Announcement posted by Divorce 30 Jul 2018
Recently 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 settlement“out of time” pursuant to section 44(3) of the Family Law Act 1975.
Watts McCray lawyers, Barry Frakes and Rishika Pai, represented the wife and submitted to the Court that the husband’s application for the Court to grant him leave to commence the property proceedings “out of time” be dismissed.
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”.
The judge
agreed with the wife's position 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.
Watts McCray’s Divorce.com.au provides detailed information and guides to help clients understand the filing, waiting periods, and other complexities of the divorce process – as well as other considerations that may arise.
Divorce.com.au is an online resource for those who want to find out more about divorce in Australia. They can assist clients to apply for a divorce, or contact a lawyer in Australia to help them resolve their situation.
For more information on divorce law, divorce process Australia, divorce lawyers Canberra and more, visit divorce.com.au/