Skelton & Lindop

The appeal, brought pursuant to s 44(6) of the Family Law Act 1975 (Cth), concerns the refusal of the primary judge to grant leave for the appellant, Ms Skelton, to bring an application for de facto property settlement out of time. The primary judge dismissed the appellant’s application for leave on the basis that she had failed to demonstrate that the deprivation of the opportunity to bring a substantive property settlement claim out of time would cause her hardship. Ms Skelton appealed against the primary judge’s decision, arguing that the primary judge’s reasoning was incongruent and that she had demonstrated sufficient likelihood of success to justify leave to proceed out of time.

The court was required to determine whether the primary judge’s decision was incongruent and whether a substantial injustice would result if leave to appeal were refused. The court also had to consider whether the appellant had demonstrated sufficient likelihood of success to justify leave to proceed out of time and whether the delay was substantial enough to warrant refusal of leave. The court was required to re-exercise its discretion in the appellant’s favour if it found that she had demonstrated sufficient likelihood of success and that the delay was not substantial.

The court found that the primary judge’s decision was incongruent, as the reasonable prospects enjoyed by the appellant’s claim for property settlement relief were manifest from the evidence. The court found that the appellant had demonstrated sufficient likelihood of success to justify leave to proceed out of time, as her financial and non-financial contributions to the de facto relationship were noteworthy. The court found that the delay was not substantial, as the appellant’s application for leave was brought about eight months late. The court found that the respondent could not point to any real prejudice he would suffer in having to meet the claim out of time.

Accordingly, the court granted leave to appeal and allowed the appeal. The orders of the primary judge were set aside, and leave was granted to the appellant to prosecute her claim for property settlement relief under Pt VIIIAB of the Family Law Act 1975 (Cth). The parties were granted costs certificates in relation to the appeal.