Welland & Hawthorn
[2021] FedCFamC1A 43
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Welland & Hawthorn [2021] FedCFamC1A 43
Appeal from: Welland & Hawthorn [2021] FCCA 1232 Appeal number(s): EAA 71 of 2021 File number(s): SYC 7509 of 2019 Judgment of: AUSTIN, REES & WILSON JJ Date of judgment: 28 October 2021 Catchwords: FAMILY LAW – APPEAL – Property – Where the primary judge dismissed an application pursuant to s 44(6) of the Family Law Act 1975 (Cth) to bring property settlement proceedings out of time – Where the primary judge found the applicant would experience hardship, but was not satisfied with the explanation for the delay.
LEAVE TO APPEAL – Where the applicant must show the decision at first instance is attended by sufficient doubt to warrant appellate interference and that substantial injustice would result if leave were refused – Where the applicant’s point in the appeal was that the primary judge erred in dismissing the application by failing at the second discretionary step – Where other factors may affect the exercise of discretion, but there were none that did in the specific circumstances of the case – Where the applicant is unable to demonstrate the decision at first instance was made in error – Leave to appeal refused, no order as to costs.
Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 44, 117 Cases cited: Arcand & Boen (2021) FLC 94-046; [2021] FamCAFC 155
Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jacenko & Jacenko (1986) FLC 91-776; [1986] FamCA 25
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Montano & Kinross (2014) FLC 93-623; [2014] FamCAFC 231
Neocleous & Neocleous (1993) FLC 92-377; [1993] FamCA 42
Slocomb & Hedgewood (2015) FLC 93-678; [2015] FamCAFC 219
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 58 Date of hearing: 18 October 2021 Place: Heard in Sydney, delivered in Newcastle Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: Unified Lawyers Counsel for the Respondent: Ms Clifford Solicitor for the Respondent: FC Bryant Thomas & Co ORDERS
EAA 71 of 2021
SYC 7509 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WELLAND
Applicant
AND: MR HAWTHORN
Respondent
ORDER MADE BY:
AUSTIN, REES & WILSON JJ
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The respondent’s application for costs is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Welland & Hawthorn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, REES & WILSON JJ:
On 7 June 2021, a judge of the Federal Circuit Court of Australia (as the Court was then known) made an order dismissing the applicant’s application for an extension of time under s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) to bring property settlement proceedings under Pt VIIIAB of the Act against the respondent arising out of their former de facto relationship.
The applicant appeals from that order, subject to the grant of leave to do so but, for the reasons which follow, the respondent’s resistance is sound and leave to appeal should be refused.
BACKGROUND
There is no doubt the parties were once in a de facto relationship, but there was considerable dispute about the length of the relationship and when it broke down, which facts would have a material bearing upon just how late the applicant’s application was filed, the adequacy of her explanation for the delay, and the extent of the hardship she might suffer if deprived of leave to bring the application for substantive relief out of time.
The application to extend time was heard as a discrete issue and (as is common) the parties did not cross-examine one another about the extensive factual conflict in their affidavit evidence, in which case (as is usual) the applicant’s untested evidence had to be accepted.
The primary judge therefore accepted the applicant’s evidence that the de facto relationship began in 2000 and finally broke down in February 2016. The applicant filed her application seeking relief in November 2019, though it was due by February 2018, so it was late by about 21 months. The primary judge noted the delay was between 18 and 20 months (at [49]) and, although that was inaccurate, the slight error favoured the applicant.
The respondent introduced vastly superior assets to the relationship at the commencement of cohabitation and, within months of cohabitation commencing, he bought another real property (“the Suburb H property”) which became the family home. The respondent was the sole registered proprietor of it.
The respondent was arrested in June 2010 and charged with supplying illicit drugs. He was remanded in custody with bail refused and, in December 2011, was convicted and sentenced to imprisonment for nine years. He was released on parole in June 2016.
The parties had two children, both of whom lived with the applicant from June 2010 while the respondent was incarcerated, but with the respondent after his release. When the dismissal order was made by the primary judge in June 2021, the elder child had attained her majority and the younger child was an adolescent.
The applicant first consulted solicitors for advice about property settlement during 2015 and was informed that any such application had to be brought within two years of the parties’ final separation (at [24]). She said she separated from the respondent when she vacated the
Suburb H property in February 2016, leaving the parties’ children in occupation of the property with another relative until the respondent resumed occupation of that property upon his release from prison several months later (at [25]).
