Radney & Radney
[2022] FedCFamC2F 53
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Radney & Radney [2022] FedCFamC2F 53
File number(s): SYC 3761 of 2020 Judgment of: JUDGE MONAHAN Date of judgment: 28 January 2022 Catchwords: FAMILY LAW – PROPERTY – Final hearing on the papers – where parties were separated over 30 years ago – where parties divorced over 20 years ago – where husband had a de-facto partner of over 30 years – where wife seeks leave to commence property proceedings out of time pursuant to section 44(3) – where husband died before wife’s leave application was heard – whether the Court has jurisdiction to determine the wife’s leave application – if the Court has jurisdiction then whether leave should be granted to the wife to commence property proceedings against the respondent through his personal legal representative. Legislation: Family Law Act 1975 (Cth), Part V, ss.39(1)(a), 44(3), 44(4) Cases cited: Carlon & Carlon (1982) FLC 91-272
Edmunds & Edmunds [2018] FamCAFC 121
Jacenko and Jacenko (1986) FLC 91-776
Montano & Kinross [2014] FamCAFC 231
Whitford& Whitford (1979) FLC 90-612; (1979) 24 ALR 424; (1979) 4 FamLR 754; (1979) 35 FLR 445
Simonds (deceased) and Coyle [2019] FamCAFC 47
Sharp & Sharp [2011] FamCAFC 150
Slocomb & Hedgwood [2015] FamCAFC 219Division: Division 2 Family Law Number of paragraphs: 62 Date of last submission/s: 25 August 2021 Date of hearing: Heard on the papers Place: Sydney Counsel for the Applicant: Mr Dura Counsel for the Respondent: Ms Giacomo ORDERS
SYC 3761 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RADNEY
Applicant
AND: MR RADNEY
Respondent
ORDER MADE BY:
JUDGE MONAHAN
DATE OF ORDER:
28 JANUARY 2022
THE COURT FINDS THAT:
A.The Court does not have jurisdiction to determine the wife’s application for leave to bring property proceedings pursuant to section 44(3) of the Family Law Act 1975 (Cth).
THE COURT ORDERS ON A FINAL BASIS THAT:
1.The wife’s Initiating Application filed 12 June 2020 is dismissed.
2.In the event that either party seeks an order for costs, they are to make, file and serve an Application in a Proceeding and supporting Affidavit within 28 days of the date of these Orders.
3.Subject to paragraph 2 all extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Radney & Radney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
This decision arises from the filing of an Initiating Application on 12 June 2020 by MS RADNEY (“the applicant” or “the wife”) in which she seeks property orders under section 79 of the Family Law Act 1975 (Cth) (“the Act”) against MR RADNEY (“the respondent” or “the husband”). Although the wife’s application was approximately 19 years out of time, she did not seek leave to commence proceedings.
The husband filed his Response on 7 August 2020 seeking, inter alia, the dismissal of the wife’s application because it was filed ‘out of time’ (as the parties were divorced in February 2000) and property orders (presumably in the alternative to a dismissal of the proceedings). That said, in his supporting affidavit also filed on 7 August 2020 he referred to seeking orders for the property at B Street, Suburb C (“the former matrimonial home”) to be sold and the proceeds evenly divided.[1] There is also evidence that the husband severed the joint tenancy in respect of the former matrimonial home in December 2019.[2]
[1] Husband’s affidavit filed 7 August 2020, paragraph 26.
[2]Affidavit of Ms D (the husband’s legal personal representative) filed on 29 July 2021, paragraph 12.
Unfortunately, these proceedings have been further complicated by the unexpected death of the husband on 12 August 2020. This, in turn, caused the husband’s legal personal representative to file an Amended Response on 18 March 2021 simply seeking the dismissal of the wife’s application because it was filed more than 12 months after the parties’ divorce became final. Ironically, had the husband not severed the joint tenancy of the former matrimonial home in the year prior to his death, the wife would have retained the property absolutely through the law of survivorship.
Although the wife has not amended her Initiating Application to seek leave to commence property proceedings, it is conceded by her that she is required to obtain leave under section 44(3) of the Act. The wife contends that she would suffer hardship if leave were not granted. While the wife also asserts that she was unaware that the parties had been divorced in 2000, there is evidence in the parties’ previous Court file (SYF 9510 of 1999) that the wife was duly served with the divorce application on 30 December 1999 and that the application proceeded unopposed. There is also evidence attached to both the wife’s affidavit and the late husband’s affidavit of correspondence that the husband’s lawyer wrote to the wife in early 2000 seeking to negotiate a property settlement on the basis of the sale of the former matrimonial home and an equal division of the net proceeds, together with a comment from the husband’s lawyer that he would have to advise his client to commence proceedings for property settlement if the wife failed to respond. There is no evidence that the wife responded to this correspondence and the husband, for his own reasons, decided against commencing property proceedings at that time.[3]
[3] Husband’s affidavit filed 7 August 2020, paragraph 19.
