EMERALD & EMERALD

In this matter before Cronin J, the applicant wife sought leave to commence proceedings for property settlement and spousal maintenance out of time, which was opposed by the respondent husband. The parties had been divorced for approximately 30 years, and the wife's explanations for the significant delay were considered vague. The court noted that the husband had remarried, and any property orders would impact his current wife's rights. While the wife had maintained a relationship with the husband, including cohabitation and having further children, this ceased approximately 12 years prior to the application.

The primary legal issues before the court were whether to grant the wife leave to proceed with her application for property settlement and spousal maintenance pursuant to section 44(3) of the *Family Law Act 1975* (Cth), and to consider the prejudice to the respondent arising from the extensive delay. The court was required to balance the policy behind limitation periods, which aim to ensure the quality of justice and prevent prejudice through the loss of evidence and memories, against the potential for hardship if leave were refused.

The court applied the principles established in *Brisbane South Regional Health Authority v Taylor* and *Frost & Nicholson*, which emphasise that the discretion to extend time must be exercised in light of the rationales for limitation periods. While acknowledging the general prejudice to the respondent caused by the 30-year delay, including the potential loss of documents, witnesses, and memories, the court found that the wife's situation was not an "extreme example" of delay as contemplated in *Frost & Nicholson*. The court considered that the respondent's actions at VCAT, which prompted the wife's application, meant he could not necessarily rely on the applicant not taking action. However, the court found that the wife's claimed relief for property settlement was not clear and that the evidence did not support such an order. Conversely, the court determined that the wife had a claim for spousal maintenance because she was dependent on an income-tested pension or benefit at the time of the divorce becoming absolute.

Consequently, the court dismissed the wife's application for property settlement. However, pursuant to section 44(3) of the *Family Law Act 1975* (Cth), the wife was granted leave to bring her application for spousal maintenance. Other extant applications for final orders were adjourned for a final hearing, and an application for interim orders was adjourned to the Senior Registrar's List.