Richardson & Richardson

[1999] FamCA 882

[1999] FamCA 882

THE FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA  No. NC 642 of 1986

AT NEWCASTLE

IN THE MARRIAGE OF

BRIAN JOHN RICHARDSON  (Respondent Husband)

AND  JANET RICHARDSON  (Applicant Wife)

CORAM:  The Honourable Justice Mullane

Date of Hearing:  22 March1999

Date of Judgment:                  29 April 1999

JUDGMENT OF THE COURT

Appearances:

Mr Powe of Messrs Richard Fry & Associates, Solicitors, DX 21601, Maitland appeared for the Applicant Wife.
Mr Holmes of Messrs Turnbull Hill, Solicitors, DX 12607, Charlestown appeared for the Respondent Husband.
INTRODUCTION

1. This was a hearing of the wife's application for leave to commence property and spouse maintenance proceedings out of time.BACKGROUND

2. The parties married in 1966 and separated in July 1978.  There are four children of the marriage, the youngest of whom was four at the time of separation.  All of the children resided with the wife after separation. 

1. After separation the parties were involved in proceedings in Courts of Petty Sessions at East Maitland and also in the Family Court of Australia at Sydney and Newcastle.

1. In September 1978 the wife obtained an injunction in the Court of Petty Sessions, East Maitland restraining the husband in the following terms by consent:

(a)       The husband be restrained from touching, molesting, assaulting or in any way seeking physical contact with the wife or in any way threatening, abusing or intimidating the wife by word or deed.

(b)       The husband be restrained from in any way interfering with the wife's access to or from the matrimonial home at 4 Somers Close, Metford.  That order is to remain in force until further order of the Court or until varied by the parties by agreement in writing.

1. The wife's application for spouse maintenance and child maintenance and for an order excluding the husband from the matrimonial home was on that day adjourned for mention on 21 November 1978 and an interim order was made by a consent for the husband to pay the wife $45 per week from 25 September 1978.  The Court noted undertakings by the parties in relation to access by the children with the father.

1. In May 1979 the proceedings were transferred to the Family Court of Australia at Sydney and a further interim order was made that until further order the husband pay the wife $45 per week.  On 3 December 1979 orders were made in the Family Court sitting on circuit at East Maitland as follows:

1. For the husband to vacate the matrimonial home.

1. Restraining the husband pending further order from interfering with occupation and use of the home by the wife and any of the children.

1. Restraining the husband after he vacated the home from re-entering the home pending further order.

1. Requiring the husband to continue the payment of the mortgage payments on the home and also to pay the council and water rates on the property.

1. Confirming the existing arrangements for access by the children.

1. The Court record shows that Hogan J who made the orders for the husband to vacate the home and restraining him from re-entering it or from interfering with the occupation of the wife and any of the children of the home, expressed those orders to be made "pursuant to section 114 of the Family Law Act".

1. On 18 January 1980 the husband's solicitors filed an application for dissolution of marriage on his behalf in the Family Court at Sydney.  It was heard on 4 March at Sydney.  In that application the husband swore to the truth of the contents including paragraph 13, in which in referring to the orders made on 3 December 1979 referred to the interim order for maintenance by stating:

Husband was ordered to pay maintenance for the support of the wife and the children in the sum of $45 per week.

1. The wife was represented by a solicitor, Mr Daniel Smythe in the proceedings in 1978 and 1979 in the Court of Petty Sessions at East Maitland and in the Family Court.  The wife did not attend the hearing of the dissolution application.  There was no appearance on her behalf. 

10.  The decree absolute issued on 4 March 1980.  It is endorsed on the back with a statement:

Important:  Proceedings with respect to the maintenance of a spouse or with respect to the property of the parties should be commenced within 12 months of the date of the decree nisi.  Consult your solicitor or legal aid officer.

11.  The application for dissolution of the marriage was served on the wife personally on 14 January at her home at 4 Somers Close, Metford.  There was no address for service of the wife provided by her or any solicitor in relation to the divorce.  The decree shows her address as 4 Somers Close Metford, which is the address of the former matrimonial home.  The Court record of the hearing of the divorce is endorsed to the effect that the decree was sent out on 9 April.  The practice is to send the decree to both parties.  The wife's copy was apparently sent to her at the matrimonial home.  It appears that it included the endorsement already described. 