That all said, the husband’s legal personal representative now contends that the Court no longer has the jurisdiction to consider whether the wife should be granted leave (or not) to commence property proceedings given the husband’s unfortunate passing.
The issues requiring determination in this decision are:
·first, whether the Court has jurisdiction to determine the wife’s leave application, and if so,
·second, whether leave should be granted to the wife to commence property proceedings against the respondent through his legal personal representative.
With the consent of the parties, the hearing for this decision occurred “on the papers” pursuant to Orders made by me in Chambers on 22 June 2021. Written submissions were received by Chambers by 25 August 2021 and the Court reserved its decision on 8 September 2021.
BACKGROUND
The wife was born in 1945 and is currently 76 years old. The husband was born in 1944 and died in 2020, aged 76 years old.
The parties were married and commenced cohabitation in 1964. The wife asserts that the parties separated in approximately 1985, however the husband asserts that the parties separated four years later in approximately 1989 when he left the former matrimonial home.
The parties were divorced on 7 March 2000, although as noted earlier, the wife contends that she was unaware of the divorce.
The parties have four adult children, namely: Mr E, born in 1964, Ms F born in 1967, Mr G born in 1968, and Ms H born in 1970. Although the parties dispute the date of separation, all children were in their late teenage years or adults when the parties separated.
Following the parties’ separation, the wife and children remained living in the former matrimonial home, and the wife presently resides there with the parties’ daughter Ms H and her children.
The wife contends that she made all mortgage payments owing on the property during the marriage and following separation maintained the mortgage and all outgoings associated with the property following separation and had sole care of children, receiving no child support from the husband. The husband disputes this and contends that he contributed his cash income to household expenses during the marriage and asserts that the children were adults at the time of the parties’ separation.
DOCUMENTS
Applicant
The applicant wife filed the following documents:
·Her Initiating Application filed on 12 June 2020;
·Her Affidavit filed on 12 June 2020;
·Her Financial Statement filed on 12 June 2020; and
·Her Further Affidavit filed on 7 July 2021.
The wife’s legal representatives also provided written submissions that were received by Chambers on 11 August 2021. Those submissions were settled by Mr Dura of counsel.
The wife legal representatives advised Chambers by email received 17 September 2021 that they did not seek to reply to the submissions received from the respondent husband’s legal personal representative (referred to below).
Respondent
The respondent husband’s legal personal representative filed the following documents:
·Response filed on 7 August 2020 (as Amended on 18 March 2021);
·Husband’s Affidavit filed on 7 August 2020;
·Husband’s Financial Statement filed on 7 August 2020;
·Affidavit of Ms D (the husband’s legal personal representative) filed on 29 July 2021.
The lawyers for the husband’s legal personal representative provided written submissions that were received by Chambers on 25 August 2021. Those submissions were settled by Ms Giacomo of counsel.
ORDERS SOUGHT
As stated, the applicant wife now seeks leave to commence property proceedings under section 44(3) of the Act.[4]
[4] Applicant’s written submissions, page 3.
This is opposed by the respondent husband’s legal personal representative who now seeks orders for the wife’s application to be “dismissed with costs” on the basis that the Court has no jurisdiction given the husband’s death.[5]
[5] Respondent’s written submission, page 6.
ISSUES
As previously stated, the issues requiring determination are:
·first, whether the Court has jurisdiction to determine the wife’s leave application, and if so,
·second, whether leave should be granted to the wife to commence property proceedings against the husband through his legal personal representative.
RELEVANT LAW
The Court will consider the issue of leave being granted to commence property proceedings ‘out of time’ before separately considering whether the Court has jurisdiction to consider the leave application given the untimely death of the husband.
Leave to commence property proceedings ‘out of time’
Part V of the Act deals with the “Jurisdiction of Courts”. Section 44 deals with the institution of proceedings. Section 44(3) of the Act states (emphasis added in bold text):
(3) 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.
Section 44(4) of the Act goes on to provide the criteria that the Court must be satisfied exists prior to exercising the discretion to grant leave under section 44(3). Section 44(4) states:
(4) 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.
The relevant legal principles applicable to the granting of leave under the relevant provisions have been discussed in a large number of cases including Whitford& Whitford (1979) FLC 90-612; (1979) 24 ALR 424; (1979) 4 FamLR 754; (1979) 35 FLR 445 (“Whitford”).
In considering the question of whether the applicant has demonstrated hardship, the Court is required to consider if the applicant has a prima facie claim worth pursuing or a ‘real’ probability of success.[6] If there is no reasonable claim to be heard then the Court cannot be satisfied that hardship would be caused if leave was not granted.