The applicant deposed how the respondent reassured her on numerous occasions between 2017 and 2018 that he would voluntarily make some form of financial provision for her, though her evidence of their conversations lacked any detail about the nature and value of the financial provision he intended or she expected, save for a single conversation in July 2018 when a figure of $400,000 was mentioned. Nonetheless, the applicant said she relied upon such assurances and abstained from commencing any proceedings. She was also dissuaded from commencing litigation for several other reasons: the prospective expense, her desire not to disturb the children’s continuing residence in the Suburb H property, her concern about the respondent’s adverse reaction to her claim, her terror at attending court, her own health concerns, and her concerns for the respondent’s health.
The applicant admitted she engaged multiple solicitors for the purpose of bringing proceedings between 2017 and 2019, but did not actually do so. In late 2017, she was reminded by her lawyer that she was running out of time to commence proceedings. In June 2018, she was told the limitation period had already expired. In November 2018, she was again told the limitation period had expired and she needed to make an application immediately. Notwithstanding such repeated advice, she did not bring her application until November 2019.
None of that evidence was overlooked by her Honour (at [50]–[58]). Ultimately, the primary judge was not satisfied with the applicant’s explanation for the delay (at [61]) and her application for leave to extend time under s 44(6) of the Act was dismissed.
LEAVE TO APPEAL
Although the applicant initially disavowed the necessity, she requires leave to appeal from the interlocutory order dismissing her application under s 44(6) of the Act (Bienstein v Bienstein (2003) 195 ALR 225 at [25]; Montano & Kinross (2014) FLC 93-623 at [4]–[9]; Slocomb & Hedgewood (2015) FLC 93-678 at [3]–[8]). When alerted to the anomaly, the applicant made and we entertained her oral application for leave to appeal.
The grant of leave ordinarily requires an applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate interference and, furthermore, that substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]). Even if accepted the applicant would suffer substantial injustice if wrongly deprived of the chance to press her substantive claim for relief, which the respondent refuted, as the following analysis reveals, she is unable to demonstrate that the decision at first instance was made in error and so leave to appeal should be refused.
THE PROPOSED APPEAL
Grounds 1 and 3 – legal error
These grounds collectively allege the primary judge misdirected herself when identifying the issues for determination and the relevant discretionary considerations.
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. …
The applicant correctly said this in her Case Outline document:
The court is given a discretion by Family Law Act s. 44(6) to permit the application to continue if (relevantly) hardship would be caused to the applicant.
The applicant must therefore establish firstly hardship and secondly that the court should exercise its discretion to permit continuation of the proceedings.
(Applicant’s Case Outline document filed 18 September 2020, p. 2)
At the outset, the primary judge identified in the reasons for judgment the issues joined by the parties, as follows:
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.
The applicant’s point in the appeal was that the primary judge thereby erred by failing, at the second discretionary step, to consider any other factors which would influence the exercise of discretion aside from her explanation for the delay. The submission must be rejected. While other factors may indeed affect the exercise of discretion, there were none that did in the specific circumstances of this case.
That is because the respondent’s counsel made this express concession in submissions to
her Honour:
…but this case, from our perspective, will turn on whether or not there’s a reasonable excuse for the delay…
(Transcript 21 September 2020, p.5, lines 38–39)
In the absence of any actual prejudice to the respondent, it was only the explanation proffered for the delay which could conceivably influence the exercise of discretion against the applicant. The applicant did not submit otherwise.
Correctly then, the primary judge noted how the respondent made no complaint of any actual prejudice he would experience if impelled to meet the applicant’s late substantive claim
(at [59]) and so the observation made by her Honour about the salient issues (at [3]) reflected the situation accurately. The adequacy of the applicant’s explanation for the delay was the only factor which could militate against the exercise of discretion in her favour, supposing she first successfully demonstrated hardship.
Her Honour correctly recited the binding legal principles (at [31]–[35]), then proceeded to evaluate the evidence offered in relation to the applicant’s asserted hardship (at [36]–[47]) and the explanation advanced by the applicant for her delay (at [48]–[61]).
