Tamaniego & Tamaniego - [2010] FamCAFC 254

Family Court Of Australia

TAMANIEGO & TAMANIEGO

[2010] FamCAFC 254

FAMILY LAW - APPEAL – LEAVE TO APPEAL – Application for leave to appeal and appeal against dismissal of an application pursuant to s 44(3) of the Family Law Act 1975 (Cth) to commence proceedings out of time for property settlement, spouse maintenance and child support – Whether orders pursuant to s 44(3) of the Family Law Act 1975 (Cth) are interlocutory or final – Whether leave to appeal is necessary – Consideration of the meaning of ‘hardship’ pursuant to ss 44(3) and (4) of the Family Law Act 1975 (Cth) – Where the Federal Magistrate was in error in relation to the approach she took to consideration of the application pursuant to s 44(3) – Where it was demonstrated that the Wife had a prima facie entitlement in that she had a reasonable claim to be heard – Where the Federal Magistrate failed to consider whether there existed a prima facie case on the strength of the available evidence – Where the Federal Magistrate made errors of principle and also that to refuse leave to the Wife to appeal would cause her substantial injustice – Leave to appeal granted – Appeal allowed

REDETERMINATION – Where the Wife should have the opportunity to institute proceedings for property settlement out of time

Althaus and Althaus (1982) FLC 91-233
Bienstein v Bienstein (2003) 195 ALR 225
Carr v Finance Corporation of Australia Limited (No.1) (1981) 147 CLR 246
Coombs and More (1990) FLC 92-175
Emamy and Marino (1994) FLC 92-487
Frost and Nicholson (1981) FLC 91-051
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
Hall and Hall (1979) FLC 90-679
Hedley & Hedley (2009) FLC 93-413
House v The King (1936) 55 CLR 499
Jacenko and Jacenko (1986) FLC 91-776
Mallet v Mallet (1984) 156 CLR 605
McDonald and MacDonald (1977) FLC 90-317
McMahon and McMahon (1976) FLC 90-038
MZXRL v Minister for Immigration and Citizenship [2009] FCA 114
Neocleous and Neocleous (1993) FLC 92-377
Norbis v Norbis (1986) 161 CLR 513
Oxenham & Oxenham [2009] FamCAFC 167
Re Luck (2003) 203 ALR 1
Richardson & Richardson [2008] FamCAFC 107
Rutherford and Rutherford (1991) FLC 92-255
Thallon and Thallon (1992) FLC 92-322
Tormsen and Tormsen (1993) FLC 92-392
Van der Kreek and Van der Kreek (1978) FLC 90-421
Whitford and Whitford (1979) FLC 90-612

Family Law Act 1975 (Cth) – s 4(1), s 44, s 44(1), s 44(3), s 44(4), s 44(6), s 72, s 75(2), s 75(3), s 79, s 79(4), s 94A, s 94AA, s 94AAA(3)
Family Law Rules 2004 (Cth) – r 22.02
Family Law Regulations 1984 (Cth) – Regulation 15A

APPELLANT:

MS TAMANIEGO

RESPONDENT:

MR TAMANIEGO

FILE NUMBER:

MLC

6946

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

15 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

O’Ryan J

HEARING DATE:

6 May 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

27 November 2009

LOWER COURT MNC:

[2009] FMCAfam 1183

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Grant

SOLICITOR FOR THE APPELLANT:

Pearsons Barristers & Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Flower

SOLICITOR FOR THE RESPONDENT:

FCG Lawyers

Orders

The Wife’s application for leave to appeal Order 2 of the orders made by Federal Magistrate Riley on 27 November 2009 be granted and that the appeal against that order be allowed.
Order 2 of the orders made by Federal Magistrate Riley on 27 November 2009 be set aside.
The Wife be granted leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for property settlement pursuant to s 79 of the said Act.
The Wife file and serve within eight weeks of the date of these orders an application for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth).
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 14 days of the date hereof.
Each party have a further seven days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.
Each party endorse on the cover sheet of any submissions filed pursuant to orders (5), (6) and (7), the date upon which a copy of that submission was served on the other parties.

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

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE

Appeal Number: SA 99 of 2009
File Number: MLC 6946 of 2009

MS TAMANIEGO

Appellant

And

MR TAMANIEGO

Respondent

Reasons For Judgment

Introduction

This is an appeal by Ms Tamaniego (“the Wife”) against orders made by Federal Magistrate Riley on 27 November 2009 dismissing applications filed by the Wife on 5 August 2009. The Respondent is Mr Tamaniego (“the Husband”). The Wife was seeking to reinstate discontinued proceedings, or commence proceedings out of time for property settlement, spouse maintenance and child support.
On 5 August 2009 the Wife filed an application in which she sought the following:
FINAL ORDERS SOUGHT
1.     That the Applicant Wife’s Application for property settlement/adjustment and/or capitalised spousal maintenance and Child Support – Application for Departure Order both filed on 9 November 2005 be reinstated.
2.     Alternatively, that the Applicant Wife have leave to commence proceedings for property adjustment/settlement and/or spousal maintenance and departure orders/capitalised child support out of time.
3.     That the Respondent Husband pay adult child maintenance for the two adult children of the marriage … at such rate as determined appropriate by this Honourable Court.
4.     That the Wife be excused from specifying with further particularity the financial orders sought by her until such time that full financial disclosure by the Husband, discovery by the Husband and inspection by the Wife and the Husband filing his material referred to in paragraph 3 herein is completed.
5.     Such further or other orders, including procedural orders and/or directions, as this Honourable Court deems appropriate in the circumstances.
INTERIM OR PROCEDURAL ORDERS SOUGHT
1.     That the Applicant Wife’s Application for property settlement/adjustment and/or capitalised spousal maintenance and child Support – Application for Departure Order both filed on 9 November 2005 be reinstated.
2.     Alternatively, that the Applicant Wife have leave to commence proceedings for property adjustment/settlement and/or spousal maintenance and departure orders/capitalised child support out of time.
3.     That pending further order, the Respondent Husband and/or his servants and/or agents be and are hereby restrained from encumbering, alienating, gifting, disposing of or in any other way dealing with property in his name, custody, possession and/or control including but not limited to save and except with the Wife’s written consent or Court Order first obtained.
4.     That the Respondent Husband pay urgent interim adult child maintenance for the two adult children of the marriage … at such rate as determined appropriate by this Honourable Court.
5.     That the Respondent Husband make, file and serve:
(a)a Financial Statement in compliance with the Family Law Rules;
(b)any Response and Affidavit in Reply upon which he intends to rely;
(c)an Affidavit detailing all major financial transactions entered into him prior to the parties’ marriage, during the marriage and since separation;
and that such documents be filed and served within 21 days.
6.     That the Respondent Husband forthwith pay to the Applicant Wife’s solicitors … the sum or $30,000.00 with such sum to be categorised by the Trial Judge.
7.     That the Wife be excused from specifying with further particularity the financial orders sought by her until such time that full financial disclosure by the Husband, discovery by the Husband and inspection by the Wife and the Husband filing his material referred to in paragraph 3 herein is completed.
8.     Such further or other orders, including procedural orders and/or directions, as this Honourable Court deems appropriate in the circumstances.
On 5 August 2009 the Wife also filed an application for a child support departure order.
In her reasons for judgment of 27 November 2009 the Federal Magistrate observed:
1. This is an application by the wife for orders:
a)for the reinstatement of her applications for property settlement, capitalised spousal maintenance and child support which were filed on 9 November 2005 and discontinued on 28 November 2005; and, alternatively,
b)giving the wife leave to commence proceedings for property settlement, capitalised spousal maintenance and child support out of time.
2. The wife also sought in her application adult child maintenance for her two older children who are studying and $30,000 to enable her to fund her proceedings and meet urgent financial needs. Those matters were not ventilated at this stage.
The applications were supported by an affidavit sworn by the Wife on 31 July 2009 and a financial statement sworn on the same day. The Wife swore a further affidavit on 24 August 2009. Annexed to the Wife’s affidavit of 31 July 2009 were previous documents filed by the Wife on 9 November 2005 being inter alia an application, a child support application for departure order, a financial statement sworn on 8 November 2005 and an affidavit of the Wife sworn on 8 November 2005.
On 10 September 2009 a response was filed by the Husband in which he sought that the applications by the Wife be dismissed. The Husband swore an affidavit on 10 September 2009.
On 27 November 2009 the Federal Magistrate made the following orders:
1.      The application filed on 5 August 2009 to reinstate the proceedings filed on 9 November 2005 is dismissed.
2.      The application filed on 5 August 2009 for an extension of time in which to bring property proceedings is dismissed.
3.      The application filed on 5 August 2009 for an extension of time in which to bring a spousal maintenance application is dismissed.
4.      The application filed on 5 August 2009 for leave to bring a departure application in this court is dismissed.
On 18 December 2009 a notice of appeal was filed by the Wife.
On 11 February 2010 an order was made by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge.
On 23 February 2010 I made procedural directions for the hearing of the appeal.
On 10 March 2010 an amended notice of appeal was filed by the Wife.
The hearing was before me on 6 May 2010. During the hearing before me it was made clear by the Wife’s counsel that the Wife was only appealing against Order 2 made by the Federal Magistrate (Transcript, 6 May 2010, p 16).
The delay in the delivery of my judgment is solely my responsibility.