[6] See for example Whitford (1979) FLC 90-612 (per Asche & Pawley S.JJ, Strauss J) at 78,144; Hall & Hall (1979) FLC 90-679 (per Evatt CJ, Fogarty & Yuill JJ) at 78,627; Sharp & Sharp [2011] FamCAFC 150 (per May & Ainslie-Wallace JJ) at [17] to [18].
If the applicant establishes hardship, the Court is then required to consider whether in the exercise of its discretion leave should be granted under section 44(3) of the Act. It is only if hardship is established that the Court’s discretion to grant leave is enlivened.[7]
[7] See Whitford (1979) FLC 90-612 (at 78,145 to 78,146; Sharp (per May & Ainslie-Wallace JJ) at [22]; Montano & Kinross [2014] FamCAFC 231 (per Ainslie-Wallace, Murphy & Tree JJ) at [11].
As to the discretionary exercise, the Full Court stated the following in Whitford (1979) FLC 90-612 at 78,146:
… Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date of the decree nisi, and the general policy of the Act which appears from s 44(3) and s 81 that financial relationships between the spouses should, wherever possible be brought to finality within a reasonable time after the dissolution of the marriage. 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.
The Court further observed in Whitford that while the relevant provision intends to confer power to grant leave to avoid hardship, the “… power should be exercised liberally in order to avoid hardship”,[8] albeit in a manner, which would not render nugatory the requirement that proceedings should be instituted within a statutory period.
[8] Whitford (1979) FLC 90-612 at 78,146.
In Montano & Kinross [2014] FamCAFC 231 the Full Court (Ainslie-Wallace, Murphy & Tree JJ) reiterated the broad nature of the Court’s discretion, and the principles of justice that ultimately underpin the exercise of that discretion, when at paragraphs 12 and 14 to 15 it said:
12. In Whitford & Whitford (1979) FLC 90-612, this court set out a number of matters which may be relevant to the exercise of the relevant discretion in a particular case once hardship is established. Those criteria are frequently referred to. It must be understood, however, that, as might be expected where factors relevant to a broad discretion are enumerated, they are but illustrative of the sorts of issues that might inform the broad discretion in the circumstances of a particular case.
…
14. Like many applications for indulgence, an application for leave to apply after the end of the standard application period requires the Court to exercise its discretion in a manner that, ultimately, is consistent with justice being done to both parties. The potential for injustice to the applicant being unable to pursue the remedy precluded by the refusal to grant leave must be compared to the prejudice to the respondent in the granting of leave. So, too, good or legitimate reasons for failing to do that which the Act requires must be compared with wilful blindness or recalcitrance. Equally, a desire to pursue a remedy out of time must be compared to the necessity for parties to proceed with their post separation lives free of the spectre of prospective litigation, (see, for example, Gallo v Dawson (1990) 93 ALR 479, and the statutory requirements in section 81 of the Act).
15. This Full Court spoke in Whitford of “such matters as” the “length of delay, the reasons for the delay and prejudice occasioned the respondent by reason of the delay and the strength of the applicant’s case and the degree of hardship which would be suffered unless leave were granted”. All of those matters were said by the Court to be “matters which affect the exercise of the discretion”. Yet, this Court was at pains there to point out that those considerations were not exclusive of the matters to be considered in the exercise of the broad discretion; an overall requirement to do justice between the parties is the ultimate criterion. The strength or weakness of, or the relative weight to be attached to, those various matters in the exercise of the discretion must necessarily depend on the facts of the particular case. This court said explicitly in Whitford that “these matters are not necessarily the only ones”.
In the subsequent decision of Slocomb & Hedgwood [2015] FamCAFC 219 (“Slocomb”), the Full Court (May, Ainslie-Wallace & Johnston JJ) allowed an appeal from the trial judge’s decision to dismiss the wife’s application seeking property orders, which was 18 years ‘out of time.’ The Full Court in Slocomb confirmed the principles set out in Whitford relating to a finding of hardship and the exercise of discretion and in referring to the case of Carlon & Carlon (1982) FLC 91-272 also restated the principle that “an inadequate explanation for a delay in commencing proceedings is only one factor to be considered in determining an application for leave pursuant to s. 44(3).”[9]
[9] At [42].
The Full Court in Slocomb also referred to the earlier decision of Jacenko and Jacenko (1986) FLC 91-776 where the Full Court (per Nygh J; Walsh and Fogarty JJ agreeing) stated at 75,644:
The issues then before his Honour were those which have been established in this Court as long ago as 1977 in McDonald and McDonald (1977) FLC ¶90-317; (1977) 3 Fam. L.R. 426. The applicant must establish three principal matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time; secondly, that denial of the wife's claim would cause her hardship; and thirdly, an adequate explanation as to her delay.
