Richardson & Richardson
[2008] FamCAFC 107
•16 July 2008
FAMILY COURT OF AUSTRALIA
| RICHARDSON & RICHARDSON | [2008] FamCAFC 107 |
| FAMILY LAW – APPEAL – Application for leave to appeal – Property and Spousal Maintenance – Where the trial Judge granted wife leave under s 44(3) of the Family Law Act 1975 (Cth) to institute property and spousal maintenance proceedings some 13 years out of time – Whether the trial Judge erred in finding that hardship would be caused if the wife were not granted leave to institute proceedings – Whether the trial Judge erred in exercising her discretion to grant leave to institute proceedings – Where the parties had virtually no property at the time of separation – Where the husband provided housing and financial assistance to the wife after separation – No merit found in the challenge – Application for leave to appeal dismissed |
| FAMILY LAW – COSTS – Circumstances justifying order – Husband to pay wife’s costs |
| APPELLANT: | Mr RICHARDSON |
| RESPONDENT: | Mrs RICHARDSON |
| FILE NUMBER: | PAF | 5698 | of | 1991 |
| APPEAL NUMBER: | EA | 108 | of | 2006 |
| DATE DELIVERED: | 16 July 2008 |
PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Finn, Warnick & Boland JJ |
| HEARING DATE: | 22 August 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 October 2006 |
| LOWER COURT MNC: | [2006] FamCA 1015 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hodgson |
| SOLICITOR FOR THE APPELLANT: | Atkinson Vinden Heazlewoods |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Commission NSW |
Orders
That the application for leave to appeal be dismissed.
That the applicant husband pay the respondent wife’s costs of and incidental to the application for leave to appeal with such costs to be assessed under the Family Law Rules 2004 in default of agreement.
IT IS NOTED that publication of this judgment under the pseudonym Richardson v Richardson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 108 of 2006
File Number: SYF 5698 of 1991
| Mr RICHARDSON |
Appellant
And
| Mrs RICHARDSON |
Respondent
REASONS FOR JUDGMENT
This is an application for leave to appeal and if leave be granted, an appeal by the husband against an order made by Moore J on 11 October 2006 dismissing an application by the husband for a review of orders made by a Judicial Registrar on 10 August 2006.
By his orders the Judicial Registrar had granted the wife leave under s 44(3) of the Family Law Act 1975 (“the Act”) to institute proceedings against the husband for property settlement and spousal maintenance orders, notwithstanding that the time for the institution of such proceedings provided in s 44(3), had expired.
Section 44(3) provides that certain types of financial proceedings between parties to a marriage, including proceedings for property settlement and proceedings for spousal maintenance, cannot be instituted without the leave of the court after the expiration of 12 months from the date on which the divorce order in relation to the marriage has taken effect. Sub-section 44(3) is in the following terms:
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.
Sub-section 44(4) then provides:
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.
In the present case the effect of Moore J’s order of 11 October 2006, which the husband now seeks to appeal, was to confirm the leave given to the wife by the Judicial Registrar to institute proceedings against the husband for property settlement and spousal maintenance some thirteen and a half years after the period in which such proceedings could have been instituted without leave, had expired.
It was accepted before us that the authorities establish that an order granting leave pursuant to s 44(3) to institute proceedings is an interlocutory order and that therefore leave is needed to appeal such an order (Emamy and Marino (1994) FLC 92-487). It was also accepted that in order to obtain leave to appeal, the husband had to establish that there had been an error of principle in the making of the order or that the order worked a substantial injustice to him.
The factual background
At the time of the hearing before her Honour on 5 October 2006, the wife was aged 53 and the husband 55.
The parties had married in December 1970 and had had three children who were aged 29 to 35 at the time of the hearing.
The parties separated in mid 1990 and were divorced on 28 November 1991. The time for bringing property settlement and spouse maintenance proceedings therefore expired at the end of December 1992 (s 44(3)). Neither party had brought such proceedings within that time.
