Thakur & Asgari (No 2)
[2022] FedCFamC1F 847
Federal Circuit and Family Court of Australia
(DIVISION 1)
Thakur & Asgari (No 2) [2022] FedCFamC1F 847
File number(s): SYC 6676 of 2021 Judgment of: ALTOBELLI J Date of judgment: 4 November 2022 Catchwords: FAMILY LAW – PROPERTY – Institution of proceedings – Application by the wife for leave pursuant to s 44 of the Family Law Act 1975 (Cth) to institute property settlement proceedings out of time – Wife’s evidence tested in cross-examination – Hardship established – Discretion exercised – Leave granted. Legislation: Family Law Act 1975 (Cth) ss 44, 75 Cases cited: Carlon and Carlon (1982) FLC 91-272; [1982] FamCA 60
Emerald & Emerald (2018) FLC 93-870; [2018] FamCAFC 217
Skelton & Lindop [2022] FedCFamC1A 47
Welland & Hawthorn [2021] FedCFamC1A 43
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 7 October 2022 Place: Sydney Solicitor for the Applicant: Mr Zreika, Sterling Legal Solicitor for the Respondent: Mr Farah, Farah Lawyers, Solicitors & Barristers ORDERS
SYC 6676 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS THAKUR
Applicant
AND: MR ASGARI
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
4 November 2022
THE COURT ORDERS THAT:
1.Leave is granted to the Applicant pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”), to institute proceedings in respect to property settlement relief under Pt VIII of the Act.
2.Within 14 days of the date of these orders, the Respondent make disclosure as requested in a letter from Sterling Legal dated 4 August 2022 and any subsequent request for further financial disclosure, and otherwise comply with Order 6(c) of the orders dated 6 July 2022.
3.Leave is granted to the Applicant to further amend her Initiating Application upon receipt of the Respondent’s full and frank disclosure material and a completed balance sheet.
4.Within 28 days of the date of these orders, and in the event that the parties do not agree as to the value of any property in the matrimonial pool, the parties do all acts and things to cause the property to be valued as follows:
(a)The Applicant nominate to the Respondent the names of at least three suitably qualified property valuers;
(b)Within seven days of that nomination, the Respondent select one property valuer to carry out the function and purpose of this paragraph;
(c)For the purposes of the valuation, the solicitors for the parties prepare and agree on a joint letter of instruction to the property valuer;
(d)The property valuer opine the value of the property as at 29 February 2016 and the current value;
(e)The fair market value for the property arrived at by the property valuer be binding upon the parties for the purposes of their negotiations; and
(f)The costs of and incidental to such appointment and valuation be borne equally by the parties as and when they fall due.
5.The matter is listed for directions hearing before a Judicial Registrar on 16 December 2022 at 10am for ongoing case management.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thakur & Asgari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction
These proceedings were commenced by the applicant wife, Ms Thakur (“the wife”) on 13 September 2021. By way of her Second Amended Initiating Application filed 24 February 2022 she seeks parenting and property orders, and as regards the latter seeks leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) as her application was filed out of time. This is opposed by the respondent husband, Mr Asgari (“the husband”).
These reasons for judgment explain why the Court has granted leave to the wife to commence proceedings for the alteration of property interests out of time.
Evidence before the Court
In support of her case, the wife relied on the following documents:
(a)Second Amended Initiating Application filed 24 February 2022;
(b)Her affidavit filed 9 September 2022;
(c)Financial statement filed 9 September 2022; and
(d)Case outline filed 4 October 2022.
In support of his case, the husband relied on the following documents:
(a)Amended Response to Initiating Application filed 7 March 2022;
(b)His affidavit filed 9 August 2022;
(c)Updated financial statement filed 12 August 2022;
(d)Case outline filed 11 August 2022; and
(e)Documents tendered and marked as exhibits R1 and R2.
The husband sought, and was granted leave to cross-examine the wife.