12. Under subsection 44(3) of the Family Law Act as it then stood, an application for alteration of property interests or for spouse maintenance could only be filed without leave if it were filed before the expiry of one year after the decree nisi.

13. The amendment which substituted the present subsection 44(3) whereby the time of one year is calculated from the decree absolute, was not inserted until the Family Law Amendment Act No.72 of 1983. The new provision is expressed to apply to any proceedings for maintenance or alteration of property interests sought to be commenced after the amendment, whether the decree became absolute before or after the amendment.

14.  The wife in May 1986 took proceedings against the husband for default in payment of council and water rates on the home.  Then on 17 June 1986 an order was made by the Family Court of Australia at Newcastle for the husband to pay such arrears and pay the wife's costs. 

15.  From September 1988 to August 1989 the husband was unemployed and then he obtained his present employment.SPOUSE MAINTENANCE
16.  The wife commenced proceedings for spouse maintenance in the Local Court at East Maitland by her application filed on 11 July 1978.  On the evidence that application has still not been finalised.  The last orders made in those proceedings apparently were the orders of 1 May 1979 transferring the proceedings to the Family Court of Australia in Sydney and continuing the interim order for payment of $45 per week for child maintenance and spouse maintenance.  On the evidence the spouse maintenance proceedings have not been disposed of and should therefore be relisted for hearing.

PROPERTY

(a)       The orders of 3 December 1979.

17. The issue arose as to whether the wife's application for orders for "exclusive occupancy" of the home was an application for an order under section 79 of the Family Law Act. There are four reasons why it was not:

1. When the application was filed by her solicitor on 19 September 1978 the parties had not been separated for 12 months. There was therefore no ground for dissolution of the marriage and no dissolution proceedings had been commenced. Under the then subsection 79(3) of the Act, the making of an order under section 79 was prohibited until such time as proceedings for a decree of dissolution had been initiated. Accordingly, the court was without power to make an order under section 79.

2.        The application is headed:  "Application for restraining order and order to vacate".

3. When the application was determined by the Court on 3 December 1979, Hogan J expressed the orders to be made under section 114 of the Act.

4. The High Court has held that an order in similar terms to the one made is not an order in exercise of powers under section 79 whether made on an interim or final basis.

(b)       The law.

18. The discretion to extend time for commencement of proceedings seeking the alteration of property interests under section 44(3) is not wholly unfettered. It is subject to the requirement in subsection 44(4) that the Court must not grant leave unless it is satisfied that hardship would otherwise be caused to the applicant or a child. The loss of the right to institute proceedings is not of itself hardship. To prove hardship one must show a substantial detriment, (see Whitford and Whitford (1979) FLC 90-612 and Frost and Nicholson (1981) FLC 91-051).

19.  Mr Powe for the applicant wife relied upon the decision of Murray J in Pearce and Pearce (1982) FLC 91-276. There her Honour held that because proceedings for partition and sale of property jointly owned by parties to a dissolved marriage may be a "matrimonial cause" under paragraph (ca) of the definition in section 4 of the Family Law Act, there may be no jurisdiction under state law for a state Court to make any order as to the partition and sale of such jointly owned property. Accordingly her Honour held that a denial of leave under section 44(3) to commence proceedings under section 79 may impose hardship where there is such jointly owned property because no other court may be able to deal with the matter.

20.  But Pearce and Pearce has no application to the present situation because at the time section 44(3) was in its original form, as enacted as part of the Family Law Act 1975, and imposed the leave requirement after 12 months upon all proceedings under the then subpara (c)(ii) of the definition of "matrimonial cause" in section 4(i) of the Act, being proceedings "with respect to.....the property of the parties or of either of them". One effect of this was that proceedings under section 78 of the Act could then only be commenced with leave after the 12 month period expired. Amendments to section 44(3) by the Family Law Amendment Act 1983 substituted the present wording of the subsection which specifically excludes its application to section 78, so that the requirement for leave outside the 12 month period does not apply to applications under section 78.