In paragraph 10 of her reasons for judgment of 11 October 2006 Moore J set out her findings in relation to events following the separation of the parties. Given that her Honour’s findings regarding these events informed her ultimate conclusion that she should grant leave to the wife to institute property and spouse maintenance proceedings some thirteen and a half years “out of time”, it will assist an understanding of her Honour’s conclusion if we set out the greater part of those findings:
(a)In the latter part of [the] marriage [the wife] suffered from undiagnosed ill health…
(b)From towards the end of 1992 until about 1997 [the wife] was accommodated at a nursing home in a bed sit, she was in receipt of sickness benefits and she had some small income of around $100 per week from work she did at the nursing home assisting with patients and with lunches. She had no other income from paid employment after the separation.
(c)At separation… the children were aged around 19, 15, 13. They remained living in the family home with their father. Their mother continued to visit regularly of a weekend, often staying overnight, when she undertook tasks related to the children’s arrangements. There were no significant assets at the time they separated. Nonetheless, there was furniture and other household items which [the wife] left there so as to provide for the children.
…
(f)At no time did [the wife] seek any legal advice about property or spouse maintenance.
(g)In 1994 [the wife] accompanied her former husband to look at a property he was purchasing at Epping. This was acquired and he and the children then moved to live in this home.
(h)In 1997 [the wife’s] health deteriorated and the nursing home accommodation was no longer available to her. She went to live with [one of their children]. [The husband] provided some rental assistance for her… for a few months and [the wife] then moved to another property for a while and [the husband] paid the rent there.
(i)In 1997 [the husband] won $3 million in a lottery. He gave [the wife] $500 at the time. He purchased some investment properties, including [another property at Epping] where he went to live.
(j)[The wife] then moved into the Epping home [the husband] had purchased in 1994. Prior to his departure overseas late in 1997, [the husband] took her to see a villa at Epping and said something to her about buying it and her living in it. There is dispute about what he said. On her account of it, he told her if she likes it he would buy it for her, it would be in his name, but she would be entitled to live in it for life. On his account, he permitted her to move into the property ‘on the basis she sign a Residential Tenancy Agreement’ and also on the basis that she could live there until he needed to sell or occupy the property for his own purposes. He says he was concerned to keep the children happy. The reliability of one account or the other is not for determination here. [The wife] signed ‘some document’ given to her by his accountant before she moved in, but the Tenancy Agreement [the husband] now produces is inconsistent with either account of the arrangement agreed, it is at odds with what actually occurred, and it does not reflect her continued occupation of the property for the past 8 years.
(k)[The husband] has paid all expenses related to the property she has occupied, including rates and land tax.
(l)In 1998 she saw a local doctor, Dr [Z], who assisted her to apply for a disability pension. She still receives a disability pension and she regularly sees Dr [Z]. In his short report, Dr [Z] says he has been treating her since May 1998. She reported at the time being unwell for a year [but on reviewing his notes he corrected that to 6 years] complaining of tension, feeling hopeless and not being able to ‘get her head straight’. Other doctors diagnosed her as suffering from chronic fatigue syndrome. He saw her regularly and has given her vitamin B12 injections fortnightly as well as supportive counselling ‘as it was apparent she was suffering from a depressive disorder.’ She has made a reasonable recovery, he says, over the years. Initially she could not leave the house but in the last five years or so [pre 2006] she has been able to go to the shops and the Epping Club at nights. She has more energy and seems less depressed. In his opinion, she was suffering from a depressive illness and possibly a post viral fatigue type of illness. He commented she had been on the disability pension in the time he has treated her and he does not feel she is fit for employment at present.
…
(n)The exhibits also reflect her ill health with symptoms of depression, chronic fatigue syndrome and disordered thought processes.
(p)During 2004 [the husband] gave her his credit card to use for payment of dental treatment on the basis that she would pay off any amount debited to the card. She fell behind with payments in late 2005 and it created some discord. She says she is now paying off the debt of $7,200 odd. [The husband] says he is also paying $300 - $500 per month to avoid a bad credit rating.
