Slocomb and Hedgewood is a full court appeal against a decision in the Federal Circuit Court to dismiss the wife’s application for leave pursuant to s 44(3) of the Family Law Act to apply for a property settlement 18 years out of time.
When the parties separated, the husband retained the former matrimonial house (valued then at $15,000) and the wife retained the car (valued at $10,000).
The (now adult) children of the marriage lived with the wife with limited financial support from the husband and the wife has had a judgment made against her for unpaid school fees.
The judgment of the full court in allowing the appeal and granting leave to the wife discussed the discretion that the court has in granting leave in accordance with previous case law.
In particular when seeking leave out of time the court must be satisfied that hardship would be caused if leave was not granted. However, leave is not necessarily granted if the requisite hardship is made out. The court still has discretion. How this discretion is exercised depends on the facts of the case. Such matter as length of the delay, reasons for the delay and strength on the merits of the applicant’s case, and the degree of hardship which would be suffered unless leave was granted are matters affecting the exercise of discretion. However these matters are not the only ones.
The court noted that the power should be exercised liberally to avoid hardship, but nevertheless in a manner that would not render nugatory the requirement that proceedings should be instituted within a year of the decree nisi.
Referring to Jackenjo, the court confirmed that the applicant for a property settlement out of time must establish three principal matters:
- A reasonable prime facie case for relief
- The denial of the claim would cause hardship
- An adequate explanation as to the delay
The third requirement must be read subject to decisions in Althaus and Howard which indicates that in appropriate cases the degree of hardship may outweigh an inadequate explanation for the delay.
If these three elements are satisfied, the court should consider the question of the prejudice which the respondent would suffer by reason of the delay. However, the respondent does not need to point to particular prejudice, the court assumes that by applying out of time the prejudice flows to the respondent.
In this case, the trial judge had found that the wife would suffer hardship if leave was not granted but nonetheless did not grant leave. Having accepted that the wife would face hardship, the Full Court determined that the only prejudice facing the husband was having to go through a Court hearing 18 years after the divorce. The Full Court therefore allowed the appeal.