Background and findings
The husband is 40 years old, and the wife is 28. The husband was born in Australia and the wife was born in Country G. They met while the husband was travelling in Country G and participated in a religious wedding ceremony in 2014. The wife relocated to Australia later that year and moved in with the husband and his parents. The parties married in late 2014 and separated on 29 February 2016.
On 8 March 2016 the husband commenced parenting proceedings only. They divorced on 23 December 2018 and final parenting orders were made by consent on 21 August 2019. For the purposes of s 44(3) of the Act, any application for the alteration of property interests should have been filed by 23 December 2019. The wife’s Initiating Application was in fact filed on 13 September 2021, which means that it was almost nine months out of time.
The husband is self-employed and trading as “H Pty Ltd”. His financial statement filed 12 August 2022 discloses a surplus of income over expenses of $60 per week, net assets of $423,000, and superannuation of $40,000. The same document states that he is paying $45 per week by way of child support for his six-year-old son (“the child”) who lives with the wife and does not spend time with the husband.
The wife works part-time but is otherwise dependent on Centrelink benefits. In her financial statement filed 9 September 2022 she discloses a deficit between income and expenditure of $205 per week, and a deficit between assets and liabilities of $78,458, most of which is represented by loans made to her by family and friends and which the Court finds was primarily used to pay the legal fees associated with the parenting and property proceedings to date, as well as living expenses. Of the wife’s weekly income of $872, $360 represents earnings from casual employment which, the Court accepts, might fluctuate from week to week, $475 from Centrelink benefits, which the Court also accepts would fluctuate depending on her casual earnings, and $37 per week by way of child support.
In cross-examination, the Court found the wife to be a cooperative and credible witness who was responsive to the questions she was asked and did the best she could to assist the Court in her evidence.
When challenged about how she managed to fund the deficit between her deposed income and expenditure, she plausibly explained that she was dependent on the generosity of members of her family, particularly her mother and father. Despite the tenor of the wife’s cross-examination there was nothing sinister about her dependence on her family and friends for financial support. Moreover, there was nothing unusual about the discrepancies between the wife’s disclosure about her finances in various financial statements, and, for example, Centrelink documents. Those documents indicate (consistent with the wife’s own evidence) that her income from Centrelink benefits fluctuated especially during, but not limited to, the period after she commenced part-time work. On the available evidence, the wife’s total earnings from Centrelink reached its zenith in the financial year ending June 2021, when she earned $27,579, approximating to $530 per week—which is about 65 per cent of the husband’s deposed (but untested) weekly income. The Court notes that at that time, and now, the wife was attempting to meet the needs of both herself and the child with the assistance of only $45 per week by way of child support.
The tenor of the cross-examination was that the wife had failed to disclose other sources of income that would have explained the deficit between her weekly income and expenditure. There were two key components of the husband’s case in this regard.
Firstly, it was submitted that the wife’s failure to make financial disclosure in accordance with the relevant rules, such as producing available bank statements, casts a shadow of doubt over her evidence. The Court does not agree. The Court accepts, however, that either the wife or her lawyers (past or present) may have been ambivalent about disclosure, but that does not equate to non-disclosure, and even if that did amount to non-disclosure it does not necessarily cast doubt over the veracity of the wife’s evidence. Whilst it is entirely plausible that the wife would make ends meet for the child and herself with financial assistance from her family, it would not be surprising if her evidence about the money that she owes to family and friends would be expressed in general, and perhaps vague terms. These were informal loans from family and friends, not formal loans between lender and borrower. The Court accepts the wife’s evidence that many of these payments were in cash. Again, there is nothing sinister about this fact.
An assessment of the wife’s credit must take place within a factual context. She is for all practical purposes Centrelink-dependent, and makes ends meet with the generous support of family and friends. There was no direct suggestion made to the wife that she was earning more than she disclosed from her part-time work. Even if such a proposition were put to her, there is no evidence to support the same.