(q)[The husband] says in 2003 he invested in a business venture which ultimately failed [he does not elaborate] and there is a debt of $460,000 borrowed from a bank secured against the property in which [the wife] lives. Acting on the advice of his accountant, he accepts it is best to sell the property which he says is valued at $470,000.
(r)There were developments in 2005 that brought into question her continued occupation of the Epping villa. [The husband] informed her he could not afford to keep her there, he needs the money, so she will have to ‘get out’. Correspondence between solicitors was exchanged and culminated in [the wife] filing this application in June 2006.
(r) [sic][The wife’s] current circumstances are that she receives a disability pension of $252 per week. That is her only income. She has no assets apart from some minimal household furniture she estimates to be worth around $400. She has the credit card debt of $7,244 just mentioned.
(s)[The husband’s] current circumstances are not apparent as he has not filed a financial statement. However, he says he is retired and living on his investments. Despite his evidence of difficulties meeting the $3,000 per month mortgage repayments on the debt secured against the property [the wife] occupies, it can be inferred he has property and means of some substance.
The principles relevant to a s 44(3) application as stated and applied by moore j
At an early point in her reasons for judgment, Moore J set out the provisions of s 44(3) and s 44(4) (which we have already set out), and then went on to explain that s 44(4):
…contemplates leave being granted if one or other or both circumstances can be established; namely, (a) hardship would be caused to a party (or child) if leave were not granted or (b), in relation to proceedings for spouse maintenance, at the end of the period within which the proceedings could have been instituted without leave, the circumstances of the applicant were such that she (in this case) would have been unable to support herself without an income tested pension, allowance, or benefit (at paragraph 5).
Her Honour then further explained with reference to the “hardship test” contained in s 44(4), that unless hardship is established, the application for leave to institute proceedings out of time, must be dismissed, but that even if hardship is established, a discretion remains to be exercised (having regard to a number of factors to be found in the authorities) as to whether to grant leave:
6. Taking ‘hardship’ as a base, unless that is established, the application for leave must be dismissed. If satisfied hardship would be caused, it remains necessary to consider whether to exercise the discretion to grant the leave sought. In that, regard may be had to a number of factors which include - but are not limited to - the length of the delay, adequacy of the explanation for the delay, prejudice occasioned to the respondent by reason of the delay and the strengths of the applicant’s case and the degree of hardship that would be suffered unless leave is granted. [Whitford and Whitford (1979) FLC 90-612; Hall and Hall (1979) FLC 90-679; Cox and Cox (1981) FLC 91-068]. The power should be exercised liberally in order to avoid hardship, but in a manner that does not render nugatory the requirement for proceedings to be instituted within a year of divorce [Whitford and see Boulos and Boulos, EA2Lof 2003, delivered 18 November 2003 (per Ellis, Holden and Brown JJ)].
As to the discretionary factors to be considered if hardship is established, her Honour explained:
7. “If hardship is established, this passage from the Full Court in Carlon and Carlon (1982) FLC 91-272 at 77,533 sounds a cautionary note about discretionary factors:
“… it is in our judgment a correct statement of the law that while Parliament in sec. 44(4) has placed a fetter on the discretion of the Court, the Court itself should not and probably cannot do the same by laying down any strict principles such as that a party must give an adequate explanation for delay. Once hardship has been established in the sense referred to in Whitford (supra) then the Court is in the exercise of its discretion at large and should take into account all relevant facts including, if that be the case, that no or no satisfactory explanation has been given for delay. Such a position namely no or no satisfactory explanation for delay is no more than another factor which must be given appropriate weight in the exercise of discretion.” [See also Neocleus]
8. Prejudice to the respondent may be established by a variety of considerations, including where financial affairs have been re-organised without any reasonable anticipation proceedings would be brought [eg. In the Marriage of Atwill (1981) 7 Fam LR 573], though there may be others.