Her Honour concluded this in relation to the hardship alleged by the applicant:
47.The costs of proceedings would not be insignificant, and are a matter that must be weighed into the hardship argument. I accept there would be some financial hardship to the applicant were she not granted leave, but it is not clear that it would be to the extent argued by her.
(Emphasis added)
Having so found in the applicant’s favour, the primary judge moved on to then consider the delay and how it might affect the ultimate exercise of discretion. Her Honour pertinently made this finding in relation to the inadequacy of the applicant’s explanation for the delay:
61.There is no satisfactory explanation of why she did not commence proceedings within the required time frame. …
(Emphasis added)
Whether the primary judge erred by reaching that finding and then determining to dismiss the application is an entirely different question, but the contention under these grounds of appeal of her Honour misdirecting herself as to the essential issues is without merit. The primary judge correctly identified the issues joined between the parties and then decided them.
Grounds 4 and 5 – adequacy of the explanation for delay
These two grounds assert the primary judge erred by finding the applicant’s application for delay was inadequate (Ground 4) and then gave undue weight to that consideration when determining whether or not to grant leave to bring her claim out of time (Ground 5).
At the commencement of oral submissions, the applicant’s counsel said this to the primary judge:
Your Honour, a lot of what I want to say is contained in my case outline document.
(Transcript 21 September 2020, p.7, lines 7–8)
In the applicant’s Case Outline document, this was contended on the issue of delay:
…the absence of an adequate or satisfactory explanation is not necessarily fatal to the Application.
Her explanation is complex and has many components. One is that the Respondent ‘led her up the garden path’ by falsely holding out the promise of a settlement upon the receipt of monies from his brother or upon a sale of the Suburb H property. Another is the chaotic situation in which the Applicant found herself in following separation [sic].
(Applicant’s Case Outline document filed 18 September 2020, p. 3)
The foundational evidence for the “chaotic situation” was then briefly discussed, following which the applicant’s written submissions concluded:
… [t]hose matters adequately explain the delay in the commencement of proceedings.
(Applicant’s Case Outline document filed 18 September 2020, p. 3)
Even though the respondent’s counsel opened the submissions by conceding the delay in the commencement of the proceedings was likely to be the determinative issue, the applicant’s counsel made no oral submission on that topic at all. The written submissions comprised everything the applicant wanted to say on the issue of delay. The applicant’s counsel orally elaborated the asserted merit of her substantive claim for property settlement, but that was only pertinent to the initial question of the hardship she would suffer if the application to extend time was refused.
In the reasons for judgment, her Honour canvassed the reasons given by the applicant for why she delayed instituting the proceedings (at [27]–[28] and [50]–[58]). The explanation for delay was found to be inadequate, which finding was surely open, not least because the applicant admitted receiving legal advice about the need to bring proceedings before the limitation period lapsed and then, after it had lapsed, the need to immediately bring an application for leave to proceed to avoid the accrual of any further delay. The applicant admitted ignoring that legal advice for a period of about two years between late 2017 and late 2019.
It must follow that the applicant cannot sensibly maintain that the evidence obliged the
primary judge to contrarily find that her explanation for the delay was adequate, in which case Ground 4 must fail. So much was implicitly acknowledged by the applicant in the appeal, because she merely submitted it was “open” to find that her explanation was satisfactory. It might have been open, but to succeed with Ground 4, she had to demonstrate the evidence foreclosed any other finding. This she did not do. Finding the explanation for the delay was inadequate was undoubtedly open to the primary judge on the available evidence
(Edwards v Noble (1971) 125 CLR 296).
The applicant invited this Court to instead find that her explanation for the delay was adequate, but that misconceives the appeal process. Although the appeal is conducted by re-hearing, the demonstration of appealable error on the part of the primary judge is an indispensable condition to the success of the appeal and, hence, any intervention by the appellate court to re-exercise discretion (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32]; Warren v Coombes (1979) 142 CLR 531 at 538, 541–544 and 551–552). This Court cannot substitute its own decision for that of the primary judge simply because it might have reached a different decision at first instance.
