BARNETT&KEENAN

[2015] FCCA 1403

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARNETT & KEENAN [2015] FCCA 1403

Catchwords:
FAMILY LAW – Extension of time for property order – whether should be summarily dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.44(3), 44(4), 79

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Transfer of Land Act 1958 (Vic), s.89A

Oxenham [2009] FamCAFC 167

Applicant: MR BARNETT

Respondent: MS KEENAN

File Number: DGC 3504 of 2014

Judgment of: Judge Phipps

Hearing date: 22 May 2015

Date of Last Submission: 22 May 2015

Delivered at: Dandenong

Delivered on: 4 June 2015

REPRESENTATION

The Applicant: Appearing on their own behalf

Counsel for the Respondent: Ms Juneja

Solicitors for the Respondent: G A Black & Co

ORDERS

1. The application for summary dismissal of the husband’s claim is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Barnett & Keenan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3504 of 2014

MR BARNETT

Applicant

And

MS KEENAN

Respondent

REASONS FOR JUDGMENT

1. Mr Barnett, the husband, applies for leave to commence property proceedings under s.79 of the Family Law Act 1975 (Cth) out of time against the wife Ms Keenan. The initiating application was filed on 19 November 2014. The wife applies for summary dismissal of his claim.

2. The parties married on (omitted) 1990. A Decree Nisi of Dissolution of Marriage was made on 31 March 2000 and became absolute on 1 May 2000 and so the husband is well outside the 12 month time limit. The proceeding can only be commenced with leave of the court under s.44(3). Section 44(4) provides that the court shall not grant leave unless it is satisfied that hardship would be caused to a party to the marriage.

3. In order to succeed in her summary dismissal application the wife must establish that the husband has no reasonable prospect of successfully prosecuting the proceeding under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).

4. The parties married in 1990 and separated in 1997.  At the time they were living in a house owned by the wife, Property L.  The wife had two children from a previous marriage who lived with the parties.

5. Both parties have filed affidavits.  They dispute a number of aspects of their finances.  For the purpose of this summary dismissal application I will take the husband’s case at its highest.

6. The husband says that at the time of the marriage he owned a house in Property Y which he sold to buy a block of land in Property S but the wife would not live there.  He says that as a result of the sale he brought $60,000 into the marriage.  The parties resided in the respondent’s home.

7. The husband says the parties shared their finances and he always handed his salary to the wife who paid the bills and living expenses and controlled their finances.

8. The husband says that a new kitchen was installed in the home in about (omitted) 1989 at a cost of $8,168.  The husband, who is a (occupation omitted), says he provided most of the labour and the costs do not include labour costs paid to a plumber and other tradesmen. 

9. He says that he rebuilt a deck on the house which required a new bearer and stumps to make it safe.  He says he renovated the bathroom, fitted a glass sliding door from the bedroom to the outside and built archways in the lounge and study and purchased a new lounge suite.

10. The husband says that when the wife got into financial difficulties with her credit card he gave approximately $1,500.  This seems to have been after separation.

11. The husband says that he did not bring his application within the 12 months from dissolution of marriage for two reasons.  Firstly he was unaware of the requirement and secondly he says he was persuaded by the wife not to bring an application because she wanted to keep the house for herself and her two children from a previous relationship.  Both children were in their early teens at the time.  He says he agreed not to bring an application for property settlement until her situation improved.

12. He lodged a caveat over the former matrimonial home in 2003. He received a letter from the wife dated 5 August 2014 in which she said she was writing in regards to the caveat. She says her circumstances have changed dramatically. In summary she says she needs to purchase another home to have the room to care for her parents who are in ill health. The husband then received a notice dated 16 October 2014 from the Registrar of Titles advising that an application had been made pursuant to s.89A of the Transfer of Land Act 1958 (Vic) to remove the caveat. The notice required the applicant to give the Registrar notice of proceedings on foot to substantiate the claim of the caveator to an interest in relation to an estate or interest in the land otherwise the caveat would be removed. The husband then commenced these proceedings on 14 November 2014.

13. In Oxenham [2009] FamCAFC 167 O’Ryan J in an appeal from a Federal Magistrate, set out the approach to be made in an application for extension of time.

    98. Although s 44 of the Act does not state what principles should guide the exercise of the discretion to grant or refuse leave to extend time the discretion is not wholly unfettered. As the Full Court (Asche and Pawley S.JJ and Strauss J) said in Whitford and Whitford (1979) FLC 90-612 at 78,144 “two broad questions may arise”. First the discretion is subject to the requirement in s 44(4) that the court must not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted. Thus if such hardship is not established then the application for leave must be dismissed. Second, if the court is satisfied that hardship would be caused, it should proceed to consider whether leave should be granted: see also Hall and Hall (1979) FLC 90-679 and Cox and Cox (1981) FLC 91-068. The applicant for leave bears the onus on the balance of probabilities.

14. His Honour then discussed authorities about what constitutes hardship.  He concluded at [102] and [103].

    102. In summary, in order to establish hardship in the relevant sense the applicant for leave must have a prima facie case to be heard by the court on the merits. This does not require a detailed hearing of the merits of the substantive application, but a consideration of whether there exists a prima facie case on the strength of the applicant’s material.

    103. As to the second part of the exercise the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479. In Gallo v Dawson McHugh J referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or the refusal of the extension of time. The authorities and principles were discussed in Tormsen and Tormsen (1993) FLC 92-392: see also McMahon and McMahon (1976) FLC 90-038; Van der Kreek and Van der Kreek (1978) FLC 90-421, and Coombs and More (1990) FLC 92-175. In summary in considering the second question the court may have regard to a number of factors that include whether the applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the respondent to the application for leave or other persons.

15. The applicant does have a reasonable prospect of successfully prosecuting his application. On his evidence the parties had a seven year relationship. Again on his evidence he made both financial and non-financial contributions to the improvement and maintenance of the property and he made contribution to the welfare of the family. If his evidence is accepted he has a reasonable prospect of establishing that that he made contributions as they are defined in s.79(4) of the Family Law Act 1975 (Cth). He has a reasonable prospect of satisfying the first aspect of an application for extension of time.

16. As to the second aspect he has a reasonable prospect of establishing that he has an explanation for not commencing his application.  Even if the fact that he was unaware of the time limit must be ignored his reason that he did not want to cause difficulty for the wife while she had two teenage children has reasonable prospect of success even though the children must now be well into adulthood.

17. The wife disputes much of what the husband says about contributions and says he always had problems with money and denies that he contributed financially to the family.  The wife in the letter she wrote to the husband says that she wishes to sell the property.  It may be that she can establish that the hardship she will suffer if she now has to pay some money to the husband means that the discretion to grant leave should not be exercised.  I cannot say that the husband has no reasonable prospect of overcoming such an argument.

18. The application for summary dismissal must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  4 June 2015