Finally, in her explanation of the principles to be applied in determining an application for leave under s 44(3), her Honour said:
9. As for procedure, an application such as this is a limited inquiry into the merits of the proposed claim. The only question to be determined is whether leave should be granted to enable proceedings to be instituted [Whitford at 758, 759 supported and discussed in Neocleus]; it is not a decision about whether the claim will succeed but whether there is a reasonable claim to be heard [per Evatt CJ in Althaus and Althaus (1982) FLC 91-233, at p. 77,267]…
Given that the primary question for us is whether or not we should grant the husband leave to appeal Moore J’s confirmation of the grant of leave to the wife under s 44(3), we observe at this point that we do not consider that there was any error on her Honour’s part in her statement of the principles to be applied. We turn now to her application of those principles.
In considering whether, and then determining that, the wife had established “a prima facie” claim to property settlement and that hardship would be caused if she was not granted leave to bring such a claim, her Honour set out what she described as “a broad outline” of the history of the parties’ relationship:
15. … I turn to the broad outline of the history of their relationship. This is a marriage of 20 years duration of [sic] thereabouts during which three children were born and those children were aged 19, 15 and 13 at the time of the separation 16 years ago. The youngest was then still at school. Not much is apparent from the evidence of either party about contributions during the course of the 20 years together raising three children, but there can be little doubt that contributions of varying kinds fitting the description in s 79(4) would have been made. In the years following separation, until the children attained adult status or were self supporting, undoubtedly there were continuing contributions. It is plain enough from what has been said that their father, whatever his role with the children and home prior to separation, took on a primary role with the children and the household thereafter. That was not exclusive of [the wife], however, as she returned to the home periodically for a time. Hers was a situation of need after separation because of the state of her health and well being. There was little property available to distribute between them at the time - that is true - but however modest their value, there were some assets that remained with [the husband] in the home with the children. [Counsel for the husband] may very well be right to say that had an application for property settlement been brought at the time there would have been no distribution between them, particularly given the youngest child’s situation. But [counsel for the wife] is right to say that the property to which contributions and s 75(2) adjustment would be applied if property proceedings were permitted is not property as it existed at 1992 or thereabouts but the property that exists now. Of that there is no detail from [the husband], but in the absence of specifics it can be inferred that there is property against which an order could be made if warranted. Like Farmer and Bramley, the more significant step in that process would be not so much contributions as the s 75(2) adjustment necessary to arrive at a just and equitable outcome. If property proceedings were permitted, there would be no cause to distinguish what was said by the majority in Farmer and Bramley from the facts of this case. That is, (per Finn J) there is nothing in s 79(4)(c) to limit an entitlement based on contributions identified there to being satisfied out of property available at the times contributions were made and the jurisdiction to alter interests in property is limited only by the just and equitable criterion and extends to all property to which either is entitled ‘whether in possession or reversion’. Contributions towards the acquisition of an asset by one party (per Kay J) and the lack of contributions towards it by the other may weigh heavily in the exercise of discretion, but it is wrong to say contributions identified in s s 79(4) [sic] before an existing asset was acquired could have no bearing on the outcome of the proceedings. All contributions have to be evaluated from the beginning of the relationship until the hearing and given such weight in the process as is appropriate.
16. In the circumstances discussed, it is my view that [the wife] has established a prima facie [sic] to property settlement and it is my assessment that hardship would be caused if leave were not granted to bring such a claim. That view about hardship is more fortified in relation to a spouse maintenance claim, given her apparent inability to support herself and setting to one side her pension, as obliged by the legislation.
17. Turning to s 44(4)(b) which is referable only to a spouse maintenance claim, I have little hesitation in finding the test satisfied. That is to say, I am satisfied the evidence demonstrates that at the end of 1992 when such proceedings might have been instituted without leave, [the wife’s] circumstances were such that she would have been unable to support herself without an income tested pension, allowance or benefit. She was at that time in receipt of a sickness benefit with a small supplement to her income from assistance given at the nursing home where she lived. This reinforces the conclusion based on hardship.”
