ROYCE & ROYCE

[2015] FCCA 3111

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROYCE & ROYCE [2015] FCCA 3111

Catchwords:  
FAMILY LAW – Property – application under section 44 of the Family Law Act for leave to institute proceedings under section 79 out of time.

Legislation:

Family Law Act 1975, ss.44(3), 44(4), 79

Applicant: MS ROYCE

Respondent: MR ROYCE

File Number: PAC 627 of 2011

Judgment of: Judge Brewster

Hearing date: 16 November 2015

Date of Last Submission: 16 November 2015

Delivered at: Parramatta

Delivered on: 20 November 2015

REPRESENTATION

Solicitors for the Applicant: Dribbus Kovacevic Lawyers

Counsel for the Respondent: Mr Morley

Solicitors for the Respondent: Amanda Little & Assoc

ORDERS

1. That pursuant to section 44(3) of the Family Law Act I give leave for the applicant to institute proceedings under section 79 of the Act for alteration of property interests. In this respect her application filed 17 October 2014 may serve as that application.

2. That I direct the parties to attend a conciliation conference with a Registrar of the Court on 28 January 2016 at 2.15pm.  If the matter does not resolve at the conference it is listed for directions on 18 March 2016 at 12 noon.

3. I direct that if the applicant’s financial position has changed since her financial statement was filed on 17 October 2014 that she file a fresh financial statement or an affidavit outlining the changes.  Moreover if her material circumstances have changed in other respects she is to file an affidavit outlining those circumstances.  Such financial statement or affidavit must be filed at least 28 days prior to the date of the conference.

4. I direct that the respondent file and serve a financial statement no later than 28 days prior to the conference. That statement is to disclose details of any monies held in trust on his behalf.

5. That if the value of the respondent’s property at Property T is not agreed each party is to obtain a valuation or market appraisal of that property and provide a copy to the other side at least 7 days prior to the conference.  In this respect the respondent is to co-operate to permit the applicant to obtain such valuation or market appraisal.   

IT IS NOTED that publication of this judgment under the pseudonym Royce & Royce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

PAC 627 of 2011

MS ROYCE

Applicant

And

MR ROYCE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Royce for leave under section 44(3) of the Family Law Act to institute property proceedings under section 79 of the Act. Her application originally also included children’s matter but in the event these were not pursued. This judgment only addresses the section 44(3) issue.

Background

1. The parties were married on (omitted) 2005 and separated on 10 December 2010. A divorce order was made on 11 October 2012. Ms Royce’s application for leave was filed on 17 October 2014 about twelve months after the time provided in section 44 had expired.

2. There is one child of the relationship X who was born on (omitted) 2007.  Pursuant to orders made by the court he resides predominately with the applicant.  The applicant has another older child by a former relationship.

Discussion

1. Section 44(3) of the Family Law Act provides that proceedings under section 79 for alteration of property interests cannot be instituted except by leave of the court after a period of twelve months from the date on which a divorce order takes effect. Section 44(4) provides that leave must not be granted unless the court is satisfied hardship would be caused to the applicant if leave were refused. Hardship is the only mandatory requirement that the applicant must satisfy before leave would be granted. However even if the court is satisfied that hardship would be occasioned by a refusal of leave it may still refuse leave on discretionary grounds. Some of the discretionary grounds that might result in a refusal of leave would be the lack of an explanation for the delay and prejudice to the respondent were leave granted.

2. To demonstrate hardship the applicant must satisfy me that there is a prima facie case for granting relief and that a refusal to allow her to institute proceedings would result in a substantial detriment.  

3. It is impossible to make any assessment of what award the applicant would get if an alteration of property interest made under section 79 of the Act. That is because the pool of property is not known. The respondent suffered a catastrophic brain injury when he was a child and received substantial damages. Because of his disabilities his damages were managed by the Public Trustee. In 1992 the Public Trustee applied some of the damages awarded to purchase a home in the respondent’s name at Property T. (omitted) is a suburb in the (omitted) Sydney. The property is unencumbered. There has been no valuation of this property. I believe however that in the circumstances I can take judicial notice of material available on the internet which reveals that all properties listed for sale in (omitted) have an asking price of greater than $500,000. There is additional property held in trust for the respondent by the Public Trustee but the evidence does not reveal how much this is.

4. The respondent points to the fact that contributions overwhelmingly favour him.  This is true.  However the contributions made on behalf of the applicant are not insignificant.  The parties were living together for five years during which time various contributions were made by her.  And she has made contributions as a parent post separation.  Moreover contributions are not the only issue.  The applicant has the primary care of the parties’ child and according to her financial statement receives child support of only $13 a week.  It is likely that a significant adjustment would be made in her favour under section 75(2) of the Act.

5. The applicant’s financial possession is not strong.  She has no significant property of her own.  Her income consists of a salary of $838 per week and social security of $489 a week plus the child support to which I have referred. 

6. I am satisfied that in these circumstances she would be entitled to an order under section 79 and that would be of sufficient magnitude such that to deprive her of this would involve substantial detriment.

7. I now turn to the discretionary bars to relief.

8. I am satisfied that on the evidence that the applicant would have known or at least should have known of the time limits.  The divorce decree would have had the advice to that effect.  Moreover it appears some month before the expiry of the limitation period she consulted solicitors but declined to take action at that time.  The reason she gave was she was concerned at the reaction of the respondent were she to institute proceedings.  I am unable to make a finding as to this.  I proceed on the basis that there is no satisfactory explanation for the delay.  I note however that the delay is not a lengthy delay being in the order of twelve months.  This is to be contrasted with the period of eighteen years in the recent Full Court decision Slocomb & Hedgewood (12 November 2015) in which the decision of the judge at first instance to refuse leave was reversed by the Full Court.

9. The respondent claims he would suffer detriment if leave were granted. I am not satisfied that this is the case. His claim is that were an order were be made in the applicant’s favour under section 79 he would lose some of his property. He points to the fact that his injuries preclude him from paid employment. That is true but that is not detriment in the sense that that term is used in section 44 proceedings. It is not prejudice occasioned by the proceedings that is relevant but prejudice caused by the delay. An example of a respondent suffering detriment would be if he or she, assuming that the inaction of the former spouse was an indication that no proceedings would be instituted, made financial decisions which he or she would not otherwise have made. That is not the case here.

10. I am not satisfied that there are any other discretionary matters which should cause me to refuse leave. 

Conclusion

1. I grant leave. 

2. The next step is for the parties to attend on a conciliation conference.  I have ordered accordingly.  I fix the date of that conference at 28 January 2016.  If that date is inconvenient the parties may re-schedule it by arrangement with the Registrar.  I have made other procedural orders.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Brewster

Associate:

Date:  20 November 2015