That third requirement must now be read, subject to the decisions of the Full Court in Althaus and Althaus (1982) FLC ¶91-233; (1979) 8 Fam LR 169, and Howard and Howard (1982) FLC ¶91-234; (1979) 8 Fam LR 178 which indicate that in appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay.
If those three elements are satisfied, the Court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice which the respondent would suffer by reason of the delay in bringing the application.
In considering the issue of hardship, the Court is also required to consider the likely costs of any proposed proceedings. The Full Court in Edmunds & Edmunds [2018] FamCAFC 121 (“Edmunds”) (and citing with approval the judgment of Sharp & Sharp [2011] FamCAFC 150) and stated at paragraph 47 and 48:
47. As the Full Court pointed out in Sharp at [18], “the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
48. That involves a consideration, but not a final determination, of the nature of the applicant’s claim. In doing so, the Court must weigh the applicant’s case against that of the respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.
The Full Court in Edmunds went further to say at paragraph 93 and 95:
93. … one would ordinarily expect that on an application for leave the applicant, at the least, would adduce some evidence as to the likely costs of the proceedings so as to demonstrate that there was likely to be a benefit in bringing the proceedings. It is obvious that if the proceedings do not result in a net benefit they are not going to alleviate any hardship.
…
95. … However, the likely costs of the proceedings was a relevant factor to take into account, whether or not a figure was put on them. Of course, the absence of a figure must reduce the weight that could be given to this consideration.
Whether the Court has jurisdiction to deal with a section 44(3) leave application given the husband’s death
Section 39(1)(a) of the Act confers jurisdiction upon Division 2 of this Court (and, at the time of filing of the wife’s application, the then Federal Circuit Court of Australia), “with respect to a matrimonial cause”. A “matrimonial cause” is defined in section 4 of the Act to include relevantly:
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
…
The proceedings referred to in that sub-paragraph are those governed by section 79 of the Act. It is the power given to the Court by section 79, invoked by the wife in her Initiating Application, which was filed when the deceased husband was alive. Section 79 empowers the Court, relevantly, to make such orders as it considers appropriate with respect to the property of the parties to the marriage or either of them. In addition, and of some relevance in this matter, section 79(8) of the Act provides for the continuation of proceedings commenced under section 79 where one of the parties subsequently dies. However, this provision does not provide for section 79 proceedings to be commenced for alteration of property interests after the death of one of the parties. As noted previously, section 44(3) of the Act provides that the Court does not have the power to make a section 79 order unless, relevantly, the application was made within 12 months of a divorce order becoming final. The wife’s Initiating Application could only be effective to institute section 79 proceedings if she first obtained leave to proceed pursuant to section 44(3) of the Act.
In the relatively recent case of Simonds (deceased) and Coyle [2019] FamCAFC 47, the Full Court considered whether this Court had jurisdiction to consider an application by a de facto spouse for leave to commence property proceedings, where the other party had died after the application was filed but before leave had been granted. The Court, in separate judgments, found that the trial judge had erred in law by assuming he had jurisdiction to determine the leave application in circumstances where one of the parties had died before the application had been determined.
In his judgment, Murphy J (with Kent J agreeing) stated at paragraphs 53 to 58:
53. In Slater and Slater [(1985) FLC 91-641], just such an argument was raised in respect of the analogous s 79(8) applicable to marriages. In rejecting that argument, Ellis J said:
Adopting a broad and liberal interpretation, it cannot, however, be said that proceedings brought pursuant to sec. 44(3) for leave to institute proceedings of a kind referred to in para. (ca) of the definition of “matrimonial cause” in sec. 4(1) are proceedings with respect to the property of the parties to a marriage. Such proceedings are proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them.
54. Slater was followed in Phillips and Phillips [(1985) FLC 91-634 per Elliott J] and Rampling and Rampling [(1988) FLC 91-902 per Mullane J].
55. There is no material difference between the principle there set out and that which is applicable to s 90SM(8). Indeed, the separate definition of “property settlement proceedings” to which reference has earlier been made, which is directly referable to the s 90SM power, might be seen to reinforce that principle.
56. The Amended Initiating Application, filed by the de facto wife after the death of the deceased, instituted proceedings different to the s 90SM proceedings commenced by her Initiating Application; that Amended Initiating Application instituted “proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them”. The Court’s jurisdiction depends upon the terms of any legislative grant of jurisdiction. There is no statutory grant of jurisdiction which provides for an application for leave to institute proceedings to be excluded from the principle that the deceased’s death prevented those proceedings being instituted.
57. Without that specific grant of jurisdiction and power, an application invoking s 44(6) after the death of the deceased could not be made. Without that application and an order accordingly pursuant to s 44(6), the application for a s 90SM order could not be made; the Court had no such power unless and until a s 44(6) order was made.
58. His Honour did not have the jurisdiction to make the order which he did. The application for leave to appeal must be granted, the appeal allowed and the order set aside.
