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Difficulties with out of time application overcome

Difficulties with out of time application overcome

Yule & Manners

  1. The respondent here argues that the applicant’s case is sparse in particularised material in respect of actual hardship, but speaks in generalities as to gross property pools without any proper particularised reference to the net pool which would, of course, be the figures that activate the interest of a court in any substantive proceedings.
  2. The respondent says that on his figures the property pool is negligible in a net sense that, whilst there are parcels of real property that might find a value of somewhere between $4 million and $5 million, the figures he gives in his sworn affidavit suggest mortgages which are substantial and which would leave equity in those properties, although positive, of a trifling amount which, on his calculations, sit somewhere between 20 and 30 thousand dollars. The argument against the application is that on those figures, if accepted, then the pool of property for a court to deal with would be minimal.
  3. There is some merit in the criticisms of the respondent’s counsel to the affidavit material put before the Court by the applicant. I stress that in an application such as this seeking an indulgence, in respect of the evidence there is an onus on an applicant to cause a court to make findings on the balance of probabilities and, frankly, some of the submissions put in support of the applicant’s case would fit more properly in another jurisdiction as a form of plea in mitigation to elicit some sympathy from a court to the applicant’s peculiar situation. Whilst I might have some sympathy, the fact is that the applicant has to give or adduce evidence which convinces the Court. The applicant’s case, as I understand it, in respect of hardship is that:
      (1) There is a substantial gross pool;
  4. (2) There was a relationship of some 10 years;(3) That whilst there are liabilities, she was unable to quantify those liabilities;(4) That the parties mingled their finances during the course of their relationship and with specific references as to payment of certain liabilities and utilities and following the advancement of some loans between the parties. The applicant’s material references with some detail her asserted contributions of a direct financial nature, an indirect financial nature and a non-financial nature and the applicant sets out that there is a child of the relationship, and I understand from the submissions put to me that paternity of that child was but is no longer an issue.

  5. And the evidence of the applicant is that she has had, post-separation and continuing, the primary care of that three-year-old child together with substantial financial care. The applicant, significantly in my view, asserts in her material that neither party had any significant assets at the commencement of their cohabitation which, of course, would probably be a starting point for any subsequent court’s considerations as to entitlement based on contributions.
  6. Finally, the applicant in her material or at least in the submissions of her counsel seems to assert that there may be an argument as to disparity in earning capacity.
  7. Whilst the material given and adduced by the applicant does not assist with any particularity as to an asset pool and, as I have said, there is some at least superficial merit in the submissions of counsel for the respondent that the pool may not be of any substantial value in its net sense, it is not, in my view, the role of a Court at this stage to place an arbitrary value in the sense of a property pool in terms of limiting a party’s opportunity to litigate in respect of that pool. I am satisfied that there are gross assets of substantial value. I am unable to attribute a net value to the pool with any precision. It is worth of repeating the comments of their Honours in Whitford where their Honours say:
    …but, otherwise, we find no warrant in either section 44(3) or 44(4) for saying that the right or entitlement lost must be a substantial one.
  8. To put that in more simple terms, it is not now for me to anticipate any award that either of the parties might receive in respect of relativity or the value of the property pool, but on the material before me I am satisfied equally that an application brought by this applicant would not fail or suffer simply because of the trifling value of her property pool. Prima facie I am satisfied that there is an asset pool of such value that the applicant would receive an award and this being in circumstances where it is the respondent who holds the majority if not all of the valuable assets. Taking all of those matters into account and on the balance of probabilities, and despite the difficulties that I have highlighted with the applicant’s material, I am satisfied that the applicant would suffer hardship if not granted leave to bring an application out of time.
  9. That finding leads to the exercise of my discretion as to whether or not to grant leave and I agree and accept the submission of counsel for the respondent that I must consider the length of the delay in bringing the proposed application; the reasons given or adduced by the applicant for that delay or failure to meet the time constraints; any issues of mutual prejudice to either party in either the granting or refusing of the application for leave; and finally, the prima facie merits of any application which, on the face of it, I have already dealt with.
  10. The delay of this matter outside of the statutory time limits is approximately two years. It is not a minimal amount of days, weeks and months. It is a relatively substantial period and one, in my view, which activates a heavier onus or responsibility on an applicant to give an explanation and a reasonable explanation for her failure to comply.
  11. Again, the material in the applicant’s affidavit, in my view, is vague, at times ambiguous and at times selective, as pointed to by counsel for the respondent in his submissions. As I understand the explanations for the delay, they can be summarised as the following:
      (1) That the applicant was under financial constraints;
  12. (2) That the applicant received some legal advice and acted on that legal advice;(3) That the other party made representations – and I stress this evidence is untested and I am referring only to the prima facie, untested evidence of the applicant, but the other party made statements or representations that any application for alteration of property interests might be met by his debtors petition for bankruptcy; (4) That the applicant had given birth to the parties’ child;(5) That she did not then receive any actual or financial support from the respondent, leaving her with the understandably difficult situation of being out of a relationship and a sole parent and without the immediate geographical support of her extended family and, as such, she moved herself and her child to (country omitted) for support; and (6) If I interpret the applicant’s affidavit material correctly, that there were continuing communications between the parties, many of which were of a financial nature with, on the applicant’s evidence, the respondent’s reply or response to such communications being that he was on the verge of bankruptcy and the inference that I take, although no direct submission was made to me, that such communications from the respondent dissuaded the applicant’s compliance earlier or in time with the filing of her application.

  13. There are difficulties with each of those arguments in their veracity or in the simple fact as to whether or not they lend to an explanation for delay. They do, however, on their face represent some explanation which is plausible and in my view, reasonable.
  14. There are prejudices to each of the parties in the granting or refusing of leave to bring the substantive application. Quite obviously, if the applicant is not granted leave, then, on the face of it, she needs to seek other avenues for recourse of any entitlement that she may have following the demise of the de facto relationship with the respondent. And, in that sense, the Family Law Act offers an available and statutory course, perhaps, of greatest ease for the settling of such matters, although it is not the only avenue open to a litigant in such circumstances.
  15. There is also prejudice to the respondent, not the least that, despite any allegations or assertions as to his behaviour, he might reasonably be able to watch time pass by and, after the expiration of two years, have the expectation that he can move on with his life actually, emotionally and financially. And to be put in a position where despite such unambiguous statutory time limits that he is at jeopardy of traumatic, lengthy and expensive litigation is, in my view, itself a prejudice.
  16. It is proper that I note, however, that whilst the delay is not a minimal one, it is not of such length that the respondent’s participation or defence, if I put it that way, to the application is prejudiced or compromised by way of the lack of any available witnesses or evidence in other documentary form which might prejudice his conduct of the litigation.
  17. I have already dealt with the prima facie merits of the applicant’s application. On balance and in all of the circumstances, and despite my reservations as to the form and veracity of the affidavit material before me, I am persuaded on the balance of probabilities that my discretion should be exercised in favour of the applicant and I will grant the applicant to bring her application.

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