The allied complaint in Ground 5 is that undue weight was given to the inadequacy of the applicant’s explanation for the delay when synthesising the factors which influenced the exercise of discretion about whether she should nonetheless be permitted to bring her claim out of time. This ground therefore amounts to a claim that the result was unreasonable or plainly unjust because of its incongruence with the available evidence, meaning some ill-defined error in the exercise of discretion must be inferred (House v The King (1936) 55 CLR 499 at 505; Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; Gronow v Gronow (1979) 144 CLR 513 at 519–520).
The applicant submitted in the appeal that this was a case in which the “interests of justice” weighed in her favour and overcame any perceived inadequacy of the explanation she advanced for her delay. However, that was just another way of contending the primary judge should have found in her favour. While another judge might have done so, there was nothing so incongruous about the primary judge’s decision that this Court is impelled to find the decision was so “unreasonable or plainly unjust” as to necessitate appellate interference, meaning Ground 5 must also fail.
In Arcand & Boen (at [38]), the Full Court referred to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where the High Court emphasised how a statutory provision conferring the discretion to extend a limitation period is the discretion to grant an extension, not the discretion to refuse an extension, and the onus of persuading the favourable exercise of such discretion rests on the applicant. More specifically, McHugh J said this
(at 553–554), with the endorsement of Dawson J (at 544):
A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society.
…
A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.
…
[Certain] facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion …
On the facts of this case, the primary judge found the applicant would indeed suffer some degree of financial hardship were she not granted an extension of time, though not to the extent she claimed (at [47]), but the explanation she offered for the delayed commencement of proceedings was inadequate (at [61]). When weighing those two competing considerations, the primary judge concluded the applicant had failed to demonstrate the discretion to extend time should be exercised in her favour (at [62]). The finding was open and so the exercise of discretion did not miscarry.
Ground 2 – legal error
This ground alleged the primary judge erred by failing to take the applicant’s case at its highest.
Her Honour said this in the reasons:
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.
(Citation omitted) (Emphasis added)
That was not strictly accurate, but was seemingly intended to be a short-hand way of acknowledging the established principle that, in determining in a summary way whether the applicant has demonstrated an arguable case for relief which warrants a favourable exercise of discretion under s 44 of the Act, the applicant’s evidence should be accepted unless it is inherently unbelievable or contradictory (Jacenko & Jacenko (1986) FLC 91-776 at 75,643; Neocleous & Neocleous (1993) FLC 92-377 at 79,913–79,914; Edmunds & Edmunds (2018) FLC 93-847 at [25], [43] and [114]–[116]). However, there is an important distinction to note. It is the applicant’s evidence which should ordinarily be accepted; not the case posited by the applicant which has to be taken at its highest.
As was most recently pointed out in Arcand & Boen (at [32]–[37]), the case posited by the applicant must be weighed against that for which the respondent contends, to test it for ostensible merit, since parties can legitimately maintain divergent submissions about the merit of an applicant’s claim on a common factual sub-stratum. While the applicant’s untested evidence is accepted on the interlocutory inquiry, the applicant’s submissions about the merit of his or her case need not be. The case advanced by the applicant may not be vindicated by the evidence or appear as strong as is asserted.
In support of this ground of appeal, the applicant submitted there were several instances in which the primary judge failed to take “her case at its highest”, which is true. But, as the following analysis reveals, any doubts expressed by the primary judge about the merit of the applicant’s case were not doubts as to the reliability of her evidence. That being so, this ground must also fail.
First, in oral submissions to the primary judge, the applicant’s counsel contended that, in the event leave was granted to the applicant under s 44(6) of the Act to proceed with her substantive property settlement claim, one historical matter she would investigate was the transfer of a parcel of real property between members of the respondent’s family in late 2016.
It was entirely uncontroversial that the respondent’s mother transferred a parcel of real property to the respondent’s brother, in consideration for which the brother paid sums to his siblings as their “early inheritance”, based upon their equivalent prospective interests in the property. The respondent received some $200,000. The applicant suspected the property was worth more than the value ascribed to it for the assessment of stamp duty on the transfer, meaning the respondent should have received more than $200,000 as his proportionate share, thereby notionally enlarging the “property” which would be available for division between the parties in any prospective property settlement proceedings.
The submission is without merit though because the applicant adduced evidence of the property’s expert valuation at $880,000, which evidence was accepted. The applicant’s belief in some higher valuation was conjectural, just as was her expectation to a share of such “inheritance” money received by the respondent post-separation. Understandably, the primary judge was not persuaded of the asserted merit of the applicant’s speculative argument for the notional add-back of extra money in the prospective property settlement proceedings and rejected the proposition that the argument exacerbated the hardship she would experience if deprived of the chance to bring her application for substantive property settlement relief.
