Rizzo & Lia
[2025] FedCFamC2F 631
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rizzo & Lia [2025] FedCFamC2F 631
File number(s): SYC 7157 of 2024 Judgment of: JUDGE NEWBRUN Date of judgment: 16 May 2025 Catchwords: FAMILY LAW – PROPERTY – Threshold hearing – date of separation – leave out of time. Legislation: Family Law Act 1975 (Cth) s 44 Cases cited: Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216
Skelton & Lindop (2022) 64 Fam LR 617
Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 5 May 2025 Place: Parramatta Counsel for the Applicant: Mr Robertson Solicitor for the Applicant: Abbas Jacobs Lawyers Counsel for the Respondent: Mr Butters Solicitor for the Respondent: Crimcorp Defence Lawyers Pty Ltd ORDERS
SYC 7157 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RIZZO
Applicant
AND: MR LIA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
16 MAY 2025
THE COURT NOTES THAT:
A.The wife commenced proceedings under section 90SM of the Family Law Act 1975(Cth) on 11 September 2024.
AND THE COURT DECLARES THAT:
1.The parties having finally separated on about 22 December 2022, the wife commenced proceedings under s 90SM of the Family Law Act 1975 (Cth) within the standard application period of two years after the end of the parties’ de facto relationship.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
On 21 January 2025 the court listed a threshold hearing as to whether or not leave should be granted pursuant to s 44(6) in relation to the commencement of property proceedings between the parties. The court appointed the threshold hearing to be heard on 5 May 2025.
The Court conducted the threshold hearing on 5 May 2025. At that hearing the parties tendered various documents and made oral submissions.
In these Reasons, for ease of reference, the applicant de facto wife shall be referred to as the wife and the respondent shall be referred to as the husband.
The wife was born in 1991, and is now aged 33 years.
The husband was born in 1987, and is now aged 37 years.
The parties were married in a religious ceremony in 2018.
The parties had three children together; X was born in 2019, Y was born in 2021, and Z was born in 2023.
The wife asserts that the parties finally separated on 21 December 2022. The husband asserts that during his relationship with the wife, the parties separated for short periods on a number of occasions however they finally separated on 30 July 2022 with the wife moving out on 1 August 2022.
Under s 44(5)(a)(i) of the Family Law Act 1975 (Cth) (“the Act”), the wife should have commenced proceedings for property adjustment under the Act within two years after the end of the de facto relationship.
Accordingly, on the wife’s contended date of separation, 21 December 2022, having commenced these proceedings on 11 September 2024, she was within time. On the husband’s contended date of separation, 30 July 2022, the wife was about six weeks out of time.
MATERIAL RELIED UPON
The wife relied upon:
(a)Her Initiating Application filed 11 September 2024;
(b)Her Amended Initiating Application filed 5 May 2025;
(c)Her affidavit filed 2 April 2025;
(d)Her balance sheet filed 13 November 2024;
(e)Her written submissions filed 30 April 2025.
The husband relied upon:
(a)Response to Initiating Application filed 18 November 2024;
(b)His affidavit filed 30 April 2025;
(c)Her Financial Statement filed 18 November 2024;
(d)Balance sheet filed 19 November 2024;
(e)His written submissions filed 2 May 2025.
The following exhibits became evidence in the proceedings:
(a)Exhibit A: ABN document for B Pty Ltd;
(b)Exhibit B: Paragraphs 101-112 of the husband’s affidavit filed 18 November 2024, together with annexures Q, S, T, and V from that affidavit;
(c)Exhibit C: Email of the wife to the husband’s solicitors dated 12 November 2024 with attached balance sheet of the wife;
(d)Exhibit D: Emails between the husband’s solicitors and the wife on 19 November 2024 with balance sheet attachments.
LEGAL PRINCIPLES
In Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216 at [23]–[31], the Full Court stated:
23The decision as to whether leave should be granted to commence or continue proceedings pursuant to Pt VIII of the Act essentially involves balancing two competing principles of public policy. The first is that the Commonwealth Parliament has stated that, ordinarily, such proceedings should be commenced within 12 months of the date of the divorce. The second is that relief from the operation of s 44 of the Act should nonetheless be granted out of time in order to avoid hardship to a spouse or a child of the relationship.
24In respect to that second consideration, s 44(4)(a) of the Act provides that an extension of time should not be granted under s 44(3) of the Act unless the Court is satisfied “that hardship would be caused to a party to the relevant marriage… if leave were not granted”.
25 In Whitford & Whitford (1979) FLC 90-612 at 78,145, the Full Court said:
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.
