Limitation dates in property matters

Missing a limitation date can be fatal and such enquiries should be foremost in one’s mind when taking initial instructions.  If the parties were married then whether or not they are divorced is important but the length of the separation not so much.  However, if the parties were in a de facto relationship the date of separation is most important.  If the client is close to, or even later than, the two-year separation period then it is essential to file an application sooner, rather than later, to preserve that parties’ position but what happens when the length of the separation and/or the lack of financial disclosure means that it is difficult to quantify the asset pool.  That issue was canvassed by His Honour, Austin J, in the appeal decision of Evelyn & Kozel [2025] FedCFamC1A 171.  In this matter the appellant was the applicant in Division 2 proceedings where she sought to commence property settlement proceedings out of time.  Indeed, the parties had been separated for around seven years at the date of filing her application.  She had not sought specific orders in that application but rather sought leave to amend once financial disclosure had been exchanged and the asset pool ascertainable.  When it became evident that the Division 2 Judge was likely going to dismiss the application the applicant’s counsel sought firstly an adjournment and then leave to amend the application on the spot.  Both were refused by the Judge, in part because of the view that it would deny procedural fairness to the unrepresented respondent.  However, the Judge did not ever ask the respondent if he opposed either the adjournment or the amendment of the application and, further, either way he sought a dismissal of the application and therefore there would be no prejudice to him of either of the proposals put by the applicant’s counsel.

The proceedings were further complicated in that sale proceeds from a property that had been solely owned by the applicant/appellant were being held in trust and both parties sought a distribution of those funds, which the trustee was refusing to release without joint instructions.  One would have thought that this issue, in itself, would be sufficient to allow the application to proceed out of time however, there were a number of other factors such as the sale of other property and retention of the funds by the respondent, the receipt of lump sum compensation by the respondent and that there were existing parenting proceedings on foot, to name a few.

The appellant sought leave to appeal which was granted, the appeal allowed and the matter remitted for hearing before a different Division 2 Judge.  His Honour also set aside the Order for costs against the appellant in circumstances where the Orders made that led to that costs order were set aside.