Secondly, the applicant complained about the content of [47] of the reasons for judgment, where her Honour said this:
47.The costs of proceedings would not be insignificant, and are a matter that must be weighed into the hardship argument. I accept there would be some financial hardship to the applicant were she not granted leave, but it is not clear that it would be to the extent argued by her.
(Emphasis added)
As can be seen, the primary judge was not there doubting any aspect of the applicant’s evidence; only the force of an argument she advanced through her counsel.
Thirdly, the applicant complained about the content of [54] of the reasons for judgment, where her Honour said this:
54.In February 2018 the applicant again sought legal representation. She was advised the firm required $10,000 before commencing proceedings, and took the matter no further. She makes no reference to seeking assistance from her father, or anyone else, to assist fund initiating the application. In June 2018 she again saw a solicitor, was advised she was out of time but that the solicitor could assist her negotiate a resolution of the matter. The solicitor wrote to the respondent. The applicant asserts there was a discussion where he offered to resolve the matter with her. She took no further steps at that time.
(Emphasis added)
At that point, her Honour simply makes an observation about an issue upon which the applicant led no evidence, as distinct from doubting any of the evidence she actually did lead.
Fourthly, the applicant complained about the content of [60] of the reasons for judgment, where her Honour said this:
60.I accept that the applicant was advised on a number of occasions of the time frames for filing. This advice was provided prior to separation, and on a number of occasions in the two years following separation. On her evidence there were attempts to negotiate with the respondent, both directly between them, and through solicitors. Nothing came of those efforts. Notwithstanding that she filed no application until 7 November 2019. This history makes it impossible to accept that the applicant could reasonably expect the respondent would resolve the matter. She had the benefit of advice, which was clearly to initiate proceedings to preserve her position.
(Emphasis added)
The primary judge explicitly accepted the applicant’s evidence about the number of times she was advised to start proceedings but did not do so. The material finding is that the applicant could not have reasonably expected for as long as she did that the respondent would still voluntarily settle the dispute with her. That was an inference permissibly drawn from the available evidence about the reasonableness of her belief, not the repudiation of her subjective belief. The primary judge did not purport to reject any evidence adduced by the applicant about her honest belief in the respondent’s intentions, but the unreasonableness of the applicant’s belief bore upon the inadequacy of her explanation for why she waited so long to start proceedings and whether the discretion to extend time should be exercised in her favour.
Lastly, the applicant complained about the content of [61] of the reasons for judgment, where her Honour said this:
61.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.
(Emphasis added)
Again, that is the primary judge making an observation about an issue upon which the applicant led little evidence, as distinct from rejecting any of the evidence she actually did lead. The evidence the applicant led about her “vulnerability” and her “ability to deal with the matter” was essentially this:
76.In mid-2017, I started to receive letters and phone calls chasing payment of my credit card and payment of outstanding tolls as I was using the motorway each day to get work I quickly became overwhelmed by being in so much debt and I was still really missing being the full time carer of the kids. It reached the point where I stopped socialising with friends and leaving the house except for work and to see the children. I felt hopeless and lost and felt like I could not get myself out of the hole I felt trapped in. I really wanted to talk to [the respondent] again about the property settlement again but was still too scared of what he might do to me physically and emotionally. I was particularly fearful that he would take the kids away from me altogether.
77.In around late August 2017, [the respondent] approached me at [the younger child’s] football game at [place]. I was standing with my dad and [the elder child]. [The respondent] said “I want to talk to you about the property settlement”. [The respondent] and I walked a little away from my dad and [the elder child]. We had the following conversation:
[The respondent]: “I will give you a share of the house once I decide to sell it”
Me: “can we talk about this at a better time in a better place”.
I was conscious about what my dad had previous said to me about discussing the property settlement with [the respondent]. I didn’t want to have further discussions with [the respondent] when [the elder child] was close by, in case he got angry and started yelling at me and threatening me. It wasn’t the right place. I thought that if I could get [the respondent] to a mediation or into a more formal setting that we might be able to calmly negotiate an agreement since he seemed willing to discuss me receiving some money.
