Edmunds & Edmunds

The appeal concerns the application of the wife, the appellant, to the Federal Circuit Court for leave to institute property settlement proceedings more than six years out of the time limit prescribed by section 79 of the Family Law Act 1975 (Cth). The wife sought to have the Court exercise its discretion under section 44(3) of the Family Law Act 1975 (Cth) to permit the out-of-time proceedings. The husband, the respondent, opposed the application. The primary judge declined to grant the wife leave to institute the out-of-time property proceedings. The wife appealed to the Full Court, contending that the primary judge erred in her assessment of whether the wife had a prima facie case for an out-of-time application and erred in her assessment of the prejudice to the husband if leave were granted.

The central issue before the Court was whether the primary judge made a material error in her assessment of the wife's prima facie case for an out-of-time application and whether the primary judge erred in her assessment of the prejudice to the husband if leave were granted. The Court found that the primary judge made a material error in her assessment of the wife's prima facie case. The primary judge failed to assess the wife's case at its highest, and erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property. The primary judge also took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife's prima facie case. The Court found that the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted.

Accordingly, the appeal was allowed and the orders made on 19 October 2017 were set aside. The appellant was granted leave pursuant to section 44(3) to commence proceedings under section 79 of the Family Law Act 1975 (Cth). There was no order as to costs. The Court granted the appellant a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) and the Court granted the respondent a costs certificate under the same Act.