MYERS & MAY

The Family Court of Australia considered an application by Mr Myers (the Applicant husband) for leave to commence property settlement and spousal maintenance proceedings out of time against Ms May (the Respondent wife). The parties had separated eight years prior and divorced seven years prior, well outside the usual 12-month time limit for commencing such proceedings after a divorce order takes effect, as stipulated by section 44(3) of the *Family Law Act 1975* (Cth). The central question before the Court was whether circumstances warranted granting the husband leave to proceed out of time.

The Court was required to determine two primary legal issues. Firstly, whether the husband had demonstrated "hardship" as contemplated by section 44(3) of the *Family Law Act 1975* (Cth), which is a prerequisite for granting leave. Secondly, if hardship was established, whether the Court should exercise its discretion to grant leave for both property settlement and spousal maintenance proceedings. The Court noted that for spousal maintenance proceedings specifically, section 44(4)(b) also requires evidence that the applicant would have been unable to support themselves without an income-tested pension, allowance, or benefit at the end of the 12-month period post-divorce.

In its reasoning, the Court applied the principles established in *Whitford & Whitford* (1979) FLC 90-612, which outlines a two-stage process for applications for leave under section 44(3). The first stage involves determining if hardship would be caused to a party or child if leave were not granted. If hardship is established, the second stage requires the Court to consider whether, in its discretion, it should grant or refuse leave. The Court considered various factors relevant to hardship, including the reasonableness of the case, the financial circumstances of the parties, and other relevant facts. It also noted that while the absence of a reasonable explanation for delay is a consideration, it does not automatically preclude the granting of leave, as per *Neocleous* (1993) FLC 92-377 and *Carlon & Carlon* (1982) FLC 91-272. The Court found that the husband had demonstrated hardship, particularly given the significant disparity in financial circumstances and his prospective loss of employment.

Consequently, the Court ordered that leave be granted pursuant to section 44(3) of the *Family Law Act 1975* (Cth) for the Applicant husband to institute property settlement proceedings against the Respondent wife. However, the husband's application for leave to commence spousal maintenance proceedings out of time was dismissed, as he failed to satisfy the requirements of section 44(4)(b) of the Act.