There are strict time limits on initiating property proceedings after the breakdown of the relationships. Section 44 of the Family Law Act 1975 (Cth) requires that proceedings must be initiated within:

1. 12 months after the Divorce order, for marriages, and
2. 2 years after the breakdown of de facto relationships.

The Court has the authority to consider out of time applications but only in limited circumstances. Section 44 Family Law Act 1975 (Cth) allows proceedings to be initiated out of time if the applicant can establish hardship.

In Slocomb & Hedgewood [2015] FamCAFC 219, the full Court held that, if the applicant can establish hardship, then the Courts will consider whether it should exercise its discretion and in doing so, the Courts will consider:

1. The length of the delay,
2. The reasons for the delay,
3. The prejudice occasioned to the respondent because of the delay,
4. The merit of the applicant’s case,
5. The degree of the hardship which would be suffered unless leave was granted, and
6. Any other relevant consideration.

The full Family Court decision in Sharp & Sharp [2011] FamCAFC 150 stated that hardship for these purposes is more than the loss of a right to commence proceedings and it is the consequences attending to the loss of right to commence proceedings that constitute hardship.

In Whitford & Whitford [1979] FamCA 3, the Court held that in assessing hardship the test is that the applicant must have a prima facie claim or a real possibility of success. Further, hardship should not be assessed only by the reason of the monetary value of the probable order.

Recent Case Law

Kench & Kench [2020] FCCA 962

In this case the applicant wife had initiated proceedings 14 months out of time. The applicant submitted that she would suffer from hardship if the Court does not consider her application due to her medical condition and inability to work.

The Court accepted that the applicant would suffer from hardship and in exercising their discretion made the following observations:

1. The length of the delay was insignificant,
2. The reason for the delay was the applicant’s medical condition,
3. The applicant’s hardship outweighs the prejudice to the respondent,
4. The applicant has a prima facie case, and
5. The applicant’s inability to work and dependence on New Start allowance.

The above information is intended as general information and is not intended to be relied on as legal advice. If you are considering applying for parenting orders or are looking to vary current parenting orders, contact one of our experienced family law solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome.

Our principal is named as leading Family and Matrimonial Lawyer of the Year by Acquisition International in their 2019 leading Adviser Awards. Pannu Lawyers are conveniently located in Blacktown and practice extensively in Family Law, Criminal Law, Commercial Law and Conveyancing.