Vega and Riggs (No 2)
[2015] FamCA 911
•21 October 2015
FAMILY COURT OF AUSTRALIA
| VEGA & RIGGS (NO 2) | [2015] FamCA 911 |
| FAMILY LAW – PROPERTY – Application for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) – Where the parties have been separated for over 20 years – Where there are no children of the marriage – Where the parties have engaged in negotiations for property settlement over the past 20 years – Where the parties came to an agreement shortly after separation but that agreement was never realised – Where the husband will suffer hardship because he cannot obtain the order he seeks under s 78 of the Act than he might have been able to obtain under s 79 of the Act – Where the husband asserts there was delay because he believed the parties were going to reach an appropriate settlement through their ongoing negotiation – Where the prejudice to the wife does not outweigh the hardship to the husband if he cannot pursue his claim – Leave granted to the husband to institute proceedings out of time |
| Family Law Act 1975 (Cth) | |
| Jacenko (1986) FLC 91-766 Whitford (1979) FLC 90-612 | |
| APPLICANT: | Mr Vega |
| RESPONDENT: | Ms Riggs |
| FILE NUMBER: | SYC | 3110 | of | 2015 |
| DATE DELIVERED: | 21 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 2 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingstone |
| SOLICITOR FOR THE APPLICANT: | MCW Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Maurice |
| SOLICITOR FOR THE RESPONDENT: | Pigott Stinson Lawyers |
Orders
The husband be granted leave pursuant to s 44(3) Family Law Act 1975 (Cth) (“the Act”) to institute proceedings for an order pursuant to s 79 of the Act.
This matter is listed at 9.15am on 26 November 2015 for further directions to consider the following matters:
2.1.Whether or not either party wishes to seek that I recuse myself from hearing the final hearing;
2.2.Whether or not either party seeks expedition of the final hearing;
2.3.Whether or not there should be dispensation of the requirement for a conciliation conference;
2.4.What further documents, valuations or other evidence is required for the final hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vega & Riggs (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3110 of 2015
| Mr Vega |
Applicant
And
| Ms Riggs |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Vega (“the husband”), seeks leave, pursuant to s 44(3) Family Law Act 1975 (Cth) (“the Act”) to institute proceedings for property settlement out of time. Ms Riggs (“the wife”) and the husband commenced cohabitation in October 1979 and were married in 1979. The parties separated in 1990 and were divorced in November 1992.
The parties had no children. The wife re-married in 1992 and has two adult children with her current husband.
Any application for property settlement was required to have been filed before November 1993. No such application was filed.
The parties currently own a property in Suburb B as tenants in common in which the husband has resided since about 1991. The husband seeks a property settlement in relation to this property. Both parties estimate that the Suburb B property has a value of $1.4 million, although the wife indicated during the hearing that should the husband’s application be successful, she would be seeking to have the property valued.
The wife commenced proceedings in the Supreme Court of NSW on 22 April 2015 by way of Summons for Appointment of Statutory Trustee for Sale for the Suburb B property. The wife then filed an application in this court in which she sought to have the proceedings in respect of the Suburb B property transferred and heard in the Supreme Court. That application was dismissed on 21 September 2015 and I provided Ex Tempore Reasons for Judgment for that decision.
RELEVANT LAW
Section 44(3) of the Family Law Act 1975 (Cth) (“the Act”) provides:
(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
proceedings of a kind referred to in paragraph .... (ca) or .... of the definition of matrimonial cause in subsection 4(1) .... 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; ....
The court may grant such leave at any time, even if the proceedings have already been instituted.
Section 44(4) of the Act states:
(4) The court shall not grant leave under subsection (3) .... 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
The Full Court said in Whitford (1979) FLC 90-612:
Thus, on an application for leave under sec. 44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings.
The Full Court in a later decision of Jacenko (1986) FLC 91-766 said by way of the lead judgment of Nygh J at 76, 644:
The applicant must establish three principle 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.
The test of hardship can be satisfied if the husband establishes a prima facie case that he has a claim of some significance to pursue and then he would be prima facie as a consequence, worse off if leave was not granted for him to pursue that claim. He does not need to be in necessitous circumstances. A loss of a prospective entitlement to property which is not a trifling loss may be enough to establish hardship.