Background

The Wife was born in the Philippines in 1959. The Husband was born in the Philippines in 1964.
The parties were married in April 1987 in a religious ceremony.
In 1987 the Husband migrated to Australia.
The Wife contended that the Husband failed to register the marriage and so he returned to the Philippines and the parties remarried in April 1988. The Husband said that it was a civil ceremony.
It was not controversial that at the date of the marriage the parties had no assets of any significance.
There are three children of the marriage, C born in 1988, J born in 1989 and M born in 1997.
The Husband contended that in approximately 1990 he purchased land in Manila for $5,000.00.
In February 1991 the Wife and the children C and J migrated to Australia.
The Wife contended that during the relationship the Husband operated a motor mechanic and car sales business called MX Pty Ltd. In his affidavit of 10 September 2009 the Husband said that he has a business as a licensed car dealer.
In March 2004 the parties separated although they continued to reside under the same roof in the matrimonial home at suburb G (“the former matrimonial home”).
The Wife contended that from March 2004 until early 2008 the Husband paid child support of $120.00 per week.
The Federal Magistrate observed at [27] that the Wife said that some vacant land in suburb B owned by the parties was sold in 2005 for about $120,000.00. The Wife said that there was no mortgage on the title of the property. The Wife said the Husband gave her $62,000.00 from the proceeds of sale and “kept the rest”.
In late 2005 the Wife ceased to occupy the former matrimonial home in suburb B and commenced to reside in rented accommodation at suburb T. The children lived with the Wife.
The Federal Magistrate observed at [21] that the Wife exhibited Centrelink documents disclosing that she had been in receipt of a parenting payment between 9 August 2005 and 4 October 2007 and Newstart allowance between 22 January 2008 to 20 March 2008, 26 May 2008 to 30 June 2008 and 13 November 2008 to 2 April 2009. The Wife said that she had been in receipt of benefits since separation and that she now receives family tax benefit A and B of $175.00 per week.
On 9 November 2005 an application was filed by the Wife in the Federal Magistrates Court in which she sought final parenting orders and also orders for property settlement and spouse maintenance. On 9 November 2005 an application was filed by the Wife in which she sought a departure from an administrative assessment of child support. On 8 November 2005 the Wife swore an affidavit. The Wife also swore a financial statement.
The Wife sought by way of property settlement that the Husband transfer his interest in the former matrimonial home to the Wife unencumbered. The Wife also sought, as an interim order, an injunction that the Husband be restrained from dealing with various assets.
As I have already observed, the Wife contended in her affidavit of 8 November 2005 that the Husband was self-employed as a motor mechanic operating a business called MX Pty Ltd. The Wife also contended that during the relationship she was the primary care giver of the children of the marriage. The Wife contended that at the commencement of the relationship neither party had any property of any significance and that there were no gifts or inheritances received by either party during the relationship. The Wife also gave evidence about a history of physical abuse by the Husband.
The Wife deposed in her affidavit of 8 November 2005 that the Husband’s father passed away in about November 2004 but the Wife had no detail of any inheritance received by the Husband from his late father’s estate.
In his affidavit of 10 September 2009 the Husband contended that in 2005 he and his father were the registered proprietors of a property in suburb W. The Husband contended that his father was the equitable owner of the property and that the Husband’s name was on the title because the Husband’s father was unable to obtain finance to purchase the property. The Husband contended that eventually his father could not pay the mortgage so he transferred the property to the Husband’s sister “who took over the mortgage payments”.
In her affidavit of 8 November 2005 the Wife also contended that the Husband was extremely “secretive about our financial affairs and I seek that he provide full and frank disclosure of all his financial dealings over the past four or five years”.
The Federal Magistrate observed at [3] that the Wife was represented by a solicitor, Mr J, throughout the proceedings.
On 13 November 2005 the Husband was personally served with the applications and material that was filed on behalf of the Wife on 9 November 2005.
The Federal Magistrate observed at [26] that the Wife said that in 2005, at the time of the previous proceedings, she lodged caveats over properties owned by the Husband, being the former matrimonial home in suburb G, a property in suburb W and a property in suburb K.
On 28 November 2005 a notice of discontinuance was filed by the Wife of the applications filed on 9 November 2005.
Without repeating all of the evidence of the Wife, in her affidavit of 31 July 2009 she contended that she discontinued the proceedings at the request of the Husband. The Wife contended that she felt pressured and feared for her safety and that of the children and she felt she had no option but to discontinue the proceedings. As I have already observed, the Wife contended that there was a history of physical violence. The Wife contacted her solicitor and terminated his services. The Wife also said that at the request of the Husband she accompanied the Husband to the Family Court and together the parties completed a form of notice of discontinuance.
In his affidavit of 10 September 2009 the Husband denied the allegations of violence. The Husband admitted that he accompanied the Wife to the Family Court when the notice of discontinuance of the previous proceedings was filed. The Husband contended that the Wife agreed to discontinue the proceedings because the parties had “agreed on a 60-40 split” in the Wife’s favour. The Husband gave no evidence of the net assets of the parties at the time of the alleged agreement or how the “split” was arrived at.
The Federal Magistrate observed at [28] that in about May 2006, the former matrimonial home in suburb G was sold. Her Honour observed that the Wife said that she did not know how much was owed under the mortgage on the title of the property or how much it cost to sell. However, the Wife said that she believed the sale price was $420,000.00 and the Husband gave her $61,300.00 from the proceeds of sale “and kept the rest”.
On about 29 May 2006 the sale of the property at suburb B was completed. The property was sold for a price of $130,000.00. The Husband contended that on completion of the sale the Wife was paid $65,000.00 and the Husband was paid $51,300.00.
I observe that in paragraph 28 of his affidavit sworn on 10 September 2009 the Husband contended that the sale of the former matrimonial home in suburb B was completed in May 2007 being some 16 months after the alleged agreement. The Husband contended that after payment of an amount of $279,156.14 to CP Ltd with respect to a mortgage debt he was paid $65,153.00. The Husband contended that the Wife was paid approximately $63,000.00 being the balance of the deposit after the payment of the agents selling fee.
The Husband therefore contended that from the proceeds of sale of the properties at suburb B and the former matrimonial home in suburb G the Wife received a total of $128,000.00 ($65,000.00 plus $63,000.00) and he received $116,453.00 ($51,300.0 plus $65,153.00). I observe that $128,000.00 is 52.36 per cent of $244,453.00 ($128,000.00 plus $116,453.00). The Wife contended that she received a total of $123,300.00 ($61,300.00 plus $62,000.00). The Federal Magistrate appears to have proceeded on the basis that the Wife received $123,300.00.
On 30 January 2007 an application for divorce was filed by the Wife.
In her affidavit of 31 July 2009 the Wife contended that the Husband was the current registered owner of the following properties:
1.     one property in suburb T;
2.     three properties in suburb S;
3.     one property in suburb P
4.     vacant land at suburb L;
5.     a block of land in Manila, the Philippines.