21. Indeed such an amendment to subsection 44(3) was already proposed when Murray J delivered her judgment in Pearce and Pearce and she said:

… there could be a very real danger that the Supreme Court might consider its jurisdiction ousted, leaving the parties without any remedy at all. That this hiatus in the law could possibly exist is a matter of great concern although the proposed amendment to section 44(3) in the Bill at present before Parliament which will remove the necessity to seek leave to institute proceedings under section 78, should largely remedy that hiatus.

(1982) FLC 91-276 at p.77,571.

22. It is clear that if leave is refused, even if the State Courts might refuse to hear proceedings for declarations as to the parties respective interests in the property and orders for sale of the property and division of the proceeds, either party could bring similar proceedings in this court under section 78 of the Family Law Act.

23. Upon refusal of the wife's application for leave to commence proceedings under section 79, section 44 would not prevent either party from making such an application. Accordingly there could be no hardship in terms of being denied access to a court to seek a declaration of interests and orders for partition or sale.

24.  Would the wife suffer other hardship (i.e. substantial detriment) if her application is refused?  As appears from later discussion, this is not a situation where the wife failed to make an application because of misrepresentation, fraud, undue influence, deceit or some inducement or promise which was not honoured.  It does not fall within the type of situation described by Butler J in McCarran and Unsworth (1978) FLC 90-444 at p.77,266.

25.  In Whitford and Whitford (1979) FLC 90-612 at p.78,144 the Full Court held:

The hardship referred to in section 44(4) is the hardship which would be caused to the applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the hardship, to which the subsection refers.  It is with the consequences of the loss of that right, with which the subsection is concerned.  The requirement, that the court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the court that the applicant would probably succeed, if the substantive application were heard on the merits.  If there is no real possibility of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted.  Further, the matter with which the Court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted.

26.  Subject to the requirement to establish hardship, the Court's discretion is general and unfettered.

27.  In Ratnam v Cumarasarry (1964) 3 All ER 933 the Judicial Committee of the Privy Council said (at p.935):

The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion.

28.  McHugh J in Gallo v Dawson (1990) 93 ALR 479 held (at p.480) that such a rule provides that a Judge:

may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act.

29.  His Honour continued:

The grant of an extension of time under this rule is not automatic.  The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978) VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequence for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board (1973) 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg (1967) VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

30.  In Tormsen v Tormsen (1993) FLC 92-392 the Full Court of the Family Court of Australia held at 80,017:

The fundamental issue in application for extension of periods of time prescribed by rules of court is whether this will enable the court to do justice between the parties. 

31.  Their Honours also said at 80,017:

A failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed: Sheppardson v Lewis (1966) VR 418 at 421,422 per O'Bryan J. But in appropriate cases the interests of justice may outweigh the absence of an adequate explanation. As counsel for the husband rightly pointed out, there is an analogy with applications for leave to institute proceedings under section 44(3) of the Family Law Act where the absence of an adequate explanation has been regarded as merely a factor to be considered: see Althaus v Althaus (1982) FLC 91-233 (1979) 8 FAMLR 169; Carlon v Carlon (1982) FLC 91-272 8 FAMLR 729.

(c)  Merits of the wife's property claim.

32.  The wife's case is that when the parties separated in 1978 their property and liabilities comprised:

the home in joint names,           value   $30,000

the husband's Holden sedan,   $ 3,000

motor boat and equipment   $   500
the husband's shares in Peko Wallsend   $ 7,500
the husband's savings   $   700
the husband's life assurance policy   $10,000          
the husband's superannuation entitlements payable
   by reason of termination of his employment in July 1978        $10,000

sub-total   $61,700

less mortgage on matrimonial home   $18,000

net difference between property and liabilities               $43,700 

33.  The wife's case is that since separation she and the children have had rent-free occupation of the jointly-owned home. The husband has retained the other property, including his superannuation.  He has repaid the mortgage by instalments over 18 years.  The final payment occurred in 1996.  He has also paid the council and water rates on the home for over 20 years.  He has paid maintenance under the interim order.  The wife in her case does not disclose the extent of this, but it appears from her evidence that he paid $45 per week for at least 14 years. 

34.  The wife concedes that the husband has also paid "other payments in relation to the home".  She does not quantify these and it appears they were probably payments for repairs and/or maintenance.