The Full Court in Whitford also said:
The determination how this discretion should be exercised, must depend on the facts of the particular case. Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date of the decree nisi, and the general policy of the Act which appears from sec. 44(3) and sec. 81 that financial relationships between the spouses should, wherever possible be brought to finality within a reasonable time after the dissolution of the marriage. Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength on the merits of the applicant's case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones.
In Jacenko Nygh J said that in s 44(3) proceedings:
…the general principle is that on the issue of the establishment of a prima facie case the Court proceeds on the basis that the evidence of the applicant, unless it is inherently unbelievable or contradictory, should be accepted, and the court should therefore decide whether or not on that basis a prima facie case has been made out. If leave is granted, then it is for the Court conducting the ultimate hearing to determine if that prima facie case can be established.
WILL THE HUSBAND SUFFER HARDSHIP IF LEAVE IS NOT GRANTED?
At the time of the marriage, the husband was 34 years old and the wife was 25 years old. The husband contends:
13.1.He contributed 36 percent of the initial funds for the acquisition of the Suburb B property.
13.2.In a marriage without children, the husband says his total income whilst the parties were together was significantly more than the wife’s by about $78,000. There is no evidence before me that would provide a basis for that contention.
13.3.That in 1984 the husband used a redundancy or superannuation payout to reduce the mortgage by $16,000.
13.4.That wife was employed in the United States between February 1988 and June 1989. During that time the husband met all the costs of outgoings of the Suburb B property, he says in the amount of $19,800.
13.5.That parties purchased a property in Suburb C in 1989. That property was placed on the market in 1991 but failed to be sold at auction. In May 1992 the wife ceased making any contributions in respect of the Suburb C and the Suburb B mortgages. The Suburb C property was ultimately sold in 1994.
13.6.The husband discharged the line of credit relating to the Suburb C property and a motor vehicle in August 1999 and discharged the Suburb B mortgage in 2005.
13.7.The husband’s current financial circumstances are significantly inferior to those of the wife’s.
13.8.At [76] of his affidavit, the husband gives evidence that upon the sale of the Suburb C in 1994, because he thought he had an agreement with the wife, he did not pursue a number of employment positions that would have provided him with additional capital for his future financial security. The husband was not tested on these assertions in cross examination. Given the form in which they are given however, I place little weight on those assertions, even on a prima facie basis.
13.9.The husband contends that at the age of 70 years old, a forced sale of the Suburb B property (which would seem inevitable if the wife’s application for a sale and equal division was successful) would represent a considerable personal social change for the husband who has lived in a small community of inter-dependence and mutual support in Suburb B since 1979.
The husband presently receives a total average weekly income of $984. His totally weekly personal expenditure is in the sum of $914. The husband holds $438,265 in superannuation.
The wife deposes to receiving a total average weekly income of $679 and personal expenditure of $2,227 each week. The wife owns a 50 percent share in a home at Suburb D. She values her share at $1,900,000. She also owns a property at Suburb E worth $554,000.
The wife does not take issue in this case that the husband had a reasonable prima facie case for relief had he instituted proceedings in time.
The wife in written submissions submits that if leave is refused the Supreme Court would order a sale and division of property and accordingly this is not a case where a refusal of leave leaves the husband without a remedy. Counsel for the wife further submits that there is no hardship in the sense that if leave is refused there is still a judicial process available to deal with the parties’ interest in the property. Whilst it is true the husband has the capacity under s 78 of the Act to ask the court to decide what is to happen with the major asset of the parties, the Suburb B property, pursuant to s 78 of the Act, a determination under that section would lead to a consideration of the legal and equitable interests of the parties in that property but that would not include a consideration of much of the financial history of the marriage and the financial history after the divorce of the parties and of course it does not allow any consideration of those factors that might be relevant arising from a consideration of s 79(4)(d)-(g) of the Act.
Counsel for the wife points to the fact that the husband has indicated, if leave is granted, he will seek an order that the Suburb B property be transferred to him without any payment to the wife. Accordingly, counsel for the wife submits that given that it is not probable that at a final hearing the court would regard that as a just and equitable result, leave should not be granted for the husband to bring that application.
