APPLICANT FILES AN APPLICATION FOR EXTENSION OF TIME TO FILE PROPERTY PROCEEDINGS
Michelson & Waltas [2020] FCCA 2038 (28 July 2020)
This case involves the applicant who was traumatized after the separation with the respondent seeking the court’s permission to extend the time to file the property proceedings.
Facts:
The parties separated in November 2013 and there was a divorce order in June 2015. The applicant, for who it was agreed the separation was traumatic, remarried in 2018, and prior to that had reconciled with at least one of the adult children who now lives with her. The applicant began attending counselling in 2015, and did so until towards the end of 2017, to deal with her mental health.
The time limit as provided for in the Act for the applicant to bring proceedings would have expired in mid 2016. It is agreed as the application was filed 3 years and 6 months out of time the applicant must now obtain leave to pursue her claim for property settlement.
Issue: Should the court grant the application for extension of time to file property proceedings?
Law:
Analysis:
Given the evidence as to the parties contributions throughout the entirety of their relationship, for the applicant to be unable to have her direct and indirect financial contributions acknowledged in some way in the finalisation of her financial relationship with the respondent would be unfair to her and constitute significant hardship.
Therefore, and notwithstanding the costs of the proceedings, if the applicant is not given leave to proceed out of time it is considered that she would suffer a significant degree of hardship.
The applicant deposes she could not cope with the stressors of court proceedings and thought initiating proceedings would have “sabotaged her hopes of connecting with her children”. Whilst the respondent said he believed the applicant was not pursuing proceedings, her evidence was she was not in a position psychologically or emotionally to do so in 2016. She at least is supported in satisfying the court that was the case by the evidence of her counsellor (who whilst not qualified to offer a medical opinion) said that she was mentally unwell and not able to do so.
Conclusion: Having concluded the applicant would suffer hardship for the purposes of s.44 of the Act, and having considered the matters relevant to the exercise of discretion, the Court will grant leave pursuant to s.44(3) of the Act for the applicant to commence proceedings.
