MONTANO & KINROSS

This matter concerned an appeal from an order of a trial judge who refused to grant leave to the de facto wife (the appellant) to make an application for property settlement out of time, pursuant to section 44 of the *Family Law Act 1974* (Cth). The application for property settlement was filed 23 months after the expiry of the standard application period.

The primary legal issues before the Full Court were whether leave was required to appeal an order refusing leave to extend time under section 44(3) of the Act, and whether the trial judge had erred in law by fettering their discretion under section 44(6) of the Act. Specifically, the court considered whether the trial judge had made the requirement to explain the reasons for delay exclusive, thereby rendering the failure to explain a portion of the delay determinative of the exercise of discretion.

The Full Court held that leave was indeed required to appeal an order refusing leave to extend time under section 44(3). However, the court found that the trial judge had made an error of law by treating the appellant's failure to explain the last seven months of the delay as determinative of the exercise of discretion under section 44(6). The court reasoned that while the explanation for delay is a relevant consideration, it should not be treated as an exclusive or determinative factor, and that the trial judge had fettered their discretion by adopting such an approach.

Consequently, the Full Court set aside the orders made by the trial judge. In lieu of those orders, the Full Court granted the appellant leave to apply for an order under section 90SM of the Act, to be filed within 28 days of the date of the Full Court's orders. The court also granted costs certificates to both the appellant and the respondent.