Counsel for the wife conceded in oral submissions that the fact that the husband had foreshadowed bringing what the wife had correctly categorised as “ambit” claim” was not determinative of the issue in relation to hardship. If leave was granted, the husband would be able to initiate an application seeking that the whole of the wife’s interest in the Suburb B property be transferred to him. The wife has not indicated at this stage whether, if leave is granted under s 44(3), she would maintain the same position in the s 79 proceedings as she currently maintains in the Supreme Court, namely, that she be entitled to one half of the current equity in the Suburb B property, but I infer that that is her current position. That might also turn out to an “ambit” claim by her. The fact that a party to s 79 proceedings institutes them by the filing of an ambit claim and the respondent replies in kind, does not mean that the court is unable to proceed to make an appropriate property settlement order pursuant to s 79 of the Act which is just and equitable. Having conceded that is so, counsel for the wife in my view cannot successfully argue that the fact the husband is unable to establish a prima facie case that he will get the order that he proposes in his ambit claim, means that he fails to establish hardship on a prima facie basis. Hardship is about whether or not the order you can obtain under s 79 of the Act is significantly better than the order that he would obtain under s 78 of the Act.
Conclusion in relation to hardship
I conclude that the husband has established that he would suffer hardship if leave is not granted to him pursuant to s 44(3) of the Act to institute proceedings for property settlement order pursuant to s 79 of the Act.
SHOULD THE COURT EXERCISE ITS DISCRETION TO GRANT LEAVE?
The length of the delay in bringing the proceedings and whether there has been a reasonable explanation for delay.
In Neocleous (1993) FLC 92-377 the Full Court held that the absence of an explanation to the delay is simply a fact to be considered in the circumstances of the case. It is not determinative as to whether an extension of time will be granted or refused.
It is submitted that the parties have at various times over the 20 years or so since their separation, attempted to implement a property settlement between them. That objective has not been achieved.
History of negotiations
In May or June 1991 the husband proposed that the Suburb C property and the car be sold, the husband would retain a mortgage to keep Suburb B and would provide the wife with $60,000. The wife said the husband should retain what he put into the property initially and the remaining value should be split.
After that time the wife said she needed $70,000 to purchase a property for herself. The husband agreed to the amount. The husband approached the bank requesting approval for a $10,000 increase in the proposed mortgage plan. He says the agreement was contingent upon the sale of the Suburb C property. The wife denies that, saying that the agreement was that she would be paid $70,000 and the husband would take the properties along with the responsibility for any outstanding liability in respect of the properties.
The Suburb C property did not sell at Auction in July 1991 or October 1991.
In 1992 the parties again agreed Suburb C should be sold. The wife agrees that in 1992 there were more unsuccessful negotiations.
In mid-April 1992 the husband says he arranged a meeting with the wife to discuss the sale and a proposed purchaser. He told the wife he was still prepared to provide her the $70,000 sum. The husband says the wife agreed and gave him a blank cheque to arrange the deposit of the $70,000. In mid May 1992 the husband met with the wife to arrange her to sign the sale contract. The wife declined to sign it at that point and said she would sign it and send it back to the real estate agents. The husband says by July 1992 the sale fell through because the purchasers did not receive the contract in time and purchased another property.
In August or September 1992 the husband was advised by his solicitor that “there were insufficient financial resources to mount a legal action” against the wife and advised the husband to assemble documents and write to the wife and propose a resolution.
In October 1992 the husband asserts he received correspondence from the wife’s solicitors describing the basis of the agreement the parties had come to and indicating a settlement amount of $70,000. The letter requested the husband sign and return it. The husband says that he signed it and returned it by mail. The husband says that at this point in time he considered the property settlement to be over.
The husband has asked the wife to provide him a copy of this letter. That letter was not produced by either party and the wife denies its existence. The wife’s case is that the letter was merely an acknowledgement of service of a Divorce Application. Neither party sought to obtain the wife’s solicitor’s file to see if there is any trace of the letter the husband says he returned to the wife’s solicitors.
The husband did not attend the court hearing in October 1992 in respect of the Divorce Application.
The parties were divorced in about November 1992. At the hearing, the wife’s lawyer told the court that the parties were attempting to reach an agreement about a property settlement order.
In December 1992 the husband commenced to assemble financial documents so as to put an offer to the wife.
In March 1993 the husband wrote to the wife. The wife asserts there was no offer for property settlement in that lengthy document.
On 12 May 1992 the husband again wrote to the wife but did not propose any offer of property settlement.
