Hardship, delay and prejudice overcome

Hardship, delay and prejudice overcome

Newall & Scarrow

Hardship

55. I am satisfied that the husband will suffer hardship if leave to extend time is refused. I accept that the husband made an indirect contribution to the wife’s interest in superannuation during 24 years of the marriage. I accept also that the wife made an indirect contribution to the husband’s superannuation interest which accumulated during the marriage.
56. The wife’s interest accrued over 27 years and until her retirement. She became an eligible contributing member of the (omitted) fund (initially) in October 1986 and then transferred to the (omitted) fund. As indicated the bulk of her superannuation interest accrued during the marriage. She receives a pension of about $45,000 p.a. (on my calculations) which is indexed and payable for her lifetime. The pension has a reversionary benefit available to her spouse in the event of the wife’s death. She has had the full benefit of the pension for 3 and a half years following retirement and the benefit of a lump sum. In the event that leave is not granted the husband will lose the right to pursue a claim for a splittable payment of the wife’s interest in superannuation. I accept that the husband had superannuation of about $130,000 at the date of separation. He has used his superannuation for living expenses and towards the purchase of Property R.
57. The husband has few assets and is in receipt of the aged pension. Even a modest splittable payment will improve his financial circumstances given his age and the fact that his income is limited to a single person aged pension. I am satisfied that the husband will suffer hardship should leave not be granted. The assertion by the wife that the husband has deliberately squandered or dissipated his assets is an issue for determination should the matter proceed to final hearing. As indicated the Court is not required to determine thesection 79 application on its merits on an application for leave to extend time.

Delay

58. The wife argues that the husband delayed for 7 years and contends that he provides no adequate explanation for delay. Following separation in 2010 both parties continued to work full time and both continued to contribute towards superannuation. The wife did not retire until February 2013.
59. By May 2014 the wife was on notice that the husband sought a splittable payment with respect to her superannuation interest. She acknowledged in correspondence to the husband’s solicitors that the parties had yet to finalise their property dispute including superannuation. I do not accept that the delay on the husband’s part amounts to 7 years.
60. There was significant delay in negotiations. The husband’s express intention in correspondence to the wife was to attempt to resolve the matter on a final basis without resorting to litigation. She was aware of this over the two year period the parties corresponded. Once the divorce order became absolute the husband had a further 12 months in which to file his application. The husband continued to attempt to resolve the matter without commencing proceedings. I am satisfied that the wife had sufficient notice for many years that the husband sought to finalise the matter and as such he was not dilatory in his conduct. The fact that the application was lodged 40 days after the time for filing expired was not significant. The wife was aware in February 2016 that the husband considered filing an application due to the wife’s lack of disclosure and the parties inability to reach agreement however he continued to attempt to resolve the matter without litigating.
61. No valuation of the wife’s superannuation interest was provided and the issue of financial disclosure with respect to both parties was outstanding when the husband lodged his application. The wife’s Counsel did not suggest with respect to the 40 day delay following the expiration of the limitation period that this delay in itself was significant. I accept that the husband has provided an adequate explanation for delay.

Prejudice

62. With respect to any prejudice to the wife, her affidavit indicates that the parties’ superannuation interests were excluded from the parties’ initial property settlement in 2010. The assertion by the wife that the husband agreed to exclude those interests is in dispute and will be determined should the matter proceed to hearing. From May 2014 until he lodged his application the wife was aware that the husband was seeking a valuation of her superannuation interest and a claim with respect to that property. I am unable to ascertain from her affidavit when and why the wife increased the mortgage on her Property D property purchased by her in 2011. I am satisfied that the hardship caused to the husband with respect to the loss of pursuing his claim for a splittable interest of the wife’s superannuation and finalising the parties property settlement outweighs any prejudice to the wife in circumstances where she was aware the husband was claiming that interest in her superannuation at least since May 2014. Unless an order for a splittable payment is made, the wife will continue to receive her full pension for which she has had the benefit over the last 3 and a half years. That is a matter to be determined if the matter proceeds to final hearing.

101. In my view this is a matter where a Court is likely to determine that it is just and equitable to alter the parties’ existing rights with respect to their interests in superannuation. In the circumstances leave is granted to the husband to extend the time in which to file his application for adjustment of property interests.