Ressel & Morath
[2022] FedCFamC1F 863
Federal Circuit and Family Court of Australia (DIVISION 1)
first instance
Ressel & Morath [2022] FedCFamC1F 863
File number(s): BRC 12043 of 2020 Judgment of: CAREW J Date of judgment: 9 November 2022 Catchwords: FAMILY LAW - PROPERTY – s 44(6) – oral application for leave to commence proceedings out of time – whether the applicant would suffer hardship if leave is not granted – whether discretion should be exercised in favour of granting leave – where the evidence relied upon by the applicant is replete with inconsistency and vagueness, there is no explanation for the delay, there is an absence of any reliable evidence as to valuation of any property, and the property pool is at best modest – where the application to commence proceedings out of time is dismissed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Civil Law and Justice Legislation Amendment Bill 2018
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hedley & Hedley (2009) FLC 93-413
In the marriage of Althaus (1982) FLC 91-233
Sharp & Sharp (2011) 50 Fam LR 567
Tamaniego & Tamaniego [2010] FamCAFC 254
Welland & Hawthorn [2021] FedCFamC1A 43
Whitford & Whitford (1979) FLC 90 – 612
Number of paragraphs: 37 Date of hearing: 24 October 2022 Place: Brisbane The Applicant: Litigant in person Counsel for the Respondent: Ms M. Murphy Solicitor for the Respondent: Naughton McCarthy Family Lawyers ORDER
BRC 12043 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RESSEL
Applicant
AND: MS MORATH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
9 November 2022
THE COURT ORDERS THAT:
1.Pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”), the applicant’s oral application for leave to apply for an order under s 90SM of the Act out of time is dismissed.
2.The applicant’s Amended Initiating Application filed 17 June 2022 is dismissed.
3.The respondent’s Application in a Proceeding filed 26 August 2022 is dismissed.
4.Any application for costs is reserved for hearing to 25 November 2022 at 9.30 am, when the proceedings are next before the Honourable Justice Carew for a Case Management Hearing in relation to parenting matters.
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 the pseudonym Ressel & Morath has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
The questions for determination in this case are: firstly, whether or not leave is required to apply for an order for property settlement under s 90SM of the Family Law Act 1975 (Cth) (“the Act”), arising out of a de facto relationship that ended at the latest on 27 February 2020; and, secondly, if leave is required pursuant to s 44(6), whether it should be granted.
Brief background
Mr Ressel is 44 years of age and the applicant in substantive proceedings involving parenting matters. On 17 June 2022, he purported to amend his Initiating Application to add an additional cause of action, namely, to seek a property settlement order pursuant to s 90SM of the Act. In the proposed property application, Mr Ressel appears to seek an equal division of various items of property including the sale of a real property, and, in the case of one item, Mr Ressel seeks that it be divided among three people, and, further, for the physical return of some other items.
Mr Ressel contends he is currently unemployed and, according to his Financial Statement filed 17 June 2022, he is in receipt of “Government benefits” of $395 per week but also receives a “total salary or wage” of $55 per week and “other income” of $450 per week. His weekly expenses are $300.
Ms Morath is 35 years of age and the respondent in the substantive proceedings involving parenting matters and the applicant in an Application in a Proceeding filed 26 August 2022 in which she seeks the summary dismissal of Mr Ressel’s Amended Initiating Application filed 17 June 2022, or alternatively, (as became apparent from submissions) to dismiss any application for leave to commence property proceedings out of time.
Ms Morath is a “[consultant]”. According to her Financial Statement filed 26 August 2022, Ms Morath’s total salary or wage per week is $3,346. Her average weekly income from all sources is estimated to be $3,821 and her weekly expenses are estimated to be $3,785.
The parties commenced cohabitation in 2013 and separated at the latest on 27 February 2020 (according to Mr Ressel). There is one child born to the relationship, namely, X, born 2014. X lives with Ms Morath and has spent no time with Mr Ressel since late April 2020.
In early 2022, Mr Ressel pleaded guilty to criminal charges and was released from prison on time served, namely, nine months.
Mr Ressel represented himself at the hearing before me, but informed the Court that he had sought legal advice on the issues currently before me.
