Shukra and Shukra

[2007] FamCA 1493

FAMILY COURT OF AUSTRALIA

SHUKRA & SHUKRA [2007] FamCA 1493

FAMILY LAW – PRACTICE AND PROCEDURE – Application out of time – Dismissed

Family Law Act 1975 (Cth)

Richardson (2000) FLC 93-012
Whitford (1979) FLC 90-612
Frost & Nicholson (1981) FLC 91-051
Gallo & Dawson (1990) 93 ALR 479
Tormsen (1993) FLC 92-392

HUSBAND: Mr Shukra

WIFE: Ms Shukra

FILE NUMBER: MLC 5775 of 2007

DATE DELIVERED: 26 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 26 November 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms Pachinger

SOLICITOR FOR THE HUSBAND: John D. Snodgrass & Associates

COUNSEL FOR THE WIFE: Ms McHugh

SOLICITOR FOR THE WIFE: Ann E. Gambetta & Associates

Orders

1. That the form 2 application filed by the husband on 26 October, 2007 (in which he sought leave to issue property proceedings out of time, pursuant to s.44(3) of the Family Law Act 1975) be dismissed.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

3. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5775 of 2007

MR SHUKRA  

Husband

And

MS SHUKRA  

Wife

REASONS FOR JUDGMENT

1. Before the court is an application brought by the husband for leave to issue an application for final property orders out of time.  The parties met in 2001 and married in June 2001.  They have a son, S, born in September, 2002.  A decree nici of dissolution of their marriage was pronounced in 2005.  The probabilities are that it was pronounced in August 2005 and thus became absolute in September 2005.  I assume the divorce was heard in the Federal Magistrates Court, as the documents are not on this Court's file.  It is common ground the husband is well out of time.

2. Proceedings commenced in this Court on 22 May 2007 when the husband filed an application, seeking final and interim parenting orders.  It was not until he filed an amended application on 26 October, 2007 that he sought any property orders;  he then sought that the assets of the parties be divided as to 30 per cent to him and 70 per cent to the wife.  At the same time he filed a form 2 application, in which he sought leave to file a property application out of time. The wife filed a response to that application, and sought that it be dismissed.  She has also filed a response to his amended application for final orders, in which she seeks that his property application be dismissed and that he spend time and communicate with their child as agreed. 

3. Section 44(3) of the Family Law Act1975 provides that where a decree nisi for dissolution of marriage has become absolute - that was the language of the Act at the time - proceedings for property and spousal maintenance shall not be instituted after the expiration of 12 months, except by leave of the court or with the consent of both parties to the marriage.  A court can grant leave at any time, even if the proceedings have already been instituted. The discretion to extend time for commencement of proceedings is not wholly unfettered.  It is subject to the requirement in s.44(4) that the court must not grant leave unless it is satisfied that hardship would be caused to a party to the marriage, or to a child, if leave were not granted.  There are other provisions relating to an application for maintenance, which are not relevant here.

4. If the court is satisfied that hardship would be caused, it then has a discretion as to whether leave should or should not be granted.  That aspect of the discretion is general and unfettered. Amongst the discretionary matters to which the court may have regard are the nature and degree of the ground established, intervening circumstances, interested third parties, the financial position of the parties then and now, changes in the meantime and matters such as delay and prejudice.  Those matters have been considered in cases such as Richardson, reported in 2000 FLC 93-012, and the many other cases referred to in that judgment.

5. The applicant bears the onus, on the balance of probabilities.  Hardship, in the context of the section, means substantial detriment.  Fundamental to the establishment of hardship is a finding that the applicant has a prima facie case to be heard by the court.  That does not mean that at this stage there is a detailed hearing on the merits of the substantive application which is sought to be made.  But there must be a consideration of whether there exists at least a bare prima facie case, on the strength of the material filed by the applicant for the leave.  Hardship does not refer to the loss of the right to institute proceedings per ce, but to the consequences of the loss of that right.

6. In cases such as Whitford (1979) FLC 90-612 and Frost & Nicholson (1981) FLC 91-051 the court held that it must appear to the court that the applicant would probably succeed if the substantive application were heard on the merits. Even if one lowers the bar, it is clear there has to be something that is arguable, which could give rise to the potential for a successful claim. In terms of the general discretion, the fundamental issue is whether the extension of time is necessary to enable the court to do justice between the parties. In Gallow & Dawson (1990) 93 ALR 479 at p 480, McHugh J. referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or the refusal of the extension of time. The authorities and the principles were discussed in Tormsen (1993) FLC 92-392 and cases referred to in that case. In addition to a consideration of hardship if time is not extended, the court will consider the prejudice to the other party, the presence or absence of an adequate explanation for delay and issues of cost.

7. As is made clear in Tormsen, the applicant is required to give an explanation for delay and that is likely to be an important factor when considering the application.  A failure to explain the delay may lead to a conclusion that justice demands the application be dismissed but in appropriate cases the interests of justice may outweigh the absence of an adequate explanation.  It is one factor, and often a significant factor, but it is a question of weight and degree in each case. 

8. Any alleged hardship to the applicant has to be balanced against prejudice to the respondent.  The length of delay is important in that context.  Courts on occasion have said that there could be presumed prejudice arising simply out of the effluxion of time.  In this case, the time is not excessive.  In certain circumstances there can be evidence of actual prejudice.  A respondent can be faced with an action which he or she had no reason to expect, or reasonably believed to have been abandoned or never considered. 

