HAYKAL & KRAWIEC

In the Family Court of Australia, Watts J considered an application by the husband for leave to make a spousal maintenance application out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). The wife opposed this application.

The primary legal issue before the court was whether the husband should be granted leave to file his spousal maintenance application beyond the statutory time limit. This required the court to consider the conditions set out in section 44(4) of the Act, specifically whether hardship would be caused to the husband if leave were not granted, and to assess the merits of the proposed application. The court also had to consider the history of the proceedings, the prospects of the husband's success, and the prejudice to the wife.

Watts J found that the husband had not established that hardship would be caused to him if leave was not granted, nor had he provided an acceptable explanation for the significant delay in bringing the application. The court considered the husband's application for spousal maintenance to be weak, noting his repeated assertions regarding the wife's alleged failure to provide frank disclosure of her business, which had been raised numerous times in prior proceedings. Taking into account the overall history, the merits, the prospects of success, the prejudice to the wife, and the desirability of finalising litigation, the court dismissed the husband's application for leave.

The wife also sought costs on an indemnity basis, but this application was dismissed as she had not specified the recoverable costs incurred, despite the husband owing substantial unrecovered costs. Separately, the wife sought a vexatious proceeding order against the husband. A prima facie case was made out, and the court ordered that the husband be given the right to be heard on this application under section 102QB(4) of the Act.