SLOANE & KNIGHT
[2011] FMCAfam 857
•12 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLOANE & KNIGHT | [2011] FMCAfam 857 |
| FAMILY LAW – Property – proceeding out of time – private settlement – wife reneges – husband left with mortgage payments for house the wife took – no appearance by wife although served. |
| Family Law Act 1975, s.44 |
| Applicant: | MR SLOANE |
| Respondent: | MS KNIGHT |
| File Number: | BRC 6667 of 2008 |
| Judgment of: | Coates FM |
| Hearing date: | 18 July 2011 |
| Date of Last Submission: | 18 July 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 12 September 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Speakman Lawyers |
| Solicitors for the Respondent: | No appearance |
ORDERS
The husband be granted leave to proceed out of time.
That the wife file and serve a response, financial statement and any supporting affidavit material that she intends to rely upon within 21 days of receipt of this Order arrives in the normal course of the mail.
That within 14 days of the date of these Orders, the wife provide to the husband full disclosure of the following:-
(a)Bank and other financial institution account details, including name of account, account number and bank statements for the previous 12 months;
(b)Income tax matters for herself, company, trust, partnership or other being:-
(i)the three most recent years Taxation Returns;
(ii)the three most recent years Assessment Notices;
(iii)business Activity Statements for the previous 12 months.
(c)For any company, trust or partnership:-
(i)the three most recent years financial statements, including Balances Sheets, Profit & Loss Accounts, Depreciation Schedules;
(ii)copy of any company’s Constitution and any amendments;
(iii)copy of any Trust Deed and any amendments;
(iv)copy of any Partnership Agreement and any amendments.
(d)For self-managed superannuation:-
(i)a copy of the Trust Deed and any amendments;
(ii)the three most recent Financial Statements.
(e)For other superannuation funds:-
(i)Superannuation Statements for the last three financial years;
(ii)Completed Superannuation Information Form (SIF).
(f)Any market appraisal or valuation of any property in which she has an interest.
(g)Details and records of any long service leave accrued by her.
(h)Details and records of any financial resource, including interest in any deceased estate, trust, personal injury or other general claim pending or similar.
(i)Payslips for the three most recent pay periods.
(j)Originals or copies of all documents in her possession or control (for example, with others) that are relevant to the dispute.
That costs be reserved.
IT IS NOTED:
(A)That these orders were made in the absence of the wife and that pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules2001, the wife may apply to have these Orders set aside.
IT IS NOTED that publication of this judgment under the pseudonym Sloane & Knight is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 6667 of 2008
| MR SLOANE |
Applicant
And
| MS KNIGHT |
Respondent
REASONS FOR JUDGMENT
The husband in this matter applies for leave to institute property proceedings out of time.
If granted, he seeks directions for the wife to give financial disclosure and he lists in his Initiating Application filed 4 May 2011 the full particulars of disclosure sough at paragraph 12.
He also seeks the sale of the former marital home at Property S, which is presently occupied by the wife.
The wife was called but made no appearance on the first return date being Monday, 18 July 2011, however, I am satisfied that she was served because of an affidavit filed 18 May 2011 by Mr S, a licensed commercial sub-agent, who swears that he identified and served the wife on 10 May 2011 at the former marital home. He states that he served the relevant documents being an Application in a Case, the Initiating Application, an affidavit of the husband dated 28 April 2011 and the husband’s financial statement.
The Initiating Application on file has the first court date being 18 July 2011 and there is no reason to believe that such date was not reproduced on the material she was served with as is the usual practice of the registry to insert first return dates, so the wife was given notice of when she was to appear.
The husband’s solicitor had no knowledge of why the wife did not appear, so as a precaution I had my deputy associate call her telephone number while in court.
On telephoning, I heard my deputy associate directed to an answering device and she left the court information number, advising the wife to telephone that number. As at 5 September 2011, when compiling this judgment, no notification had been received that the wife has responded.
