IBBOT & BAUMER

In *Ibbot & Baumer*, the Family Court of Australia considered an application by the father for leave to commence property adjustment proceedings out of time. The parties, who had been in a de facto relationship, disagreed on the precise start and end dates of their relationship. Crucially, it was not disputed that the father had failed to commence property adjustment proceedings within the two-year statutory limitation period following the end of their de facto relationship, irrespective of which party's asserted separation date was correct. The father sought leave to proceed with his property adjustment claim, which was dismissed by the Court.

The primary legal issue before the Court was whether to grant the father leave to commence property adjustment proceedings after the expiration of the two-year time limit prescribed by section 44(6) of the *Family Law Act 1975* (Cth). This section requires the Court to be satisfied that hardship would be caused to the applicant or a child if leave were not granted. The Court also had to consider whether, even if hardship was established, the discretion to grant leave should be exercised in the specific circumstances of the case.

Justice Forrest found that the father had established a prima facie case of hardship, noting his lack of assets and reliance on Commonwealth income support, alongside potential contributions made during the relationship. However, the Court emphasised that establishing hardship was merely a pre-condition to the exercise of discretion, not determinative of the outcome. Critically, the father adduced no evidence regarding his knowledge of the limitation period or any explanation for the significant delay in bringing the application for leave. While the father's solicitor indicated the father had been advised to commence proceedings within the time limit and chose not to, and had not sought leave earlier to avoid upsetting the mother, this information, provided from the bar table without supporting evidence, was deemed fatal to the application. The Court was not persuaded to exercise its discretion in favour of the father, given his apparent knowledge of the limitation period, his prior advice and subsequent inaction, and the absence of evidence on these crucial matters.

Consequently, the Court refused the father's application for leave to commence property adjustment proceedings out of time and dismissed the application.