26We observe that in Family Law (2022, 7th ed) at [36.120], Riethmuller and Smith note that what constitutes appreciable detriment necessarily depends upon the circumstances of each case, stating that:
In many cases the substantial detriment is the inability of a spouse to pursue a claim for maintenance or an alteration or property interests where the resulting loss is significant in the light of his or her financial circumstances.
27The applicant for relief’s prospects of success in the proceedings, if leave is granted, is relevant to both the question of hardship and the second task undertaken by the Court, which is to consider matters going to the exercise of discretion generally. This is because “[if] the probable result of the hearing on the merits is that hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant would suffer hardship if leave were not granted”: V and S [2006] FCWA 2 (“V and S”), per Thackray J at [6].
28As recently noted by Austin J in Skelton and Lindop (2022) 64 Fam LR 617 (“Skelton and Lindop”) at [16]–[21], there is differing authority as to the test to be applied in determining the prospects of success. Those tests range from the need to establish “prima facie claim” to the need to establish “a real probability of success.” We respectfully acknowledge and adopt the reasoning of Austin J that the appropriate test to apply is whether the applicant for relief had “sufficient likelihood of success” to prove hardship.
29In the event of the trial judge finding that the applicant for relief would suffer hardship if an extension of time was not granted, it is then necessary for the trial judge to consider those matters going to the exercise of discretion. In V and S, Thackray J noted at [7] that, in addition to prospects of success, other potentially relevant considerations to the exercise of discretion may include the following:
•The extent of the delay and the reasons (or absence of reasons) for the delay: Althaus & Althaus (1982) FLC 91-233;
•The extent of the hardship the applicant would experience if leave were not granted: Carlon & Carlon (1982) FLC 91-272; and
•The extent of the prejudice that would be caused to the respondent if leave were granted.
30In Frost & Nicholson (1981) FLC 91-051 (“Frost & Nicholson”) at 76,425, Nygh J said that prejudice, in this context, “means that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought”. However, in Atwill & Atwill (1981) FLC 91-107 (“Atwill & Atwill”) at 76,794, Nygh J stated that the relevant prejudice would need to be “distinctly observable hardship, such as financial commitments made on the basis that no liability existed”. It appears to us that the extent of any prejudice is simply one of the relevant factors to consider and that Nygh J’s comments in these two cases should be read as descriptive of circumstances where prejudice is likely to be a weighty factor, not a test for the relevance of evidence of prejudice. Additionally, in Atwill & Atwill, his Honour also pointed out that the fact that the respondent will suffer prejudice does not necessarily mean that the discretion will be exercised in their favour.
…
31Applications seeking an interlocutory order under s 44(3) of the Act are generally dealt with on the basis that the applicant’s evidence is presumed to be correct “unless it is inherently unbelievable or contradictory” (Jacenko & Jacenko (1986) FLC 91-776 at [14]; Skelton & Lindop at [36]). It is important to appreciate that it is only in the event of leave being granted that the Court, at final hearing, will make a determination in respect to the accuracy or otherwise of the parties’ competing factual contentions.
In Skelton & Lindop (2022) 64 Fam LR 617 (see above), Austin J had stated inter alia:
21 It may be in this case the primary judge was saying no more than that the appellant did not demonstrate her case had “sufficient likelihood of success” to prove hardship, which would be the correct test, but his Honour’s reference in the reasons for judgment to not being satisfied “on the balance of probabilities” (at [82]), nor that the appellant’s claim has “a real probability of success” (at [87]), has the flavour of demanding more from the appellant than she needed to give. She certainly did not have to prove it was more probable than not that her claim for property settlement relief would succeed if allowed to proceed.
…
37 It is true the appellant did not lead evidence to explain why she omitted to bring her claim with the two-year limitation period, which is of course usually an influential factor, but it is not of itself necessarily fatal (Emerald & Emerald [2018] FamCAFC 217; (2018) FLC 93-870 at [128]; Carlon & Carlon [1982] FamCA 60; (1982) FLC 91-272 at 77,533). Significantly, the appellant sent a letter to the respondent in March 2018 (just before the limitation period expired) foreshadowing her intention to bring a claim, so he was on notice. The primary judge was satisfied the further eight months which then elapsed before the claim was actually filed in November 2018 was “not substantial” (at [94]). Moreover, the primary judge found the only prejudice the respondent would suffer if the appellant’s claim was allowed to proceed out of time would be the legal costs he would bear in defending her claim – but he would have been put to that expense anyway if the appellant’s claim was brought within time.
