gave $75,000 to the Respondent to purchase his share in the business and the balance was used to purchase a motor vehicle for the Respondent and a family holiday. The Respondent agrees to some extent with this evidence, however says the Applicant gave him $72,000 to purchase his share of the business and that he repaid the Applicant $59,000 of this.
The Respondent recalls the Applicant receiving a payment of $100,000 where she applied $20,000 to the Respondent’s business overdraft however the Respondent says that the Applicant accumulated $20,000 in credit card debt and he paid that debt down to nil for her.
The Applicant says that she provided ongoing care and support for the Respondent’s daughter whilst the Respondent was at work for nine plus hours per day including cooking, cleaning, ironing, washing, transportation to appointments and social events.
The Applicant’s evidence is that she also maintained and managed the home by cleaning, shopping, cooking, paying bills from her housekeeping allowance and maintaining some of the small gardens. The Respondent disputes that the Applicant did so much of the housework and says that due to her illness there were many days that she was unable to get out of bed and spent much of her time in bed reading.
The Applicant says she received rent from the cottage on the Property C property in the amount of $200 per week. The Respondent agrees that the Applicant received a rental income from this property.
The Applicant states that she paid approximately $28,000 in renovations to the Property C property including internal and external painting and replacement of windows. The Respondent does not dispute that the Applicant paid for some painting to the property however asserts that this amounted to approximately $2,000. He says the windows were replaced by insurance following a storm.
Separation and Post-Separation Negotiations
The Applicant asserts that there was physical separation between the parties on or about 12 March 2013 when the Respondent moved into separate accommodation on the Property C property.
In late 2013, the parties had an informal mediation in respect of their property, and according to the Applicant, an agreement was reached as to how a property settlement and cash adjustment would be achieved.
The Respondent asserts that the parties separated in early 2012. In a letter dated 15 September 2014 to the Applicant (which she denies receiving) the following is asserted:
Our client instructs us that your de facto relationship ended some two and a half years ago when you initially separated under the same roof before living in separate houses on the same property. Our client wishes to enter into a property settlement with you preferably on an amicable basis.
There was further correspondence from the Respondent’s solicitors in November 2014 which the Applicant concedes she received, inter alia, referring to letters dated 15 September and 29 September 2014. In any event, she was aware by late November 2014 that the Respondent asserted the relationship had ended more than two years prior and that according to him the limitation period had already expired. At that time, it was the Respondent who was inviting the Applicant to enter into a property settlement despite the limitation period having expired on his case.
The Applicant explains the delay in not responding to the Respondent’s solicitor’s letter by virtue of her health, including psychological issues related to general anxiety, depression and panic attacks. She says that she was unable to address the issue of the property settlement with the Respondent.
In June 2015, the Applicant attended upon her solicitors. She says she became aware at that time of the time limitation issues. This is a difficulty for the Applicant given the letter she received in November 2014 from the Respondent’s solicitor. It is a matter no doubt, that will be the subject of cross-examination, if the leave application is granted, and the proceedings continue.
After obtaining advice from her solicitors, the Applicant suffered a fall resulting in a broken and dislocated ankle. She was incapacitated for a period of approximately three months. She then had a further fall and was incapacitated again until November 2015. It was in mid-November 2015 that the Applicant went to her solicitors again, and commenced pre-action procedures.
In December 2015, the Applicant’s solicitors wrote to the Respondent seeking financial disclosure. In March 2016, the Applicant provided instructions to her solicitors to commence proceedings. The Initiating Application was not filed until 27 June 2016.
The Property C property
The Property C property current consists of the following dwellings:
a)The main house where the Applicant currently resides;
b)A two bedroom flat attached to the main house;
c)A relocatable caravan;
d)A work cottage which is separate to the other buildings where the Respondent currently resides;
e)A flat attached to a shed where Mr B lives; and
f)An old cabin which is not tenantable.
