Hardship not established

Hardship not established

Shale & Woolley

37. Although the Court does not need to consider the issue of discretion as it has made a finding that the wife has not established hardship in the requisite sense, for completeness and for the benefit of the wife understanding fully the reasons for the orders which are made, the Court has taken the time to address the issue of discretion as well.
38. In respect of the issue of discretion, the following are relevant matters which the Court has taken into consideration:
    1. The parties were divorced on 10 August 2015, having been separated since October 2011.
    2. The wife commenced these proceedings on 27 September 2016, some six weeks after the expiry of the 12 month limitation period. While a six week delay of itself is not significant, in the scheme of a 12 month limitation period it is not a trifling delay.
    100. When one considers the separation date, the proceedings were commenced almost 5 years after separation. This is a significant period of time, although in terms of the statutory limitation period not a matter which is of any relevance. However, in terms of discretion to allow proceedings out of time, it is a factor which I take into consideration, albeit it is not accorded significant weight.
    4. The wife explains the delay in not commencing proceedings until after the expiration of the statutory limitation by saying that she was immersed in parenting proceedings and did not have any time to deal with the property matters in the period after the divorce was made. In this regard, the Court notes that the parenting proceedings were on foot since 29 July 2014 with the final hearing on 25 and 26 July 2016. The wife says that she was self-represented for a good deal of those proceedings, and was not fully aware of what she needed to do in relation to property matters. Importantly the Court notes that the wife does not say that she never received any legal advice in respect of property proceedings, or that she was not aware of the limitation period. Thirdly, the wife says that she has been struggling with anxiety and adjustment disorder, which has impacted on her organisation, that she has difficulties in finding employment and keeping her business going. The Court’s findings about the evidence dealing with the wife’s health issues are referred to earlier in these Reasons. Lastly, the wife says that the culmination of these factors meant that she was not able to file her Initiating Application out of time.^[26] This is not a sufficient explanation of the delay.
    5. The prejudice to the husband in leave being granted was not the subject of specific submissions or evidence. However, the Court notes that on the husband’s case there has already been an informal property distribution between the parties and there is no more property that could be the subject of any order pursuant to s79. Therefore, on the husband’s case the cost to the husband in having to answer proceedings would cause a significant prejudice when ultimately there is not likely to be any property adjustment.
39. The degree of hardship to the wife in leave not being granted is already the subject of findings earlier in these Reasons.^[27]
40. As is clear from the earlier paragraphs, the Court has particularly considered the delay, the explanation for the delay, the prejudice to the husband, the strength of the wife’s case and the degree of hardship likely to be suffered by the wife if leave was not permitted, these being the relevant matters to the exercise of the Courts discretion.^[28]
41. Having regard to the above, the Court is not persuaded that it should exercise its discretion to allow these proceedings to be commenced out of time, both in respect of property adjustment and in respect of spousal maintenance, even had the issue of hardship been established.