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On Wednesday of this week a judge of the Federal Circuit Court of Australia delivered the latest decision in a matter where a party sought leave to commence legal proceedings for property “out of time” pursuant to section 44(3) of the Family Law Act 1975.
The Family Law Act 1975 provides that parties shall not institute proceedings after 12 months from the date of a Divorce Order taking effect, without the leave of the Court.
In this case, the Husband filed proceedings for a family law property settlement over three years after a Divorce Order ie. two years “out of time”.
Watts McCray lawyers, Barry Frakes and Rishika Pai, represented the Wife and submitted to the Court that the Husband’s application that the Court grant him leave to commence the property proceedings “out of time” be dismissed.
His Honour agreed and dismissed the Husband’s application and held:
1. The Husband was unable to show he had established a prima facie claim or a real probability of success should leave be allowed;
2. The Husband was unable to show he would suffer hardship if leave was not granted;
3. The reasons given by the Husband for his delay in filing the proceedings, were unsatisfactory; and
4. The Wife had moved on with her life and would face prejudice if dragged back into litigation.
The general “vibe” in the legal profession is that judges have been quite willing to grant leave to commence property proceedings in the Family Court and Federal Circuit Court. The outcome in this case is a reminder to the legal profession that this is not always the case and demonstrates the importance of ensuring clients are aware of the time limits set out in the Family Law Act.
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