APPLICANT SEEKS TO COMMENCE PROPERTY PROCEEDINGS FILED 8 YEARS OUT OF TIME!
Arshad & Miata [2020] FCCA 3527 (24 December 2020)
This is an application by the de facto wife for leave to commence proceedings out of time. The application is filed eight years out of time.
Facts:
The parties to the proceedings are the applicant de facto wife Ms Arshad and the respondent de facto husband Mr Miata. The applicant seeks leave pursuant to S.44(6)(a) of the Act to commence proceedings out of time.
The applicant concedes that the parties separated in 2010 and that application has been filed out of time. The applicant explains that due to the abhorrent family violence inflicted upon her by the respondent, she was too frightened to initiate proceedings as it would create further conflict between them. She also states that she was under great stress raising three children on her own and that she did not have the emotional or financial resources to initiate proceedings until now.
In light of the significant financial contributions made towards the subject property, the applicant asserts that she would suffer hardship and injustice if the Court does not grant her leave to commence property adjustment proceedings out of time. In consideration of the respondent’s minimal contributions made towards the property, the applicant asserts that there would be an unjust enrichment of the de facto husband if property adjustment orders are not made.
Issue: Should the court grant the application?
Law:
- Family Law Act 1975 SS.44, 90SF, 90SM
Analysis:
The Court is satisfied that the applicant would suffer hardship if leave to commence proceedings out of time was not granted.
The hardship which would be suffered by the applicant, if leave was not granted, would be significant. She has the sole care of the children of the relationship and is required to provide solely for their housing, financial support, health and education needs. In circumstances where the applicant has made the sole financial contributions towards the property post separation, and the respondent has acquiesced in the applicant remaining in the parties’ former home, it would be manifestly unjust and inequitable to refuse her leave to commence proceedings out of time.
In coming to this conclusion, the Court finds that the applicant has provided an adequate explanation for the delay and that there is no prejudice asserted by the respondent, and the prejudice which might be inferred does not outweigh the hardship which would otherwise be suffered by the applicant.
Conclusion: The applicant is granted leave to commence these proceedings out of time.