…
79.On or around 23 September 2017, I contacted all of the lawyers on the list provided by [name] as I wanted to get some advice about the kids and property and attending mediation now that [the respondent] and I had separated. I decided to go ahead with Family Law Matters and on or around 18 October 2017 I had an initial appointment with [name]. After the conference I received a costs agreement. The costs agreement requested a deposit of $5,000. I could not afford to pay the retainer fee so I did not go back to see [name]. [Name] also said “you are running out of time to commence proceedings. If you and [the respondent] can’t reach an agreement soon you will need to file an Application with the Court”. I was terrified by the idea of going to Court. Going to Court had already cost our family so much, financially and emotionally. Not only had [the respondent] and I spent significant funds on legal fees and lost half of the [suburb] Property to the Crime Commission, the Court process had ripped our family apart. I desperately wanted to avoid being involved with the Court again so I did not contact Family Law Matters again.
…
82.In December 2017, I went to see the doctor for a pap smear. During the consolation the doctor said to me “you have a lump on your neck that looks abnormal. I think you should get an ultrasound”. I kept putting off making the appointment for the ultrasound as I was worried it would be bad news and I couldn’t cope with receiving bad news. In June 2018 I finally arranged and attended the appointment to have an ultrasound on my thyroid. It showed that there were nodules on my thyroid. Biopsies were taken and the results came back normal but the doctor said I must have regular check-ups. After speaking to the doctor further she suggested that I complete the anxiety and depression checklist. I did that and was diagnosed with depression. I didn’t want to take antidepressants because I was worried about the side effects. In hindsight I should have taken the prescription antidepressants because I knew I was struggling. I had stopped opening my mail because I was terrified of the overdue bills that were just building up. I stopped answering my phone unless I knew the number because I did not want to talk to anyone and I was also anxious that it be a debt collector chasing payment of a bill that I could not afford to pay. I felt like my life was spiralling out of hand and I did not know how to pull it back together as everything just felt so hard.
…
90.In July 2018, while I was at [the younger child’s] football match, [the respondent] came up to me and we had the following conversation:
[The respondent]: “I received the letter from your solicitor. Don’t take it to Court, I will give you some money”.
Me: “How much are you planning on giving me?”
[The respondent]: “Around $400,000. If you take it to Court I will make your life hell”.
91.[The respondent’s] threat to make my life hell felt real and it petrified me so I decided to stop work with [lawyer] and hope instead that [the respondent] would be true to his word.
(As per the original)
As the primary judge pointed out (at [61]), there was ambiguity in the applicant’s contentions. On the one hand, she implied her emotional condition rendered her unwilling to confront the problem, but on the other, she adduced evidence of how she actually did willingly confront the problem by successively approaching mediators and numerous different lawyers for assistance on multiple occasions in October 2015, September 2017, October 2017, November 2017, February 2018, June 2018, November 2018, March 2019 and May 2019.
The applicant deposed she was diagnosed with depression in about mid-2018, but elected not to take anti-depressant medication. Presumably, by adducing that evidence, she was intending to imply her psychological frailty was a material feature of the factual matrix which influenced the finding about the adequacy of the explanation she advanced for why she did not commence proceedings until late 2019, but the primary judge’s comment upon the scant evidence she led on that issue should not be construed as an erroneous rejection of her evidence. Rather, her Honour’s comments amount to legitimate comment upon the relative weakness of the evidence she adduced on that particular point and the apparent contradiction with the evidence she led about her frequent engagement of lawyers to advise and act for her. Those matters influenced the strength of the case she presented about her capacity to face a litigious dispute.
DISPOSITION
Since none of the proposed grounds of appeal are meritorious, leave to appeal should be refused.
The respondent sought an order for the applicant to pay his costs in the event that leave to appeal was refused or, if granted, the appeal was dismissed. The application for costs is dismissed and the ordinary rule under s 117(1) of the Act will prevail for two reasons: first, neither party enjoys wealthy circumstances, but the applicant is impoverished by comparison with the respondent (s 117(2A)(a)); and secondly, the respondent failed to file and serve his schedule of costs within the time ordered by the Appeal Registrar (s 117(2A)(c)).
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Rees & Wilson. Associate:
Dated: 28 October 2021
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