Counsel for Ms Morath submitted that the Court had no jurisdiction to deal with the property application because Mr Ressel had not been granted leave (nor sought leave) to file the application out of time. The two year limitation period expired, in her submission, at the latest on 27 February 2022.
Mr Ressel’s primary submission is that leave is not required but, if it is, he was granted leave to make an oral application for leave to file his Amended Initiating Application nunc pro tunc.
Ms Morath did not oppose leave being granted to Mr Ressel to make an oral application seeking leave to institute proceedings out of time, in the event leave is required.
Is leave to institute proceedings for property settlement required?
Pursuant to s 44(5) of the Act (but subject to s 44(6)), a party to a de facto relationship may apply for (relevantly) a property settlement order under s 90SM only if the application is made (relevantly) within two years after the end of the de facto relationship. Section 44(6) provides that the Court may grant the party leave to apply after the end of the two year period if the Court is satisfied that (relevantly) “hardship would be caused to a party … if leave were not granted”.
It is common ground that Mr Ressel’s application was made more than two years after the end of the de facto relationship but he contends that leave is not necessary because parenting proceedings were already on foot when his Amended Initiating Application was filed. It seems Mr Ressel intends to rely upon a decision of the Full Court in Hedley & Hedley[1] (“Hedley”) in which it was held that a respondent to an application for parenting proceedings between a married couple could include in an “answer” a new cause of action, namely, an application for property settlement, without needing to seek leave. At the time Hedley was decided, there was a provision in the Act in the following terms:
44(2) Notwithstanding subsections (3) and (3A), a respondent may, in answer to an application, include an application for any decree or declaration under the Act.
[1] (2009) FLC 93-413.
Subsections (3) and (3A) of s 44 impose a 12 month time limit on commencing proceedings for property settlement and spouse maintenance as between married couples, from the date of divorce or (in the case of an approved maintenance agreement) from date of divorce and the revocation of the approval of a maintenance agreement.
Section 44(2) was repealed in 2018. The section only applied to married couples and only applied to a respondent in circumstances where the new cause of action was contained in an “answer” to an application.
The revised explanatory memorandum to the Civil Law and Justice Legislation Amendment Bill 2018 (“explanatory memorandum”) (which repealed s 44(2)) at [244] quotes Finn J in Hedley, as follows:
I am mindful that this interpretation creates an imbalance because section 44(2) enables a respondent to raise any type of cross-application without being subject to the requirement for leave under section 44(3). This unfairly disadvantages the applicant. If the applicant is out of time he must get leave under section 44(3) for each type of proceeding he seeks to commence. In contrast, once the application is issued, the respondent can rely upon section 44(2) to bring without leave an application for "any decree or declaration" regardless of how limited the ambit of the orders sought in the application or the leave granted to the applicant under section 44(3) in respect of that application.
The explanatory memorandum explained the repeal as follows:
140. Repealing subsection 44(2) would remove this relative advantage and put respondents in the same position as applicants - that is, respondents would require leave of the court under subsection 44(3) to initiate applications outside the limitation period.
Mr Ressel’s submission that he does not require the Court’s leave to bring his application for property settlement out of time is rejected.
In summary, s 44(5) permits a party to apply for an order under s 90SM (property settlement) only when the application is made within the period of two years after the end of the de facto relationship. The only exception is where leave is granted pursuant to s 44(6) i.e. where the Court is satisfied that hardship would be caused to the party or a child if leave were not granted.
For completeness, and while not raised in argument, I have considered the effect of an order made by a Registrar on 30 May 2022 that the father “file and serve … an amended Initiating Application outlining the property division orders sought … “. Rule 2.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 permits amendment of Initiating Applications, including by adding a cause of action (see r 2.50(2)(b)) at any time before the procedural hearing at which the proceeding is allocated a date for trial, or by consent or order (see r 2.50(1)(a)). If Mr Ressel sought to amend his Initiating Application before the expiration of the two year period, he could have done so without leave. The order made by the Registrar does not overcome the requirement for Mr Ressel to seek leave to apply for property settlement out of time and is otiose.