DISCUSSION
The Court recognises that there are some factual disputes between the parties. The Court, consistent with legal authority, inter alia, will take the evidence of the wife at its highest where in conflict with the husband’s evidence.
The Court will now deal with the factual dispute as to the date of separation.
As to the wife’s evidence relating to the date of separation, she expressly asserted that the parties separated on a final basis on 21 December 2022. She annexes to her affidavit copies of photographs of herself and the husband together from October 2022 to November 2022. In these photographs the parties are shown embracing each other (the latest photo dated November 2022), the husband kissing the wife on the cheek, the parties kissing each other on the lips (October 2022), and together with the children (October 2022, November 2022).
The wife states that in 2022 she discovered that she was pregnant with the parties’ third child.
The wife states that on 21 December 2022, being the date that she asserts the parties finally separated, she had visited Mr C (the wife’s brother) residence when Mr C presented documents to her which had been served on him by way of substituted service. The documents were from the solicitors of the husband and his former partner Ms D providing notice of certain legal proceedings. The wife asserts that shortly afterwards the parties had a phone conversation in which her brother Mr C was present. The wife asserts that she reiterated to the husband that she would not be joining him as a party to his proceedings. The wife asserts that the husband told her that she was being disrespectful and shortly thereafter sent a text message to her brother Mr C advising him that the wife and children were not to return home. The attached related text messages contain exchanges between Mr C and the husband and between the parties.
In one text dated 20 December 2022 Mr C tells the husband that the wife will be back soon and he is just making the children some dinner. The husband responds by stating that Mr C should tell the wife “to be back before it gets dark please”. Mr C agrees and tells the husband the wife is heading back shortly. In a later text message the husband texts Mr C stating:
[…]. Keep her there. I don’t want to see it at least until I calm down. I’ll come tomorrow to yours to pick up my car. I don’t want to hear from her nor do I want to see her here.
In one message (on about 22 December 2022) Mr C states to the husband that the wife needs clothes for herself and the children and asks him when a good time would be for him to pick up these items. The husband responds by stating that he will deliver the wife’s clothes the next day and pick up his car. He states, inter alia:
I won’t be trolled and disrespected and continuously be dragged into her psychotic senseless crap. When I’m gone hopefully then she’ll be able to appreciate everything I did. Starting problems for no reason and creating distance and hatred I will no longer be tolerating… Good luck to her and good bye.
In the next text from the wife to the husband she states, inter alia:
In that case please make sure you bring all mine and the boys clothing… all their toys and other belongings. Please give my brother notice before showing up tomorrow, so he can take out the baby seats. I wish you all the best wherever it is you disappear to.
The wife deposes that a few days later she returned to obtain her belongings and the children’s belongings and discovered the locks had been changed. She states the husband opened the door and she packed a few personal belongings. She stated meanwhile the husband had gone to the car that the wife had arrived in and removed the baby seats. The wife had stated previously in her affidavit that the husband had been living at the Suburb E property up to about February 2023. The wife states that she has been living with her brother Mr C at Suburb F since the date of separation.
As to the husband’s evidence relating to the date of separation, he states that during his relationship with the wife they separated for short periods on a number of occasions however they separated on a final basis on 30 July 2022. He annexes to his affidavit messages between the parties dated 31 July 2022. In one text message dated 31 July 2022 the wife states:
As well no longer be married shortly, it will be haram for you to have pics of me on your phone – please delete everything, but first send me any that have our children in them.
I’m deleting everything of you, if you want ones with you and our children before I do, let me know.
That is all
A few hours later the wife texts the husband asking:
What items to do want me to leave
To which the husband replies:
Everything
A text message is then set out from the wife to the husband stating:
If you can get the lease transferred tomorrow, last favour you ever do my children and I – let me use your car to move tomorrow. Otherwise, will need to move Tuesday so that tomorrow I can organise a blue slip and rego and seats on another car. If I can use yours, I’ll get out of your life sooner. Thanks.
The husband responds:
After you scratch it and then abuse me for it?
You are a piece of work!
But ok
The husband asserts that the wife moved out on 1 August 2022, following their final separation.
Taking the wife’s evidence at its highest, the parties’ final separation occurred on 21 December 2022 and therefore the wife would have commenced property proceedings in time; the wife commenced such proceedings on 11 September 2024 being within two years of the end of the parties’ de facto relationship. In making this finding at this threshold hearing, the Court has considered the parties’ competing evidence in relation to this issue as to the date of separation, as discussed above. However, the Court, having carefully considered the husband’s competing evidence in relation to this issue, does not regard the wife’s evidence as inherently improbable or unbelievable. In this context, inter alia, the Court observes that the wife’s evidence relating to the date of separation is consistent with the husband’s own evidence that there were short periods of separation before the final separation.
