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
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…
Continue reading Welland & Hawthorn
Sign in free to access the full text
Details
- AGLC
- Welland & Hawthorn [2021] FedCFamC1A 43
- Case
- [2021] FedCFamC1A 43
- Decision Date
CaseChat Overview and Summary
The matter under consideration concerns an appeal against a decision made by a primary judge in a de facto relationship property settlement case. The applicant, who was once in a de facto relationship with the respondent, seeks leave to appeal the decision which dismissed her application for an extension of time to file a property settlement application. The dispute primarily revolves around the timing of the applicant's application and the adequacy of her explanation for the delay. The Federal Court of Australia is the appellate court hearing the case.
The central legal issue before the court was whether the applicant's explanation for the delay in filing her property settlement application was satisfactory. The applicant's application was due by February 2018, but she filed it in November 2019. The applicant attributed the delay to various factors, including her mental health issues, her fear of the respondent, and his assurances that he would make financial provision for her. The court needed to determine if these reasons were sufficient to grant the applicant leave to proceed with her application out of time.
The court held that the applicant’s reasons for the delay were not satisfactory. The applicant had led little evidence to support her claims of vulnerability and mental health issues, and her reasons for delay seemed to be more about her personal preferences and fears rather than insurmountable obstacles. The court found that the applicant had not provided sufficient evidence to justify the delay, and therefore, the primary judge’s decision to refuse leave to appeal should be upheld. The court emphasised that the applicant had not provided any evidence of mental health reports or similar material to substantiate her claims of vulnerability.
In light of the court's findings, the appeal was dismissed. The court confirmed that the primary judge's reasons for denying leave to appeal were sound, and no grounds for allowing the appeal existed. The applicant was not granted leave to appeal the primary judge’s decision, and the dismissal of her application for an extension of time was upheld.
The central legal issue before the court was whether the applicant's explanation for the delay in filing her property settlement application was satisfactory. The applicant's application was due by February 2018, but she filed it in November 2019. The applicant attributed the delay to various factors, including her mental health issues, her fear of the respondent, and his assurances that he would make financial provision for her. The court needed to determine if these reasons were sufficient to grant the applicant leave to proceed with her application out of time.
The court held that the applicant’s reasons for the delay were not satisfactory. The applicant had led little evidence to support her claims of vulnerability and mental health issues, and her reasons for delay seemed to be more about her personal preferences and fears rather than insurmountable obstacles. The court found that the applicant had not provided sufficient evidence to justify the delay, and therefore, the primary judge’s decision to refuse leave to appeal should be upheld. The court emphasised that the applicant had not provided any evidence of mental health reports or similar material to substantiate her claims of vulnerability.
In light of the court's findings, the appeal was dismissed. The court confirmed that the primary judge's reasons for denying leave to appeal were sound, and no grounds for allowing the appeal existed. The applicant was not granted leave to appeal the primary judge’s decision, and the dismissal of her application for an extension of time was upheld.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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)
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.