Hayes v Harrison [2002] ACTSC 22 (28 March 2002)

Last Updated: 12 April 2002

JANET HAYES v KATRINA HARRISON

[2002] ACTSC 22 (28 March 2002)

CATCHWORDS

DOMESTIC RELATIONSHIP - extension of time - conditions for grant of leave - application for adjustment of property - domestic relationship between persons of the same sex - preponderance of hardship.

Domestic Relationships Act 1994 s 10, s 11, s 12 and s 13

De Facto Relationships Act 1984 (NSW) (now Property (Relationships) Act 1984 (NSW))

Beavan v Fallshaw (1992) 15 Fam LR 686

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Mason v Murray's Charter Coaches and Travel Services Pty Ltd [1998] FCA 1430; (1998) 88 FCR 308; 159 ALR 45

No. SC of 814 of 2001

Judge: Higgins J

Supreme Court of the ACT

Date: 28 March 2002

IN THE SUPREME COURT OF THE )

) No. SC 814 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JANET HAYES

Plaintiff

AND: KATRINA HARRISON

Defendant

ORDER

Judge: Higgins J

Date: 28 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

1. The plaintiff, on 10 December 2001, made application, pursuant to the Domestic Relationships Act 1994 (ACT) (the "DR Act"), for an extension of time within which to make an application for an adjustment of property interests in her favour.

2. Whilst there are some factual disputes foreshadowed between the parties, the proper approach is to assume that the plaintiff will make good the assertions of fact which she makes for the purpose of determining whether an extension of time should be granted.

3. There needs first to be prima facie evidence that the court has jurisdiction.

4. The plaintiff asserts that a relationship began about September 1994 between herself and the defendant. However, the plaintiff was then domiciled in, and a citizen of, the United States of America (USA). They first were together, on Australian soil, in April 1995. That was for a "visit" though they lived together for five weeks.

5. The plaintiff moved to Australia in live in a domestic relationship with the defendant in October 1995. It is clear that the plaintiff (and, presumably, the defendant) intended this to be permanent and the plaintiff applied for permanent residency accordingly.

6. That was granted on 22 July 1998.

7. The parties resided together until February 1999 in Canberra at the defendant's home, which she owned, at Swinden Street, Downer, in the Australian Capital Territory.

8. The defendant then moved to Sydney. She had been unwell and was seeking a change of employment. Initially, she took leave from her then public service position but resigned in June 1999, deciding to take up other employment.

9. The parties have not cohabited since February 1999, though the plaintiff asserts that, in October 1999, after the defendant told her the relationship was over, they were intimate on one occasion. That fact, if established, does not alter the need for the plaintiff to have an extension of time.

10. In essence, though the defendant foreshadows that she will dispute this if the matter proceeds, the plaintiff says that she did not understand the relationship to have ended until October 1999.

11. Thereafter, the plaintiff says, she attended to achieve an agreed settlement of her claim, rather than to engage immediately in litigation.

12. She first contacted a solicitor in July 2001.

13. A "domestic relationship" for the purposes of the DR Act, is defined as "a personal relationship (other than a legal marriage) between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other, and includes a de facto marriage".

14. Though, as used in the DR Act, "de facto marriage" refers to persons of the opposite sex, the "relationship" may be equally a "domestic relationship" if it is of the specified kind and between persons of the same sex.

15. The plaintiff's affidavit provides evidence (and this is not in dispute) that there was a "domestic relationship" between the parties, at least from October 1995.

16. So far as the monetary limit referred to in s 10 is concerned, there is no upper or lower limit on this court's jurisdiction.

17. Section 11 requires two jurisdictional facts to be established.

18. By s 11(1) it is necessary to establish that:

"(a) . . . either or both of the parties to the domestic relationship were resident in the Territory on the day on which the application for the order was made; and

(b) that -

i. both parties to the relationship have resided in the Territory for at least 1/3 of the period of their relationship..."

19. The plaintiff is, and intends to continue to be, a resident of the Territory. She has permanent employment here.

20. The parties resided together in the Territory, they agree, until February 1999. If, as the plaintiff says, their relationship ended in October 1999, it lasted precisely four years of which three years four months were spent together at the house at Downer. Even if, as the defendant asserts, the relationship ended in or shortly after February 1999, s 11(1)(b)(i) is satisfied.