Then in relation to the exercise of the discretion as to whether to grant leave, her Honour considered first whether the wife had an adequate explanation for the delay and then the issue of prejudice to each party:
18. Coming to matters relevant to the exercise of discretion, there are two periods relevant to the delay. As for the pre-1997/98 period, her own evidence and the medical records produced demonstrate sufficiently that [the wife] was in ill health from prior to the separation and that continued to be her situation for some time thereafter. The divorce application refers to her ill health, as does the affidavit of their daughter filed to support it. There were later times she needed the assistance of [the husband] and he provided it. Contrary to the position put for [the husband], I do not see the history of her health as irrelevant to the delay and nor do I conclude she should be seen as capable of instructing solicitors or instituting proceedings to seek entitlement to property settlement and/or spouse maintenance because of the interaction she had with various personnel in the health or welfare fields during those earlier years. As for the later period, I see that as entirely explicable by reason of the accommodation support and other support [the husband] provided without any intimation (apparently) to her until recently that her occupation of the Epping property would be disturbed. His voluntary assistance, therefore, is sufficient to explain the failure to act over the last 8 years or more. As I find, there is adequate explanation for the delay.
19. As for prejudice, [the wife] has no means of support other than the disability pension and the housing that has been provided to her for the past years. I accept there would be significant prejudice to her if she were not granted leave to institute claims in circumstances where she has a case to argue. On the other hand, there would be prejudice to [the husband] in permitting the claims to be made in the sense that having won $3 million in the lottery in 1997 he had no reason to think, at any time as he went about organising his financial affairs and his own lifestyle, including making voluntary provision for [the wife’s] accommodation over many years and providing other benefits, there might be a monetary claim made by his former wife. The prejudice to each on either outcome is recognised but that has to be balanced one against the other.
Her Honour’s ultimate conclusion was then expressed in the following terms:
20. Ultimately I have concluded leave ought to be granted to allow [the wife] to make an application for property settlement and for spouse maintenance notwithstanding the time that has elapsed. I am satisfied hardship has been established; I am further satisfied in relation to her maintenance that at the end of 1992 her circumstances were such that she would have been unable to support herself without an income tested pension, allowance or benefit; I consider she has provided a sufficiently satisfactory explanation for the delay in bringing the proceedings; and, while the prejudice to [the husband] in granting leave after all this time is recognised, it is an appropriate case in which to exercise discretion to grant the leave sought. That being consistent with the order of the Judicial Registrar, it follows the review application will be dismissed.
Asserted errors of principle or of law
It emerged from the oral submissions of Counsel for the husband that the asserted errors of principle on the part of the trial Judge relied on in support of the husband’s application for leave to appeal, were to be found in Grounds 3 and 7 of the husband’s proposed grounds of appeal. Those proposed grounds assert that her Honour erred in law in:
(3) … determining that the Wife should be granted leave to institute proceedings for property settlement in circumstances where had she instituted proceedings within the requisite time limit, there would have been no property of the parties available for division between them.
(7) … finding that hardship to the Wife had been demonstrated in circumstances where no prima facie case of the Wife to property settlement could be established.
It will be seen that these two proposed grounds are directed to the fact that the parties had virtually no property at separation, and therefore it could be argued (and indeed was forcefully argued before us by counsel for the husband) that the wife could not have had a prima facie case at the time when the proceedings should have been instituted, and thus she could not establish hardship.
It is clear from paragraph 15 of her Honour’s reasons (quoted in paragraph 16 of these reasons) that she was well aware of the fact that the parties had virtually no property at the time of their separation, and also that this fact was a significant issue in the proceedings before her.
Her Honour can thus be seen in paragraph 15 of her reasons to have considered the arguments which were put to her on behalf of both parties, and which were repeated to us, concerning the fact that the parties had virtually no property at separation and the impact of this fact on the wife’s application for leave to institute proceedings.
