Arcand & Boen

The case of Arcand & Boen involves a dispute between the parties, who were in a de facto relationship for over five years, regarding property settlement. The appellant, Mr Arcand, filed an application for leave to apply after the standard application period under section 44(6) of the Family Law Act 1975 (Cth) to seek relief for property settlement. The Federal Circuit Court dismissed the application on 5 March 2021, and Mr Arcand sought leave to appeal this decision. The appeal was heard by Watts, Austin & Bennett JJ, who granted leave to appeal but dismissed the appeal itself.

The primary legal issue before the court was whether the primary judge erred in dismissing the appellant's application for leave to apply after the standard application period. The court considered whether the primary judge was correct in evaluating the prima facie merit of the prospective property settlement claim and whether the primary judge unduly emphasised the appellant's inactivity during the limitation period. Additionally, the court considered whether the appellant demonstrated sufficient hardship to warrant the granting of leave to apply after the standard application period.

In reaching its decision, the court referred to the principles set out in Althaus, which emphasise the importance of considering the whole period from the accrual of the cause of action to the date of the application. The court also noted that the primary judge erred in evaluating the prima facie merit of the prospective property settlement claim and unduly emphasised the appellant's inactivity during the limitation period. However, the court found that the primary judge's error was immaterial as the appellant was unable to demonstrate sufficient hardship to warrant the granting of leave to apply after the standard application period.

The court granted leave to appeal but dismissed the appeal itself, finding that the primary judge's error was immaterial as the appellant was unable to demonstrate sufficient hardship. The court also granted the respondent's application to adduce further evidence in the appeal, finding that the evidence addressed the merit of the grounds of appeal. The court dismissed the respondent's application for costs.

In summary, the court granted leave to appeal but dismissed the appeal itself, finding that the primary judge's error was immaterial as the appellant was unable to demonstrate sufficient hardship. The court also granted the respondent's application to adduce further evidence in the appeal and dismissed the respondent's application for costs.