Egerton & Sandown

This matter concerned an application by Mr. Egerton (the applicant husband) seeking leave to institute proceedings out of time against Ms. Sandown (the respondent wife). The proceedings were related to a matrimonial cause, and the application was brought before Burchardt J of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether to grant the husband leave to commence proceedings more than 12 months after the divorce order took effect, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). This required the Court to consider whether the husband could satisfy the criteria for an extension of time under section 44(6) of the Act, specifically whether hardship would be caused to him or a child if leave were not granted.

Burchardt J considered the relevant legislative provisions and case law, including the principles outlined in *Whitford & Whitford*. The Court weighed factors such as the length of the delay, the reasons for it, prejudice to the respondent, the strength of the applicant's case, and the degree of hardship. The husband argued he had taken steps within the relevant period and that his primary concern was the children, while the wife's solicitor submitted that property had not been discussed and mediation would not have assisted. The Court found the husband's explanation for the delay to be uncompelling and that he had not demonstrated hardship beyond potential indebtedness not arising from the matrimonial relationship. Conversely, the wife faced significant hardship, having the primary responsibility for the children and the sole hard asset being the fruit of her endeavours.

Ultimately, Burchardt J concluded that the husband's chances of success were not great, and the hardship to the wife outweighed any potential hardship to the husband. The Court determined that granting leave would not be a useful exercise of discretion or just and equitable. Accordingly, the amended initiating application was dismissed.