On 4 November 1993 the husband sent a letter to the wife with certain calculations set out. He indicated that he was “not prepared to allow this matter go any further” and wanted the settlement resolved prior to the expiration of time. He indicated in that correspondence that unless the wife complied with certain things by 11 November 1992 he would inform the court of the need to proceed with the matter.
The husband says that he did inform the court on 11 November 1993 by way of written correspondence of his intention to continue the proceedings post the expiration of time. The husband tendered a letter he received in response from the Family Court (Exhibit 4) dated 13 December 1993 in which the Deputy Registrar of the court acknowledged receipt of the husband’s letter and advised that the husband would need to contact a solicitor to receive legal advice.
The husband however did not do so. No proceedings were instituted in time.
In November 1994 the Suburb C property was sold and the proceeds were applied in reduction of joint debt.
In December 1994 the husband says the wife telephoned him. Further telephone conversations took place between December 1994 and February 1995. The husband says the wife told him that the parties should still be able to arrange settlement through the court. The husband told the wife that the payments he had made to meet mortgage repayments (that the wife stopped contributing to in 1992) would cover the $70,000 the parties had agreed to. The wife agrees that in 1994 the parties again discussed settlement but no resolution was reached.
The husband continued to live in the property and there was a period of 11 years where there was no discussion between the parties about property settlement. On 18 December 2005 the husband contacted the wife saying he wanted to borrow against the Suburb B property for renovations. He indicated to the wife that the parties should finalise the property settlement.
On 21 December 2005 the wife asked the husband for his proposal in relation to property settlement. She says the husband did not respond.
Between May and July 2007 the parties were in correspondence about issues to do with the husband’s car (that continued to be in the joint names of the parties). The husband sold that car in 2007.
The next communication seems to be on 23 August 2011 when the husband wrote to the wife suggesting the parties “sort out the property matter”. He made no proposal. On 2 September 2011 the wife replied to the husband requesting a proposal. No response was received from the husband.
Two years later in July 2013 the husband asked the wife to sign a document in relation to a strata matter at the Suburb B property. That prompted the wife to again indicate to the husband that a property settlement would still be able to be arranged through the court. The husband says the wife told him that he needed to pay her present day value of $70,000 as at 1991 which in her view would now equate to $500,000. The husband’s view was that the costs he paid in relation to the delayed sale of Suburb C would be equivalent to the $70,000 he owed her. Correspondence between the parties then re-commenced. On 9 August 2013 the wife told the husband he owed her $70,000 with compound interest for 20 odd years.
The wife’s solicitors sent the following letter to the husband on 19 September 2013:
19 September 2013
[Husband’s name and address]
Dear [husband]
RE: RIGGS AND VEGA – MATRIMONIAL
We act for [the wife].
Our client has instructed us that a property settlement pursuant to the Family Law Act 1975 has yet to be completed.
By way of background in this matter, our client informs us that you and she were married on … 1979. You and our client separated in or about late January 1991 and a divorce was granted by the Family Court of Australia in October 1992. There are no children of the relationship.
The subject of the property settlement is the one remaining asset held by you and our client as joint tenants, being [F Street, Suburb B]. We understand that the negotiations regarding the finalisation of the property settlement have been ongoing since 1992 and have yet to resolve the matter.
Our client would like to finalise a property settlement amicable and without the need to resort to great expense in doing so. Therefore, she has requested that a round table conference take place in our offices on the following dates being 14, 15, 23 or 24 October 2013. In attending this conference you might with to bring your legal representative(s). You might also wish to consider the preliminary issue of giving your consent to the extension of time in which to file proceedings which would finalise this matter.
Would you please advise us by return mail of the dates on which a conference is suitable, whom you will be in attendance with and confirmation that you will agree to extend the time to file proceedings.
We await to hear from you. [emphasis added]
The husband replied on 25 September 2013 as follows:
25 September 2013
[Husband’s address]
[Wife’s solicitor and address]
Dear [wife’s solicitor]
I refer to your correspondence of 19 September 2013.
I will be available for a conference on 15, 23 or 24 October 2013 and will be unaccompanied.
I agree to an extension of time to file proceedings.
Yours faithfully
[Husband]
What flows from these two letters is that:
48.1.The wife categorised the previous history of negotiations as being ongoing negotiations since 1992 which had “yet to resolve”.
