Welland & Hawthorn

Case [2021] FCCA 1232

FEDERAL CIRCUIT COURT OF AUSTRALIA

Welland & Hawthorn [2021] FCCA 1232

File number(s): SYC 7509 of 2019
Judgment of: JUDGE BOYLE
Date of judgment: 7 June 2021
Catchwords:  FAMILY LAW – Property – application by the applicant seeking leave to commence property proceedings out of time pursuant to s 44(6) of the Family Law Act 1975 (Cth)
Legislation:  Family Law Act 1975 (Cth) ss 44(3), 44(4), 44(5), 44(6).
Cases cited:

 Jacenko & Jacenko [1986] FamCA 25
Gadzen & Simkin (2018) FLC 93 – 871
Sharp v Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150
Stanford v Stanford [2012] HCA 52

Whitford and Whitford (1979) FLC 90-612; [1979] FamCA 3

Number of paragraphs: 62
Date of hearing: 21 September 2020
Place: Sydney
Counsel for the Applicant: Mr Blackah
Solicitor for the Applicant: WMD Law
Counsel for the Respondent: Mr Harper
Solicitor for the Respondent: F C Bryant Thomas & Co

ORDERS

SYC 7509 of 2019
BETWEEN:

MS WELLAND

Applicant
AND:

MR HAWTHORN

Respondent

ORDER MADE BY:

JUDGE BOYLE

DATE OF ORDER:

7 JUNE 2021

THE COURT ORDERS THAT:

1.The application filed 7 November 2019 is dismissed.

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 under the pseudonym Welland & Hawthorn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

  1. The applicant seeks leave pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“The Act”), to commence property proceedings out of time. The respondent seeks that the application be dismissed.

  2. The parties agreed that the matter should proceed without cross-examination. Properly, the respondent submitted that the Court was entitled to take the applicants case at its highest.[1]

    [1] Jacenko & Jacenko [1986] FLC 91–776, 75643.

  3. The issues in the matter are the hardship to the applicant if leave were not granted, and the adequacy of the explanation for the delay.

    BACKGROUND

  4. The applicant is aged 40 years, and the respondent 63 years. The parties differ on the length of cohabitation. The applicant asserts they commenced living together in 2000, and separated in February 2016. The respondent asserts they were in a relationship from 2000, and started living together in late 2009.  He says separation occurred in 2010. 

  5. The parties have two children: Ms B aged 18, and X aged 15. The children have lived with the respondent following his release from gaol in 2016.

  6. At the commencement of the relationship the respondent had assets: an investment property at C Street, Suburb D, and he and a brother owned 50% shares in a property at E Street, Suburb F. The latter was subject to a mortgage of about $50,000. Otherwise he had some shares, savings a motor vehicle, and a business. The applicant owned a motor vehicle.  She had some superannuation, and nominal savings.

  7. In 2001 the respondent purchased G…

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Welland & Hawthorn [2021] FCCA 1232
Case
[2021] FCCA 1232
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Welland against Mr Hawthorn. The dispute involved family law proceedings, and the court was required to determine whether to grant leave to the applicant to proceed with her application, despite a delay in filing.

The central legal issues before the court were the hardship the applicant would face if leave were not granted, and whether the explanation provided for the delay in commencing proceedings was adequate. The court also considered the provisions of section 121 of the *Family Law Act 1975* (Cth), which prohibits the publication of identifying details in family law proceedings.

Justice Boyle accepted that the applicant would experience hardship if leave were not granted. However, the court was not satisfied that, in all the circumstances, it should exercise its discretion to grant leave. The applicant had received legal advice regarding her evidence a year prior to separation and on several occasions thereafter, yet took no steps to file proceedings. Furthermore, the court found no satisfactory explanation for the delay and noted the absence of evidence, such as mental health reports, to support any claim of vulnerability affecting the applicant's ability to manage the proceedings.

Consequently, the application filed on 7 November 2019 was dismissed.

Orders

Orders of the court

SYC 7509 of 2019

BETWEEN:

MS WELLAND

Applicant

AND:

MR HAWTHORN

Respondent

ORDER MADE BY:

JUDGE BOYLE

DATE OF ORDER:

7 JUNE 2021

THE COURT ORDERS THAT:

1. The application filed 7 November 2019 is dismissed.

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.

Background

Background to the litigation

The issues in the matter are the hardship to the applicant if leave were not granted, and the adequacy of the explanation for the delay.BACKGROUND The applicant is aged 40 years, and the respondent 63 years. The parties differ on the length of cohabitation. The applicant asserts they commenced living together in 2000, and separated in February 2016. The respondent asserts they were in a relationship from 2000, and started living together in late 2009. He says separation occurred in 2010. The parties have two children: Ms B aged 18, and X aged 15. The children have lived with the respondent following his release from gaol in 2016. At the commencement of the relationship the respondent had assets: an investment property at C Street, Suburb D, and he and a brother owned 50% shares in a property at E Street, Suburb F. The latter was subject to a mortgage of about $50,000. Otherwise he had some shares, savings a motor vehicle, and a business. The applicant owned a motor vehicle. She had some superannuation, and nominal savings. In 2001 the respondent purchased G Street, Suburb H, in his sole name. The purchase price was $335,000, and the deposit was paid of $85,863.48 from the respondent’s savings. $249,281 was borrowed by way of mortgage. On the evidence of the applicant, the parties resided in the property. It is agreed that the applicant commenced a business on the grounds of the G Street, Suburb H property. In 2002 the applicant asserts her father and brother replaced the roof on the G Street, Suburb H property, and tiled some parts of the home at no cost to the parties. The applicant ceased employment at the business around Ms B’s birth in 2003, re-starting the business later that year. She had the primary responsibility for care of Ms B. On 24 September 2003 the respondent sold the C Street, Suburb D property for $450,000. The proceeds were used to purchase a block of land at Town J, a share in a restaurant, and a number of vending machines. He sold that property several months later receiving $20,000 in net proceeds, on the applicant’s recollection. The respondent asserts $50,000. In 2005 the applicant started part-time work with Employer K as a contract driver two days each week. Ms B was at day care whilst she worked. At this time she ceased the business. From late 2005, following X’s birth, the applicant ceased paid employment. She was responsible for both children, and attended to most household duties. The respondent asserts the applicant was living at her parent’s home over this period. He paid child support, and the applicant was in receipt of Centrelink benefits. In 2006 the applicant returned to work for Employer K two days per week. Her work started at 4:30 AM, and she made arrangements for care of the children around her work. In 2006 the applicant found out that the respondent was selling crystal methamphetamine (ICE). She asserts she became depressed around this time. The applicant asserts that there was an agreement in the respondent’s family that his brother Mr L would buy his siblings out of their share in their mother’s home. The applicant understood from conversations with the respondent and Mr L, that this was in the sum of $250,000.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no satisfactory explanation of why she did not commence proceedings within the required time frame. The applicant has not provided evidence of mental health reports, or similar material, supporting that she has a vulnerability affecting her ability to deal with the matter. The occasions on which she sought legal advice suggest the opposite. CONCLUSION I accept that there will be hardship occasioned to the applicant if leave is not granted. However, I am not satisfied that in all the circumstances I should exercise the discretion to grant leave. The applicant took no steps to file proceedings despite having legal advice on her evidence a year prior to separation, and on a number of occasions following separation, to do so. I therefore dismiss the application filed 7 November 2019.

Ratio Decidendi

Legal Principle Established

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