Thursday, 7 August 2008

Family Court case: leave after 13 1/2 years

In the recent Full Court of the Family Court case of Richardson and Richardson, the court rejected an appeal from the husband against a decision allowing the wife leave to appeal 13 1/2 years out of time.

The Facts

After having a marriage of 20 years, and both parties being flat broke at separation, they did not undertake a formal property settlement. About 7 years after separation, the husband won $3m in a lottery.

On separation, the wife was ill, and then spent a considerable amount of time in a nursing home. The husband visited her often, and then let her live for free in a house he had bought after separation. He had given her $500 on winning his $3m, and later gave her the use of a credit card.

History of the Case

When the matter came before a Judicial Registrar, the Judicial Registrar gave the wife leave to commence proceedings out of time. Obviously, if the wife had been unsuccessful at this step, then all the husband's property would have been protected.

The husband sought to review that decision before Justice Moore. He failed.

He then sought leave to appeal before the Full Court, which also ultimately upheld the decision of the Judicial Registrar to grant leave.

Legal Principles

The Full Court held:

We are not persuaded, at least as presently advised, that her Honour was wrong in law in effectively concluding that the absence of any significant property at the time when the proceedings should have been instituted, does not (as a matter of law) preclude the grant of leave under s 44(3) to institute proceedings at a subsequent time when some property has become available for distribution between the parties. We would, however, observe that in such circumstances, the discretion to grant leave should be exercised with great care.

We would also observe that as was pointed out by counsel for the wife, within two years of the expiration of the period in which the wife could have instituted proceedings without leave, the husband purchased a property. It is conceivable that had the wife commenced proceedings within time, those proceedings might not have been determined until after the husband had purchased that property. This observation serves only to illustrate that the absence of significant property at the expiration of the period when proceedings could have been instituted, must be regarded as a discretionary matter only and not an issue of principle.

It should also be borne in mind in this context that this was not a case where the wife sought to commence proceedings once the husband had acquired some property or later significant property through his lottery win. Rather she only sought to institute proceedings once the support which he had been providing for her was withdrawn or substantially altered or proposed to be withdrawn or substantially altered


and:

In so far as these further proposed grounds raised the long period of delay by the wife in seeking to bring financial proceedings in this case, counsel for the husband sought to rely before us on the fact that the period in this case was, on the basis of his research of earlier cases, one of the longest periods of delay after which leave had been granted under s 44(3). That may well be so. But it would not of itself be a reason for not exercising the discretion in favour of granting leave. Rather it would be a reason for the court in exercising the discretion, to take care in satisfying itself that there was an adequate explanation for the delay. We are satisfied (notwithstanding the complaint contained in proposed Ground 4) that her Honour did this in paragraph 18 of her reasons (see paragraph 17 above).

In our view, the more significant issue raised by these further grounds of appeal is the weight to be placed on the housing and other financial assistance which the husband had given the wife in the years since separation and which her Honour described in paragraphs 10(i), (j), (k) and (p) and again referred to in paragraphs 18 and 19 of her reasons (see paragraphs 10 and 17 above).
We acknowledge that his earlier financial assistance to the wife is a matter on which the husband might rely in seeking to establish that an injustice has been occasioned to him by now having to face property and spousal maintenance proceedings after so many years of providing assistance to the wife. On the other hand, it might be argued that because he has provided financial support to the wife voluntarily over the years, it would not be an injustice to him if he had to do so by virtue of a court order.

Furthermore, in the absence of evidence concerning the husband’s precise present financial position, it is difficult to conclude that any injustice to him has been occasioned.

We acknowledge also that the husband may well feel aggrieved that the fact that he provided financial assistance to the wife for so long was relied on by her Honour (in paragraph 18 of her reasons) in reaching the conclusion that the wife had an adequate explanation for her delay in seeking to commence proceedings.
However, it has to be recognised that it is often the case that the more unusual the facts of a case in this discretionary jurisdiction, the more highly discretionary will be the outcome; in other words, in a case such as this, minds will clearly differ on what should be the correct outcome, with there being no uniquely correct outcome. (emphasis added)


Remember Farmer and Bramley

In Farmer and Bramley, the husband won $5m post-separation. The parties were broke at separation. The Full Court made it plain that property did not need to exist at separation, and ultimately gave the wife 15% of the property.

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