9. I have briefly summarised the law because the facts put before the court have to be seen within the framework of that law.  It is not simply a question of looking at the applicant and asking whether an ordinary or reasonable person might think it fair to grant leave.  The decision must be made with the legal context.  There is good reason for the limitation on time in which to bring an application. 

10. In essence, the husband's application relies on contributions of a financial nature which he alleges arose in two ways.  First, he deposes to making a cash contribution of $3,300 on the date of the parities marriage.  Second, he deposes that during the marriage he was in employment, that his wages or salary were paid into a joint account and that money from that source went towards payments on the mortgage over a property owned by the wife.  That is the evidence on which he would rely as establishing a relevant contribution for the purpose of an application pursuant to s.79.  That needs to be seen in the context of the evidence about the wife’s property, which is in C.

11. The property was bought by the wife in 1997, for $120,000.  She paid a deposit of $20,000 and borrowed the balance.  She worked hard to reduce the mortgage and by the time she met the husband, in 2001 in Western Africa, the mortgage was down to $74,000. She deposes to the circumstances in which she met the husband, to statements made by him then about money which he had invested and which would be available, and the fact those funds never eventuated.  Her evidence is that he left his job the day they got together.  They married swiftly.  After two months, the wife returned to Australia to commence the process of applying for a visa to allow the husband to come to Australia. She left him a Commonwealth Bank debit card, with funds he could access. She deposes that he spent approximately $2,000 in the three months she was away; all of that was her money.  She paid for their honeymoon.  She returned to Western Africa in November 2001.  She paid for their accommodation.  They lived on her savings and credit.  She returned to Australia in January 2002 to complete the process of the visa application.  She paid all the expenses of obtaining the visa.  She paid for the husband’s travel, initially to Morocco and then his return to Western Africa.  She left cash money with him.  She was at least four months pregnant, when he came to Australia.  She paid an additional $1,000 to him before he left Western Africa; he said he needed it because he could not transit through Morocco without proof of funds.

12. The wife deposes that the husband did work in Australia and that he did put some money into the joint account.  However, he frequently did not work, due to excessive drinking and the taking of numerous holidays;  his own counsel referred to him as working “sporadically”. He went to Western Africa for two weeks in January 2003, and again in June-September in 2003; that travel was funded by her. 

13. Prior to his second trip to Western Africa the wife agreed to re-finance the property.  It had been transferred into the parties’ joint names, to help him obtain an Australian visa.  By the time the husband left for Western Africa for a second time the parties were in financial trouble as a result of his constant expenditure.  The wife needed to re-finance the property, so it was transferred back into her name.  The husband's evidence was that in late 2003 or early 2004 the wife attended at his premises and said he had to sign some documents, which related to a bank loan for the car.  He signed them.  Unbeknownst to him, the papers included a transfer of land, transferring the property into the wife's name.  Before the court, annexed to his affidavit, is a copy of a transfer, transferring it from the parties joint name back into the name of the wife.  The date is a little hard to read but is probably 5 June 2003.  It is certainly June 2003, which is significantly earlier than the husband recalled.  The document was stamped on 10 June 2003;  obviously other documents relating to the transfer could not have been signed in late 2003 or early 2004.  The consideration shown is natural love and affection. 

14. The financial statement filed by the wife shows that the mortgage is now up to $124,000; it was some $74,000 at the time the parties married in 2001.  The increase relates to the refinancing necessary to deal with accumulated debt incurred by the husband. 

15. The wife's evidence was that when the husband went to Western Africa for the last time, he completely drained the account.  At that stage their marriage was in tatters. The husband was drinking to excess. Her evidence is of him being admitted to H Hospital where he was diagnosed with alcohol induced depression and suicidal thoughts; there is also evidence of an admission to T Hospital.

16. When things did not improve after the husband returned from Western Africa, credit card debts began to mount again.  The parties separated under the one roof in January 2004;  when the husband left in June 2004, the wife closed the joint account.  An intervention order was obtained by the wife on 17 September 2004, to last until 16 September 2006.  The wife's evidence is of the husband having very little contact with the child S after separation.  In April, her solicitors received a letter relating to S.  It was in May this year that the husband filed an application seeking parenting orders.

17. The husband’s affidavit provides no explanation for his failure to file earlier.  On his behalf it was put, from the bar table, that the intervention order stopped him contacting the wife to make an application for property orders.  That that is not the case is demonstrated by the fact that he filed an application for parenting orders, whilst the intervention order was on foot.  It is a risible argument.  It was also put on his behalf, again from the bar table, that he did not have access to legal advice. This sits uncomfortably with him going to Victoria Legal Aid in mid-2004, after (he said) he realised that he had signed a transfer of the property.  In the affidavit he makes a general assertion of trying to contact solicitors.  There is no evidence that he made any attempt to contact the solicitor on the record for the wife. 

18. Whilst it is not the court's role to look at the merits of the case in detail, and some of the evidence summarised is disputed between the parties, I am satisfied that on the husband's own evidence it would be almost impossible to make out a claim for property orders.  Having regard to the balance of the evidence, I am not satisfied there is potential for his claim to be successful.  Nor am I satisfied that any cogent explanation has been given for his failure to file an application within time.  Notwithstanding the husband's present financial position I am not satisfied that relevant hardship will be caused by the dismissal of his application.  There is no point in allowing him to bring an application in circumstances where, on the evidence adduced, there is no merit in his case.

I certify that the preceding 18 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

26 November 2007