Health of the parties
The Applicant’s evidence in relation to her health is as follows:
a)She is currently aged 72 years.
b)She suffers from numerous health issues such as [medical conditions omitted].
c)She is unable to lift heavy objects, vacuum, hang out washing, change linen, wash floors, clean bathrooms or walk any great distance.
d)She is reliant on a walking stick and walker and is assisted by a carer two hours per week.
The Applicant asserts that the Respondent is still in receipt of a carer’s pension for her in an amount of $59 per week. This is not disputed by the Respondent who says he continues to care for the Applicant by bringing in her groceries, maintaining the home and doing handyman jobs.
The Respondent’s evidence in relation to his health is as follows:
a)He is currently aged 70 years.
b)He has suffered from depression and previously medicated for this.
c)He regularly sees a psychologist and has done so for 15 years.
d)He suffers from high blood pressure and takes medication for this.
e)He has a faulty valve in his heart and takes medication for this.
f)He has been diagnosed with suffering from anxiety and stress and also suffers from arthritis in his hands.
g)He has been advised by a specialist that he will require both knees replaced in time.
Court’s Determination
On the Applicant’s case the parties were in a relationship for approximately 24 years. At the end of that relationship, which concluded in 2012, the Applicant had an estimated $15,000 worth of assets in her name and the Respondent had an estimated $1,300,000 worth of assets in his name. A large portion of the Respondent’s assets is the real property where both of the parties continue to reside.
The Respondent concedes that the Applicant made a number of lump sum capital contributions during the parties’ relationship. The Respondent also concedes that the Applicant made some non-financial contributions throughout the relationship, including of the Robb & Robb[16] kind. The Respondent concedes that the Applicant assisted, at least to some extent, in the running of the [farm] on the property.
[16] (1995) FLC 92-555
The parties are in disagreement as to the amount of the Applicant’s lump sum financial contributions, her overall financial contributions and indeed her overall non-financial contributions. On the Applicant’s case at its highest, her contributions were significant.
After the parties’ separation, they have remained living on the same property albeit in different dwellings. The date of separation is not agreed.
On the Applicant’s case, the proceedings were filed 15 months after the expiry of the limitation period. On the Respondent’s case, the proceedings were filed about two and a half years after the expiry of the limitation period. The delay in commencing proceedings is not overly excessive, and has been adequately explained.
The Respondent submits that the onus is on the Applicant to show that hardship will be suffered by her if leave is not granted. It is submitted in the Respondent’s case that there is no threat to the Applicant’s current lifestyle and that she is not expected to make any financial contributions. The Respondent submits that the Applicant’s interests are protected by the caveat which has been lodged on her behalf. Furthermore, the Respondent submits that the Applicant will not suffer hardship as he is her carer, he looks after her and he will not ask her to vacate the property. There is no evidence to this effect.
The Respondent opposes leave being granted in part because he is not able to meet any of the application without selling the property, in which case, he will have nowhere to live. The Respondent submits to the Court that he would suffer hardship having regard to all of the contributions he has already made and that the Applicant has failed to make and continues to fail to make. The Respondent also says to the Court that he has been making enquiries about subdividing the property by way of cluster subdivision. The Respondent had invited the Applicant in late 2014 to enter into a property settlement. It is not clear what prejudice the Respondent would suffer now[17] as opposed to in late 2014 when on his own case the Applicant would already have been out of time.
[17] Or at the time of the filing of the application, or at the time of hearing. The leave application was originally to be listed for hearing in early 2017, but on the request of the parties jointly the matter was adjourned a number of times to allow the parties time to negotiate.
Having regard to all of the matters set out earlier in these reasons, the Court is satisfied that the Applicant would suffer hardship if leave to commence proceedings out of time was not granted. In coming to this conclusion, the court finds that the Applicant has an arguable case, that she has provided an adequate explanation for the delay and that the prejudice asserted by the Respondent does not outweigh the hardship which would otherwise be suffered by the Applicant.
Orders are made accordingly.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 30 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Limitation Periods
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Procedural Fairness
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