48.2.The wife made an offer to the husband to consider the preliminary issue of him giving his consent to the extension of time pursuant to s 44(3) of the Act and the husband accepted that offer.
On 11 October 2013 the wife’s solicitors wrote to the husband about severing the joint tenancy.
The parties engaged in a round table conference with the wife’s solicitors on 24 October 2013 to attempt to resolve the matter. No agreement was reached.
By letter dated 18 November 2013 the husband’s solicitors made an offer of settlement to the wife by way of the husband paying to the wife the sum of $100,000. In that letter, the husband’s solicitors asserted that:
It is our client’s position that your client is now estopped from claiming an interest in the [Suburb B] property. Should the matter proceed to Court then our client will be seeking an order that your client transfer her interest in the [Suburb B] property to him for no monetary consideration.
The wife’s solicitors responded to that letter and offer on 19 November 2013. The offer was rejected and the wife sought to be paid one half of the gross value of the Suburb B property.
It was proposed by the wife and agreed to by the husband that a formal mediation should take place. Exchanges took place between the parties’ solicitors at the end of 2013 into early 2014.
On 6 May 2014 the husband’s solicitors sent the wife’s solicitors a Notice of Severance of Joint Tenancy.
On 17 July 2014 the parties met for a second time to discuss the division of property but no agreement was reached.
By 5 August 2014 it is the wife’s case that she was prepared to accept $500,000 for her share of the Suburb B property. The husband responded with a counter offer of $125,000 on 19 November 2014. The wife then rejected this offer and discontinued the negotiations.
It is not a matter of dispute that despite the written agreement of the parties in September 2013 to seek leave under s 44(3) of the Act, the wife then did not make an application to the court pursuant to s 44(3) of the Act. Rather, without any notice to the husband in April 2015 she commenced Supreme Court action.
On 15 May 2015 the husband filed his s 44(3) application in this court. The wife then filed an application in this court in which she sought to have the proceedings in respect of the Suburb B property transferred and heard in the Supreme Court. That application was dismissed and I provided Ex Tempore Reasons for Judgment on 21 September 2015. In those reasons I incorrectly said at [14] that the husband had paid the wife $70,000. The correct position is the husband said that there was an agreement in 1991 that he would pay $70,000 to the wife, contingent upon the sale of the Suburb C property.
On 29 May 2015 a Transfer severing the Joint Tenancy in respect of the Suburb B unit was processed by the Land and Property Information Service. The parties now hold the property as tenants in common in equal shares.
Conclusion in relation to delay
The gravamen of the wife’s case is that it suited the husband because he was occupying the Suburb B property to be tardy in terms of pressing a final resolution of the property settlement. I accept that that is so. I note the concession by counsel for the husband that at various times during the history of the negotiations, the husband asserted to the wife that payments he had made, particularly in relation to the Suburb C property, offset the initial agreement between the parties that the wife would receive $70,000. There was however also a motivation for inertia on behalf of the wife.
The wife has a number of qualifications including the qualification as a lawyer. The wife understood that following the separation the Suburb B property continued to be held by the parties as joint tenants. The wife gave evidence that she was aware of the difference between a joint tenancy and a tenancy in common and she knew throughout the 20 year period between the date of separation and when the joint tenancy was severed, the nature of how the joint ownership of the property was held. Although there was some uncertainty about her evidence, she did indicate that she was aware in that 20 year period that if the husband passed away before she did, the property became hers entirely (and she knew if she predeceased the husband the property would be entirely his). She conceded that because she had a greater life expectancy than the husband, that arrangement was one that benefited her. Counsel for the wife submitted that the fact the joint tenancy was not severed for many years was just as much a symptom of the delay as it was a cause of it. Whilst that may be so, it is a concession that delay was not without possible advantage for the wife.
During this hearing, I raised the fact that no evidence had been obtained as to the value to the husband of his occupancy of the Suburb B property. Counsel for the wife subsequently submitted that the value of the occupancy is likely to offset any contributions the husband claimed that he initially made to the acquisition of the property and to the payment of the mortgage and outgoings on the property since the separation. I do not have the evidence to determine on a prima facie basis the strength of that argument. How those matters will be weighed when all the evidence is available is a matter for a final trial if s 44(3) leave is granted. At this stage I need to assess the prima facie case of the husband based on the evidence presented at this hearing.