In paragraph 50(a) of his 10 September 2009 affidavit the Husband contended that in May 2007 he purchased a property in suburb P for a price of $209,000.00 and in order to complete the purchase he borrowed $167,200.00. In paragraph 16(d) of his 10 September 2009 affidavit the Husband contended that he purchased this property “shortly after separation”.
In paragraph 50(b) of his 10 September 2009 affidavit the Husband contended that in July 2007 he purchased a property in suburb S. The Husband gave no evidence as to the purchase price, however, he contended that in order to complete the purchase he borrowed $136,000.00. In paragraph 16(b) of his 10 September 2009 affidavit the Husband contended that the property was purchased by the parties’ daughter when she was in paid employment and that when she returned to study she could not afford the mortgage payments and she then transferred the property into the Husband’s name.
In paragraph 50(c) of his 10 September 2009 affidavit the Husband contended that in October 2007 he purchased a second property in suburb S. The Husband gave no evidence as to the purchase price, however he contended that in order to complete the purchase he borrowed $144,000.00. In paragraph 16(c) of his 10 September 2009 affidavit the Husband contended that he purchased this property “around one year after the separation”.
The Federal Magistrate observed at [29] that the Wife said that in 2007 the Husband acquired a property in suburb S in the name of the child C “so that he would qualify for the first homeowners grant” and that the ownership of the property was subsequently transferred into the Husband’s name.
In summary, at paragraph 49 of his affidavit of 10 September 2009, the Husband contended that in 2007 he purchased investment properties “using my 40% share of the matrimonial assets and the income [he earns] from [his] business”. The Husband gave no evidence as to what he contended were the matrimonial assets of which he only received 40 per cent. The Husband gave no evidence in relation to the relevance of the land in Manila or his business. As I have also observed, on one view of the evidence, the Wife received 52.36 per cent of the proceeds of sale of the properties at suburb B and the former matrimonial home in suburb G and not 60 per cent as was purportedly agreed between the Husband and the Wife.
The Husband contended that the third property in suburb S belongs to his sister.
The Husband contended that the vacant land in suburb L “belongs to” his five brothers.
The Husband contended that in late December 2008 he and his brother commenced a company called MX Cars Pty Ltd and that the Husband owns 55 per cent of the issued capital. The Husband contended that the company “continues the work formerly carried out by me when operating under the business name [MX Cars]”.
The divorce of the parties became absolute in June 2007. The Federal Magistrate observed that the Wife was able to institute property proceedings as of right at any time before June 2008.
In early 2008 the Husband increased the amount of child support to $150.00 per week.
The Federal Magistrate observed at [35] that a document issued by the Child Support Agency on 18 March 2009 indicated that for the period 1 August 2008 to 31 October 2009, the Husband had a taxable income for the 2008 tax year of $298,324.00 and a child support income of $280,072.00.
The Wife contended that she had to pursue the Husband with the assistance of Victorian Legal Aid for the payment of child support and the Husband was assessed to pay child support at the rate of $1,377.17 per month from 1 August 2008 to 31 October 2009.
The Federal Magistrate was of the view at [42] that: “If the wife had filed on the last day that she could have without leave, a trial would have taken place in about December 2008”.
In February 2009 the Husband ceased to pay any child support to the Wife.
The Husband contended that in May 2009 he purchased the property at suburb T. At paragraph 49 of his affidavit of 10 September 2009 the Husband described this property as his “present home”. The Husband gave no evidence as to the price or the source of funds to pay the cost of purchase.
As seen, on 5 August 2009 the Wife filed the applications which are the subject of the appeal. Accordingly, the application for leave to institute proceedings out of time was filed 14 months out of time.
The Wife submitted that on the day before the hearing the Husband provided financial documents attached to an affidavit despite an adjournment of the Wife’s application on 1 September 2009 and an order that the Husband file his material on or before 4.00pm on 8 September 2009. I observe that the Husband filed a response and an affidavit at the hearing before the Federal Magistrate on 11 September 2009.
The hearing before the Federal Magistrate went for a duration of two days on 11 September 2009 and 2 October 2009. The hearing proceeded in a summary way in that there was no cross-examination of either party.
I observe that it was submitted by the Wife to the Federal Magistrate that the failure by the Husband to fully disclose his financial affairs during the marriage, at the time of the initial application in 2005, and during the hearing of the leave proceedings, were a significant part of the Wife’s case in the context of establishing a prima facie case (Transcript, 11 September 2009, pp 6 to 7).
The Federal Magistrate observed at [4] that following the hearing she provided the parties with a copy of the decision of Tamberlin J in MZXRL v Minister for Immigration and Citizenship [2009] FCA 114 (10 February 2009). Her Honour observed: “That decision was to the effect that a proceeding cannot be resurrected after a notice of discontinuance is filed”. The parties were invited to make submissions on the effect of MZXRL.
On 2 October 2009 the parties made oral submissions to the Federal Magistrate. Her Honour observed at [5] that the Wife did not wish to make any submissions. However, the Husband argued that MZXRL “applied equally in this court”. The Husband also “argued that the proceedings could not be reinstated because they were now statute barred, in the sense that property and spousal maintenance proceedings could only be commenced with the leave of the court”.
The Federal Magistrate pronounced judgment on 27 November 2009.

The Reasons of the Federal Magistrate

In her reasons for judgment, after summarising the relief sought by the Wife, the Federal Magistrate first dealt with the application by the Wife for reinstatement of the two applications filed on 9 November 2005.
The Federal Magistrate said at [6]: “Based on the decision in MZXRL, I consider that it is not legally possible for an application that has been discontinued to be resurrected. Accordingly, the application to reinstate the proceedings filed on 9 November 2005 is dismissed”.
The Federal Magistrate then dealt with the applications for leave to institute proceedings out of time.
After referring to s 44(3) and s 44(6) of the Act, the Federal Magistrate observed at [8] that: “The divorce of the parties became absolute on 2 June 2007. Therefore, the [Wife] was able to institute property proceedings as of right at any time before 2 June 2008. The present application was filed on 7 August 2009. Accordingly, the application was filed 14 months out of time”.
The Federal Magistrate cited a number of cases being Whitford and Whitford (1979) FLC 90-612 per the Full Court (per Asche and Pawley S.JJ, Strauss J); McDonald and MacDonald (1977) FLC 90-317 per Full Court (per Evatt CJ, with whom Ellis and McGovern JJ agreed); Hall and Hall (1979) FLC 90-679 per Full Court (per Evatt CJ, Fogarty and Yuill JJ); Frost and Nicholson (1981) FLC 91-051 per Nygh J and Jacenko and Jacenko (1986) FLC 91-776 per Full Court (per Nygh J with whom Fogarty and Walsh JJ agreed).
The first application that the Federal Magistrate dealt with was the application by the Wife for leave to institute proceedings for settlement of property out of time.
The Federal Magistrate summarised the contention of the Wife. Her Honour observed at [13] that the Wife’s counsel acknowledged that the Wife had received an informal property settlement amounting to about $123,000.00. The Wife’s counsel argued that the Wife did not need to show a prima facie case that she would have received more under a property adjustment pursuant to the Act, that the Wife had a right to bring an application on a just and equitable basis and for that reason an extension of time should be granted. The Wife’s counsel submitted that “missing out” on a property settlement was itself hardship. The Federal Magistrate said at [14] that she accepted the Wife’s submissions
The Federal Magistrate said at [15] that if the Wife was able to show hardship, then her Honour had to consider whether the Wife “has a reasonable prima facie case that she would have received more in an adjudicated adjustment than she has already received in the informal settlement, the explanation for the delay and any prejudice to the respondent”. The Federal Magistrate observed that: “In some cases, the question of a reasonable prima facie case will need to be considered at both the threshold stage of determining hardship, and at the discretionary stage of determining whether to grant leave”.
The Federal Magistrate observed at [16] that contrary to the Wife’s submissions: “[T]he cases do not show that ‘missing out’ on an adjudicated property adjustment is itself hardship. If that were so, everyone who had not filed in time would have suffered hardship and the legislative requirement to show hardship would serve no purpose”.
The Federal Magistrate at [17] and [18] identified the written material relied upon by the Wife and then at [19] said: “The wife’s evidence was as follows”. Thereafter her Honour from [19] to [21] set out some of the history which I have already described.
The Federal Magistrate observed at [20] that the Wife “said that she is in reasonably good health except that she has suffered from high blood pressure for about seven years”.
The Federal Magistrate then considered the financial circumstances of the Wife. Her Honour first dealt with the income of the Wife. Her Honour observed at [20] that the Wife “is employed on a casual basis as a process worker through a recruitment agency and earns about $700 per week gross”. Her Honour observed at [22] that the Wife’s “total weekly income, from employment and benefits, is $875 per week”. Her Honour also observed that the children C and J each receive Youth Allowance of $120.00 per week and that the Wife “said they and [the child M] are financially dependent on her”.
The Federal Magistrate then dealt with the expenses of the Wife. Her Honour observed at [23] that the Wife said that her weekly expenditure was $1,924.00. However, her Honour observed that “the figures [the Wife] gave in her financial statement actually add up to $1,424”. Her Honour also observed that in the Wife’s affidavit sworn on 24 August 2009 “some additional expenses which add up to about $155 per week, making a total of $1,579” were listed. Her Honour was referring to the financial statement sworn by the Wife on 31 July 2009.
The Federal Magistrate at [24] described some contentions of the Wife about the circumstances of the Husband. The Wife said that the Husband was 45 years old and in good health. Her Honour observed that the Wife said the Husband “is self-employed as a motor mechanic, car salesman and property investor”. Her Honour observed that the Wife said the Husband “has repartnered and has other children. The wife said she believed the husband earned considerable income from his business and investments”.
The Federal Magistrate at [25] described the evidence of the Wife as to her receipt of child support after separation.
The Federal Magistrate at [26] to [29] identified the evidence of the Wife, which I have already referred to, about the sale and purchase of property since 2005 and the lodgement of caveats over properties owned by the Husband.
The Federal Magistrate then at [30] returned to the contentions of the Wife about the circumstances of the Husband. Her Honour observed that the Wife contended that the Husband was living in a house at suburb T with his new partner. Further, that the Wife contended that the Husband was “continuing to operate his business as a motor mechanic and car salesman” and “derived a substantial income”.
The Federal Magistrate observed at [30] that the Wife contended that the Husband was the registered owner of seven properties which I have already identified.
The Federal Magistrate at [31] returned to the circumstances of the Wife and first dealt with the amount of $123,000.00 which, as I have observed, at [13] her Honour said was the “informal property settlement” the Wife acknowledged she received. Her Honour observed that the Wife said that she spent about $14,000.00 to buy a car and about $22,000.00 on a trip with the children to the Philippines and Singapore. Her Honour observed that the Wife said that “she used to balance for general living expenses”. The “balance” was therefore an amount of $87,000.00.
The Federal Magistrate then at [32] to [34] described contentions of the Wife about her financial circumstances.
The Federal Magistrate observed at [32] that the Wife gave evidence that she fell into arrears with her rent and that to catch up she had to borrow $200.00 from the boyfriend of the child C and $150.00 from the child J and was also given $350.00 by the Salvation Army.
The Federal Magistrate observed at [33] that the Wife gave evidence that the child M’s glasses broke and she was unable to pay for new ones. Her Honour observed that the Wife said the Husband “was asked to pay for [M]’s new glasses but he said he had no money”.
The Federal Magistrate observed at [34] that the Wife gave evidence that she has been pursued for outstanding school fees that had been owed for the child J since 2007. Further, that the Wife said she is unable to afford a car for the child J or private health insurance. Also, the Wife said that “she sometimes has to ask [C] and [J] for financial assistance to be able to pay daily living expenses and household bills”.
The Federal Magistrate at [36] made a passing reference to an affidavit of Mr J and that it “went to a matter not presently under consideration, namely, the immediate payment of $30,000 by the husband to the wife for her living and legal expenses”.
The Federal Magistrate then returned to the circumstances of the Husband. Her Honour referred to what she identified at [35] as “Child Support Agency documents exhibited to the wife’s affidavits”. Her Honour observed that these documents revealed that the Husband had a taxable income for the 2007 tax year of $28,136.00 and a child support income amount of $9,884.00 in relation to the month of July 2008. Her Honour observed that for the period 1 August 2008 to 31 October 2009, a document issued on 18 March 2009 indicated that the Husband had a taxable income for the 2008 tax year of $298,324.00 and a child support income of $280,072.00. Further, that the documents also indicated that the Husband made three payments of $500.00 in 2009 directly to the children’s school for arrears of school fees.
The Federal Magistrate at [38] observed that the Wife referred to a passage in the affidavit sworn by the Husband on 10 September 2009 in which he said, “I intend to appeal the imputed income on which the Child Support Agency made its assessment”. Her Honour also observed that the Wife “also referred to the explanation the husband gave for his very high income, namely, namely, [sic] that the records of his expenses for the business had been accidentally destroyed and therefore the expenses not been allowed by the tax office”.
The Federal Magistrate at [37] referred to the affidavit of the Husband sworn on 10 September 2009 and observed that “he contested a number of the wife’s claims and made certain counter allegations against the wife”. Her Honour observed:
However, in an extension of time application, the court accepts the applicant’s claims unless they are inherently implausible or contradictory: Jacenko. Having said that, if the respondent happens to make admissions that support the applicant, I can see no reason why they should not also be taken into account. Additionally, if an applicant chooses to refer to part of a respondent’s affidavit, that evidence can also be taken into account.
For a reason which is not readily apparent, the Federal Magistrate at [39] observed that the Husband argued that the Wife’s “claim that her solicitor did not advise her that she needed to bring any property application within 12 months of the divorce was inherently unbelievable, given the experience of [Mr J] in family law”. Her Honour at this point in her reasons had not referred to the evidence of the Wife about delay and thus as her Honour observed “[t]hat point seems to me to go to the question of delay, so I will return to it when considering that aspect of the matter”.
The Federal Magistrate then at [40] made a significant finding, which I will return to later, namely that her Honour was satisfied that the Wife and the children would suffer hardship if leave were not granted to bring property proceedings out of time.
The Federal Magistrate then dealt with what she observed at [41] was “the question of whether the wife has a reasonable prima facie case that she would have received more in an adjudicated property settlement than the $123,000 she received in the informal settlement”.
The Federal Magistrate observed at [42] that if the Wife had commenced proceedings “on the last day that she could have without leave”, namely 2 June 2008 then “a trial would have taken place in about December 2008”. In other words, her Honour was of the view that if the property settlement proceedings had been initiated on 2 June 2008, then the final hearing would have occurred in December of that year. Put another way, her Honour said that defended property settlement proceedings in the Federal Magistrates Court in 2008 would be concluded within six months. Her Honour gave no explanation for her view as to when a final hearing would have concluded.
The Federal Magistrate then proceeded to consider what the Wife may have received by way of property settlement entitlement if the proceedings had been heard and determined in December 2008. In undertaking this task her Honour appears to have proceeded on the basis that she had to determine what would have happened if there had been a hearing of property settlement applications in December 2008.
What the Federal Magistrate then did was endeavour to ascertain the extent and value of the assets of the parties in December 2008. Her Honour observed at [42] that “[i]t was necessary for the wife to identify the assets of the parties at about that time and give some indication of their value” and she did not do so. Her Honour observed that the Wife gave evidence of “what some of the assets were at an earlier point in time and what some of the husband’s assets were at a later point in time, but not at the relevant time” being December 2008. Her Honour observed that the Wife “did not give any evidence of how much the properties presently or previously owned by the parties were worth, or the extent of any mortgages on them” and also “did not list her own assets as at December 2008 or give any value for them”. In other words, it was her Honour’s view that the Wife had to adduce evidence as to the extent of the assets of the parties as at December 2008, being over three years since separation and in circumstances where the Wife had made it very clear that she was seeking disclosure by the Husband.
The Federal Magistrate at [43] discussed the absence of evidence of the value in December 2008 of property and in the course of doing so observed that “[i]t is common knowledge that real estate can have negative equity in it”. It is not entirely clear to me what this means. Her Honour also observed that “[t]he court cannot proceed on the basis that the properties in question have roughly a certain amount of equity in them when the wife has given the court no evidence on which to draw such a conclusion, even provisionally”. In my view, there is a difference between value and equity. In any event, it was her Honour’s view that the Wife had to also adduce evidence as to the value of the assets of the parties as at December 2008 being over three years since separation.