For abundant caution, if the Court is incorrect in finding that the parties’ final separation occurred on about 21 December 2022, and assuming that the parties actually finally separated on about 31 July 2022, the wife would be about six weeks out of time.
Assuming the wife is out of time by about six weeks, contrary to the Court’s above finding accepting the wife’s evidence as to the date of final separation, the Court will now consider whether leave ought to be granted.
The Court now turns to consider whether the wife has a “sufficient likelihood of success” to prove hardship, noting that hardship was otherwise conceded by the husband insofar as the wife’s financial circumstances were concerned.
The wife asserts that she has been the primary caregiver for each of the children throughout their lives and they continue to live with her. The Court infers from the wife’s evidence that she has also been the primary homemaker for herself and the children since the children’s birth to date.
The wife herself refers to the parties separating for a brief period of time in about late 2019 with the parties reconciling in about mid-2020. She asserts that after this reconciliation the husband began to stay with the wife and children and that he would alternate between staying between the wife and Ms D, spending two nights with each. At this time the wife refers to living in a one-bedroom apartment at Suburb G. She refers to the husband repaying debts that the wife owed to her family members for the financial assistance they had provided during the time the parties have been separated. She refers to Motor Vehicle 1 being transferred into her name by the husband for transporting the child X, and later refers to this vehicle being sold. She refers to the husband beginning assisting with household expenses and bills. She refers to the husband paying six months rent upfront for an apartment at Suburb E.
The wife asserts that she was gainfully employed in the husband’s company B Pty Ltd for about a year between November 2018 and September 2019 performing administrative work. She asserts that the parties entered into an agreement whereby instead of the wife’s weekly wage being paid into her account, the husband would direct that money to pay off a mortgage loan on a property at Suburb H which the husband and Ms D had previously purchased. The wife asserts she did not receive any wages from the husband.
Post-separation, the wife has been solely responsible for and meets almost all the costs of herself and the children. She asserts that the husband has not seen the children X and Y since final separation. She asserts that the husband has not yet met the youngest child. She asserts that the husband ceased all financial support after the final separation.
The wife is not gainfully employed and she has continued to provide full-time care and support to the children. She asserts that since final separation she has been in a position of financial hardship. The husband does not pay child support or financially assist the wife in any way with their care. She asserts she is relied upon government payments for all living expenses for the children and herself and she is struggling financially.
Accordingly, at a final property hearing, based upon the evidence at the threshold hearing, the wife could at least contend that she made significant contributions as a homemaker and parent to the parties’ three children, and that she has continued to make such contributions to date in relation to the children. She is a full-time parent. She asserts she is receiving no child support from the husband. She may well contend at a final property hearing that she has future needs under s 75(2) of the Act.
As to the property pool, the husband, in submissions, acknowledged that there was some $368,000 in a trust account being the husband’s share of the proceeds of sale of a property at Suburb E between himself and his former partner Ms D. (The Court notes that it made interim injunctive orders relating to this sum of money being placed in the trust account). The wife in these proceedings has not asserted that she made any direct financial contribution towards this property. The husband also, in submissions, by reference to the balance sheet filed on 19 November 2024, acknowledged further property pool assets of some $64,680. Thus, for the purpose of this threshold hearing, the property pool assets total a sum of about $432,680.
Further, as to the property pool, the husband submitted that the above balance sheet filed 19 November 2024, which he contended was a collaborative balance sheet with the wife (and in this regard the husband relied upon the documents in Exhibit D), showed the husband having significant liabilities in the sum of about $384,208. The husband contended that when one took into account this figure of $384,208, together with at least the wife’s contended legal costs up to and including a final property hearing of some $60,000, it would be futile for the Court to grant leave to the wife to commence property proceedings out of time. In this regard, the husband submitted that the wife, assuming that she was successful in the property proceedings to some extent, would not have any net property pool funds to resort to. The husband submitted that any hardship caused to the wife could not be cured by the Court granting leave to her to commence proceedings out of time. These contentions were resisted by the wife at the threshold hearing.