Both parties are accomplished individuals who, while they had the means to retain lawyers, did not do so for the many years that have passed since separation. Whilst there are considerable gaps in the “negotiations” and at times a lack of any response from the husband to the wife’s request for a proposal, the wife herself in 2013 categorises the conduct of the parties since 1992 as “ongoing”, “negotiations”. There was a concluded agreement in 2013 to approach the court for leave under s 44(3) of the Act if the parties were not able to resolve the matter by negotiation.
To the extent that the husband has not fully explained why there were significant periods of time where he did not prosecute a claim, I find that that lack of explanation is not determinative of whether or not the extension of time should be granted or refused.
The prejudice to the respondent granting permission may cause
At the commencement of final submissions, the wife conceded that she did not rely on economic hardship as a ground for resisting this application. That concession was appropriate given the information that the wife had provided in her recently filed financial statement.
Any other facts of the particular case relevant to the exercise of the court’s discretion
Counsel for the wife also referred to the fact that there were very few examples in the reported cases where leave had been given pursuant to s 44(3) where the delay had been in excess of 20 years.
Counsel for the wife went on to submit that prejudice flowed to the wife as a result of the length of the delay. In his written submissions, counsel for the wife says:
a. It is relevant to consider whether the delay has prejudiced in any way the ability of the respondent to present evidence their defence. (see Shedden v Shedden (1965) 7 FLR 303.) The greater the delay, the greater the prejudice. The delay in this case is significant as is the prejudice to the Respondent in presenting her case.
b. The prejudice relied upon by the wife relates to the forensic disadvantages she will suffer if she has to conduct a Family Law case going back to December 1979. The husband seems to regard the post separation period as the key to his case.
c. Having been effectively in sole control of their jointly owned properties, particularly Suburb B, he is a much stronger position that the wife. He holds or has access to most of the relevant records. Subpoenas will largely be useless given the passage of time. He will therefore have an advantage from the delay in the conduct of the proceedings.
Whilst Begg J in Shedden 1965) 7 FLR 303 listed as a relevant factor whether or not the delay has prejudiced in any way the ability of a person resisting the claim to present evidence in their defence, he also immediately beforehand, cautioned that each matter must always depend on its own merits. In this case the difficulty with the submissions by counsel for the wife about the wife possibly suffering forensic disadvantage as a result of the delay, is that he did not explore with the husband during his cross examination what forensic disadvantage the wife might suffer as a result of the husband not being able to produce specific historical documents or a specific class of historical documents. There is in fact no evidence that there are any documents that will not be able to be produced that will relevantly affect the outcome of the s 79 application.
In fact, the evidence that has been filed in these proceedings is replete on both sides with extensive historical material, including notes written by the parties, bank statements, documentation in relation to the purchase of Suburb B in 1979 and other correspondence to the parties and from banks and lawyers.
Accordingly I find that the wife has not established that she would be forensically prejudiced by the mere fact that there has been a delay of 20 years.
Conclusion in respect of the exercise of discretion
Overall, both parties share some of the responsibility for not finalising their financial matters. The wife herself could have brought matters to a head far sooner than she has.
For the reasons discussed, I grant leave pursuant to s 44(3) of the Act to institute proceedings for an order pursuant to s 79 of the Act.
FURTHER DIRECTIONS
I intend to consider expedition of the final hearing. I will list the matter at 9.15am on 26 November 2015 to consider the following matters:
73.1.Whether or not either party wishes to seek that I recuse myself from hearing the final hearing;
73.2.Whether or not either party seeks expedition of the final hearing;
73.3.Whether or not there should be dispensation of the requirement of a conciliation conference;
73.4.What further documents, valuations or other evidence is required for the final hearing.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 October 2015
Associate:
Date: 21.10.2015
SCHEDULE 1
Husband’s Application in a Case filed 15 May 2015 seeking interim order 3
Husband’s affidavit filed 18 September 2015
Husband’s financial statement filed 15 May 2015
Wife’s Response filed 17 August 2015 ([5(b)]) seeking a dismissal of order 3
Wife’s affidavit filed 17 August 2015
Wife’s affidavit filed 29 September 2015
Wife’s financial statement filed 29 September 2015
Reasons for Judgment 23 September 2015
Husband’s case outline prepared by Peter Campton SC; supplementary submissions prepared by Paul Livingston
Wife’s submissions dated 2 October 2015.
0
1
5