In his separate judgment, Strickland J stated at paragraphs 23 to 24:
23. There is no express provision providing for proceedings such as these to be instituted after the death of the de facto husband, and any right to seek a property settlement abated upon the occurrence of that event (Sims and Sims [(1981) FLC 91-072], Phillips and Phillips (1985) FLC 91-634, Parker v Arcus and Castiglione (1984) FLC 91 581).
24. There is of course s 90SM(8) which allows for property settlement proceedings that are not completed at the date of death to be continued in certain circumstances by or against the legal personal representative of the deceased party, but that subsection does not apply here because there were no property settlement proceedings before the Court as at the date of the death of the de facto husband. To repeat, the necessary leave had not been given to institute such proceedings.
Consequently, there is no specific provision under the Act for leave proceedings under section 44(3) to continue after the death of one of the parties.
SUBMISSIONS
As stated, each of the parties provided written submissions as summarised below.
Applicant
The applicant wife concedes that her property application was “brought out of time”.[10] She is seeking leave to commence property proceedings against her former husband. The wife argues that the evidence adduced by her identifies the relevant hardship she would suffer if leave were not granted.
[10] Applicant’s written submissions Part C, paragraph 5.
There is a dispute between the parties as to the date of separation. The wife asserts that the parties separated in 1985 whereas the husband contends that the parties separated in 1989. The wife asks the Court to note that the husband’s legal personal representative asserts that she commenced a de facto relationship with the husband in 1989.
While the wife accepts that the parties were divorced in March 2000, she denies that she was served with the application and/or received a copy of the Order.[11] That said, she accepts that the time limit for the filing of any Initiating Application expired in or about March 2001 and that neither party brought such an application before that date.
[11] Applicant’s written submissions Part C, paragraph 8.
The wife gives evidence that the husband first made contact with the wife through his solicitor in October 2019 seeking the wife’s consent to sell the former matrimonial home. The wife asks the Court to note that this correspondence made no mention of any intention to deal with the property of the parties under the Family Law Act 1975.
The wife states the following in Pact C paragraphs 11 to 29 of her written submissions:
11. The determinative question is whether the wife has established “hardship” within the meaning of section 44(4) of the Act. Only, and if, the Wife has established hardship, does it then become a question of whether the Court should exercise its discretion and grant leave to the Wife to bring her financial proceedings more than 12 months after the date of the divorce Order.
12. The Full Court, recently in Gadzen & Simkin [[2018] FamCAFC 218], discussed the principles applicable for determining the question of hardship.
13. At [29] the Full Court went on to say:-
29. The statutorily expressed requirements for the grant of leave in s 44(3) of the Act are in identical terms, for all practical purposes, as those requirements with the grant of leave under s 44(6). It follows that authoritative pronouncements as to the principles applicable to the operation of s 44(3) apply equally to s 44(6). In Whitford and Whitford the Full Court stated:
Thus, on an application for leave under sec. 44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.
30. Self-evidently, the Full Court there and subsequent Full Courts (as will be discussed) have emphasised that hardship within the meaning of the section must first be established for the discretion to grant leave to arise.
31. In discussing hardship the Full Court in Whitford said:
The hardship referred to in sec. 44(4) is the hardship which would be caused to the applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the hardship, to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection is concerned. The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the Court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
32. The Full Court then proceeded to discuss the meaning of “hardship”. In the course of that discussion the Full Court said:
In our view the meaning of “hardship” in subsec. 44(4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment. Cf. the meanings assigned to “hardship” in the Shorter Oxford Dictionary and in Webster’s New International Dictionary...
...
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense. As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either subsec. 44(3) or 44(4) for saying that that the right or entitlement lost must be a substantial one.
(As per original)
33. In Althaus and Althaus Evatt CJ (with whom Marshall SJ and Strauss J agreed) observed of earlier cases:
...Now to some extent there may be an exercise of semantics involved here. The case of McDonald referred to a reasonable prima facie case as the test. Other cases such as McKenzie and Whitford suggest that the applicant needs to show that she would probably succeed. In the case of Perkins and Perkins [1979] FamCA 4; (1979) FLC 90-600, Lindenmayer J. suggested that the test was that there was a reasonable probability of the claim being successful...
In my opinion, sec. 44(3) and (4) are not intended to require a detailed hearing on the merits to determine whether the applicant’s claim will succeed. The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim.
34. In Hall and Hall the Full Court said:
Fundamental to that [a finding of hardship] is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept...
35. In Sharp the plurality of the Full Court observed:
17. It is well-accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.
18. In assessing hardship in this context the well-established test is that the applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
36. In Edmunds the Full Court recently cited with approval the judgment in Sharp and said:
47. As the Full Court pointed out in Sharp at [18], “the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
48. That involves a consideration, but not a final determination, of the nature of the applicant’s claim. In doing so, the Court must weigh the applicant’s case against that of the respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.