We are not persuaded, at least as presently advised, that her Honour was wrong in law in effectively concluding that the absence of any significant property at the time when the proceedings should have been instituted, does not (as a matter of law) preclude the grant of leave under s 44(3) to institute proceedings at a subsequent time when some property has become available for distribution between the parties. We would, however, observe that in such circumstances, the discretion to grant leave should be exercised with great care.
We would also observe that as was pointed out by counsel for the wife, within two years of the expiration of the period in which the wife could have instituted proceedings without leave, the husband purchased a property. It is conceivable that had the wife commenced proceedings within time, those proceedings might not have been determined until after the husband had purchased that property. This observation serves only to illustrate that the absence of significant property at the expiration of the period when proceedings could have been instituted, must be regarded as a discretionary matter only and not an issue of principle.
It should also be borne in mind in this context that this was not a case where the wife sought to commence proceedings once the husband had acquired some property or later significant property through his lottery win. Rather she only sought to institute proceedings once the support which he had been providing for her was withdrawn or substantially altered or proposed to be withdrawn or substantially altered (cf Whitford (supra) at 78,147).
It also emerged from the submissions of counsel for the husband that although not raised by the proposed grounds of appeal, a further error of principle was sought to be established on the basis of her Honour’s apparent reliance in finding “hardship” (both for the purposes of leave to institute property settlement and spouse maintenance proceedings) on the wife’s inability to support herself without an income tested pension allowance or benefit. It was submitted that there was no evidence to support that conclusion regarding the wife’s position at the relevant time, being December 1992.
The only evidence before her Honour of the wife’s financial position at that time would appear to be the following paragraphs in her affidavit sworn 22 May 2006:
10. In December 1990 I obtained emergency accommodation and had started to receive a sickness benefit. I remained on the sickness benefit until approximately 1997 and submitted Doctors certificates to [sic] Department of Social Security and Centerlink [sic].
11. At this time and continuing to the period of one year after our divorce I was very ill and unsettled I [sic] was on sickness benefits and unable to support myself.
…
14. From about September 1992 until about 1997 I obtained accommodation at a nursing home at [W] in a bed sit. I was still in receipt of a sickness benefit and also obtained a small income from work done for the home in the nature of assisting with patients and lunches. From this employment I obtained approximately $100 per week. This is the only paid employment I have had since 1990.
Notwithstanding the submissions of counsel for the husband, we are satisfied that her Honour was entitled on the basis of this evidence, to conclude that:
17. … the evidence demonstrates that at the end of 1992 when such proceedings might have been instituted without leave, [the wife’s] circumstances were such that she would have been unable to support herself without an income tested pension, allowance or benefit. She was at that time in receipt of a sickness benefit with a small supplement to her income from assistance given at the nursing home where she lived.
There is no substance for the following reasons in the further submission which we understood counsel for the husband to make, being that it was not established that “a sickness benefit” was “an income tested pension, allowance or benefit”.
“Income tested pension, allowance or benefit” is defined in s 4 of the Act to mean “a pension, allowance or benefit prescribed, or included in a class of pensions, allowances or benefits prescribed, for the purposes of this definition”.
Included in the “pensions, allowances and benefits” which are prescribed by Regulation 12A of the Family Law Regulations 1984, for the purposes of the definition in s 4 of the Act is:
(b) a social security pension or a social security benefit within the meaning given by sub-section 23(1) of the Social Security Act 1991 (Cth).
Sub-section 23(1) of the Social Security Act 1991 (Cth) (which was stated to commence on 1 July 1991) originally included and still includes a “sickness benefit” within the meaning of “social security benefit”.
A sickness benefit was therefore an “income tested pension, allowance or benefit” at all times that might be relevant in this case.
We thus conclude that her Honour could not be said to have erred in principle or in law in the way asserted by proposed Grounds 3 and 7.
Asserted errors in the exercise of discretion
The remaining five proposed grounds of appeal are all expressly directed to her Honour’s exercise of discretion, and for the most part are concerned with matters of weight. These grounds assert that her Honour erred in the exercise of her discretion in:
(1) … that the result embodied in her order was plainly unreasonable and manifestly unjust.
