Post & Jeffries

The parties in this matter were the wife and the husband, who sought to have the wife's property application dismissed. The wife had filed her application out of time, and the husband sought summary dismissal on the basis that the wife had no reasonable prospect of success. The court required to determine whether to grant the wife leave to proceed out of time and whether the husband's application for summary dismissal should be upheld.

The court considered the legal tests for summary dismissal and for granting leave to proceed out of time. For summary dismissal, the court applied the test of whether the respondent has a "real" as opposed to a "fanciful" chance of success, noting that this power should be exercised with caution and only when it is clear there is no real question to be tried. In relation to leave to proceed out of time, the court noted that this involves the exercise of discretion, considering factors such as hardship, the prima facie merits of the substantive relief sought, the probable outcome of the proceedings, the explanation for the delay, and prejudice to the respondent.

The court found that the wife's case, which involved claims of hardship and significant contributions to the marriage, did not lack a real prospect of success. The husband had not provided evidence to challenge the wife's claims regarding contributions or her stated medical issues. Consequently, the court dismissed the husband's application for summary dismissal. The court then exercised its discretion to grant the wife leave to proceed out of time pursuant to s.44(6) of the *Family Law Act 1975* (Cth), noting that the husband had not demonstrated that the wife's case was hopeless or bound to fail. The court made various orders regarding the filing of documents, attendance at a conciliation conference, and disclosure obligations, and adjourned the matter for mention.