21. Also, on either view of the matter, s 12(1) is satisfied. The relationship existed for "not less than 2 years".

22. It is s 13(1) which provides an obstacle to the plaintiff's application for substantive relief. It provides:

"An application for an order under this Part by a party to a domestic relationship that has ended shall not be made more than 2 years after the day on which the relationship ended."

23. That date, on the plaintiff's account, was 14 October 1999.

24. The length of the delay, on either view of it, is not so extreme as to provide a reason, per se, for refusing an extension of time.

25. Indeed, the making of such an application was foreshadowed to the defendant as early as July 2001.

26. However, Mr Crowley, for the defendant, does not rest opposition to the grant of an extension of time upon delay, per se.

27. Subsection 13(2) provides:

"A court may grant leave to a person to apply for an order under this Part after the end of the period referred to in subsection (1) if it is satisfied that greater hardship would be caused to the applicant if leave were refused than if it were granted."

28. Reference was made to a decision of Bryson J in Beavan v Fallshaw (1992) 15 Fam LR 686. A similar provision in the De Facto Relationships Act 1984 (NSW) (as it was then, now renamed the Property (Relationships) Act 1984 (NSW)) fell to be considered.

29. It was, in that case, considered that a finding of preponderance of hardship was a necessary but not a sufficient condition for the grant of leave.

30. Even if there is preponderance of hardship, it is "(687) . . . usual to consider whether there is a sound and positive ground or a good reason for making the order". The explanation for delay is relevant but should not, in his Honour's view, "(688) . . . be viewed as an opportunity to impose order on litigants or to instil discipline in them".

31. I respectfully concur. It is, nevertheless, the mandatory requirement for preponderance of hardship in favour of the applicant aside, a discretionary judgment in which an applicant assumes the burden of satisfaction. The discretion is to be exercised on the same range of considerations as in the case of the expiry of any other time bar - see, for example, Brisbane South Regional Health Authority v Taylor (1996) [1996] HCA 25; 186 CLR 541; Mason v Murray's Charter Coaches and Travel Services Pty Ltd [1998] FCA 1430; (1998) 88 FCR 308; 159 ALR 45.

32. A most important discretionary matter is the injustice to the plaintiff if the application to extend time is denied. In the present case, as noted, a finding of greater hardship is mandatory.

33. The defendant contends that, even accepting the plaintiff's account of it, there has been no substantive preponderance of the contributions by her to the relationship so as to make it "just and equitable" (see s 15 DR Act) that there be an order of any substance in favour of the plaintiff. Hence, there is no reasonable likelihood that s 13(2) can be satisfied even if all of the plaintiff's evidence is accepted.

34. It is common ground that the plaintiff made no contribution towards the acquisition of the residence at Downer.

35. She did, for about one year, make a direct contribution to the mortgage repayments. It is apparent that that contribution did not equate to the full cost of the mortgage repayments over that period.

36. Each party, up to February 1999, contributed to other household expenses and to domestic chores. Each claims to have contributed more than the other for various reasons.

37. Since the parties separated, physically at least, in February 1999, the plaintiff claims to have expended about $1815 in various landscaping works (patio, path, rock garden and so forth).

38. Both parties now enjoy full-time employment. During the first half of their relationship, the plaintiff was only partly employed. In the last year, the defendant had suffered an illness reducing, no doubt, her contribution to the relationship.

39. However, that description, even accepting the plaintiff's account of her contributions and those of the defendant, makes is unlikely, in my view, that any substantive award would be made in her favour.

40. She had enjoyed exclusive occupancy of the Downer house since February 1999. It would not be equitable for the defendant to be denied ownership and control of that dwelling.

41. Thus, I accept Mr Crowley's submission. In my view, there is no likelihood that, if the extension of time was to be granted, any award would be made in favour of the plaintiff.

42. The application is dismissed, with costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 28 March 2002

Counsel for the Plaintiff: Mr G Blank

Solicitor for the Plaintiff: Tjakamarra-Forrest Solicitors

Counsel for the Defendant: Mr C Crowley

Solicitor for the Defendant: Chris Crowley & Associates

Date of hearing: 8 February 2002

Date of judgment: 28 March 2002