(2) … failing to place sufficient weight upon the inordinate delay by the Wife in seeking to institute proceedings for property settlement and spousal maintenance.
(4) … failing to place sufficient weight upon the inadequacy of the wife’s explanation for her delay in seeking to institute proceedings.
(5) … failing to place sufficient weight upon the prejudice to the husband of permitting the wife to institute proceedings.
(6) … failing to place sufficient weight upon the benefits which the husband had voluntarily bestowed upon the wife since the time of the parties’ divorce.
In so far as these further proposed grounds raised the long period of delay by the wife in seeking to bring financial proceedings in this case, counsel for the husband sought to rely before us on the fact that the period in this case was, on the basis of his research of earlier cases, one of the longest periods of delay after which leave had been granted under s 44(3). That may well be so. But it would not of itself be a reason for not exercising the discretion in favour of granting leave. Rather it would be a reason for the court in exercising the discretion, to take care in satisfying itself that there was an adequate explanation for the delay. We are satisfied (notwithstanding the complaint contained in proposed Ground 4) that her Honour did this in paragraph 18 of her reasons (see paragraph 17 above).
In our view, the more significant issue raised by these further grounds of appeal is the weight to be placed on the housing and other financial assistance which the husband had given the wife in the years since separation and which her Honour described in paragraphs 10(i), (j), (k) and (p) and again referred to in paragraphs 18 and 19 of her reasons (see paragraphs 10 and 17 above).
We acknowledge that his earlier financial assistance to the wife is a matter on which the husband might rely in seeking to establish that an injustice has been occasioned to him by now having to face property and spousal maintenance proceedings after so many years of providing assistance to the wife. On the other hand, it might be argued that because he has provided financial support to the wife voluntarily over the years, it would not be an injustice to him if he had to do so by virtue of a court order.
Furthermore, in the absence of evidence concerning the husband’s precise present financial position, it is difficult to conclude that any injustice to him has been occasioned.
We acknowledge also that the husband may well feel aggrieved that the fact that he provided financial assistance to the wife for so long was relied on by her Honour (in paragraph 18 of her reasons) in reaching the conclusion that the wife had an adequate explanation for her delay in seeking to commence proceedings.
However, it has to be recognised that it is often the case that the more unusual the facts of a case in this discretionary jurisdiction, the more highly discretionary will be the outcome; in other words, in a case such as this, minds will clearly differ on what should be the correct outcome, with there being no uniquely correct outcome.
The individual judges who constitute this appeal court might or might not have exercised the discretion in favour of the wife in this case having regard particularly to the husband’s previous financial assistance and the length of the delay. But that of course is not the test (House v The King (1936) 55 CLR 499).
After a careful weighing up of all apparently relevant matters on the basis of the material before her, including the prejudice to the husband of permitting the wife to institute proceedings, her Honour was prepared to exercise the discretion in favour of the wife. It could not, in our view, be said that she erred in the exercise of her discretion in any way which would justify appellate interference with her decision
Conclusion
It follows from what we have said that the husband has not established to our satisfaction that the trial Judge erred in principle nor are we satisfied that the refusal of leave would cause the husband substantial injustice. All that the husband faces is that the ongoing financial issues between him and the wife will simply be determined according to law, with regard being had, no doubt, in that context, to the assistance he has provided to the wife to date.
Accordingly, we would not be prepared to grant the husband leave to appeal her Honour’s orders, and his application must be dismissed.
Costs of the application for leave to appeal
In the event that the husband’s application for leave to appeal were to be dismissed, the wife who is legally aided sought that the husband pay her costs on the basis of the husband’s lack of success (which follows his lack of success before the trial Judge and the Judicial Registrar).
We are of the view that the circumstances justify the making of an order for costs in favour of the wife (with such costs to be assessed in default of agreement).
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date:
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