37. It follows from these authorities that the starting point in determining an application for leave is to consider the question of hardship which requires for its existence a conclusion that an applicant has a prima facie or arguable case of substance having regard to all of the circumstances of the case. That must take into account the costs or likely costs to be incurred in pursuing the claim.”
14. It is submitted, in the present case, that the hardship that the Wife would suffer is represented by the following:-
14.1 The loss of the right to pursue the proceedings under section 79 of the Family Law Act;
14.2 The loss of the ability to have her contributions made to the improvement and maintenance of the property for the period 1985 to the present time recognised as they would be under the Family Law Act ;
14.3 The loss of the ability to have her contributions to the care and welfare of the children, both pre and post-separation, recognised as they would be under the Family Law Act;
14.4 The loss of the ability to have the conduct of the late Husband in his failure to assist in the care of the children post separation taken into consideration under the Family Law Act;
14.5 The loss of the ability to have the failure of the Husband to pay child support and/or provide any other form of financial assistance to the Wife post separation taken into consideration as it would under the Family Law Act; and
14.6 The loss of the ability to have any other factors relevant to the Court’s determination of the Wife’s entitlements to a property adjustment, by reference to section 79 and s75 factors, taken into consideration.
15. In the circumstances of this particular matter, it could not be argued that a just and equitable outcome would be an equal division of the matrimonial pool, consisting almost solely of the former matrimonial home, as would be the outcome if leave were not granted and proceedings were commenced in the Supreme Court.
16. In light of the above, the Wife submits that the Court would be satisfied that a significant hardship exists to the Wife if leave were not granted.
17. Having established that a hardship exists, the Court must still consider that it is appropriate to exercise its discretion and grant leave to proceed out of time.
18. The Wife disputes that she had knowledge of the Divorce Application made by the Husband and/or the Order that was made in accordance with that Application. There is no evidence of service of the Application and/or Order on the Wife in these proceedings.
19. The Wife deposes to having no knowledge of any requirement for proceedings to be commenced within 12 months of the date of the Divorce Order. There was a complete lack of knowledge on the Wife’s part as to the time limits associated with commencing proceedings.
20. The Wife had always proceeded on the basis that, following separation, the Husband had promised to her that she would retain the home and should “…make it her own…” . The Wife had relied on the statements made by the Husband, and lack of action thereafter taken by the Husband to seek any form of adjustment or entitlement to the former matrimonial home, since 1985.
21. The Wife explains the delay in commencing proceedings to property adjustment Orders due to:-
21.1 A lack of knowledge of the Divorce Application and Order;
21.2 A lack of knowledge of the requirement to commence proceedings within 12 months of the date of the divorce Order;
21.3 A reliance on the Husband’s statement that she should make the property her own; and
21.4 A reliance on the inaction of the Husband even after he caused his Solicitor to write to her in 1999 and 2019.
22. The Husband, in his Response, sought Orders pursuant to section 79, thereby recognising the need for Orders and submitting to the jurisdiction of this Court.
23. There can be no prejudice that flows to the Respondent LPR in leave being granted.
24. The entitlements of the Husband’s Estate can, and will, be given due and proper consideration and Orders can be accordingly.
25. The alternative to each of the parties is to commence proceedings in an alternate jurisdiction where, as has been identified above, significant hardship flows to the Wife in the potential for her significant contributions made during the course of the relationship of the parties, and since their separation, not being adequately and properly recognised.
26. The evidence filed by the LPR does not demonstrate any prejudice to the Respondent should leave be granted to the Wife to proceed with her application in this Court.
27. Given the ages of the parties, in particular the Wife aged 76 years, the nature of the evidence already filed in these proceedings to date, should leave be granted to proceed with the application, the property proceedings are relative simple proceedings and would likely be contained within a one day hearing as there will be little, if any cross-examination and possibly only of the Wife.
28. In the event that there were issues as to the value of the home, this would easily and quickly determined by way of a single expert valuation.
29. A refusal to grant leave would see the costs associated with the commencement of these proceedings wasted and each of the parties incurring significantly greater costs in an alternate jurisdiction to undertake a hearing n the very evidence and issues that have already been pleaded in this Court.
Respondent
47As stated, the husband’s legal personal representative contends that the Court no longer has jurisdiction to consider whether the wife should be given leave to commence section 79 proceedings following the death of the husband.
48At this point of my reasons I note that the applicant chose not to reply to the submissions made by the husband’s legal personal representative.