The Federal Magistrate then proceeded at [44] to deal with the matters of contribution being the matters in s 79(4)(a), (b) and (c) of the Act. Her Honour observed that the Wife had “said virtually nothing about the relative contributions of the parties at the commencement of their relationship or during their relationship”.
Before proceeding, I observe that the Federal Magistrate knew that it was a relationship of about 17 years, that at the commencement of the relationship neither party had any significant assets and there are three children of the relationship. Further, her Honour knew that the contributions by the Wife continued after separation inter alia because the Wife had the responsibility for the support and accommodation of the children. The Wife had perhaps spent $87,000.00 on general living expenses. In late 2005, when the parties ceased to reside in the same residence, the three children of the marriage were approximately 17, 16 and 8 years of age.
In any event, the Federal Magistrate observed at [44] that the Wife “could have been expected to be thoroughly familiar with” the contributions of the parties at the commencement of their relationship and during their relationship. Her Honour observed that the Wife:
would have known if either party had brought anything of value to the relationship. She would have known if one or both had worked outside the home. She would have known to what degree each of them cared for the children. She would have known what sort of lifestyle they had, and roughly what sort of income was required to support such a lifestyle. She would have known if either party had received an inheritance, or any other windfall. She would have known if either party had been wasteful.
In the context of considering the matters of contribution, the Federal Magistrate observed at [45] that “[t]he wife’s claims that she believed the husband earned a substantial income are not helpful. They are stating a conclusion without giving the court the underlying evidence to enable the court to form its own view”. Again, I observe that the Wife had made it very clear that she was seeking disclosure by the Husband.
The Federal Magistrate then appears to have come to a conclusion when she said at [46] that “[t]he failure of the wife to give the court any material in relation to these matters has made it virtually impossible for the court to assess whether the wife could reasonably have been expected to have obtained a better result if she had filed within time than the result that she received under the informal settlement”. I assume that her Honour was referring to her inability to determine the extent and value of the net assets of the parties as at December 2008 and her opinion that there was no evidence that would enable her to form any concluded view about the contributions of the parties.
However, the Federal Magistrate then returned to the income of the Husband and at [47] observed that the Child Support Agency documents, which her Honour had described at [35], suggested that the Husband “had a quite low income until well after separation”. Her Honour was referring to her earlier observation that the documents revealed that the Husband had a taxable income for the 2007 tax year of $28,136.00. The Federal Magistrate then observed at [47] that “[t]he sudden increase in his apparent income could have many explanations”. Although her Honour did not say so, I assume that she was referring to the fact that a Child Support Agency document issued on 18 March 2009 indicated that the Husband had a taxable income for the 2008 tax year of $298,324.00.
Given that the documents suggested that the Husband had a taxable income of $28,136.00 for 2007 and a taxable income of $298,324.00 for 2008, the Federal Magistrate speculated that the Husband’s “most recent income tax assessment could be entirely accurate”. Her Honour observed at [47]:
For example, the business might have benefitted from the husband’s new partner providing additional capital. Alternatively, as the husband suggests, the most recent income tax assessment might be wrong because the tax office did not allow deductions for running the business that should have been allowed. However, it is not for the court to speculate on such things.
In my view, the Federal Magistrate could not form any concluded view about the financial circumstances of the Husband in the absence of full disclosure by the Husband and cross-examination of him. Therefore, what her Honour said was speculative.
The Federal Magistrate then appears to have considered contributions since the parties separated when she observed at [48] that:
Apart from the information contained in the Child Support Agency documents, the wife has said that, post-separation, the children lived with her and the husband paid a certain amount of child support. The wife also said that the husband had acquired some new properties. Otherwise, the wife did not say very much about the post-separation contributions, such as whether the husband was at all involved in the care of the children.
I observe that it is very difficult to know what else the Wife could say.
The Federal Magistrate then appears to have commenced to deal with the matters in s 79(4)(d), (e), (f) and (g) of the Act because at [49] she observed that the Wife “addressed some of the s.75(2) factors, such as her age and health, and the financial arrangements in respect of the children, though two of them are adults”. However, her Honour made no findings in relation to these matters and simply concluded at [50]: “However, unfortunately, on balance, the wife’s evidence does not establish a reasonable prima facie case that she was reasonably likely to have received any more in an adjudicated property settlement if she had filed before 2 June 2008 than she received in her informal property settlement”.
The Federal Magistrate then dealt with delay. Her Honour at [51] referred to paragraph 23 of an affidavit sworn by the Wife on 31 July 2009 and observed that the Wife deposed that “at the time that she obtained her divorce, she did not understand that she had 12 months to commence proceedings”. Her Honour observed that the Husband “argued that was inherently improbable, given that the wife was represented by a solicitor for the purposes of the divorce”. Her Honour concluded: “I accept that submission. I cannot accept that an experienced family law solicitor would not ensure that his client understood that any property proceeding would have to be brought within 12 months or the opportunity to seek a property settlement may be lost”. In other words, her Honour did not accept the contention of the Wife.
I observe that the affidavit of the Wife sworn on 31 July 2009 was prepared by Mr J. I observe that the Federal Magistrate observed at [17] that the Wife sought to rely on an affidavit sworn by her solicitor, Mr J, on 31 July 2009 and at [18] her Honour observed:
The affidavit of [Mr J] appears to have been filed with the court prior to the time of the hearing, but somehow was not retained by the Registry. The original affidavit was returned to the solicitors. At the time of the hearing, the respondent has been served with [Mr J]’s affidavit. Both parties referred to it during the hearing. Subsequently, the court enquired as to the whereabouts of the affidavit and the original was placed on the court file. The court asked the husband, by letter after the hearing, whether he objected to [Mr J]’s affidavit being received in the present applications. The husband originally indicated that he did object but then said that he did not. Accordingly, and as both parties conducted the hearing on the basis that [Mr J]’s affidavit had been filed, I have taken that affidavit into account.
The Federal Magistrate observed at [52] that the Wife said “that, at the time of her divorce, she was extremely distressed, stressed, and worried about her future and that of her children”. Her Honour was referring to what the Wife contended in paragraph 23 her affidavit of 31 July 2009. Her Honour observed that the Wife:
adduced no medical evidence or other objective evidence that she was suffering any unusual stress or anxiety at the time, which was well after separation. In all the circumstances of this case, I consider the wife’s claims that she was too stressed to instruct her solicitor to file property proceedings to be inherently improbable.
The Federal Magistrate observed at [53] that the Wife “also said that she was intimidated by the husband and was reluctant to even consider bringing property proceedings at that time”. Again, her Honour was referring to what the Wife contended in paragraph 23 her affidavit of 31 July 2009. Her Honour observed:
However, the wife has not produced any intervention orders or other evidence that she was intimidated by the husband. She has not said what has changed that has enabled her to bring the proceedings now. In all the circumstances of this case, I consider the wife’s claims that she was so intimidated by the husband that she could not instruct her solicitor to file property proceedings to be inherently improbable.
I observe, again, that the hearing before her the Federal Magistrate was conducted in a truncated way in that there was no cross-examination of either party and yet her Honour made findings of fact including in relation to controversial facts.
The Federal Magistrate concluded at [54]: “All in all, I am not persuaded that the wife has an adequate explanation for her delay in bringing the present application”.
The Federal Magistrate then at [55] observed that the Husband submitted that prejudice to him was a factor to take into account. Her Honour observed that the Husband “did not point to any particular prejudice to himself”.
The Federal Magistrate at [56] said that: “Taking into account all the matters addressed above, I consider that the wife’s application for an extension of time in which to bring property proceedings should be refused”.
The Federal Magistrate then considered the application of the Wife for leave to commence proceedings for spousal maintenance.
The Federal Magistrate referred to s 44(3) and s 44(6) of the Act and thereafter appears to have considered the three matters described by Nygh J in Jacenko and Jacenko at 75,645, namely:
The applicant must establish three principal matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time; secondly, that denial of the wife's claim would cause her hardship; and thirdly, an adequate explanation as to her delay.
That third requirement must now be read, subject to the decisions of the Full Court in Althaus and Althaus (1982) FLC 91-233; (1979) 8 Fam. L.R. 169 , and Howard and Howard (1982) FLC 91-234; (1979) 8 Fam. L.R. 178 which indicate that in appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay.
If those three elements are satisfied, the Court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice which the respondent would suffer by reason of the delay in bringing the application.
As to the first Jacenko and Jacenko matter, namely whether the Wife had established a reasonable prima facie case for relief, had she instituted proceedings in time, the Federal Magistrate observed at [50] that “usually, but by no means always, spousal maintenance is ordered for a short period, perhaps two or three years after separation, to enable a party to retrain or re-establish himself or herself in the workforce” and in support of this proposition her Honour cited “Australian Master Family Law Guide, CCH, 2007, page 333”. Her Honour then observed that the parties separated “about four years ago”.
As to the second Jacenko and Jacenko matter, namely whether denial of the Wife’s application would cause her hardship, the Federal Magistrate observed at [58] that she was satisfied that the Wife or a child would suffer hardship if the leave to bring the spousal maintenance application out of time were not granted “though whether leave would alleviate the hardship would depend on whether she has a good case”. Her Honour also observed that the Wife was in receipt of Newstart allowance at the relevant time, being 2 June 2008, and her Honour assumed “that the wife would not have received that allowance if she had been able to support herself without it”.
The Federal Magistrate then undertook an exercise similar to that she had undertaken when considering the application to commence property settlement proceedings out of time, namely her Honour considered whether or not the Wife would have obtained an order for spouse maintenance if she had commenced proceedings in or before June 2008.
The Federal Magistrate referred to s 72 of the Act and observed at [60] that the first issue was whether the Wife was unable to support herself adequately. Her Honour observed at [61] that the Wife had “not clearly articulated the basis of her claim for spousal maintenance. Virtually no submissions were made about it”.
The Federal Magistrate then referred to some matters that she said at [61] “can be gleaned from the material”. The first matter that the Federal Magistrate referred to was at [62], namely that the Wife is the primary carer of the child M and that there was “no suggestion that the wife is unable to work because of her responsibilities in relation to [the child M]”. Her Honour observed that the Wife does work. Thus, her Honour addressed s 72(a) of the Act.
The next matter the Federal Magistrate referred to at [63] was the age and state of health of the Wife and her capacity for gainful employment being the matters in s 72(b) of the Act. Her Honour observed that the Wife “has only minor health problems” and that “[t]here is no suggestion that she does not have the physical or mental capacity for appropriate gainful employment”.
The Federal Magistrate did observe at [63] that it was not at all clear “what would be appropriate gainful employment” for the Wife. Her Honour observed that the Wife had “not provided any material about her qualifications, experience or work history” and that she “is presently working on a casual basis”. Her Honour observed that the Wife did not say whether she works full time, or, if not, why not. Her Honour did not say whether the Wife had attempted to retrain since separation and “did not say what efforts she has made to find more lucrative employment or, if they were unsuccessful, why”.
The Federal Magistrate observed at [64] that the Wife is in receipt of family tax benefit A and B and that the family tax benefit is an income tested pension, allowance or benefit that must be disregarded under s 75(3) of the Act and that her Honour did so. Her Honour observed that this meant that she had to proceed on the basis that the Wife had about $700.00 per week to live on. Her Honour also observed that the Wife said that “her expenses were a good deal more than that, but the figures she has given do not add up, as explained above”. What her Honour was referring to was that at [23] she had observed that in her financial statement the Wife said that her weekly expenditure was $1,924.00 where as her Honour calculated that the figures actually add up to $1,424.00.
The Federal Magistrate observed at [65] that the Wife had not provided:
any adequate material to assess what would be a reasonable standard of living in the circumstances (s.75(2)(g)), or the extent to which maintenance would enable the wife to undertake further training or establish a business (s.75(2)(h)), or the extent to which the wife has contributed to the income, earning capacity, property or financial resources of the husband (s.75(2)(j)), or the extent to which the duration of the marriage affected the wife’s earning capacity (s.75(2)(k)).
The Federal Magistrate observed at [66]: “All in all, the wife has not given the court sufficient information about her ability to work, and the various other matters the court must consider in a spousal maintenance application, for the court to consider that the wife has a reasonable prima facie case for spousal maintenance”.
As to the third Jacenko and Jacenko matter, namely an adequate explanation as to delay, and prejudice, the Federal Magistrate observed at [67] she repeated “the discussion of these matters set out above”.
The Federal Magistrate concluded at [68] that she was “not persuaded that it would be proper to give the wife an extension of time in which to file her spousal maintenance application”.
The Federal Magistrate then dealt with the application for a departure from administrative of child support and her Honour simply said at [69]:
The applicant ran the case on the basis that, if the applications for extensions of time were successful, the court ought to give the wife leave to bring her application for departure from administrative assessment of child support in this court, instead of making application in the first instance to the Child Support Registrar. As the extension of time applications have been refused, I consider that it is also appropriate to refuse the application for leave to bring the departure application in this court.