35.  The wife's case does not include any evidence as to what the contributions of the parties to their property and to the welfare of themselves and their children were prior to separation, although it is clear the husband's superannuation entitlements came from his work for Newcastle-Wallsend Coal Company, which ceased about the time of separation.  The wife's contributions to the welfare of the children continued for 18 years after separation until 1996 when the youngest child completed university and left home. 

36.  The husband since separation has made a substantial indirect contribution to the welfare of the wife and the children in that they have had the rent-free occupation of the home, and also by his payment of maintenance and rates.  He has also made a quite substantial contribution after separation to the property of the parties by his ongoing repayments under the mortgage over 18 years and his payments for repairs and maintenance to the home.

37.  The wife is 58 and has not been in any paid work since at least separation.  She has been in receipt of Social Service benefits since separation and apparently receives an aged pension, which is presently $179 a week.  The evidence does not disclose that she is capable of anything other than unskilled work.  Her age suggests she is unlikely to be able to obtain sufficient such work to support herself.  The Court takes judicial notice of the extremely high numbers of unemployed young people in Newcastle and the Hunter region, many of whom are competing for unskilled work and would be fitter than the wife. 

38.  The wife is able to proceed with her maintenance application, however.  The wife's only property is her half interest in the unencumbered home, $700 in savings and a car worth about $6000.  She has no financial resource.  Her interest in the home is, on her evidence, worth about $65,000. 

39.  The husband remarried in 1988.  He is 58.  His wife is 62 and dependent upon him.  He has no other dependents.  He is employed by Lemington Coal Mines as a store clerk.  His remuneration package is approximately $1495 per week, including a salary of $1339 per week and other benefits.  He has a half interest in the former matrimonial home worth $65,000 and he also has a car and other property worth a total of about $23,375.  He also has debts other than legal costs and those other debts amount to $7380. 

40.  The husband also has financial resources by way of superannuation entitlements under two funds.  Under the ECMAL Superannuation Plan, to which he has contributed since 1989, the immediate retirement value of his entitlements is approximately $89,400 before tax.  The immediate retirement value of his entitlements under the CoalSuper Retirement Fund is $90,000 before tax.  This has accrued from contributions over the last 33 years, but at least two thirds of it is from his employment after separation.. 

41. Subsection 79(2) of the Family Law Act provides that on the hearing of an application to alter property interests the Court shall not make an order altering the property interests of the parties unless it is just and equitable to do so. The question of merits of the wife's claim under section 79 is really an issue of whether the wife shows a prima facie case that justice and equity require a different result to that which has prevailed.

42. The evidence, such as it is, does not establish that the wife has a prima facie case under section 79 for orders altering the present property interests of the parties. Without knowing what she says the contributions of the parties were prior to separation, and further details of what she says the husband's contributions have been since separation, the Court could not find that she has on her evidence a prima facie case for orders altering property interests under section 79. On her evidence there is a very real likelihood that the present distribution of their property interests is a just and equitable outcome given the relevant matters under subsection 79(4) and subsection 75(2).

(d)  Hardship.

43. The wife has not established that if leave were granted she is likely to succeed in an application under section 79. Accordingly she has not established that there would be hardship to her if leave were not granted.

(e)  Delay and explanation.

44.  Clearly the reasons why the wife did not commence proceedings within the period of 12 months or seek leave earlier are relevant in determining whether leave should be granted.  One would expect the wife to set out such matters in her affidavit supporting her application.  In that affidavit she gave sworn evidence that the parties discussed distribution of their property in about 1979 through their then solicitors.  His solicitors wrote to the wife's solicitors on 10 December 1979 in the following terms:

Further to the conclusion of the proceedings in the Family Court on 3 December we wish to advise that we will be communication [sic] with you in the near future as to the items which our client will be seeking to remove from the matrimonial home. 

We also advise that we have advised the Housing Commission as to the result of the proceedings but have taken the precaution of advising them that there is a possibility that the husband may institute proceedings in the near future for property settlement whereby he seeks the sale of the home and distribution of the net proceeds of sale between he and his wife.  By doing so we feel that Mrs Richardson's interests might be protected as it may be premature for her to withdraw her present application for housing. 
We enclose herewith a photocopy of the letter that we have forwarded to the Housing Commission so that you are aware of the action taken by us.  We trust that you would not have any objection to the course of action taken as we do so on the instructions of our client who specifically indicated that if there were to be a sale of the home he would like to see his wife and children adequately housed without any unnecessary delay.