The wife was also extensively cross-examined about the significant amount of legal fees that she had incurred in the litigation to date, including an amount paid of $66,000. The purpose of this questioning was, the Court infers, to support the husband’s contention that the wife had funds, or possibly at least a financial resource, to pay the fees that had not hitherto been disclosed. The wife denied this, explaining that the borrowed funds were used to pay her legal fees. This latter contention was made in cross-examination, but is not evidence found in the affidavit of the wife read in her case. In the husband’s case, it was contended that this was yet another example of why the wife’s evidence should not be accepted. The Court disagrees. In the absence of the husband pointing to any cogent evidence of other funds or another financial resource that could have been used to meet the wife’s legal fees, it is entirely plausible that she used some, if not all, of the borrowed funds for this purpose.
The second key component of the husband’s case was dependent on the Court accepting that a male person noted in the school records as someone who could collect the child after school was in a relationship with the wife that involved financial support. The Court rejects this. The wife’s explanation that the reference in the school records to this person being referred to as a stepfather was the school’s interpretation but not her representation, is entirely plausible in circumstances where no other relevant contention was put to the wife about this alleged relationship of dependency. It was a mere shot in the dark by the husband which failed.
The Court accepts the wife’s evidence about her financial circumstances.
In cross-examination the wife was challenged about the reason she gave for the delay in commencing proceedings. Her evidence in this regard is found at paragraphs 51–56 of her affidavit filed 9 September 2022. In short, she explains that she was an unemployed single mother with no savings or financial resources who was dependent on legal aid. On obtaining legal representation through a grant of legal aid she conceded that she sought advice on a property claim. In cross-examination she explained that her solicitor told her that she could not run a property settlement case on legal aid and that, indeed, if she raised this she would lose her grant of aid (presumably in relation to the parenting proceedings). She conceded that she now knew that this was wrong advice but insisted that it was the advice given to her. She insisted that this caused her hardship. The Court accepts the wife’s evidence given in cross-examination. The Court observes that no attempt was made in the husband’s case to subpoena the wife’s former solicitor’s file, or if such attempt was made, the file was certainly not tendered. This is notwithstanding the fact that both the relevance of the file, and the potential application of waiver of privilege, had been expressly raised by the Court on 12 August 2022 when an adjournment was granted at the wife’s request.
In addition, there was no challenge to paragraphs 55 and 56 of her affidavit which state:
55.I did not understand the legal system, as I had only been in the country for approximately 18 months by then and did not have assistance other than my legal aid solicitors. I was not advised of a 12-month limitation period and I was too concerned about losing the only lawyers I could obtain, so I did not question it.
56.Following the Initial Proceedings, I had no reason to seek legal advice until [the child’s] issues with the [husband] arose, at which time I sought legal advice to amend the parenting orders and was also advised that I now had to seek permission from the court to apply for property.
The husband was not cross-examined as leave had neither been sought nor granted in this regard. However, a number of relevant admissions are found in his affidavit filed 9 August 2022. For example, at paragraph 31 he deposes: “I have already offered [the wife] $50,000.00 and she has rejected this offer and claimed that I am attempting to ‘bribe her’ in her affidavit”. The husband clearly waived any privilege relating to the settlement negotiation.
Having waived privilege, annexure Q to the wife’s affidavit was admissible, being a copy of what is presumably a text message communication from the husband to the wife dated 13 May 2022. It refers to the $50,000. This message is relevant to the issue of family violence. The text is threatening in its tone. For example the husband states:
After we separated and it’s been 6years I have become very strong and no one can touch me . I control my whole family now . I’m the boss of everything. You,Leave my family alone . You leave my future wife alone.
…
Remember I’m very strong person now I have control over my whole family now .
(As per the original)
An undisputed fact in this case also relates to family violence. Annexed to the wife’s affidavit is a copy of the Apprehended Domestic Violence Order made against the husband in late 2020, which expired in late 2022. The grounds are set out. It contains admissions made by the husband and documents video footage taken from the husband’s own phone showing him moving his car forward and colliding with the wife who was holding the child. When questioned about assaulting the wife with the vehicle, the fact sheet records the husband blaming her for standing in front of his vehicle. When further questioned about assaulting his wife the fact sheet records the husband stating curtly: “She shouldn’t have been swearing at me and sticking her finger up at me”. The Court observes with concern that the violent incident in question seems to have occurred over four years after the parties separated.