Grounds of Appeal

Introduction

The grounds of appeal are as follows:
1.     That Her Honour erred in applying the wrong test in considering the Application before her.
2.     That Her Honour erred and wrongly exercised her discretion when she dismissed the Applicant’s Application even though Her Honour found that the Appellant would suffer hardship if that result ensued.
3.     That Her Honour erred by finding that the Wife had said nothing about the relative contributions of the parties at the commencement of their relationship or during their relationship.
4.     That Her Honour erred in finding that the Wife had not given the Court sufficient material to enable it to establish that she had a prima facie case.
5.     That Her Honour erred in that she failed to have or have sufficient regard to the fact that the Applicant had not obtained a just and equitable property settlement.
6.     That Her Honour erred in the exercise of her discretion by failing to take account or have sufficient regard to the Wife’s claim that the Husband had been secretive in financial affairs.
7.     That Her Honour erred in the exercise of her discretion by failing to have regard to the circumstances in which the Wife discontinued her Application in 2005.
8.     That Her Honour erred in the exercise of her discretion in finding the Wife did not adequately explain her delay.
9.     That Her Honour erred in failing to act on the basis of the evidence of the Applicant.
In discussion I enquired as to what orders the Wife was appealing against and her counsel informed me that the Wife was only appealing Order 2. In the event that the appeal succeeds, the Wife seeks that Order 2 made by the Federal Magistrate be set aside and that the Wife be granted leave to institute proceedings for property settlement out of time.