45.  In August 1980, five months after the decree nisi, the wife's solicitors wrote to the husband's solicitors on her behalf regarding property, and his solicitors replied:

We acknowledge receipt of your letter dated 22 July 1980 and advise that we have forwarded a copy of the correspondence direct to Mr Richardson.  We have not heard from Mr Richardson since his decree nisi was made, and we are also of the opinion that we will not receive any further instructions from him in relation to this matter.  For those reasons we advise that your correspondence was forwarded direct to Mr Richardson and that we may be unable to render any further assistance in this matter.

46.  The wife did not testify as to whether she or her solicitors contacted the husband direct, and apparently they did not.  She did not offer any explanation why at that time she did not commence proceedings within the period of one year.  The wife testified in paragraphs 26 and 27(a) of her affidavit:

Upon returning to the home in 1979, and following the failure to settle on a final basis the distribution of property between Brian and I, it was my impression that it had been agreed I would be able to remain living in the home until the last of the children became self-supporting or the youngest became 18, at which time the property would be transferred to me absolutely.  That is, the [sic] would be no property settlement until this occurred.  It was my understanding this agreement was reached through solicitors' letters and/or through direct discussion with Brian.

27(a)   This agreement was reconfirmed in a discussion with Brian when Rodney was 16.  This took place in a car park in East Maitland.

47.  The husband in his affidavit denied the agreement alleged by the wife.  The agreement she alleged is not consistent with what his solicitors wrote to hers in their letter of 10 December 1979.  There they clearly stated that the husband may commence proceedings in the near future seeking orders for sale of the home and division of the proceeds. 

48. Annexure J to the wife’s affidavit shows that in 1993 her solicitors wrote to the husband's solicitors offering to consent to him having leave under section 44(3) to commence proceedings out of time if he proposed to make a property application. Annexure K shows that in 1994 her solicitors advised her that the husband's intention was to apply at the end of 1996 for sale of the home and equal division of the proceeds.

49.  The husband's evidence in his affidavit is:

(12)  Further to paragraphs 26, 27(a) and 27 I say that in 1980 when we discussed rates arrears I had a discussion with the wife as follows;  I said, 'I am not going to apply for a property settlement now.  I am not going to give you the lot.  I want to do the right thing.  You and the kids can stay in the house until Rodney finishes his education.  I will keep paying for it.  When Rodney finishes his education we will sell the house and divide the proceeds 50/50.'  She said, 'Okay.'  Thereafter I continued to pay for the house in the belief that the wife and I had an agreement as I have outlined above.

50.  At the start of her case the wife by oral evidence abandoned her affidavit evidence as to an agreement that when the youngest child turned 18 the husband would transfer his interest in the home to her.  She said that the agreement was that the husband's share would be transferred to the children when the youngest turned 18.  It seemed unlikely that the wife would have made such an error given the significance attaching to the alleged agreement.

51.  The husband denied there was such an agreement and adhered to his earlier evidence. He conceded, however, that in about 1989 he had a discussion with the wife in a car park.  He had remarried.  She expressed concern about what would happen to his half of the house if he died.  He said he told her that he had made a will and left his share to the children if he died before the youngest child completed his studies. 

52.  The agreement alleged by the wife at the hearing was also inconsistent with the correspondence annexed by her to her affidavit.
53.  The wife presented as vague and confused in cross-examination.  In addition she contradicted her other evidence.  When asked whether there was any agreement before 1992, she replied, "I suppose I thought the house was mine because he took everything else". 

54.  The wife did not allege in her affidavit that at any time after the decree nisi she was unaware of the 12 months time limit.  If she had been unaware of the time limitation, then with the benefit of legal representation it would be extremely surprising for her not to have set out that information in her affidavit.  Surprisingly, Mr Holmes for the respondent cross-examined her on that issue.  He put to her that she had been aware for some time of the need to file an application for alteration of property interests within 12 months of the divorce.  She replied, "I didn't think it was relevant once we were divorced."  He put to her that she had known since 1980.  She answered, "Not really".  When he then said, "What?"  she replied, "I don't really think - I didn't really think about it.  I really didn't think it relevant to me."  He asked, "You knew about the 12 months rule but you didn't think it relevant to your case?"  to which she replied, "I don't really know.  I didn't think it applied to me.” 

