SANDERSON & OLIVER
[2016] FCCA 2134
•19 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDERSON & OLIVER | [2016] FCCA 2134 |
| Catchwords: FAMILY LAW – Application for an extension of time to commence proceedings out of time – where the refusal of an extension of time may work an injustice to the applicant – leave granted – costs reserved. |
| Legislation: Family Law Act 1975, ss.44, 90SM |
| Cases cited: Hall & Hall (1979) FLC 90-679 Stanford v Stanford (2012) 247 CLR 108 |
| Applicant: | MR SANDERSON |
| Respondent: | MS OLIVER |
| File Number: | MLC 2447 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 22 July 2016 |
| Date of Last Submission: | 22 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 19 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carlile |
| Solicitors for the Applicant: | Sutherland Lawyers |
| Counsel for the Respondent: | Mr Glick QC with Ms Mariole of Counsel |
| Solicitors for the Respondent: | Simon Nixon & Associates |
ORDERS
That the applicant be granted an extension of time to commence proceedings to the date of the filing of this application.
The costs be reserved to final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Sanderson & Oliver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2447 of 2015
| MR SANDERSON |
Applicant
And
| MS OLIVER |
Respondent
REASONS FOR JUDGMENT
By an application filed on 26 March 2016, the applicant seeks an extension of time to commence proceedings pursuant to s.44 of the Family Law Act 1975 (“the Act”).
On 6 April 2016, Judge Bender dismissed an application made by the respondent to strike out the applicant’s initiating application.
s.44(3)(a) to (d) of the Act provides:
(3) 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.
s.44(4) of the Act provides:
(4) 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.
s.44(6) of the Act provides:
(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted; or …
The applicant by his initiating application claims he was in a de facto relationship with the respondent from 2000 to 2011. The application seeks an adjustment of the property interests of the parties under Part VIIIAB of the Act, in particular pursuant to s.90SM.
The period in which the application ought to have been commenced without leave concluded in February 2013. The applicant commenced proceedings on 26 March 2015, a little more than two years out of time.
The parties agree on the matters that ought to be considered by the court in determining this application. Those matters are established by a line of authority including: Hall & Hall (1979) FLC 90-679; Whitford & Whitford (1979) FLC 90-612 and Riordan & Riordan [2012] FMCAfam 1297.
The matters which are to be considered by the court in determining this matter are:
a)whether the applicant has a prima facie case being a reasonable claim that requires a hearing;
b)whether the applicant would suffer hardship if his application to proceed out of time were not granted;
c)whether the applicant has adequately explains his delay; and
d)whether prejudice would be occasioned to the respondent if the application was allowed.
In Whitford v Whitford, the Full Court at [761] said in relation to ss.43(3) and 43(4):
Having regard to the nature of the jurisdiction which this Court exercises, this power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.
In support of the application the applicant filed two affidavits sworn 24 June 2016 and 6 July 2016. The respondent filed an affidavit sworn 8 July 2016.
By [12] of his affidavit sworn 24 June 2016, the applicant deposed:
“Throughout the relationship, I was far less a partner and more in the nature of “hired help” – save for the fact of no remuneration. Of course it is reasonable that I should expect to make a significant non-financial contribution to the relationship but, it on my view, was far from an equal contribution.”
The applicant then gives evidence of the non-financial contributions made by him including:
a)the cleaning of the house where he cohabited with the respondent;
b)outdoor maintenance, including hedge trimming, raking leaves, looking after dogs;
c)maintenance of the respondent’s office and (omitted);
d)the maintenance of other properties owned by the applicant including her holiday house in (omitted).
He also gave evidence of caring for the respondent’s mother, initially from 2005 and later from 2006 to 2011. He gave evidence that he visited her on a daily basis during the week and did such things as washing dishes, taking her to the doctor, purchasing medicines and from April 2011 visiting her when she was in the (omitted) Hospital and later at a nursing home.
The applicant also gave evidence of financial contributions on the basis that he:
a)had paid work throughout the relationship earning between $35,000 to $39,000 per year;
b)paid for grocery shopping every 1 to 2 weeks;
c)purchased takeaway every 1 to 2 weeks;
d)paid the eTag bill for 2 motor vehicles until 2010;
e)paid for restaurant meals once a week; and
f)supplied his phone mobile phone to the respondent for her exclusive use.
For the purposes of this application, it is not necessary or appropriate to recite in detail all of the evidence that was put before the court by the applicant in support of his application. The submission was made that he had made a significant non-financial and financial contribution to the relationship and had played a significant role in looking after the applicant’s mother in circumstances where he said the applicant had not been able to get along with her mother and was effectively at risk of being cut out of the will of the mother.
He also gave evidence at length that he was subject to a great deal of control by the respondent both in the manner in which he was to look after the applicant’s mother and in ordinary day-to-day living.
