KABLER & KABLER

In *Kabler & Kabler*, the applicant sought leave to proceed with a property settlement application out of time, approximately four years after the finalisation of divorce proceedings. The respondent opposed the application.

The primary legal issue before the court was whether to grant the applicant leave to commence proceedings out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). This required the court to consider the applicant's prima facie case, the hardship that would be occasioned by refusing leave, and the prejudice that would be suffered by the respondent if leave were granted.

Judge Lapthorn found that while the applicant had established a prima facie case and hardship, the significant delay of four years was not adequately explained. The court also noted that court errors had compounded the delay, leading the judge to assess the effective delay as approximately two years. However, the prejudice to the respondent, particularly in the context of a negative asset pool (excluding superannuation), weighed heavily against granting leave. The court considered that any potential superannuation splitting order, which would likely be sought if leave were granted, would not outweigh the prejudice to the respondent.

Consequently, the court exercised its discretion to dismiss the applicant's application for leave to proceed out of time.