Relevant principles

Discretionary judgment

This is an appeal against a discretionary judgment and the circumstances in which I may interfere with a discretionary judgment are well known and need not be repeated: House v The King (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ; Gronow v Gronow (1979) 144 CLR 513 at 519 per Stephen J; Mallet v Mallet (1984) 156 CLR 605 and Norbis v Norbis (1986) 161 CLR 513.

Leave to appeal

In this case, the Wife filed a notice of appeal in accordance with r 22.02 of the Family Law Rules 2004 (Cth) but did not include an order seeking leave to appeal. The appeal therefore purported to be pursuant to s 94 of the Act. In the notice of appeal, and the amended notice of appeal, the Wife stated at paragraph 5 that she was not applying for leave to appeal. However, in the orders sought in the amended notice of appeal the Wife sought that she be granted leave to appeal against the orders made by the Federal Magistrate. The Wife therefore did seek leave to appeal pursuant to s 94AA of the Act.

Section 94AA of the Act provides that leave to appeal a prescribed decree of the Federal Magistrates Court is required: see Item 4 of s 94AA. Regulation 15A of the Family Law Regulations 1984 (Cth) defines prescribed decree as an interlocutory decree. The issue that arises is whether the Wife had to seek leave to appeal pursuant to s 94AA of the Act on the basis that the order dismissing an application for leave under s 44(3) is interlocutory. The issue as to whether an order refusing leave pursuant to s 44(3) of the Act to commence proceedings for property settlement is interlocutory or final is open to some doubt.
The question whether an order is interlocutory or final has been discussed in many cases including in the High Court: see Re Luck (2003) 203 ALR 1; Bienstein v Bienstein (2003) 195 ALR 225 and 230, and Carr v Finance Corporation of Australia Limited (No.1) (1981) 147 CLR 246 at 248 and 256. The usual test is whether the order finally determines the rights of the parties in the principal cause pending between them.
In Thallon and Thallon (1992) FLC 92-322 the Full Court (per Fogarty, Baker and Maxwell JJ) concluded that orders under s 44(3) of the Act whether granting or refusing leave were final, that is, they finally determined that particular proceeding. If leave is granted and property or maintenance proceedings are instituted then that is a separate proceeding: see also Neocleous and Neocleous (1993) FLC 92-377 (per Fogarty and Nygh JJ with Lindenmayer J dissenting).
In Emamy and Marino (1994) FLC 92-487 the majority of the Full Court (per Ellis and Baker JJ) concluded at 81,075 that an order dismissing an application pursuant to s 44(3) of the Act was final but was interlocutory if leave was granted because property proceedings would then be instituted and the “substantive property rights of the parties under s 79 remain to be determined”. The majority found that Thallon and Thallon was wrongly decided insofar as it was authority for the proposition that an order granting leave was a final order.
The issue was briefly considered by the Full Court (per Finn, Warnick and Boland JJ) in Richardson & Richardson [2008] FamCAFC 107 (16 July 2008). In that case the appellant husband filed an application for leave to appeal (and if leave was granted) an appeal against orders dismissing an application for a review of orders made by a Judicial Registrar. The primary judge had, in effect, confirmed the orders of the Judicial Registrar which had granted the wife leave under s 44(3) of the Act to institute proceedings against the husband for property settlement, notwithstanding a delay of 13.5 years. The Full Court said at [6] that it was well established by authorities that an order granting leave pursuant to s 44(3) to institute proceedings is an interlocutory order and that therefore leave is needed to appeal such an order and referred to Emamy and Marino. It was also accepted that in order to obtain leave to appeal, the appellant husband had to establish that there had been an error of principle in the making of the order or that the order worked a substantial injustice towards him.
I have some doubt about the correctness of the view of the majority in Emamy and Marino. However, it is not necessary for me to resolve that issue because in the written submissions of the Wife, referring to Emamy and Marino, it was acknowledged that there is Full Court authority indicating that applications pursuant to s 44(3) of the Act are interlocutory proceedings. It was submitted that, in addition, the proceeding was conducted as an interlocutory proceeding and there was no evidence given or cross-examination of witnesses during the hearing before the Federal Magistrate (Transcript, 11 September 2009, p 8). The Wife acknowledged that in those circumstances she required leave to appeal and that such leave can only be granted if her Honour made errors of principle and/or not to grant leave to appeal would cause a substantial injustice to the Wife: see Rutherford and Rutherford (1991) FLC 92-255. Accordingly, it was submitted that the errors made by her Honour in the hearing of the Wife’s application either individually or cumulatively lead to that result such that leave ought be granted.

