Tony and Masjid

[2007] FamCA 1070

FAMILY COURT OF AUSTRALIA

TONY & MASJID [2007] FamCA 1070

FAMILY LAW – SPOUSAL MAINTENANCE – Application by wife for leave to issue proceedings out of time –  On the material provided, there was no proper basis to grant leave – Application dismissed

Family Law Act 1975 (Cth) s 43(1), 44(3), 44(4), 79A, 117

Johnson v Johnson, (2000) 201 CLR 488 at 493

APPLICANT: Ms Tony

RESPONDENT: Mr Masjid

FILE NUMBER: MLF 2270 of 1999

DATE DELIVERED: 27 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 27 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thomas

SOLICITOR FOR THE APPLICANT: Frank A Sanna

COUNSEL FOR THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE RESPONDENT: Nedovic & Co.

Orders

1. That the wife’s application filed on 14 June 2007 be dismissed.

2. That paragraph 8 of the wife’s application filed on 3 November 2005 be dismissed.

3. That the wife do pay the husband’s costs of and incidental to the said applications fixed in the sum of $4,870 AND THAT payment of the said sum be stayed for 90 days.

(4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be known as Tony & Masjid.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2270  of 1999

Ms Tony

Applicant

And

Mr Masjid

Respondent

REASONS FOR JUDGMENT

1. I have before me a Form 2 Application in a Case brought by the wife and filed on 14 June 2007in which she  seeks an order for leave to pursue an application for spousal maintenance out of time.  Her application is supported by an affidavit filed on 14 June 2005.  The husband caused to be filed a Form 2A Response on 19 July 2007seeking that the wife's application be dismissed and that she pay his costs assessed on an indemnity basis.  The husband’s Response was supported by an affidavit filed on 19 July 2007.

2. The proceedings first came before Watt J on 23 July 2007 and although the orders have not been engrossed, I see from a draft Minute of the Order that the proceedings were adjourned to the Judicial Duty List this day and that the wife pay the husband's cost thrown away which were fixed by his Honour in the sum of $1870.  Payment of those costs was stayed until the determination of the proceedings filed on 3 November 2005.  It was further ordered that the wife provide any additional material to be relied upon by not later than 13 August 2007.

3. In the event, the wife caused to be filed a further affidavit on 14 August 2007, and to which the husband has filed an affidavit in reply on 24 August 2007.  I have had the advantage of reading all of the affidavits relied upon by the parties.  In the circumstances it serves no good purpose for me to detail into this short extempore judgment the detailed material at my command.

4. When the matter was called on for hearing this day, Mr Thomas announced his appearance for the wife and Mr Wilson for the husband.  I was provided with a short chronology of the factual background by Mr Wilson which has been received by the court without objection.  In the course of preliminary discussions with Mr Thomas, he directed my attention to an affidavit of the wife, and upon which he relied, which was filed on 3 November 2005.  The wife had earlier made an application for maintenance well out of time and which came on for hearing before Registrar Field on 1 May 2006.  The learned Registrar delivered her reasons for judgment on 21 August 2006.  At that time, the issue of spousal maintenance was before the court alongside other orders then sought by the wife concerning their children, details of whom I will shortly address.

5. It is clear from reading the reasons delivered by the learned Registrar that she addressed the wife's attention to the fact that her application for spousal maintenance was well out of time. This arose by reason of the fact that the parties had divorced in March 2001 and there was no order sought by the wife in accordance with section 44(3) of the Family Law Act 1975 seeking an extension of time in which to bring her application. It was as a result of the Registrar’s judgment that the wife caused to be filed her Form 2 Application to which I have earlier referred.

6. A short background is as follows.  The husband was born in April 1947 and is now 60 years of age.  The wife was born in March 1950 and is 57 years of age.  The parties married in January 1983.  There were three children born of their union, namely, T who was born in June 1986, J who was born in November 1991 and E born in August 1994.  The children are accordingly 21, 15 and 13 years of age respectively.

7. Dealing with the short chronology to which I have earlier referred, consent orders dealing with property and spousal maintenance were made by this court on 25 February 1999.  Following those orders the parties physically separated on 7 March 1999.  At that time, both the husband and the wife were represented by professional advisors.  I am familiar with the details of that consent order.  However, on 7 March 2000, being 12 months following the physical date of separation, the wife made application to set the orders aside.

8. In September 2000, she withdrew $224,145.44 from an account at the A Credit Union, being funds which, I understand, belonged to her mother in law.  It was suggested that the wife was not entitled, pursuant to the orders of 25 February 1999, to those moneys.  All I need say in relation to that is by reason of that transaction the wife faced serious criminal charges, stood her trial and was convicted.  She was sentenced to a two and a half year term of imprisonment, with the sentence to commence on 28 August 2003.  The wife appealed the conviction and sentence and in the result, the Court of Criminal Appeal upheld her appeal on 1 October 2004 and directed a retrial.  She was released from prison and has not been subsequently retried.  In the circumstances as I see it, the wife served some 12 months imprisonment.  I only include those factors by way of background and that alone.

9. Returning to the more pertinent factual basis that brought this application before me.  A decree nisi of dissolution of marriage was pronounced on 31 January 2001 and which became absolute on 1 March 2001.  I have earlier referred to the fact that the wife filed her Application to set aside the orders of 25 February 1999 on 7 March 2000.  On 21 May 2001, the wife discontinued all of her applications before the court on the basis of a settlement of offer.  The agreement for settlement was annexed to an affidavit filed 23 January 2006 and marked Exhibit “MJ5”.