The family violence issue is relevant to the exercise of the Court’s discretion in this matter.
Applicable Law
The law relating to the institution of proceedings out of time is contained in s 44 of the Act and the relevant subsections are extracted below:
44 Institution of proceedings
...
(3)Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c)in a case referred to in paragraph (a)—the date on which the divorce order took effect; or
(d)in a case referred to in paragraph (b)—the date of the making of the decree.
The court may grant such leave at any time, even if the proceedings have already been instituted.
…
(3A)Notwithstanding subsection (3), where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a)a divorce order has taken effect or a decree of nullity of marriage has been made; and
(b)the approval under section 87 of a maintenance agreement between the parties to the marriage has been revoked;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:
(c)within the period of 12 months after:
(i)the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or
(ii)the date on which the approval of the maintenance agreement was revoked;
whichever is the later; or
(d)with the leave of the court in which the proceedings are to be instituted;
and not otherwise.
…
(4)The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a)that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b)in the case of proceedings in relation to the maintenance of a party to a marriage—that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
(Emphasis in original)
The Full Court said at [16] in Welland & Hawthorn [2021] FedCFamC1A 43:
16.The Full Court recently had occasion to affirm that the application of s 44(6) of the Act entails satisfaction of its criteria by sequential steps (Arcand & Boen (2021) FLC 94-046). First, the applicant must demonstrate hardship and, if that hurdle is surmounted, must still persuade the exercise of discretion in his or her favour to extend time. As the Full Court said:
12.The [applicant] bore the onus of demonstrating to the primary judge’s satisfaction that, supposing leave to bring the property settlement claim out of time was denied, the deprivation of his reasonable chance of success in those prospective proceedings would occasion him hardship (Gadzen & Simkin (2018) FLC 93-871 (“Gadzen”) at [29]–[31]).
13.In assessing whether the [applicant] discharged the onus, the primary judge merely needed to be satisfied the prospective property settlement claim was reasonable or arguable, with such assessment made summarily without a detailed hearing on the merits (Gadzen at [33]–[37]; Edmunds & Edmunds (2018) FLC 93-847 (“Edmunds”) at [16]–[17]; Althaus and Althaus (1982) FLC 91-233 (“Althaus”) at 77,267).
…
38.Section 44(6) of the Act stipulates that the court may grant an extension of time if the applicant demonstrates hardship through deprivation of the chance to bring proceedings for substantive relief, meaning the application to extend time might still not be granted. The onus rests with the applicant to demonstrate why discretion should be exercised to grant the extension of time; not with the respondent to demonstrate why the application should be refused (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Brisbane South”)).
39.The demonstration of hardship, if deprived of the right to pursue remedy under Pt VIIIAB of the Act, was a threshold issue before the primary judge (Gadzen at [29]). Having decided it against the [applicant], there was no need for the primary judge to go further, but his Honour nevertheless did so by proceeding to canvas another issue pertaining to the exercise of discretion: the delay in bringing the proceedings.
40.Supposing hardship is demonstrated, numerous factors can influence the exercise of residual discretion, including the length of the delay, the adequacy of reasons for the delay, and the prejudice the respondent would suffer if the application for extension of time was granted. …
(Emphasis in original)
In the recent decision of Skelton & Lindop [2022] FedCFamC1A 47, Austin J sitting in the appellate jurisdiction said:
16To begin with, it is as well to say something about the test applied by the primary judge, which was obviously an earnest attempt to synthesise authoritative principles developed over many years. The distinction between, on the one hand, a “prima facie claim” and, on the other, a claim which has a “real probability of success” is not novel because it has been discussed before – both long ago (Althaus & Althaus (1982) FLC 91-233 at 77,266–77,267) and more recently (Gadzen & Simkin (2018) FLC 93-871 at [30]–[37]). The distinction has been described as semantic (Hall & Hall (1979) FLC 90-679 at 78,627; Althaus & Althaus at 77,266), but it can be troubling to see how a “prima facie claim” and a claim which has a “real probability of success” are one and the same thing when a prima facie claim is not one which need be conclusively proven on the balance of probabilities.
