Leave to proceed against post-separation assets granted

In Pinkett & Pinkett [2018] FCCA 712 (1 February 2018), the court allowed an Applicant Wife to proceed out of time (3 years) with an application for property settlement and spousal maintenance where there was little if any property at the time the deadline expired but the husband inherited about $350,000 post separation.

The Court was satisfied that the Applicant Wife would suffer hardship if she were not permitted to proceed with an application for property settlement, and the Court was also satisfied that she a substantive reason for delay (serious mental health issues).

The Court noted that the Respondent Husband would be put to significant expense in defending the Applicant Wife’s claim without any guarantee of recovering his costs from her should her application for a property settlement fail.

It was also noted by the Court that the Respondent Husband had made significant post-separation financial contributions to the parties children.

  1. The reality is, at the date of separation – the wife says 2010, the husband November 2011, as at the date of the decree nisi was pronounced and the expiration of the period within which the wife could have brought her application, the parties had no assets other than their superannuation which the wife had cashed in and also the husband had a car. The wife withdrew her superannuation in August 2014. The husband had $44,051 in superannuation. He currently has $134,000 in superannuation so the vast majority of that has been accrued since separation.
  2. However, the case law is clear in relation to property applications. The contributions of a spouse to assets in one or the other’s hands is not just during the marriage, it’s the whole of the relationship and parties can, post-separation continue to make a contribution to assets in one party’s hands or the other. That contribution can be, as it would be here with the wife, a parenting and homemaking contribution which has yet to be assessed by the court. For that proposition, you would look at the matters of Pierce & Pierce[2] and the matter of Fields & Smith[3].
  3. The wife’s case is she was unable to bring her proceedings due to an incompetence or inability from proceedings commenced in (country omitted) against her father and grandfather initially for sexual abuse of she and her sisters when they were children. 

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