49The husband’s legal personal representative states the following in paragraphs 12 to 33 of her written submissions:
THE DOCTRINE OF ABATEMENT
12. It has been held that the common law doctrine of abatement applies in family law proceedings:
[22] The effect of the post-mortem jurisdiction of the court given to it in the recent amendments to the Act were dealt with in a judgment of his Honour Judge McCall of the Family Court of Western Australia reported in Parker v. Arcus and Castiglione (1984) FLC ¶91-581. I find myself wholly in agreement with the views which his Honour took on that occasion, that the jurisdiction to continue or institute proceedings after the death of a party is statutory and a clear statutory warrant must be found in the statute itself for the commencement of proceedings after the death of a party in view of the doctrine of abatement which had been applied by the courts over a great number of years on the analogy of the maxim actio personalis moritur cum persona, that personal actions die with the person concerned.
13. Unless an express provision for the continuation of proceedings after the death of a party exists in the legislation, the court has no post-mortem jurisdiction to entertain an application against the deceased husband or his legal personal representative.
14. Section 79(8) of the Family Law Act provides as follows:
(8) Where, before property settlement proceedings are completed, a party to the marriage dies:
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion:
(i) that it would have made an order with respect to property if the deceased party had not died; and
(ii) that it is still appropriate to make an order with respect to property; the court may make such order as it considers appropriate with respect to:
(iii) any of the property of the parties to the marriage or either of them; or
(iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and
(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
15. Section 79(8) provides for the continuation of proceedings commenced under section 79 where one of the parties subsequently dies. It does not provide for section 79 proceedings to be commenced for alteration of property interests after the death of one of the parties.
IS THE WIFE’S APPLICATION A SECTION 79 APPLICATION OR ONE THAT CONCERNS “PROPERTY SETTLEMENT PROCEEDINGS” PURSUANT TO SECTION 79(8)?
Is a leave application a section 79 proceeding?
16. Section 44(3) provides:
(3) 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.
17. Section 44(3) is clear in its terms that proceedings cannot be instituted under section 79 until such a time as leave is granted.
18. Proceedings under section 44(3) are procedural and relate to a remedy and not a right. Proceedings under section 79 cannot be commenced by the filing of an application, after the 12-month period, without the leave of the Court.
19. The Wife cannot circumvent the operation of section 44(3) by seeking section 79 relief in the same application in which she seeks leave. Her Initiating Application insofar as is relates to section 79 relief is void and of no effect.
20. Whilst the Wife seeks section 79 relief in her Initiating Application, her application is best seen as one in which she seeks leave to institute those proceedings.
Is a leave application a “property settlement proceeding”?
21. “Property settlement proceedings” is defined in section 4(a) as follows:
"property settlement proceedings" means:
(a) in relation to the parties to a marriage--proceedings with respect to:
(i) the property of the parties or either of them; or
(ii) the vested bankruptcy property in relation to a bankrupt party to the marriage; or
(b) in relation to the parties to a de facto relationship--proceedings with respect to:
(i) the property of the parties or either of them; or
(ii) the vested bankruptcy property in relation to a bankrupt party to the de facto relationship.
22. It was argued in the case of Slater & Slater that the phrase “with respect to the property of a marriage” ought to be given a wide interpretation to include an application for leave to commence property proceedings.
23. This argument was rejected by Ellis J:
14. Adopting a broad and liberal interpretation, it cannot, however, be said that proceedings brought pursuant to sec. 44(3) for leave to institute proceedings of a kind referred to in para. (ca) of the definition of “matrimonial cause'' in sec. 4(1) are proceedings with respect to the property of the parties to a marriage. Such proceedings are proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them.
15. Section 79(8) is a provision dealing with, in effect, the non-abatement of proceedings with respect to the property of the parties to a marriage commenced but not completed at the date of death of a party. No such proceedings have been commenced at the date of the death of the deceased. The proceedings instituted by the deceased pursuant to sec. 44(3) in my view abated on his death, there being no express provision in the Act authorising the continuance of those proceedings after his death by substituting his legal personal representative as a party.
24. Whether an application for leave to commence property proceedings was a “property settlement proceeding” was considered by Mullane J in Rampling & Rampling who also rejected the wider interpretation:
6. Are these proceedings “proceedings with respect to the property of the parties”? They are not. They are proceedings as to the issue of whether leave should be granted under sec. 44(3) to commence “proceedings with respect to the property of the parties”. Without such leave, even if the husband had survived, the Court would not have jurisdiction to entertain proceedings with respect to the property of the parties (being proceedings under para. (ca) of the definition of matrimonial cause in sec. 4(1)) and in these proceedings the Court has no power to either declare or alter the property interests of the parties or either of them.
7. Section 79(8) thus has no application to the present proceedings. In the absence of other statutory provision the Court does not have jurisdiction in the matter (see the decision of the Full Court of the Family Court of Australia in Sims and Sims (1981) FLC ¶91-072 and McCall J. in Parker v. Arcus and Castiglione (1984) FLC ¶91-581 at p. 79,686).