Summary dismissal
The application by Ms Morath to summarily dismiss Mr Ressel’s Amended Initiating Application filed 17 June 2022 does not now arise for determination because Mr Ressel has been granted leave to make an oral application to seek leave pursuant to s 44(6) of the Act. It is that application which requires determination.[2] Ms Morath’s Application in a Proceeding filed 26 August 2022 will therefore be dismissed.
[2] Although if Mr Ressel’s oral application is unsuccessful, his Amended Initiating Application will be dismissed.
Will hardship be caused to Mr Ressel if leave is not granted?
In determining whether or not to grant leave to commence property proceedings out of time, Counsel for Ms Morath submits that Mr Ressel must satisfy the Court that he or the child would suffer hardship if leave were not granted, and also that is it appropriate in the circumstances to exercise the discretion in favour of granting that leave. By reference to numerous authorities,[3] Counsel for Ms Morath submits the following principles apply:
(a)Mr Ressel bears the onus;
(b)The fundamental issue is whether the extension of time is necessary to do justice between the parties;
(c)Hardship is not established merely by the loss of a right to commence proceedings;
(d)There must be a prima facie claim worth pursuing i.e. a claim that is trifling will not suffice;
(e)There must be a real probability of success or at least a real probability of success in some measure;
(f)If the costs incurred by the applicant for leave are likely to be more than the property settlement awarded, ordinarily hardship would not be established; and
(g)Mr Ressel’s evidence, such as it is, should be taken at its highest unless it is inherently unbelievable or contradictory.
[3] Sharp & Sharp (2011) 50 Fam LR 567 at [16] and [22]; Whitford & Whitford (1979) FLC 90 – 612; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tamaniego & Tamaniego [2010] FamCAFC 254 at [162]; Welland & Hawthorn [2021] FedCFamC1A 43 at [37].
In applying the principles to the evidence in this case, Counsel for Ms Morath submits as follows:
(a)Mr Ressel has failed to put adequate evidence before the Court to establish a prima facie case and his assertion in his affidavit filed 30 August 2022 that “I have a lot more evidence but I save it for trial” does not assist him;
(b)Mr Ressel’s Financial Statement “casts significant doubt upon the evidence before the court as to his financial circumstances” for the following reasons:
(i)He asserts that he is “self-employed/currently unemployed” on the one hand but then discloses receipt of a weekly wage (at item 9);
(ii)He discloses “other unidentified income” of $450 per week (at item 15);
(iii)He discloses no particulars for common expenses such as rent or mortgage payments and fails to explain the absence of these expenses;
(iv)He does not identify how he can “afford to live on the financial position he asserts”;
(v)He discloses ownership of Motor Vehicle 1 (item 40) while also contending in his affidavit filed 30 September 2022 at [8] that Ms Morath gave Motor Vehicle 1 away;
(vi)Despite deposing only to the existence of Motor Vehicle 2 (in Ms Morath’s possession) and Motor Vehicle 1, Mr Ressel asserts he has weekly expenses for a motor vehicle, without explanation;
(vii)“Further, items [of property] identified in Mr Ressel’s Amended Initiating Application are not the subject of adequate evidence to enable the Court to identify them with particularity, be satisfied they exist, or be satisfied that it is just an equitable to make any order altering the property interests of the parties”. By way of example:
(A)Counsel for Ms Morath refers to the reference in the Amended Initiating Application to “Crypto assets. Split between 3 people, [Mr B], [Mr Ressel] and [Ms Morath]”. Dr B is not a party;
(B)In his Financial Statement, Mr Ressel asserts a 50 per cent interest in “Crypto” and no value is attributed to it;
(C)In his affidavit filed 30 September 2022, Mr Ressel asserts the following:
[12] …I said to give it [a computer] to [Mr B] or my lawyer due to the fact that they want access to my crypto account.
