Proceedings out of time

In any initial advice conference with a prospective client it is imperative to determine if that client has left it a little late and leave may be required to commence proceedings.  If that is the case then time is of the essence in any leave application.

In Hallett & Hallett [2025] FedCFamC1A 188, 17 October 2025, His Honour, Schonell J, determined an appeal refusing the Appellant leave to commence proceedings out of time.

The parties had separated in April 2021 and were divorced in late 2022.  There had been some post separation financial dealings between the two but they differed in opinion as to the meaning of those dealings.  The Appellant received legal advice on 30 November 2023 that she was out of time to bring property settlement proceedings but did not seek to do so until 11 March 2025.  On 28 April 2025 the trial Judge dismissed the Wife’s application to commence property proceedings out of time in what would have been a joining of those proceedings to existing parenting proceedings.

The Wife’s Amended Notice of Appeal listed three grounds, 1 and 2 contended an error of law in respect of hardship and 3 an error in the exercise of discretion.  The central argument for the Appellant was that the primary Judge “… failed to address the issue to which the statutory provision directs, namely, a determination as to whether or not the applicant “would” suffer hardship, not “could” suffer hardship”. 

In allowing leave and then the appeal His Honour, Schonell J, also found, at pp27, that the primary Judge “also failed to consider the degree of hardship that would be occasioned to the applicant in the event that leave were not granted nor consider whether it outweighed an inadequate explanation for delay”.

The matter was then remitted for rather than His Honour re-exercising discretion, primarily as the extent of financial disclosure was in question.  His Honour granted costs certificates to both parties.