10. For the third time, being on 27 June 2001, the wife filed an application to reinstate the proceedings.  In her affidavit in support of the application, she alleged she had agreed to discontinue her proceedings in reliance upon representations that were made by a Mr C, being the same representations upon which she now relies and referred to in her more recent affidavits.  I will shortly refer to those affidavits all of which I take into account in coming to my determination.

11. On 14 December 2001 consent orders were made (inter alia), for the husband to pay to the wife a further sum in settlement and all extant applications being dismissed.  The terms of settlement are marked Exhibit “MJ1” and appear as Recitals to the consent orders made on 14 December 2001 by Deputy Registrar Raby.  Again, the wife was represented.  The Minutes of Consent orders are very detailed indeed and at page 11 in paragraph DD of the Recitals and continuing to paragraph EE, the issue relating to Mr C is well and truly canvassed.  It was an issue well known to the wife.

12. It is incomprehensible to me how the wife currently seeks to rely upon material and facts upon which she relied with the benefit of legal advice in adjustment of the second financial settlement in December 2001and now seek to resurrect the same particulars again to support her application for extension of time as if it were a new fact.  It is plain to me that having read the relevant documents, that this particular application brought by the wife for leave to institute proceedings for spousal maintenance out of time is entirely misconceived. 

13. Given the circumstances, I had the benefit of discussion with Mr Thomas and proffered a preliminary view under the umbrella of Johnson v Johnson, (2000) 201 CLR 488 at 493. When the matter resumed this afternoon, I bluntly asked Mr Thomas the rhetorical question "Why should I give leave?"  His professional response was to concede that there was no basis on the material for this particular application. That is, it was misconceived. It was his submission that it should have been brought by the wife under section 79A of the Family Law Act 1975 (as amended). Given the submissions, Mr Thomas conceded that, in the circumstances before me, there was no reason why it should not be dismissed.

14. As it appears to me, Mr Thomas did not seek to debate the indefensible.  The transcript would reveal that in the course of argument Mr Thomas understood that the wife’s application that was misconceived.  It is not necessary for me therefore to detail into this short judgment the legal requirements concerning sections 43(1) and 44(3) of the Act.

15. I had a general discussion with both counsel this morning who were aware of the applicable law.  I propose to dismiss the application for leave filed 14 June 2007.  As a result of dismissing that application, I accept Mr Wilson’s correct submission that paragraph 8 of the wife's application for spousal maintenance filed 3 November 2005 should also follow the event and be dismissed.

16. In any event, from a plain reading of all the relevant associated history, the difficulties facing the wife in her application were plain and clearly recognised by her counsel. Section 44(3) of the Family Law Act 1975 provides that (inter alia) where a decree nisi for dissolution of marriage has become absolute, proceedings for property and spousal maintenance shall not be instituted after the expiration of 12 months except by leave of the court or with the consent of both parties to the marriage.

17. The discretion to extend time for the commencement of proceedings however is not wholly unfettered.  By this I mean, it is subject to s 44(4) that I must not grant leave unless I am satisfied firstly, that hardship would be caused to the wife if leave were not granted or, secondly in the case of proceedings in relation to the maintenance of the wife, that at the end of the period in which the proceedings could have been instituted by her without leave of the court, her circumstances were such that she would have been unable to support herself without an income tested pension, allowance or benefit. 

18. Furthermore, even if I were satisfied that hardship would be suffered, I have a general and unfettered discretion as to whether leave should or should not be granted.  Those matters that influence the exercise of discretion may include the nature and degree of the ground established, intervening circumstances, the financial positions of the parties and issues such as delay and prejudice.  The wife of course bears the onus on the balance of probabilities. 

19. On the issue of hardship, in the context of an application such as that brought by the wife, it means “substantial detriment”.  It is fundamental that the wife must establish a prima facie case to be heard which does not however require detailed hearing of the merits, but a consideration on whether there exists a prima facie case alone on the strength of her material.  The wife, fell far short of this requirement on the material presented by her. 

20. Furthermore, and on an issue that the wife has fallen far short, she is required to provide an explanation for the delay which is often an important factor for consideration in applications pursuant to section s 44(3) of the Act. Sometimes, but not in this case, the interests of justice may outweigh the absence of an adequate explanation. It is a question of weight and degree in each case. The length of the delay is an important factor and in circumstances, such as the present, is likely to cause prejudice to the husband.

21. Mr Wilson has sought an order for costs. The original application sought an order for cost on an indemnity basis. Generously in my view, Mr Wilson did not proceed with the application for indemnity costs, in circumstances where it was well and truly an arguable proposition. I propose to make an order for costs. Section 117(1) of the Family Law Act makes provision for costs and prescribes that each party shall bear their own cost of proceedings brought under the Act.  Section 117(2) provides however, that when there are circumstances justifying the court in so doing, the court may make an order for costs.  The circumstances are set out in subsection (2A) of section 117 of the Act.

22. I have principle regard to the provision that the wife has been entirely unsuccessful in her application.  More so, it is misconceived.  It should never have been brought.  The husband has been brought to court on several occasions and has been subject to costs in circumstances where it ought never have happened.  Mr Wilson has outlined in general terms the costs sought.  In my view, given the amount of work and what is necessary in the preparation of documents and the taking of instructions and the other matters associated with professional attendances, the professional costs sought of $3000, as an estimate, is not excessive and appears quite reasonable.  The cost Mr Wilson seeks this day also comprise his brief fee, which given his seniority is reasonable.  In the circumstances I propose to order the amount of costs sought.

23. I dismiss the wife’s Application filed 14 June 2007 and paragraph 8 of the Application filed 3 November 2005.  There will be an order for costs in the sum of $4,870.00.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  13 September 2007.