[13] [Ms Morath] admitted I had a successful trading with crypto and also I have 3 high profile people willing to admit that [Ms Morath] knew about the amount as we were at the office talking about it and showing them how it works while 2 of them saw the amount in the account… [Queensland Police Service] went through my computer and saw in my crypto trading account of more then (sic) US$1.9m at the time…
(viii)Mr Ressel seeks the “return” of a number of items conceded by him to either no longer exist or to have been sold or otherwise disposed of, making any order in relation to them “nugatory”. By way of example:
(A)A motor vehicle part - Mr Ressel seems to accept that it is no longer in Ms Morath’s possession, yet nevertheless seeks its return;
(B)Motor Vehicle 1 compliance plates - Mr Ressel appears to accept the vehicle is no longer in the possession of Ms Morath, yet nevertheless seeks that the compliance plates be returned; and
(C)Motor Vehicle 3, was, according to Mr Ressel’s affidavit, sold by his associate, Mr B, however he continues to seek its return.
(c)Mr Ressel seeks a share of various “trifling” items e.g. pots and pans;
(d)If leave is granted, it would appear that at least one other party would need to be joined thereby adding to the cost and length of any trial;
(e)To the extent Mr Ressel seeks an equal division of particular property, he has ignored the significant debt secured against the property, which, when taken into account, renders his claim either trifling or non-existent such that he could not be said to suffer hardship if leave is not granted;
(f)Mr Ressel has failed to explain the delay in commencing proceedings within time. Exhibit 1 demonstrates that he had legal representation at relevant times prior to the expiry of the time limitation; and
(g)Ms Morath would suffer significant prejudice if leave were granted to pursue a claim that, even on Mr Ressel’s case, is modest and would likely involve considerable legal costs for Ms Morath; costs that are likely to be out of all proportion to any pool of assets to be divided.
In support of his application for leave, Mr Ressel submits:
(a)That his previous lawyers are at fault, in that his claim for property settlement should have been commenced in time;
(b)Exhibit 1 shows “that we’ve been trying to fight the legal stuff through property through the lawyers….” ;
(c)He has been “manipulated so they can delay it … so then they get this out of actual time”;
(d)He has contributed 90 per cent of his income (during the relationship) to Ms Morath’s accounts to enable her to pay the expenses and to contribute to the purchase of property;
(e)Ms Morath has received the rent from a property and “gets a depreciation value each year off her tax”;
(f)Ms Morath disposed of Motor Vehicle 1 when she was not entitled to do so and it was sold at an undervalue;
(g)Ms Morath gave away his computer and he disputes the circumstances in which it was given away (I note that Ms Morath contends she gave it to a firm of solicitors representing Mr Ressel’s alleged investors);
(h)He has made financial contributions both during and after the end of the relationship (including child support); and
(i)He has suffered hardship because Ms Morath has withheld assets and funds from him.
Discussion
Hardship
As already noted, pursuant to s 44(5) of the Act, an application for property settlement must be filed within two years of the end of the de facto relationship unless, pursuant to s 44(6), the Court grants leave to apply after the end of that period if satisfied that hardship would be caused to the party or a child if leave were not granted.
I accept as accurate the summary of the applicable law provided by Counsel for Ms Morath. I would simply reiterate that even where hardship is established, the Court retains a discretion whether or not to grant leave.[4] The non-exhaustive list of matters relevant to the exercise of the discretion where hardship is established include the following:[5]
(a)The length of the delay;
(b)The reasons for the delay for the whole period;[6]
(c)The strength of the applicant’s case on the merits;[7]
(d)Any relevant conduct of the applicant;[8]
(e)The prejudice occasioned to the respondent by reason of the delay. [9]
[4] Whitford (fn 3) at 78,146; see also Sharp (fn 3) at 570 [22].
[5] Whitford (fn 3) at 78,146.
[6] In the marriage of Althaus (1982) FLC 91-233 at 77,267.
[7] See also Sharp (fn 3) at 573 [36] and 577 [70], [73].
[8] Ibid at 573 [38].
[9] Sharp (fn 3) at 580 [97].
