Leave to seek property settlement refused

Leave to seek property settlement refused

Wemple & Dautry


  1. The parties commenced living together in (omitted) 2007 and separated in September 2010. The relationship spanned 3 years and 5 months however the parties physically shared a common residence for 2 years and 1 month. There is one child of the relationship X born (omitted) 2008.
  2. As the parties separated in September 2010 the “standard application” within which to bring property proceedings expired in September 2012.
  3. The wife filed her application for property interests in March 2014, 1 year and 6 months out of time.
  4. The husband holds his interest in a property in Property W with his current partner and has equity of about $52,853, a Holden (omitted) sport vehicle which he brought into the relationship worth $34,000, $3,300 in a bank account, $77,955 in (omitted) superannuation and $147,270 in (omitted) superannuation. He has liabilities of $240,000 with respect to loans obtained to pay legal fees regarding the parenting proceedings, various appeals and other related proceedings and costs appeals filed by the wife. His net non – superannuation assets are in deficit in the amount of $154,673. Of his current interest in combined superannuation of $225,225 the amount which accrued during the relationship $30,972. He brought into the relationship his interest in (omitted) superannuation which had decreased in value at the time of separation. The wife owns furniture, has credit card liabilities of $5,000 and superannuation of $5,951 with (omitted). The wife filed a financial statement in July 2016 deposing to an income of $450 per week.
  5. The husband earns about $120,000 p.a. with the (employer omitted) and his partner earns about $80,000 p.a.
  6. The wife has full time care of her son A now 11 years old. He attends (omitted) School and his fees are paid for by the maternal grandmother. The husband has full time care of the parties’ child X who is now 8 years old. She attends (omitted) School in (omitted). He pays for all of X’s needs. X spends time with her mother 2 nights a fortnight and for 1 evening meal a fortnight.
  7. The mere loss of a right to institute proceedings is not of itself “hardship.”
  8. It is necessary to consider the consequences for the wife if leave is refused.
  9. Neither party has assets of significance. The husband’s non superannuation assets are in deficit in the amount of $154,670.
  10. The wife is in deficit in the amount of about $5,000. In her financial statement filed on 27th July 2016 she does not acknowledge costs orders outstanding against her as liabilities.
  11. She is seeking a payment of $325,000 from the husband or half the equity in the husband’s home in Property W which he jointly owns with his new partner, whichever is the greater.
  12. The wife has no prospect of succeeding in being awarded a payment of $325,000 or any award close to that amount. The reality is that the husband is in deficit and there is no non superannuation property capable of being divided if the husband’s loan liabilities are taken into account.
  13. At separation the parties had about $55,000 in equity in the Property B property. The husband had applied net proceeds of a property he introduced into the relationship (the Property P property) towards the Property B property. In addition he borrowed $40,000 from his father to fund the purchase of the Property B property. He worked full time throughout the relationship, supported the wife’s university studies and her child from another relationship. He paid X’s school fees until December 2013 and from that time shared her care 4 nights a fortnight. From December 2014 X has lived with him and spent time with her mother 2 nights a fortnight.
  14. As to the wife’s claim for half the equity in the Property W home, a property the husband owns jointly with his new partner, there is no real probability of the wife succeeding in that claim. The husband and his new partner have a substantial joint mortgage secured against that property. Both the husband and his new partner funded the deposit with assistance from their respective parents in addition to drawing down on the Property B mortgage. The husband’s partner paid the stamp duty. Both have contributed to mortgage payments since the property was purchased in September 2013. The husband and his new partner rearranged their financial affairs prior to the application for extension of time being filed, notwithstanding that the wife was aware of the time limit for filing property proceedings according to advice she received from Counsel in 2013.
  15. The husband has liabilities of $240,000 in loans borrowed to fund litigation between himself and the wife. Even if the wife succeeded in receiving a modest award there are currently costs orders against her in the amount of $81,620 which remain outstanding.
  16. With respect to the wife’s claim for equalising superannuation accumulated by the husband during the relationship, the parties shared a common residence for 2 years and 1 month. The amount accumulated by the husband in superannuation from April 2007 to September 2010 was a modest $30,972 and is not currently accessible by either party. Any splitting order is unlikely to alleviate the wife’s hardship.
  17. In determining an application under section 44 of the Act the Court is not required to undertake a detailed hearing of the merits of the proposed claim (see Hall & Hall (1979) FLC 90- 679 at p.78,627).
  18. In Whitford (supra) at 78,144 the Full Court said:-
        <li “=””>

    “On an application for leave under section 44(3) two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter.”

  19. The child A is not a child of the relationship. The husband has the full time care of X. I am not satisfied that there is a real probability of the wife succeeding in her property claim. The costs of further litigation are likely to be substantial. Granting leave to extend time is unlikely to alleviate any hardship for the wife. The application to extend time is refused.
  20. Even if I had been satisfied that the wife had proved hardship, I would not have exercised the discretion in her favour. The standard application period expired in September 2012. She became aware when seeking advice following the husband filing for parenting orders in September 2013 that she was required to file her application for adjustment of property interests within 2 years following separation. She provided no adequate explanation for delay.
  21. The wife filed her application 1 year and 6 months out of time. The length of the relationship was short some 3 years and 5 months. The period in which the parties shared a common residence was 2 years and 1 month. Though the husband accrued substantial superannuation post separation only a modest amount of superannuation accrued during the relationship. The net non – superannuation assets at separation were about $55,000 to $60,000. The husband had a substantial income during the relationship which was applied for the benefit of the parties, he supported the wife’s tertiary studies, had introduced a property where both parties lived for a time and subsequently rented that property for twelve months, he had borrowed $40,000 from his father to fund the Property B property and provided financial and practical support for the wife’s child from another relationship. The wife cared for X without the assistance of the husband during his deployments otherwise the parties shared her care. The wife took her car, engagement ring and furniture when she left the relationship. She asserted that she was content to accept no property division from the husband on the basis of a purported agreement for him to pay for X’s school fees. The husband denied any such agreement however he did pay (omitted) school fees for X post separation until December 2013. Currently each party’s liabilities are greater than his/her net assets.
  22. The husband would suffer significant prejudice if leave to extend time was granted. He commenced a relationship with Ms K in November 2012. On 21st September 2013 he and Ms K purchased a property in (omitted) in joint names taking a joint mortgage. Both his father and Ms K’s mother contributed to the acquisition of the (omitted) property. There are several third parties whose interests are likely to be affected by the wife’s property application. Though it is unnecessary to determine this issue, I would not have exercised my discretion in the wife’s favour.


Related articles

Your passionate team of family lawyers

Let’s work out your next steps together. Book your free consultation to start the process.