The applicant goes into significant detail as to how he says that the Respondent was abusive, controlling and belittling in the way she treated the applicant. I am not in a position at this time to determine whether that is the case but the allegations are not implausible. Allegations are made that the respondent had stalked the applicant and his now wife in May 2013. Those allegations are not implausible.
I accept the evidence that the applicant made significant non-financial contributions to the relationship and to a lesser extent made financial contributions.
A significant feature of this matter is that the respondent was the recipient of a substantial inheritance during the course of the relationship, which included a substantial property portfolio which was accumulated by her parents or their associated corporate entities. As a result of her family circumstances, she was and is in a vastly superior financial position to that of the applicant. In her affidavit material, the respondent describes the applicant’s financial circumstances when they met in 1999 as being extremely modest; that he had a low paying job; a significant credit card debt and no significant assets. The respondent says at [20] of her affidavit sworn 8 July 2016:
“Aware of the applicant’s precarious financial position and as our relationship had grown closer I invited him to move in with me at my property at (omitted) in or about January 2000.”
The respondent then goes on to describe that he was then able to enjoy overseas travel (which he had never done previously) with the major travel costs being borne by the respondent. The affidavit describes the respondent’s living circumstances, where it is asserted that she continued to remain responsible for rates, taxes, utility charges in respect of the outgoings of where they lived as well as providing the funds, free improvement and maintenance to the house itself. They shared food, expenses and household chores. Whilst it is said that the applicant did make contributions in terms of cleaning of the house and outdoor maintenance, there was a regular cleaning lady who cleaned the entire house once a week who was paid for by the respondent and a person was engaged to regularly mow and maintain the lawns and garden. The respondent describes the cooking, cleaning, washing and usual domestic chores as being shared.
In oral submissions made by senior counsel for the respondent, it was said that the parties never regarded the property as shared. The submission was made that where the applicant by his own evidence said that he regarded himself as hired help, the relationship did not give rise to a “community of property”. It asserted that any contribution that the applicant had made was no more than a flat mate would do.
In relation to the care of the respondent’s mother, the applicant says that he did become a carer for her mother but on a paid basis. At [36] of the respondent’ affidavit she deposes that:
“I agree that after 2003, following Ms I’s death, the applicant’s contact with my mother increased – my impression was that in addition to liking her he had a genuine concern for her welfare, not prompted by or insisted upon by me as deposed to in his affidavit material, but simply because he wished to do so and enjoyed contact with her. With my mother’s failing health, this culminated, in February 2007 in the applicant becoming my mother’s carer, for which he received a regular income from the Department of Social Security until she moved into a care facility in June 2011.”
The respondent also gives very detailed evidence in relation to the purchase of properties on the (omitted). It is not necessary to deal with the detail of the other transactions within the course of this application. The substance and the effect of that material, is that as a result of the use of the funds provided by the respondent, that the applicant was in a position to derive a profit from the sale of a property in Property B (“Property B property”), in the sum of $140,000. The respondent also provided funds to the applicant, the repayment of which has been forgiven and it is said that the applicant must have received a benefit in the form of forgiveness of a debt in the sum of $43,882. These are said to be benefits that the applicant could not have obtained without the generosity of the respondent.
At [71] of her affidavit the respondent summarises the benefits obtained by the applicant in the course of the relationship as follows;
a)living rent-free;
b)using his own wages for his own purposes;
c)using his redundancy payment from (employer omitted) to clear his credit card debts;
d)not having to pay rates or taxes;
e)not having to pay telephone, Internet or water charges;
f)free use of motor vehicles;
g)deriving profit from Property B of $140,000.00 (as noted being the $50,200.00 cash at (omitted) and referred to in Part 1 of the Applicant’s Financial Statement sworn 19 March 2015);
h)forgiveness of a debt in the sum of $43,882.00;
i)free international travel and accommodation on four occasions;
j)payment of carer’s pension;
k)furniture and kitchen goods to enable him to set up a home.
The applicant by his submissions contends that:
a)the parties were in a relatively lengthy relationship from 1999 to 2011;
b)the applicant made financial contributions by working and paying for bills;
c)the applicant made significant non-financial contributions;
d)the applicant also suffered significant emotional abuse as a result of his treatment during the relationship by the respondent;
e)the applicant has minimal resources and pays rent rental property in has modest personal belongings;
f)the applicant has significant financial need because he does not currently own his own property and the difficulties he has with his mental illness;
g)the respondent has assets in the millions, including significant real estate interests and overseas assets;
h)that there ought to be an adjustment of the assets given the length of the relationship and the contributions made by him;
i)the applicant has a good prima facie claim that he will suffer hardship if an extension is not granted; and
j)that the applicant has failed to make proper disclosure of her financial position.