Institution of proceedings out of time

In relation to the approach to be taken to the determination of an application pursuant to s 44 of the Act for leave to institute proceedings for property settlement pursuant to s 79, subject to some additional observations, I will repeat some of what I said in Oxenham & Oxenham [2009] FamCAFC 167 (15 September 2009).
Section 44(1) of the Act provides that proceedings under the Act shall be instituted by application. Section 44(2) provides that a respondent may, in an answer to an application, include an application for any decree or declaration under the Act.
Section 44(3) of the Act provides:
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 and 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.
Section 44(4) of the Act provides:
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.
Proceedings of a kind referred to in paragraph (ca) of the definition of “matrimonial cause” in s 4(1) of the Act are “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them”.
As to the procedure to be adopted in hearing an application under s 44(3) of the Act, in Whitford and Whitford the Full Court observed at 78,143:
The hearing of an application for leave to institute proceedings under sec. 44(3) is not intended to be the final hearing of a matter. We do not consider it necessary or desirable to lay down any definitive procedural rules for the conduct of such an application. Generally, the applicant should file adequate affidavit evidence from which the facts appertaining to the relevant issues appear. The respondent should have an opportunity to file an affidavit to answer the applicant's allegations and to adduce material showing why leave to institute the proceedings should not be granted. In appropriate cases, the applicant should have an opportunity to file an affidavit in reply. Cross-examination of either party on his or her affidavit material should be permitted, and there may be occasions, when some oral evidence supplementing the affidavit evidence might be received. If the Court considers it necessary, it may allow an applicant to conduct some investigation into the financial position of the respondent. The parties and the judge hearing the matter will no doubt bear in mind that the only question to be determined is, whether leave should be granted enabling the applicant to institute proceedings, and the extent of the proceedings and any investigation should be regulated accordingly.
The procedure to be adopted was summarised by Boland J in Hedley & Hedley (2009) FLC 93-413 (per Finn, Boland and Cronin JJ) at 83,676.
In Neocleous and Neocleous Fogarty and Nygh JJ observed at 79,914 that: “It has also long been recognised that a hearing of an application under s.44(3) should be summary in character”. Their Honours also observed:
As we see it, the essence of the remarks in Whitford as further exemplified by decisions such as Jacenko, is that the judge must always bear in mind that the only question to be determined is whether leave should be granted to enable proceedings to be instituted and this should govern the procedure before him or her. For that reason it will often be undesirable to allow cross-examination on any issue which will or can be fully litigated at the principal hearing or on any issue which is not immediately relevant to the question of granting leave.
In Neocleous and Neocleous, Lindenmayer J observed at 79,917 that it was not necessary for the applicant to be cross-examined about matters going to a prima facie case, but in his view, the trial Judge’s refusal to allow a cross-examination on other issues of delay and hardship, was a denial of natural justice.
Although s 44 of the Act does not state what principles should guide the exercise of the discretion to grant or refuse leave to extend time, the discretion is not wholly unfettered. As the Full Court observed in Whitford and Whitford at 78,144 “two broad questions may arise for determination”. First, the discretion is subject to the requirement in s 44(4)(a) of the Act that the court must not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted. Thus, if such hardship is not established then the application for leave must be dismissed. Second, if the court is satisfied that hardship would be caused, it should proceed to consider whether leave should be granted or refused: see also Hall and Hall and Cox and Cox (1981) FLC 91-068.
In summary, there are two questions that have to be considered and the applicant for leave bears the onus on the balance of probabilities. As the Full Court also observed in Whitford and Whitford at 78,145:
If the Court is satisfied that hardship would be caused if leave were not granted, the Court may exercise the discretion which is conferred upon it by sec. 44(3) to grant leave or it may refuse such leave. Section 44(4) inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused.
In relation to the first question, as to what constitutes hardship, there is considerable authority. In Whitford and Whitford the Full Court said at 78,144:
The hardship referred to in sec. 44(4) is the hardship which would be caused to the applicant or a child of the marriage if leave were not granted. The loss of the right to institute proceedings is not the hardship, to which the subsection refers. It is with the consequences of the loss of that right, with which the subsection is concerned. The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted. Further, the matter with which the Court is concerned is not whether the applicant or a child is suffering hardship, but the question is whether the applicant or a child would suffer hardship if leave were not granted. If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.
In Whitford and Whitford the Full Court went on to consider what the word “hardship” in s 44(4) means and observed at 78,144: “In our view the meaning of ‘hardship’ in subsec. 44(4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment”. The Full Court then observed at 78,145:
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. As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either subsec. 44(3) or 44(4) for saying that the right or entitlement lost must be a substantial one. (emphasis in original)
In Whitford and Whitford the Full Court observed at 78,145: “In an appropriate case, and depending on the circumstances of the applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value”. Further, the Full Court observed that the applicant may establish hardship although the applicant is not in poor or necessitous circumstances: see Frost and Nicholson at 76,423. However, the inquiry is not concerned per se with whether the applicant for leave may be suffering hardship. Hardship is not established by showing that the applicant would be marginally better off if leave were granted.
In Hall and Hall the Full Court (per Evatt CJ, Fogarty and Yuill JJ) said at 78,627-28:
The case[s] … have considered what is meant by the term “hardship” in this context, and the term “substantial detriment” seems to be the generally accepted interpretation of that word.
Fundamental to that is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept. For example in Swallow’s case (unreported Emery J., 16 September 1977; referred to in McDonald’s case) it was said to be “a prima facie case which is in the circumstances substantial”; the Full Court in McDonald’s case differed from that by stating that it ought to be “a reasonable prima facie case”. In Mackenzie’s case it was described as being “a probability of success”, and in Whitford’s case the distinction was said to be that the applicant would need to show that she would “probably succeed” to be contrasted with a situation where she had “no real probability of success”. In Perkins’ case (1979) FLC 90-600 Lindenmayer J. described it as “a reasonable probability of the claim being successful in some measure”.
These varying phrases may tend to suggest different shades of meaning whereas in reality they are directed to the same fundamental inquiry which basically is in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the court. It is not necessary to further categorize the nature or quality of that claim, subject, however, to the qualification referred to by Lindenmayer J. in Perkins’ case at p. 78,054 when he said:
I would add only this qualification, that if the applicant’s evidence as to merits of his or her proposed claim is in itself inherently improbable or self contradictory in important respects, or if it is clearly shown by other impeachable evidence (such as undisputed documentary evidence or the testimony of independent witnesses) to be false, then the applicant may be held to have failed to establish a prima facie case notwithstanding that if his or her evidence were accepted there would be a reasonable probability of success.
As Lindenmayer J. said, an application under sec. 44 is not intended to be a detailed hearing of the merits of the proposed claim itself. In Whitford’s case the Full Court also referred to this and indicated the sort of procedure that would generally be involved on such an application (see p. 78,143). It is not a proceeding to determine whether and to what extent the proposed application will ultimately be successful. It is a procedure to determine whether the applicant would suffer hardship if leave were not granted and whether otherwise it is appropriate to grant leave.
Similarly it needs to be borne in mind that the prospect of success need not relate to the whole of the proposed claim. It is sufficient if it relates to some part or aspect of it which in the context of the facts of the individual case is of significance.
It is therefore an inquiry as to whether in the particular circumstances of the case in question the applicant would suffer hardship by the refusal to grant leave which sec. 44(4) permits the court to grant. As all of the authorities point out, the fact that the applicant demonstrates that he or she has a reasonable claim to present to the court is not necessarily the same thing, although that is an important aspect of the matter. That circumstance must then be considered in the light of all of the facts in determining whether at this particular stage the applicant would suffer hardship by the application being refused. That involves amongst other matters some consideration of the then financial and other circumstances of both parties.
If hardship of the required type is established then the court may grant the leave but it has a discretion to refuse to do so and in considering the exercise of that discretion it would take into account any other relevant matters, but basically the question whether there is a reasonable explanation of the delay and the question of prejudice which may have occurred to the respondent as a consequence. Other facts may be relevant in an individual case, such as, for example, any prior order or provision made, and the discretion has to be exercised on the basis of the facts of that particular case. (italics in original)
In Frost and Nicholson Nygh J said at 76,424:
I have already indicated my view that had she brought action in time she would have been entitled to a substantive order even if falling short of 50 per cent of the joint assets. To deprive a party of a right to institute proceedings is not per se hardship, but to deprive the wife of a right to action in the present circumstances is to work an injustice, and that is a “substantial detriment”. As the Full Court said in Hall and Hall (1979) FLC 90-679, at p. 78,627, fundamental to the enquiry as to hardship is the question whether the applicant has a reasonable claim to be heard by the court. That is not by itself necessarily the same thing as hardship, but the stronger the applicant’s prima facie claim, the greater the likelihood of hardship if leave were refused. The issue depends on the circumstances of each case, as Strauss J. so aptly pointed out in Mackenzie and Mackenzie (supra). (italics in original)
See also Althaus and Althaus (1982) FLC 91-233 at 77,267 per Evatt CJ.
In summary, in order to establish hardship in the relevant sense, the applicant for leave must have a prima facie case to be heard by the court on the merits. This does not require a detailed hearing of the merits of the substantive application, but a consideration of whether there exists a prima facie case on the strength of the applicant’s material.

I observe that Dr Anthony Dickey in Family Law (Thomson Lawbook, 5^th edition, 2006) observed at page 633:
What constitutes a “substantial detriment” depends upon the circumstances of each case. 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. The detriment need not, however, be exclusively financial (citations omitted).
As to the second part of the exercise, the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties: see Gallo v Dawson (1990) 93 ALR 479. In Gallo v Dawson 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 principles were discussed in Tormsen and Tormsen (1993) FLC 92-392: see also McMahon and McMahon (1976) FLC 90-038; Van der Kreek and Van der Kreek (1978) FLC 90-421 and Coombs and More (1990) FLC 92-175. In summary, in considering the second question the court may have regard to a number of factors that include whether the applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the respondent to the application for leave or other persons.
Dr Anthony Dickey in Family Law at page 634 set out a useful summary of various considerations that a court may take into account when exercising the discretion to grant or refuse leave including “the strength of the applicant’s case”. Dr Dickey observed:
The decision whether to grant leave under s 44(3) ultimately involves a weighing of two competing principles. The first is that spouses should ordinarily commence any proceedings for spousal maintenance or alteration of property interests within 12 months of the date of the divorce or the annulment of their marriage, or within 12 months of their financial agreement or approved maintenance agreement seeking to have effect if this is later. The second is the clear intention evinced by s 44(4) that proceedings for such relief should nonetheless be permitted out of time in order to avoid hardship to a spouse or a child. (citations omitted)
See also Whitford and Whitford at 78,146.

