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Former Spouse Seeking to Commence Property Proceedings “Out of Time”

His Honour Judge Harper’s decision, where he dismissed a husband’s application to commence family law property proceedings “out of time” has been published as Moylan v Murchison [2018] FCCA 1887. The application was filed 3 years after the Divorce Order, which was two years late.

In this case His Honour 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.

Watts McCray lawyers Barry Frakes & Rishika Pai and Barrister Peter Fowler represented the Wife in these proceedings. This decision is against the trend where the Court has often taken a rather lenient approach to the issue of granting leave pursuant to s44(3) of the Family Law Act.

Three years ago in the case of Slocomb v Hedgewood [2015] FamCAFC 219 the Full Court of the Family Court allowed an appeal against a Judge who dismissed the wife’s application to commence proceedings 18 years after a divorce. In allowing the appeal the Full Court said [at 48] “Having accepted that hardship was demonstrated and that the wife had a prima facie case, the only prejudice to the husband was the possibility of a hearing in relation to property settlement where the parties’ main asset is jointly held and they have been divorced for 18 years…The prospect of the parties’ legal position remaining as it is seems unjust.”

Again only last month, the Full Court of the Family Court in Edmunds v Edmunds [2018] FamCAFC 121 overturned the decision of the Federal Circuit Court Judge and allowed a wife to bring property proceedings 6 years out of time.

There has been considerable interest in the developments in this area. Grant Malfitano, an Associate with Watts McCray Lawyers this week answered questions on the case of Moylan v Murchison and other recent cases in TEN’s Family Law Audio Program.

Given the uncertainty of the outcome it is important to continue to be aware of time limits in relation to the commencement of property proceedings in Family Law matters and not have to seek to rely on obtaining leave to bring proceedings “out of time”.

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