WIFE FILES PROPERTY PROCEEDINGS OUT OF TIME DUE TO THE EFFECTS OF THE PANDEMIC
Bau & Algren [2021] FCCA 365 (2 March 2021)
This is a property proceeding wherein the wife filed the proceedings out of time, alleging that she will suffer hardship if the leave to file the proceedings out of time is not granted.
Facts:
The parties purchased the former matrimonial property in November 2007 and although the property is in the husband’s sole name the parties are jointly liable for the mortgage over the property. The property was purchased for the sum of $299,000 with each party contributing $40,000 towards the deposit and the remainder of the purchase price being is by way of mortgage.
The wife in her evidence asserts that she is jointly liable for the mortgage over the former matrimonial property. Furthermore, she provides evidence that as a result of the husband’s failure to meet the ongoing payments both she and the husband have a bad credit rating.
Issue: Will the wife suffer hardship if leave is not granted? if hardship is established, should the discretion allowing her to initate the proceedings our of time be exercised?
Law:
Analysis:
After the relationship ended, the applicant sought to bring an end to the financial arrangements that were in place. Indeed, the fact that she remains liable for the mortgage would seem to be sufficient evidence to suggest that she no longer consents to the express or implicit assumptions that were in place during the relationship. The court is therefore satisfied that it would be just and equitable to make a property settlement order.
The applicant has made significant contributions to the former matrimonial property, remains liable for the mortgage and it seems has had her credit rating affected as a result of that liability. Those are all matters which support a finding that she would suffer hardship if leave is not granted.
The applicant provides evidence as to the length of the delay and the reasons for such delay. Her evidence is that she was primarily focused on her financial situation in circumstances where the Covid-19 pandemic caused her business to all but close and as a result, her income declined accordingly.
The applicant’s attention to her claim became distracted due to considerably important factors outside of her control and that she followed through with the filing of her application as she said she would once the Covid-19 pandemic had settled down. In those circumstances, the court is not satisfied that she had abandoned her claim.
Conclusion: Pursuant to S.44(3) of the Family Law Act 1975, the applicant be granted leave to institute proceedings out of time.