Discussion

Introduction

It was submitted by the Husband that in this case the Federal Magistrate made a finding that the Wife had not established a prima facie case for relief and this was the significant issue on appeal. It was not contended by the Husband that the findings of her Honour in relation to delay “ought give rise to the dismissal of this appeal. If I lose the prima facie case point, I lose the appeal” (Transcript, 6 May 2010, p 21). In other words, if her Honour was in error in relation to the findings she made in relation to a prima facie case then the appeal should be allowed.
It is necessary to consider precisely what the Federal Magistrate said. The Federal Magistrate from [9] to [12] summarised the relevant legal principles to be applied in dealing with a leave application. In particular her Honour identified the first question, namely the requirement of s 44(4)(a) of the Act.
However, the Federal Magistrate observed at [10] that “an applicant would suffer a substantial detriment if there is a reasonable prima facie case that [the applicant] would be awarded significantly more if the court proceeded to make a property adjustment than any amount that [the applicant] had already received in any informal property adjustment”. Her Honour confirmed this view when at [14] she observed that she did not accept the submission on behalf of the Wife that the Wife did not have to show a prima facie case that she would have received more if an order had been made pursuant to s 79 of the Act than she had received from the informal settlement. In other words, in the circumstances of this case, the Wife had to establish that if an order was made pursuant to s 79 of the Act she would have received more than $123,000.00.
It was submitted by the Wife that the Federal Magistrate then got “herself confused” (Transcript, 6 May 2010, p 6). In my opinion, what her Honour said is difficult to follow because she then said at [14] that the Wife could establish hardship if:
· she demonstrated that she would be in necessitous circumstances if leave were not granted; or
· she demonstrated a reasonable prima facie case that she would have received significantly more if an order was made pursuant to s 79 of the Act than she had received in the informal property settlement.
As to the first basis on which the Wife could establish hardship, as I have observed, the Federal Magistrate made a finding at [40] that her Honour was satisfied that the Wife and the children were in necessitous circumstances and that the Wife and the children would suffer hardship if leave was not granted to institute property settlement proceedings out of time. Thus, in my view, the Federal Magistrate made a finding in relation to the first question of hardship.
As to the second or alternative way that the Wife could establish hardship, as I have observed, the Federal Magistrate had already referred to this at [10] and [13].
It does become confusing because what the Federal Magistrate then said at [15] was: “If the wife is able to show hardship, the court then turns to consider whether she has a reasonable prima facie case that she would have received more in an adjudicated adjustment than she has already received in the informal settlement, the explanation for the delay and any prejudice to the respondent”.
Although Dr Anthony Dickey observed that one of the considerations that the court may take into account at the second stage of the exercise is the strength of the applicant’s case, in my view, what her Honour said was incorrect. As the Full Court observed in Hall and Hall, the question of whether or not there is a prima facie case for relief is but one way of describing “the quality or character of the potential claim” when considering the first question of hardship.
However, the Federal Magistrate found at [15] that: “In some cases, the question of a reasonable prima facie case will need to be considered at both the threshold stage of determining hardship, and at the discretionary stage of determining whether to grant leave”. In other words, the question of whether an applicant seeking leave has a prima facie case has to be considered when addressing the first question of hardship and also at the second stage when considering discretionary matters. Her Honour cited no authority to support the approach she outlined.
In my opinion, what the Federal Magistrate then did was approach the matter on the basis that the Wife had satisfied the threshold stage of establishing hardship. However, in considering the discretionary factors at the second stage her Honour went on to consider whether, on the available evidence, the Wife would receive more than $123,000.00 if leave was granted and an order was made pursuant to s 79 of the Act.
In approaching the matter in the manner which the Federal Magistrate outlined, her Honour from [41] proceeded to determine what entitlement the Wife would receive if an order was made pursuant to s 79 of the Act. I am not going to repeat all of what her Honour said. However, as I have already observed, her Honour attempted to consider what the Wife would have received in about December 2008 if an order had been made at that time. In other words, her Honour was of the view that she had to determine what order would be made if proceedings pursuant to s 79 of the Act had been instituted within 12 months of the decree absolute. In my view, this was an error when considering the discretionary factors at the second stage.
The Federal Magistrate then made the following findings:
· the Wife failed to establish the extent and value of the net assets of the parties as at December 2008; and
· the Wife failed to establish any matters of contribution as she “said virtually nothing about the relative contributions”.
The Federal Magistrate then concluded at [46] that the Wife had “made it virtually impossible” to assess whether she “could reasonably have been expected” to obtain a greater settlement pursuant to s 79, if she had filed within time, than she received under the informal settlement.
The Federal Magistrate did observe at [49] that the Wife had addressed some of the matters in s 75(2) of the Act. However, her Honour concluded at [50] that the Wife did “not establish a reasonable prima facie case that she was reasonably likely to have received any more in an adjudicated property settlement if she had filed before 2 June 2008 than she received in her informal property settlement”.
The Federal Magistrate then proceeded at [51] to deal with the discretionary matter of explanation for the delay in instituting proceedings, which I do not have to consider given the appropriate admissions by the Husband. Her Honour also considered the discretionary consideration of prejudice to the Husband and, as I have observed, found at [55] that the Husband “did not point to any particular prejudice to himself”.
In my view, the Federal Magistrate was in error in relation to the approach she took to consideration of the application. Her Honour was entitled, when considering the first question of hardship, to consider whether the Wife had a prima facie case in the sense explained by the authorities. However, in my view, her Honour was in error in considering the matter of a prima facie case when considering the discretionary considerations at the second stage.
Further, even if all of what her Honour said about the Wife having failed to establish that she would have received a greater entitlement if an order was made pursuant to s 79 of the Act than what she had received under the informal settlement, it is my view, that her Honour was also in error.
In this case, it is relevant to consider the following matters:
·       the period of cohabitation being approximately 17 years;
·       there were three children of the marriage;
·       neither party had any assets of significance at the commencement of the cohabitation;
·       during the relationship the Wife undertook the role of homemaker and parent;
·       during the relationship the Husband owned and operated a business;
·       there was no evidence as to the extent and value of the assets of the parties at the date of separation;
·       the Husband contended that at separation the parties owned three items of real property and a business;
·       after separation the Wife continued to have responsibility for the care, support and accommodation of the three children;
·       after separation the Wife made significant contributions as a homemaker and parent;
·       after separation the Husband continued to operate the business;
·       the Husband did pay child support;
·       there was no evidence as to the extent and value of the assets of the parties at the time(s) of the alleged informal settlement;
·       there was no evidence that enabled any finding to be made in relation to whether or not the amount of $123,000.00 received by the Wife represented a just and equitable outcome at the time of the alleged informal settlement;
·       on one view of the evidence, the amount of $123,000.00 did not represent 60 per cent of the net assets of the parties at the time of the alleged informal settlement;
·       there was no evidence as to the extent and value of the assets of the parties at the time of the hearing; and
· the considerations in s 75(2) of the Act were clearly relevant as the Federal Magistrate found that the Wife and the children were in necessitous circumstances.
All of the above matters demonstrate that the Wife had a prima facie entitlement in that she had a reasonable claim. However, the Federal Magistrate undertook a detailed consideration of the merits of the substantive application and failed to consider whether there existed a prima facie case on the strength of the available evidence. Her Honour approached the matter on the basis of determining whether and to what extent the application would ultimately be successful.
In my view, the Federal Magistrate was in error in the approach that she took, and the findings she made in relation to a prima facie case, even if it had been considered by her when dealing with hardship at the first stage.

Grounds 1 and 2

In Ground 1 it was contended that the Federal Magistrate erred in applying the wrong test in considering the application before her. In Ground 2 it was contended that her Honour erred and wrongly exercised her discretion when she dismissed the Wife’s application even though her Honour found that the Wife would suffer hardship if that result ensued. I accept these complaints.

Ground 3

In Ground 3 it was contended that the Federal Magistrate erred by finding that the Appellant had said nothing about the relative contributions of the parties at the commencement of their relationship or during their relationship. I accept the complaint in this ground.

Ground 4

In Ground 4 it was contended that the Federal Magistrate erred in finding that the Wife had not given the Court sufficient material to enable it to establish that she had a prima facie case. I accept the complaint in this ground.
As I have observed, an application for leave pursuant to ss 44(3) and (4) of the Act does not require a detailed hearing on the merits to determine whether the applicant’s claim will succeed. The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the enquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim.
It was also submitted, and I accept, that in her affidavits the Wife did provide significant information as to the party’s circumstances and her Honour had sufficient material to assist her in the task at hand.

Ground 5

In Ground 5 it was contended that the Federal Magistrate erred in that she failed to have any or any sufficient regard to the fact that the Wife had not obtained a just and equitable property settlement.
The Wife submitted that not only did she not obtain a property settlement on a just and equitable basis per se but that the loss of that outcome caused her hardship in the circumstances of this case. I agree with this contention.

Ground 6

In Ground 6 it was contended that the Federal Magistrate erred in the exercise of her discretion by failing to take into account or have sufficient regard to the Wife’s claim that the Husband had been secretive in financial affairs.
It was submitted by the Wife that the approach of the Federal Magistrate was that the Wife had the onus to make enquiries and produce searches and valuations. This was in circumstances where her Honour found that the Wife was in “necessitous circumstances”. It was submitted that as the Wife’s documents show, she was hopeful of obtaining by order sufficient funds to enable her to undertake this task. It was submitted that the failure of the Wife to attend to these matters prior to obtaining leave was then wrongly used to demonstrate why she had not made out a prima facie case of hardship on one of her Honours’ alternative paths.
In my view, there is considerable merit in these complaints. I have already found that the Federal Magistrate was in error in relation to the approach she took to the determination of the application. I am also of the view that her Honour was in error in finding adversely to the Wife’s case that the Wife had failed to adduce evidence in relation to the extent and value of the net assets of the parties as at December 2008.

Grounds 7 and 8

In Ground 7 it was contended that the Federal Magistrate erred in the exercise of her discretion by failing to have regard to the circumstances in which the Wife discontinued her application in 2005. In Ground 8 it was contended that the Federal Magistrate erred in the exercise of her discretion in finding that the Wife did not adequately explain her delay.
In my view, it is not necessary for me to consider these grounds as the complaints related to her Honour’s findings in relation to the discretionary matter of delay.

Ground 9

In Ground 9 it was contended that her Honour erred in failing to act on the basis of the evidence of the Wife. It is not necessary for me to consider this complaint. I have already found that there was sufficient evidence before her Honour to enable her to conclude that the Wife had a prima facie claim and would suffer hardship if leave was not granted to institute proceedings for property settlement.

Conclusion

I propose to grant the Wife leave to appeal. I am satisfied that the Wife has established that the Federal Magistrate made errors of principle and also that to refuse leave to the Wife to appeal would cause her substantial injustice. I also propose to allow the appeal. In the circumstances, given the admissions made by the Husband, I do not propose to consider any of the complaints in relation to the second question being the discretionary considerations of delay, prejudice to the Husband if leave was granted and so on.
During the hearing before me there was discussion about whether, in the event the appeal succeeded, I should remit the application to the Federal Magistrates Court for redetermination or whether I should redetermine the matter.
I observe that on 23 February 2010 I made orders that each party file and serve by a specified time and date any application to lead further evidence and any material in support thereof. Neither party filed any further evidence.
Counsel for the Wife submitted that if I was satisfied there was sufficient evidence before me to do so I should redetermine the matter. Counsel for the Husband also submitted that, subject to any view I formed about the extent of the evidence, there was no objection to my exercising the discretion.
I am satisfied, for the reasons I have outlined above, that there is sufficient evidence before me to enable me to redetermine the matter and that it is not necessary to give the parties any further opportunity to adduce further evidence.
I am satisfied, in all the circumstances of this case, that the Wife would suffer hardship if leave was not granted in that prima facie she has a reasonable claim to be heard by the court. I am also of the view, taking into account the delay that occurred, and the absence of any prejudice to the Husband occasioned by the delay, that the Wife should have the opportunity to institute proceedings for property settlement in order to avoid any hardship to her.

COSTS

At the conclusion of the hearing I did not receive any submissions as to costs. I will therefore make directions for the filing of any application and evidence in support. However, given that within a short period of time I will not be available to hear any proceedings I propose to deal with any applications for costs as soon as possible.

I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 15 December 2010.

Associate:

Date: 15 December 2010