17In this jurisdiction, one strand of authority speaks of the need for the applicant to demonstrate his or her claim has a real probability of success, as the pre-requisite to the demonstration of hardship (Marriage of Whitford (1979) FLC 90-612 at 78,144). Another strand of authority speaks of the need for the applicant to only demonstrate his or her prospective claim is reasonable or arguable (Arcand & Boen (2021) FLC 94-046 at [12]-[13]; Gadzen & Simkin at [37]; Althaus & Althaus at 77,266-77,267). Still other cases attempt to homogenise the two concepts (Edmunds & Edmunds (2018) FLC 93-847 at [17]-[24] and [47]-[48]; Sharp & Sharp (2011) 50 Fam LR 567 at [18]).
18In Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622–623, the High Court of Australia said that, for the purposes of an interlocutory application in which it is necessary for an applicant to demonstrate a prima facie case:
The first [inquiry] is whether the [applicant] has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the [applicant] will be held entitled to relief.
How strong the probability needs to be depends, no doubt, upon the nature of the rights the [applicant] asserts and the practical consequences likely to flow from the order the [applicant] seeks.
(Emphasis added)
19The Full Court has previously affirmed that principle binds the determination of interlocutory applications under s 44 of the Act (Edmunds & Edmunds at [19]–[20]).
20In Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57 (at [65] and [69]), the High Court of Australia said this to explicate the test established in Beecham:
65.… By using the phrase "prima facie case", their Honours did not mean that the [applicant] must show that it is more probable than not that at trial the [applicant] will succeed; it is sufficient that the [applicant] show a sufficient likelihood of success to justify [the interlocutory relief].
…
69.…it [is] not necessary for the [applicant] to show that is [is] more probable than not that the [applicant] [will] succeed at trial.
(Emphasis added)
(Emphasis in original)
Hardship
The Court is satisfied that the evidence of the wife, in this regard largely unchallenged, shows a sufficient likelihood of success to justify the orders she seeks granting her leave to pursue an application for the alteration of property interests.
The husband’s financial circumstances have already been discussed above. He contends in his financial statement that he has a 50 per cent share in a property at Suburb J, and the value of his share amounts to $450,000, subject to a contended mortgage of $175,000. As one of the orders that the wife seeks is for valuation, the Court infers that she disputes the values contended by the husband. The husband contends that his business has a value of $70,000 and superannuation of $40,000. On the husband’s case, therefore, the pool of assets is relatively small.
In the wife’s Second Amended Initiating Application she seeks a final order that the property at Suburb J be sold and that she receive 20 per cent of the sale proceeds as a final property division. On the husband’s figures, this would be a sum of approximately $110,000. The Court recognises, however, that disclosure has not been provided by the husband, and one of the orders proposed in her case outline relates to this. The Court also recognises that the property has not been valued. In the circumstances, some leeway needs to be given to the wife in terms of her proposal. Nonetheless, for present purposes, her claim is modest.
The Court recognises that the wife's case outline filed 4 October 2022 suggests that the wife is seeking a 40 per cent share in which case her claim would be for $220,000. For the purposes of the present application, however, the Court will focus on her Second Amended Initiating Application but notes that it would still reach the same conclusion in respect of the present application. A 40 per cent claim on a small pool of assets where the wife presents as having substantial future needs, and where the husband makes only a small contribution by way of child support, is still a claim with reasonable prospects of success.
Based on the evidence before the Court, the wife’s claim is also realistic. None of the evidence that she gave in her affidavit under the heading of “Prima Facie Case” was subjected to any meaningful challenge. The issue of family violence has been noted. She acknowledges that, in effect, she made no direct financial contribution to the relationship. An argument of indirect financial contribution is strongly implied in her evidence (e.g. at paragraph 60 of her affidavit). The wife’s contributions were as homemaker and parent, and her reference to and reliance on future needs factors under s 75(2) is appropriate. Some of the wife’s contributions continue well after separation.