In considering the hardship that may be suffered by Mr Ressel (there is no suggestion of hardship to a child) if leave is not granted, I have done my best to identify the pool of assets that may be relevant to the case. I undertake this exercise as part of the consideration of whether or not Mr Ressel has established a prima facie case worth pursuing. In the absence of valuations, but doing the best I can based on each party’s estimate of value, the property of the parties or either of them, appears to be as follows:
Property and liabilities in Ms Morath’s name
Estimated Value[10]
C Street, Suburb D
$420,000 - $475,000[11]
Bank accounts
$1,290
Shares
$1,000
2017 (or 2018) Motor Vehicle 2
$60,000 - $80,000
Household contents
$20,000
Jewellery
$10,000
Mortgage
($408,670)[12]
ANZ - Personal loan
($3,248)
ANZ – overdraft
($1,000)
ANZ – Visa
($7,934)
NAB – Visa
($16,009)
Motor Vehicle 2 hire purchase lease
($62,915)[13]
Body corporate arrears
($1,063)
Net property
$11,451 - $86,451
Superannuation
$148,136
Possible add backs of property sold after separation
$9,280
Possible debt to G Lender
$50,000
Property and liabilities in Mr Ressel’s name
Bank accounts
$1,335
Household contents, tools, clothes (Mr Ressel refers to a watch in his affidavit which is not included)
$3,000
Property (no liabilities identified)
$4,335
Superannuation
$1,800
Possible add backs of property sold after separation
$20,200
Possible watch
Unknown
“Crypto”
Existence not established and no value attributed[14]
Possible debt to Mr B
Unknown
[10] Taken from parties respective Financial Statements (or in Mr Ressel’s case, his affidavit filed 30 September 2022 if the estimate of value is higher than in his Financial Statement).
[11] Mr Ressel contends the value of the property is $450,000 in his Financial Statement but $475,000 in his affidavit. No evidentiary basis is provided for either estimate of value.
[12] Conceded by Mr Ressel.
[13] Conceded by Mr Ressel.
[14] Ms Morath contends in her affidavit filed 26 August 2022 that after separation she was contacted by H Lawyers acting on behalf of investors and informed that Mr Ressel had taken money from investors and told them he had purchased cryptocurrency. Ms Morath contends that she provided Mr Ressel’s computer to H Lawyers on Mr Ressel’s instructions, an allegation disputed by Mr Ressel, although he does not appear to dispute that he used investors’ funds to purchase cryptocurrency. Ms Morath denies possession of any storage devices, codes or any other access to cryptocurrency.
I further note that in his affidavit filed 30 September 2022:
(a)Mr Ressel refers to Motor Vehicle 3 to which he attributes a value of $300,000. However, Mr Ressel deposes to that vehicle having been sold “with an outstanding bill of $50,000”. It is unclear who the owner of this vehicle was as Mr Ressel contends it was sold by Mr B. Mr Ressel contends that Ms Morath was the guarantor for a loan in relation to the vehicle. (I note Ms Morath contends that Motor Vehicle 3 was repossessed by G Lender on 28 May 2021 and that there was a shortfall of $50,000, which appears consistent with Mr Ressel’s version);
(b)Mr Ressel refers to Motor Vehicle 1 to which he attributes a value of $300,000. However, Mr Ressel deposes to that vehicle having been given away by Ms Morath, apparently in order to satisfy a debt which Mr Ressel appears to contest. (Ms Morath annexes a document to her affidavit filed 26 August 2022 which purports to be a document signed by Mr Ressel in which it is agreed that Motor Vehicle 1 was transferred to a Mr E for $80,000. Mr Ressel has not disputed the authenticity of this document);
(c)Mr Ressel refers to a computer and a monitor to which he attributes a value of $5,000, although he seems to concede that a third party actually bought the computer initially stating “[t]he receipt is under my name as it is easier for warranty purposes”. In any event, Mr Ressel appears to concede that the computer is no longer in either party’s possession but contends Ms Morath retains the monitor;
(d)Mr Ressel takes issue with Ms Morath’s estimate of value for her jewellery and deposes to the alleged purchase price for three items totalling $15,500. Mr Ressel also asserts that he “bought many other diamonds and high value jewellery [Ms Morath] has either sold or withheld from me. Total value in excess of $150,000…”. No evidentiary basis for these assertions is provided by Mr Ressel;
(e)Mr Ressel refers to having purchased himself a watch with a bracelet band a few weeks before separation “as a gift to myself and also the band for [Ms Morath]. Value $50,000 plus”. Mr Ressel does not disclose what became of the watch and bracelet;
(f)Mr Ressel refers to a “carbon fibre [motor vehicle part]” which he appears to concede Ms Morath sold “for someone to give her a hand to move”. Mr Ressel estimates the value of the item was $3,500; and
(g)Mr Ressel lists a range of 52 household items/shoes/jewellery/artwork/other items, to which he attributes a total value of $84,040. Mr Ressel provides no evidentiary basis for his opinion as to value. It would appear Mr Ressel has not adopted second hand values for the items in his list (which is what the Court would generally adopt). I note that included in his list are items Ms Morath concedes she has disposed of e.g. a Samsung TV 82 inch to Mr Ressel attributes a value of $4,500 and which Ms Morath contends she sold for $1,200. Ms Morath deposes in her Financial Statement to having disposed of 35 household items (many of which are included in Mr Ressel’s list) for a total sum of $9,280. Mr Ressel concedes that Ms Morath sold some items “to pay off debts which we both incurred”.