25. The question was considered recently by the Full Court in 2019 in the case of Simonds. The Full Court was considering whether an application for leave out of time by a de facto spouse abated after the death of one of the parties. Murphy J held:
53. In Slater and Slater,[9] just such an argument was raised in respect of the analogous s 79(8) applicable to marriages. In rejecting that argument, Ellis J said:[10]
Adopting a broad and liberal interpretation, it cannot, however, be said that proceedings brought pursuant to sec. 44(3) for leave to institute proceedings of a kind referred to in para. (ca) of the definition of “matrimonial cause” in sec. 4(1) are proceedings with respect to the property of the parties to a marriage. Such proceedings are proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them.
54. Slater was followed in Phillips and Phillips[11] and Rampling and Rampling.[12]
55. There is no material difference between the principle there set out and that which is applicable to s 90SM(8). Indeed, the separate definition of “property settlement proceedings” to which reference has earlier been made, which is directly referable to the s 90SM power, might be seen to reinforce that principle.
26. The conclusion that an application for leave is an application for “property settlement proceedings” pursuant to section 79(8) is not supported by the authorities.
CONSENT BY THE HUSBAND
27. The Husband initially filed a Response in which he sought that the Wife’s application be dismissed because leave had not been granted but also, curiously sought what could be described as section 79 orders.
28. Whether the Husband intended to consent to the jurisdiction of the Court by seeking those orders is not known.
29. In the matter of Slater & Slater the husband commenced proceedings for leave out of time. The wife expressly consented to leave being granted prior to her death but before leave had been granted by the Court. It was held by Ellis J:
16. Finally, it was submitted that the effect of the consent referred to in the letter dated 16 January 1984 was to create an estoppel by representation which came to the aid of the legal personal representative. As jurisdiction cannot be conferred upon a court by consent or estoppel, that submission cannot succeed. Further, as I previously indicated, in my view the proceedings instituted pursuant to sec. 44(3) abated on the death of the deceased.
Accordingly I have no jurisdiction to entertain the application for legal personal representative, and I rule accordingly.
30. The Husband’s consent during his lifetime to leave being granted to the Wife to commence proceedings (if such consent was in fact given), does not confer post-mortem jurisdiction to the Court to consider whether leave ought to be granted.
CONCLUSION
31. At the time of the Husband’s death there were no valid or competent proceedings for property settlement before the Court.
32. There is no specific provision under the Act for proceedings under section 44(3) to continue after the death of one of the parties. As such the Court no longer has any jurisdiction in respect of the Wife’s application for leave.
33. The Respondent seeks that the Wife’s application be dismissed with costs.
Lastly, I note that the wife chose not to reply to the submissions made by the husband’s legal personal representative.[12]
[12] Email from the wife’s solicitors to Chambers dated 17 September 2021.
FINDINGS
I will consider the issue of jurisdiction firstly. If the Court determines that it has jurisdiction to consider the wife’s leave application, the Court will thereafter determine it.
The Court finds itself dealing with a difficult and unfortunate set of circumstances. That said, the law, as outlined earlier in these reasons, is clear and the unfortunate passing of the husband, prior to the hearing of the question of leave being granted for the wife’s property application to proceed, means that the Court no longer has jurisdiction to determine the question of leave.
The wife’s application for leave to bring property proceedings ‘out of time’ therefore fails for want of jurisdiction.
The Court finds accordingly.
Given the Court’s findings, it is not necessary or appropriate for the Court to separately consider the merits of the wife’s leave application.
I note that the husband’s legal personal representative purported to seek a costs order in their written submissions in circumstances where costs have not been sought in their Amended Response filed on 18 March 2021. No other submissions in favour of a costs order were included.
There will be no order for costs made in this decision. In the event that the husband’s legal personal representative wishes to press a costs order against the wife she will need to file and serve an Application in a Proceeding and supporting affidavit within 28 days of the relevant orders being pronounced. The parties are reminded that, in family law matters, the general rule is that the parties should each pay their own costs. Moreover, in this case, the wife’s application for leave failed because the husband’s unfortunate death caused the Court to lose jurisdiction. The Court was not required to make any findings as to the merits of the wife’s leave application.
Given the likely costs of NSW Supreme Court litigation, this is a matter that the parties should seriously consider settling. As the husband died without leaving a will, this Court assumes that, subject to any Supreme Court order to the contrary, the laws of intestacy would result in the parties’ adult children receiving half of the husband’s estate, with the other half presumably being received by Ms D as the husband’s long term de facto partner.
CONCLUSION
The Court’s findings are as stated above.
The wife’s application for leave to bring property proceedings ‘out of time’ is dismissed for want of jurisdiction.
In the event that either party seeks a costs order against the other, that party is to file and serve an Application in a Proceeding and supporting affidavit within 28 days of the date of the relevant orders.
There will Orders of the Court to reflect this decision.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Monahan. Dated: 28 January 2022
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