Thakur & Asgari (No 2)

Case [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…

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AGLC
Thakur & Asgari (No 2) [2022] FedCFamC1F 847
Case
[2022] FedCFamC1F 847
Decision Date

CaseChat Overview and Summary

The matter before the Court involved a dispute between a husband and wife concerning an out-of-time application by the wife to alter property interests under the Family Law Act. The husband opposed the wife's application on the grounds of untimeliness and other objections. The case was heard in the Family Court of Australia. The primary legal issue before the Court was whether the wife's application, filed almost nine months beyond the statutory deadline, should be permitted despite the procedural default. The Court needed to consider whether the delay in filing was unreasonable and whether there were any circumstances that justified the late application under the provisions of the Family Law Act.

The Court examined the wife's reasons for the delay and her conduct throughout the proceedings. The Court found that while the application was indeed late, the delay was not due to any fault or negligence on the part of the wife. Instead, it was attributed to a combination of factors, including the complexity of the financial and legal proceedings, the wife's limited financial resources, and her reliance on family support. The Court also considered the wife's credibility and cooperation during the proceedings, as well as the impact of the delay on the husband. Ultimately, the Court determined that the delay was not unreasonable and that there were sufficient circumstances to justify permitting the out-of-time application.

The Court granted the wife leave to proceed with her application to alter property interests, despite the late filing. The Court emphasised that such a decision should not be taken lightly and that it was a rare instance where the procedural rules would be departed from due to exceptional circumstances. The Court highlighted the need for the wife to be mindful of the importance of timely filings in future proceedings. The Court's decision recognised the wife's position and the need to balance procedural fairness with the substantive merits of the case.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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