Clements & Clements

In *Clements & Clements*, the parties were a husband and wife, and the dispute concerned the division of matrimonial property. The matter came before Sexton J of the Family Court of Australia.

The primary legal issue before the court was whether the wife's claim for a property adjustment under section 79 of the *Family Law Act 1975* (Cth) was barred by the operation of section 44(5) of that Act, which imposes a time limit for commencing such proceedings after a divorce order has become final. The court was required to determine if the wife had established sufficient grounds to be granted leave to commence proceedings out of time.

Sexton J considered the principles governing the grant of leave under section 44(5), which require the applicant to demonstrate that they would suffer hardship if leave were not granted. His Honour reviewed the evidence presented by the wife regarding the reasons for the delay in commencing proceedings and the potential impact on her financial position if the application were dismissed. The court applied the established legal principles for assessing hardship in such applications, weighing the prejudice to the wife against any prejudice to the husband.

Ultimately, Sexton J granted the wife leave to commence proceedings out of time, finding that she had established sufficient hardship to justify the extension. The court then proceeded to consider the substantive property adjustment claim.