The case of Mackrell [2015] FCCA 1996 (29 July 2015) involved the wife’s application for leave to apply for a property order that was 16 months out of time. The parties attended mediation in 2011 and subsequently entered into an informal property settlement that was to be entered into consent orders and a binding child support agreement.

At the mediation, it was agreed there was to be an equal property division and the wife’s settlement was to include a $30,000 credit toward the husband’s obligations to meet child support in order for the husband to retain his home. Furthermore, the value of the husband’s business was agreed to be $88,000. The wife’s inheritance of $90,000 was also not to be calculated into the informal property settlement. Accordingly, the property agreement had been already implemented informally.

According to the Court, whenever such applications arise, there are two questions that arise as referred to by the Full Court of the Family Court in Whitford & Whitford (1979) FLC 90-612:

1. Whether the Court is satisfied that the applicant or child of the marriage would be caused hardship if leave were not granted;

2. If the Court is satisfied that hardship would be caused, then whether or not the Court should exercise its discretion to grant or refuse leave to institute proceedings.

The Court noted that the ability to pursue a claim is not in itself a hardship. Instead, it is necessary to consider the merits of the case. If there is no real prospect for the case to be successful, then it would follow that the applicant would not suffer hardship is leave were not granted.

The purpose to allow an extension of time is solely to enable the Court to do justice, as stated in the case of Gallo v Dawson (1990) 93 ALR 479. The view of the courts is that it is necessary to consider the history of proceedings, the conduct of the parties, the nature of litigation and consequences for the parties of the grant or refusal of the application to grant an extension of time.

In the current case, the applicant’s explanation was that the informal agreement was not formally implemented. It was held that this in itself was inadequate. The wife was present during the negotiations and both parties were aware that in order for the informal settlements to be binding, they needed to enter consent orders and enter into a binding child support agreement.

The wife stated that she will suffer hardship if leave were not granted because the business was never valued, she would be entitled to a greater percentage of property than what she received and the husband would be seek a child support assessment. However, the parties did compromise on the value of the business at $88,000.

The Court stated that the wife’s settlement was also not outside the range of just and equitable outcome as her inheritance was excluded as a consideration. As such, the wife has failed to establish hardship. Her application was dismissed.

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