Reasons given for the delay in filing
The medical reports attached to an affidavit sworn 6 July 2016, including one from his treating psychologist, disclosed that the applicant has developed a number of anxiety and mood symptoms which are said to appear to be a direct consequence of the ongoing stress caused by his relationship with the respondent:
a)It is said that these symptoms are consistent with a diagnosis of generalising anxiety disorder and that the presence of these symptoms are typical of someone who has been the victim of domestic violence for a significant period of time; and
b)the difficulties that he has as a result of these conditions might explain the delay in initiating legal proceedings.
The applicant stated in his affidavit sworn 24 June 2016, that prior to the conclusion of the relationship, he had passively accepted his position in the relationship and believed it was his responsibility to fully attend to his ex-partner’s needs. In a medical report prepared by Dr S, the applicant’s treating psychiatrist, he noted that the applicant had attended upon him for psychotherapy from June 2007 to April 2010. At the time of the initial engagement with the psychiatrist, he was diagnosed as suffering from a moderately severe Adjustment Disorder with anxious mood in the setting of Dependent Personality traits. The applicant gave a history to the psychiatrist of being involved in a long-term de facto relationship with the respondent which he described as domineering, denigrating and controlling. Dr S stated that the applicant “also states that as a result of an incident in 2013, in which Ms Oliver is alleged to have stalked him and his wife, he (and his wife) had been severely distressed emotionally and as a consequence he had failed to submit his claim for financial settlement within the prescribed time.”
The applicant describes in his affidavit that he commenced treatment from his psychologist in March 2015 and that preparing the material for the application was confronting.
Consideration
The principal submission made by the respondent was that no extension should be granted because was no prima facie case, or alternatively, if there was a prima facie case, the value of the case was so small as not to warrant the parties being put to the costs and stress of legal proceedings, particularly in circumstances where the applicant had derived financial benefit to resolve the relationship which would more than outweigh any claim that he might have to a financial adjustment of the property interests. It was submitted that there was no just and equitable basis for an adjustment of the property interests and reference was made to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108.
It was submitted that the applicant made no contribution to the pool of property, that the pool consists almost wholly of the respondent’s assets and that in the circumstances where the respondent has not articulated the basis for a claim and what the extent of the claim is, there is no basis for interfering with the existing legal and equitable interests of the parties. It is said that it would not be just and equitable to make such an adjustment. Alternatively, it is submitted that the applicant has already received more than he could ever achieve if the claim was to run.
In my view, the applicant has put sufficient material before the court to establish that he has made significant non-financial and to a lesser extent, financial, contributions in the course of the relationship. It is a matter for trial in order to determine the value, if any, of that contribution and any repercussions that might have in terms of any adjustment. The issue of whether there will be a requirement for an order to be made pursuant to s.79(2) of the Act cannot be finally determined at this time. The applicant has put sufficient material before the court to establish a prima facie claim that is worth pursuing. To accede to the respondent’s submissions would effectively leave the court in the position of having to resolve the substance of the application and then make a determination as to whether or not the applicant has received sufficient funds already such as to satisfy any claim that he might have. An application of this kind is not an appropriate vehicle in order to engage in that exercise. None of the evidence has been tested and much of the evidence of both parties is contested. I do not accept the submission that the evidence currently filed establishes that the applicant was no more than hired help or a flat mate to the respondent.
In terms of the applicant providing an explanation for delay, in my view, there is sufficient evidence before the court to explain the circumstance and reasons for the delay. It is put on behalf of the applicant that he was subject to significant stress in the course of the relationship and was in fact suffering from a mental illness as a result of those matters. The affidavit material filed on behalf of the applicant has not been the subject of any significant challenge in relation to those matters and it is not appropriate for the court to embark on a wide scale forensic investigation of the applicant’s mental health in circumstances where all that is required is some credible explanation for delay. In my view, that explanation has been provided.
The applicant can demonstrate hardship in this case if an order was not made extending time pursuant to s.44 of the Act. His present financial circumstances described by him in his affidavit and Financial Statement are strained and modest and he will lose the opportunity of any prospects of the benefits of this proceeding if the application was refused. On the other hand, the respondent’s financial position is one where whether as a result of the hard work of her parents and/or her own abilities to manage those assets which had been passed on to her, are that she is in a strong financial position and the conduct of this litigation is unlikely to create a very significant impact on the quality of her financial life. The respondent has chosen not to disclose her current financial details, save to describe in general terms the background to her receiving an inheritance and her detailing with properties in the course of the relationship.
I accept that the engaging in legal proceedings is expensive, however I note that the respondent has at times retained three counsel, including Queen’s Counsel, to represent her and her choice of legal representation at this level is entirely a matter for her. That she may go to the expense of retaining that level of representation that she is not something that should be factored into weighing the interests of the parties in determining this application.
In the circumstances, I grant leave to the applicant to file the application out of time. I reserve the question of costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 19 August 2016
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Costs
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2
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