In his affidavit filed 30 August 2022, Mr Ressel annexes a document purportedly from a Mr B in which he says he provided various loans to Mr Ressel as follows:
(a)On 11 December 2017, the sum of $259,193.81 for the purchase of Motor Vehicle 4;
(b)In 2014, the sum of $120,000 for the purchase of C Street, Suburb D;
(c)Since 2017 “multiple loans of well over AUD 300,000 for the purchase of cryptocurrency, [Motor Vehicle 5], [Motor Vehicle 3], [Motor Vehicle 6] and the other apartment at [F Street, Suburb D]”.
Mr Ressel does not disclose any current debt to Mr B but nor does he depose to having repaid Mr B.
The property available for distribution is possibly somewhere between $15,786 and $90,785 plus superannuation of about $150,000.
If Mr Ressel succeeded in his application for an equal division of the property, there would inevitably be costs associated with the sale of the F Street, Suburb D property, which would reduce the property pool, but even ignoring such costs, Mr Ressel at best might receive about $41,000 (half of $90,785 less what he already has) and a superannuation split of about $73,000 (half of $150,000 less his own superannuation).
If Mr Ressel retained legal representation in the proceedings (he indicated the possibility of obtaining legal representation when the matter is next before the Court) the possible claim would be further reduced in his hands by any legal costs.
In order to grant leave I have to be satisfied on the evidence before me that hardship would be caused to Mr Ressel if leave were not granted. Given the unsatisfactory state of the evidence including unexplained inconsistencies, possible liabilities that would exceed the property pool and the absence of reliable valuations, I cannot be satisfied that hardship would be caused to Mr Ressel. At its highest, I can find there is a possibility of hardship but that is not the test.
Should leave be granted even if hardship is established?
If I am wrong in finding that hardship would not be caused, I would nevertheless dismiss the application for leave.
The factors I consider relevant to the exercise of discretion in this case include the following:
(a)Mr Ressel was legally represented in 2020 when property settlement was at least the subject of consideration;
(b)Mr Ressel obtained legal advice in relation to the issues currently before me for determination;
(c)No explanation is provided for the delay in making his property claim (other than to make a general assertion during submissions, in the absence of any evidence, that his lawyer should have done so);
(d)No explanation is provided for the delay between 27 February 2022 and 17 June 2022 (I note that Mr Ressel was in gaol for a number of months prior to February 2022);
(e)The evidence (such as it is) relied upon by Mr Ressel is replete with inconsistency and vagueness e.g. the extent of his income, property ownership and debt;
(f)There is a real prospect that third parties might need to be joined to the proceedings if Mr Ressel persists with a number of his assertions which would increase the length and cost of any trial;
(g)There is an absence of any reliable evidence as to valuation of any property;
(h)There is a real likelihood that an adjustment would be made in Ms Morath’s favour pursuant to s 90SF given her financial and emotional obligations to the child of the relationship; and
(i)Ms Morath is privately funding the litigation and the costs that would be incurred by her in responding to the property claim would likely be considerable.
Mr Ressel’s application for leave to make a claim for property settlement out of time will be dismissed and so too will his Amended Initiating Application filed 17 June 2022.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 9 November 2022
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