I am also satisfied that the husband’s solicitor, Ms Sheikah Saini, out of an abundance of caution, took steps to notify the wife because she swears in an affidavit filed 15 July 2011 that on 14 July 2011 she caused a letter to be placed in the respondent’s letterbox reminding her of the impending court date, being 18 July 2011. She said in her letter she emphasised the respondent’s need to attend the hearing and to file a response, financial statement and affidavit.
She said she also alerted the respondent to the possibility of a default judgment in the event she did not appear.
The husband seeks leave to bring a proceeding which is about two and a half years out of time.
The facts he relies on, briefly are as follows:-
a)The parties married [in] 1987.
b)The parties separated on or about 11 February 2006.
c)The parties divorce was granted on 31 October 2008.
d)At the time of separation the assets were the former marital home at Property S, sundry chattels and possessions and motor vehicles in the possession of each party.
e)By agreement the parties retained certain goods and chattels in their own possession and agreed that the wife would continue to live in the marital home if she would make the mortgage repayments.
f)It was further agreed that the husband would not be obliged to make any mortgage repayments on the property.
The husband’s case then is that he came to an informal agreement.
His position is that the wife has defaulted in the mortgage repayments, that his name remains on the mortgage documents and that he has been forced to make repayments on her behalf. He states that the wife’s default in payments amounts to $6,000 to $7,000.
His case is that this is causing him severe financial hardship.
He said he has made constant requests for the wife to remove his name from the mortgage and to refinance the home and that has been ignored.
He said the wife has remarried.
If granted leave and as a final property settlement, the husband now seeks an account of all of the assets, financial resources and liabilities of the parties and that from the sale of the house, the outstanding mortgage and sale costs be paid and any balance be held in trust until final orders can be made.
Section 44 of the Family Law Act1975 requires an application for an alteration of property interests to be filed within 12 months of the divorce otherwise leave is required.
The section states:-
“Requirements for leave.
(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
…”.
There were six children of the marriage, the youngest being aged 15, 13 and 12 who reside with the wife and spend time with the husband.
The husband gives no evidence of any hardship within terms of s.44 which would be caused to the children and he swore that the wife had been remarried and that she received financial support from her new husband.
As the wife has failed to respond, I must take that evidence as I find it and it is not open to enquire into anything which the husband states where there has been a failure and refusal to respond.
A number of cases have referred to hardship, although hardship is not caused by the mere loss of the right to bring an application or file an application.
The cases state that:-
a)There must be a prima facie case which is in the circumstances substantial;
b)That to deny the right to litigate a claim would cause hardship to a party or the child of the marriage;
c)That there is an adequate explanation for the delay; and
d)Whether there is any prejudice to the respondent.
As to hardship, the husband says his financial circumstances are that he possesses no real assets or financial resources so as to enjoy a reasonable standard of living, especially when also responsible for the former marital home.
He said as well as failure to make mortgage payments, the rates remain unpaid and he was served with an enforcement warrant to garnishee his wages at $150 per fortnight for outstanding rates bills.
The house was bought from the Department of Housing and $30,000 is the outstanding mortgage.
The husband said he believes the house is worth between $300,000 and $350,000 but a sale price would determine that.
He said he delayed in bringing an application because he was not informed of the limitation period even though he had lawyers when he was first divorced and because, as was put in submission, there was a private agreement between the parties.
The determination to grant leave is a discretion.
The husband has put forward a case which is compelling in the sense that but for the wife’s default which has caused him to pay her bills after a private settlement, he is now in a position of financial hardship.
On that basis I will grant him leave to file his application out of time.
I will not make an interim order to sell the house as sought, but will give the wife a second opportunity to file material as to what she seeks with regard to a property settlement, being 21 days from the time that she receives this Order which I will direct may be served on her by post.
I will also order that the wife give disclosure as the husband requested, in order to manage the application so as to cause as further little delay as possible, the wife’s failure to respond being now a source of delay.
I will reserve costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 12 September 2011
0
0
1