55. She was asked whether when she received the 1994 letter from her solicitors, annexure K to her affidavit, she was aware of the 12 month rule. She avoided the question and then said, "I don't remember". She acknowledged that her solicitor's letter, annexure J to her affidavit, in 1993 referred to section 44(3) of the Act, but she denied that solicitor told her that the 12 month rule applied to her. She testified that from 1980 onwards, presumably until she engaged her present solicitors, she did not know that she could seek an alteration in their interests in the home only with leave of the Court once the 12 months had expired. When the wife was shown the decree absolute dated 8 April 1980 she said she thought she had one at home. Her attention was drawn to the endorsement headed "Important", warning of the need to commence property proceedings within 12 months of the decree nisi. She said she couldn't recall reading the endorsement before. She said she could recall seeing the other parts of the document.

56.  The evidence discloses that the wife has had several solicitors in relation to the Family Law matters.  Daniel Smyth and Co acted for her in 1978 in the proceedings in the Local Court.  In December 1979, Emery Neely and Associates acted for her in the proceedings in the Family Court and in correspondence with the husband's solicitors about property which continued through July 1980 after the divorce.  Mr Sheriff of that firm appeared for her on 17 June 1986 in the enforcement proceedings commenced the previous month. 

57. There were enforcement proceedings in 1992 regarding maintenance arrears. It was apparently then that she engaged Mrs McLardy, of Wood and Roberts, who also acted on her behalf and engaged in correspondence with the husband's solicitors on her behalf in 1993 and 1994 regarding property proceedings, and particularly the question of an application under section 44 for leave for the husband to commence section 79 proceedings out of time.

58.  Given the wife's demonstrated unreliability about the agreement she alleged and her vague and confused evidence on various issues, the Court preferred the husband's evidence in respect of the alleged agreement.  He presented as a more reliable witness.  In addition his evidence, unlike the wife's, was not inconsistent with correspondence and other matters. 

59.  The evidence establishes on the balance of probabilities that in 1980 or earlier the wife knew that the husband proposed that the home remain in their joint names and be occupied by the wife and the children until the youngest child turned 18 and completed his education, whereupon it would be sold and the proceeds divided equally.  She knew that he did not propose to make an application to alter their interests in the property.  She knew that if there were no such alteration that they would continue to own it equally.  It appears that she did not understand that they would continue to own it jointly in the sense that if one died, that person's interests would pass to the other.

60.  The wife received in April 1980 a copy of the decree absolute sent to her by the Court.  It included the caution headed "Important", the warning of the need to commence property proceedings within one year of the decree nisi.  On all the evidence the Court finds on the balance of probabilities that the wife read that notice.  The wife says that none of her solicitors gave her advice of the 12 months rule in relation to property proceedings, although clearly Mr Smyth, Mr Emery and Mrs McLardy all acted for her in relation to the property issue and Mr Sheriff acted for her on the enforcement proceedings concerning the rates in 1986.  The proposition which the wife asserts is inherently unlikely and also contrary to the evidence in correspondence by Mrs McLardy with the wife and the husband's solicitors.  The wife also did not impress as having a reliable recollection as to past events and conversations. 

61.  Overall the Court makes two further findings on this issue:

1. On the balance of probabilities Mrs McLardy in 1993 did advise the wife that the 12 months rule applied to her and that if she wished to take proceedings to alter the interests of the parties in the home she would need to apply for leave to commence those proceedings out of time;  and

1. On the balance of probabilities the wife had probably already been given similar advice by a previous solicitor.

(f)  Conclusions.

62.  The wife's application should be refused because she has not satisfied subsection 44(4) as to hardship. 

63.  On the balance of probabilities the wife was aware from about April 1980 that the prescribed time for filing an application to alter property interests would expire in March 1981.  The wife knew then or was subsequently aware well prior to March 1981 that the husband did not propose to commence such proceedings but intended that she and the children could remain in the home but the property would be sold after the youngest child turned 18 and completed his education and the proceeds would be divided equally between the parties.

64.  On the balance of probabilities the wife until this year was happy to have that proposal implemented and did not want to take proceedings to alter the property interests of the parties.