The Court is satisfied that the wife has established a prima face case in the sense of showing a sufficient likelihood of success to justify the grant of leave.
The wife will suffer hardship if leave is not granted. Her parlous financial circumstances have already been identified and discussed. Receiving $110,000 will go a long way towards not only discharging her liabilities, but presumably being able to provide a better standard of living for the child and for herself. At the hearing, much was made on behalf of the husband of the quantum of legal costs unpaid by the wife, as well as the costs of the proceedings if leave were to be granted.
In relation to the former, whether the wife seeks an assessment of her former solicitor’s costs or not does not change her experience of hardship if leave were not to be granted. Even if it turns out that the wife’s liabilities are greater than $83,500 the hardship to her is still present if she does not have the opportunity to reduce her liabilities. In assessing hardship, it is irrelevant from the husband’s perspective how the wife applies any order made in her favour altering her property interests. How she manages her creditors is a matter for her. It is also irrelevant to consider the quantum of legal costs incurred before the present application, especially in circumstances where the parenting proceedings are so contentious.
In relation to the wife’s anticipated costs of the proceedings should leave be granted, the costs notice filed on her behalf on 11 August 2022 refers to unbilled work in progress of $16,786, and estimated future costs and disbursements to prepare for and conduct a four-day final hearing as being $80,000, including counsel’s fees of $40,000. These figures are mere estimates, of course, and reflect that her application deals with parenting, as well as property matters. Even so, and without considering the impact of settlement without a hearing, and/or any potential costs orders made in her favour, it could not be said that the proceedings are futile from a costs perspective or that the wife’s hardship is any less.
Conversely, no submission was made on the husband’s behalf on this point, and there is no evidence in his affidavit indicating that he would suffer hardship if leave is granted.
Discretion
Hardship having been established, the focus turns to whether the Court would, ultimately, exercise the discretion in the wife’s favour to grant the leave she seeks.
Many of the factors already identified above inform the Court’s exercise of discretion in the wife’s favour. Family violence is such a factor. The offer the husband made to settle the proceedings for $50,000 is another factor as it reflects his belief in the merit of the wife’s claim, even if there is a dispute about quantification of such claim.
The focal point of the husband’s case on this issue was that the wife had not provided an adequate explanation for her delay in commencing the proceedings, and seeking leave.
It must be recognised that even if it were the case that the wife did not lead evidence to explain why she failed to bring her claim within the one-year limitation period, which is usually an influential factor, this is not of itself necessarily fatal (Emerald & Emerald (2018) FLC 93-870 at [128]; Carlon and Carlon (1982) FLC 91-272 at 77,533). In this case, however, the wife sets out her reasons at paragraphs 51–56 of her affidavit. This is evidence that the Court accepts. The Court also accepts the evidence she gave in cross-examination. She did seek advice about a property claim, and was told it was not possible. The husband had the opportunity to seek to traverse this evidence using records that probably existed which were pertinent to this issue, but he did not. The wife’s explanation at paragraph 55 is entirely plausible. There is no basis not to exercise discretion in the wife’s favour on this point, and the Court does so.
Other matters
In the wife’s case outline, her proposed Order 2 relates to disclosure by the husband, Order 3 grants her leave to further amend her application on receipt of disclosure and the preparation of the balance sheet, and Order 4 deals with valuation. Each of these orders is appropriate, and the Court will make the same.
A few brief words need to be said about the costs of the leave proceedings. The original hearing of the present application was adjourned on the wife’s application but on the basis that she pay the husband’s costs thrown away. The Court notes that the husband has been entirely unsuccessful in the present application, one factor that may be relevant to costs. The parties are urged to consider agreeing to an order that each party pay their own costs relating to the leave proceedings. This is completely without prejudice to any application for costs that the parties may wish to bring, notwithstanding these judicial ruminations.
The matter will otherwise return to the docket registrar for case management and, hopefully, settlement.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 4 November 2022
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