SEEKER & SEEKER

In the Family Court of Australia, Ms Seeker (the wife) sought leave to institute property settlement proceedings out of time against her former husband, Mr Seeker. The husband's Trustee in Bankruptcy was joined as a third party to the proceedings. The parties were divorced on 12 February 2009, and the husband's bankruptcy commenced on 27 March 2009, with his interest in the former matrimonial home vesting in the trustee.

The primary legal issues before the Court were whether to grant the wife leave to commence property settlement proceedings more than 12 months after the divorce order, and whether to join the Trustee in Bankruptcy as a party to the proceedings. The wife's application for property settlement was out of time under section 44(3) of the Family Law Act 1975 (Cth), which requires the Court to be satisfied that hardship would be caused to a party or child if leave were not granted. Additionally, section 79(11) of the Family Law Act mandates the joinder of a trustee in bankruptcy if a party is bankrupt and the trustee applies to be joined, or if the court is satisfied that creditors' interests may be affected by an order.

Justice Macmillan granted the wife leave to institute proceedings for property settlement out of time, finding that hardship would be caused to both the wife and the children of the marriage if leave were not granted. The Court reasoned that the wife had been left with significant joint credit card debt following separation and had only recently obtained legal advice. Furthermore, the Court ordered that the Trustee in Bankruptcy be joined as a party to the proceedings. This was deemed appropriate because, although the husband had been discharged from bankruptcy, his property, including his interest in the former matrimonial home, remained vested in the trustee, and any property settlement orders sought by the wife could potentially impact the trustee's ability to satisfy the husband's creditors.