Wife Files Leave Application to Commence Property Proceedings
Radney & Radney [2022] FedCFamC2F 53 (28 January 2022)
The parties were separated over 30 years ago and divorced over 20 years ago. The wife seeks leave to commence property proceedings out of time pursuant to section 44(3). The husband died before the wife’s leave application was heard. The Court, in making its final orders assessed whether the Court has jurisdiction to determine the wife’s leave application and whether leave should be granted to the wife to commence property proceedings against the respondent through his personal legal representative.
Facts:
MS RADNEY (“the applicant” or “the wife”) seeks property orders under section 79 of the Family Law Act 1975 (Cth) (“the Act”) against MR RADNEY (“the respondent” or “the husband”). Although the wife’s application was approximately 19 years out of time, she did not seek leave to commence proceedings. The husband filed his Response on 7 August 2020 seeking, inter alia, the dismissal of the wife’s application because it was filed ‘out of time’ (as the parties were divorced in February 2000) and property orders (presumably in the alternative to a dismissal of the proceedings). In his supporting affidavit also filed on 7 August 2020 he referred to seeking orders for the property at B Street, Suburb C (“the former matrimonial home”) to be sold and the proceeds evenly divided.
The parties were married and commenced cohabitation in 1964. The wife asserts that the parties separated in approximately 1985, however the husband asserts that the parties separated four years later in approximately 1989 when he left the former matrimonial home. The parties were divorced on 7 March 2000, although the wife contends that she was unaware of the divorce. The wife contends that she made all mortgage payments owing on the property during the marriage and following the separation maintained the mortgage and all outgoings associated with the property following separation and had sole care of children, receiving no child support from the husband. The husband disputes this and contends that he contributed his cash income to household expenses during the marriage and asserts that the children were adults at the time of the parties’ separation.
There is evidence that the husband severed the joint tenancy in respect of the former matrimonial home in December 2019. Due to the unexpected death of the husband on 12 August 2020, the husband’s legal personal representative filed an Amended Response on 18 March 2021 simply seeking the dismissal of the wife’s application because it was filed more than 12 months after the parties’ divorce became final. Had the husband not severed the joint tenancy of the former matrimonial home in the year prior to his death, the wife would have retained the property absolutely through the law of survivorship. The wife contends that she would suffer hardship if leave were not granted.
The husband’s legal personal representative now contends that the Court no longer has the jurisdiction to consider whether the wife should be granted leave (or not) to commence property proceedings given the husband’s unfortunate passing.
Issues:
I. Whether or not the Court has jurisdiction to determine the wife’s leave application.
II. Whether or not leave should be granted to the wife to commence property proceedings against the respondent through his legal personal representative.
Applicable law:
Family Law Act 1975 (Cth) Part V s 44(4) - goes on to provide the criteria that the Court must be satisfied exists prior to exercising the discretion to grant leave.
Carlon & Carlon [1982] FamCA 60; (1982) FLC 91-272 - restated the principle that “an inadequate explanation for a delay in commencing proceedings is only one factor to be considered in determining an application for leave pursuant to s. 44(3).”
Edmunds & Edmunds [2018] FamCAFC 121 - provides that one would ordinarily expect that on an application for leave the applicant, at the least, would adduce some evidence as to the likely costs of the proceedings so as to demonstrate that there was likely to be a benefit in bringing the proceedings.
Jacenko and Jacenko [1986] FamCA 25; (1986) FLC 91-776 - provides that the applicant must establish three principal 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.
Montano & Kinross [2014] FamCAFC 231 - provides that the Full Court (Ainslie-Wallace, Murphy & Tree JJ) reiterated the broad nature of the Court’s discretion.
Whitford & Whitford [1979] FamCA 3; (1979) FLC 90-612; (1979) 24 ALR 424; (1979) 4 FamLR 754; (1979) 35 FLR 445 - where the court set out a number of matters which may be relevant to the exercise of the relevant discretion in a particular case once hardship is established.
Simonds (deceased) and Coyle [2019] FamCAFC 47 - provides that the Full Court considered whether this Court had jurisdiction to consider an application by a de facto spouse for leave to commence property proceedings, where the other party had died after the application was filed but before leave had been granted.
Sharp & Sharp [2011] FamCAFC 150 - provides that it is well-accepted that hardship for these purposes is more than the loss of a right to commence proceedings.
Slocomb & Hedgwood [2015] FamCAFC 219 - where the Full Court (May, Ainslie-Wallace & Johnston JJ) allowed an appeal from the trial judge’s decision to dismiss the wife’s application seeking property orders, which was 18 years ‘out of time.’
Analysis:
It is the power given to the Court by section 79, invoked by the wife in her Initiating Application, which was filed when the deceased husband was alive. Section 79 empowers the Court, relevantly, to make such orders as it considers appropriate with respect to the property of the parties to the marriage or either of them. Section 79(8) of the Act provides for the continuation of proceedings commenced under section 79 where one of the parties subsequently dies. However, this provision does not provide for section 79 proceedings to be commenced for alteration of property interests after the death of one of the parties.
Section 44(3) of the Act provides that the Court does not have the power to make a section 79 order unless, relevantly, the application was made within 12 months of a divorce order becoming final. The wife’s Initiating Application could only be effective to institute section 79 proceedings if she first obtained leave to proceed pursuant to section 44(3) of the Act.
While the wife also asserts that she was unaware that the parties had been divorced in 2000, there is evidence in the parties’ previous Court file (SYF 9510 of 1999) that the wife was duly served with the divorce application on 30 December 1999 and that the application proceeded unopposed. There is also evidence attached to both the wife’s affidavit and the late husband’s affidavit of correspondence that the husband’s lawyer wrote to the wife in early 2000 seeking to negotiate a property settlement on the basis of the sale of the former matrimonial home and an equal division of the net proceeds, together with a comment from the husband’s lawyer that he would have to advise his client to commence proceedings for property settlement if the wife failed to respond.
The conclusion that an application for leave is an application for “property settlement proceedings” pursuant to section 79(8) is not supported by the authorities. At the time of the Husband’s death there were no valid or competent proceedings for property settlement before the Court. There is no specific provision under the Act for proceedings under section 44(3) to continue after the death of one of the parties.
Conclusion:
The Court does not have jurisdiction to determine the wife’s application for leave to bring property proceedings pursuant to section 44(3) of the Family Law Act 1975 (Cth). The wife’s Initiating Application filed 12 June 2020 is dismissed. In the event that either party seeks an order for costs, they are to make, file and serve an Application in a Proceeding and supporting Affidavit within 28 days of the date of these Orders. Subject to paragraph 2 all extant applications be dismissed.
#PropertySettlement