65.  But assuming for the moment the wife had satisfied section 44(4) the issue would be whether it is now necessary to extend the time for commencement of property proceedings in order to avoid an injustice to the wife.  It is more likely than not that in 1994, 1993, 1981 and 1980 the wife was aware of the likelihood of being denied leave but at those times chose not to commence property proceedings within time and not to apply for leave to commence them out of time, even though she was aware that if she did not obtain orders altering their property interests, ultimately the home would be sold, she would be put out and the sale proceeds would be divided equally between the parties. 

66.  Now she has changed her mind.  The evidence does not establish any ignorance, irregularity, fraud, misrepresentation or other matter which might support a finding that it would be an injustice to the wife if she was not granted an indulgence to commence proceedings 18 years out of time.  On the contrary, she had knowledge of the limitation period and ample time to obtain legal advice as to the alternatives and her prospects.  In addition, apparently when she did obtain such advice, the wife chose not to commence proceedings despite the risk that her chances of obtaining leave would further diminish with the passing of time. 

67. The Husband over the last 18 years has organised his finances and his life on the premise that there would be no proceedings under Sec 79 and ultimately the house would be sold and the proceeds divided equally. He has proceeded to pay out the mortgage, pay the rates for more than 20 years, pay for repairs on the property, and allow the wife and the children rent free occupation of the home.

68.  There is no injustice to the wife in now holding her to her decision.  Leave should be refused because:(a)                 the wife has not established that refusal to grant leave would cause her hardship, and:(b)                 the wife has not established that it is necessary to grant leave to avoid an injustice.

ORDERS

69.  The orders of the court therefore are:

1. that the wife's application for spouse maintenance filed in the Local Court at East Maitland on 11 July 1978 and transferred to the Sydney Registry of the Family Court of Australia on 1 May 1979 be listed for hearing on a date to be fixed by the list clerk after after 7 May 1999;

1. that the wife notify the husband's solicitors within 7 days of the amount of spouse maintenance she now seeks;

1. that the husband and wife each file and serve by 7 May 1999:

(a)       an up-to-date financial statement, and
           (b)       any affidavits on which they seek to rely;

1. that the wife's amended application filed 22 February 1999 is dismissed as being out of time;

1. that the wife's Form 8 application filed on 22 February 1999 is refused and dismissed.

I certify that this page and the previous pages is a true copy of the judgment handed down by Justice Mullane dated  29 April 1999.

Associate

MAINTENANCE OF SPOUSE – Time of application – Once an application for spouse maintenance is filed, it can be determined at any time in the future.

PROPERTY SETTLEMENT – Leave to file an application out of time – Consideration of cases regarding the discretion.

This was an application, by the wife, for leave to commence property and spouse maintenance proceedings out of time.  The parties were married in 1966 and separated in July 1978.  There were 4 children of the marriage who continued to reside with the wife following separation.

Initially the parties were involved in proceedings in the Court of Petty Sessions, East Maitland, but then the matter was transferred to the Family Court of Australia in Sydney.

Spouse maintenance:

The wife had commenced proceedings for spouse maintenance in 1978, but when the proceedings were transferred the application was not pursued. 

Property:
The wife did not attend the hearing of the dissolution application commenced by the husband.  A decree absolute was issued on 4 March, 1980, and a copy of the decree was sent to the wife.  This document outlined the requirement for the wife to commence proceedings, in relation to property or spouse maintenance, 12 months from the date of the decree nisi.

The husband argued that hardship, pursuant to s.44 of the Act, could not be established because since separation he had paid out the mortgage on the former matrimonial home, paid the rates for 20 years, paid for the repairs to and maintenance of the property and allowed the wife and children rent-free occupation.

Held:
 1.The wife’s application for spousal maintenance did not require the leave of the Court to be pursued because the initial application filed in July, 1978, had not been disposed of and as such could be re-listed for hearing.
2. Bearing in mind that the Court did not have evidence of the parties’ contributions during the marriage, based on the husband’s contributions since separation, it was a very real likelihood that the present distribution of property interests would be found to be just and equitable. The corollary of this being that the wife was unable to establish that there would be hardship if leave was refused.  Furthermore, the wife was evasive and her evidence was unreliable when she was questioned about an explanation for the lengthy delay.