The wife, in particular relying upon the evidence in Exhibit B, contended that the liabilities referred to in the balance sheet filed 19 November 2024 were not liabilities arising out of the parties’ relationship. For example, the ATO debt of some $102,127 was submitted by the wife to be a debt of the husband’s company B Pty Ltd and in this regard she relied upon an ATO debt notice to the husband’s company in this sum dated 12 June 2024. She contended that the husband’s “[Wood] Debt”, in the sum of $61,600, was not supported by adequate evidence in the husband’s case because the husband had merely relied upon a handwritten document from an alleged product supplier in this regard. The Court observes that the husband’s asserted liability in the above balance sheet for rental equipment – PV Solar System in the sum of $82,081 – was merely asserted by the husband to be supported by a letter from K Company and Rental Agreement. The wife submitted that the husband’s asserted liability in the above balance sheet for a loan repayable to Mr J in the sum of $80,000 was merely supported by a handwritten alleged loan agreement between the husband and this person which was unsigned by the husband, and was only repayable under that alleged agreement if the alleged lender provided the husband with a written notice of demand of which there was no evidence.
It was common ground at the threshold hearing that the balance sheet filed 19 November 2024 was completed at a time when the husband had legal representation in relation to such balance sheet and that the wife was legally unrepresented. The Court is of the view that it is not clear at all that the wife, at the time when this balance sheet was being drafted and finalised, was unequivocally acknowledging that the husband’s liabilities appearing in items 18, 20, and 22, and totalling the sum of $384,208 were liabilities arising out of the parties’ relationship, as opposed to merely liabilities to which the husband was subject. In this regard, for example, it is difficult to understand that the wife, in relation to the husband’s legal fees to Crimcorp Defence Lawyers in the sum of $200,000 (appearing at item 22 in the above balance sheet) which the husband himself acknowledges arise from his proceedings with his former partner Ms D, had previously accepted that those fees in some way arose out of the parties’ relationship. In this regard the Court would not attach any significant weight to the husband’s evidence that he “firmly believes” that his former partner Ms D and the wife cooperated with each other and were complicit in the way that they conducted the proceedings between the husband and Ms D; there is no significant evidence to bear out this belief.
Accordingly, it would appear to the Court that at a final property hearing between the parties, based upon the evidence of this threshold hearing, it would be open to the wife to contend that the husband’s contended liabilities appearing in the balance sheet filed 19 November 2024 should not be found to be liabilities arising out of the parties’ relationship.
Again, as far as assets are concerned, the property pool is some $432,680. On behalf of the wife, legal costs up to and including a final property hearing were estimated at about $60,000. Even allowing $60,000 for the husband’s similar costs, there are still available funds in this property pool to allow for a potential significant property adjustment in the wife’s favour.
Taking the wife’s evidence at its highest, and having regard to the above discussed evidence, she probably has a “sufficient likelihood of success” to prove hardship. Again, the wife asserts that she effectively made a significant contribution as homemaker and parent both during the parties’ relationship and to date. She also asserts that she assisted the husband in his company’s business for about a year.
Thus, in this context, the Court finds that the wife would likely suffer hardship if she was not permitted to pursue her claim for property adjustment orders. Again, the wife is struggling financially, is a full-time carer for the children, is receiving no child support from the husband, and is reliant upon government benefits for subsistence for herself and the children.
The Court will now discuss relevant matters going to discretion, again, on the assumption that, contrary to the Court’s acceptance of the wife’s evidence that the parties separated on 21 December 2022, the parties separated on 31 July 2022 as contended by the husband. In this regard, the assumed delay of about six weeks is small. There is no express explanation by the wife for this assumed delay because her evidence asserts that the parties in fact finally separated on 21 December 2022. In any event, in this case the degree of hardship to be suffered by the wife, if not permitted to proceed with her property adjustment claim, would, in the Court’s view, outweigh any inadequate delay explanation, with the Court emphasising the short period of delay.
Although the husband complains of alleged cooperation and collusion between the wife and his former partner Ms D in relation to the husband’s property proceedings with Ms D, and in relation to which the Court has briefly discussed above, he did not make any express submission that there was any significant prejudice arising out of a delay of some six weeks in the wife commencing proceedings. This was not surprising because the husband adduced no evidence that he would not have settled his property proceedings with Ms D (or would have conducted those proceedings any differently) had the wife commenced her own property proceedings prior to 31 July 2024.
Having regard to the above discussed matters, the Court will declare that the wife commenced proceedings in time. Thus, it will not be necessary to grant leave to the wife under s 44(6) of the Act to make an application for orders under s 90SM of the Act out of time. The Court will make orders accordingly.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 16 May 2025
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