December 2018 Family Law Case Watch

What is required to initiate Property proceedings when you separated from your de-facto spouse a significant time ago?

Section 44(5) of the Family Law Act 1975 (Cth) (“the Family Law Act”) allows de-facto parties to initiate proceedings in respect of property or maintenance orders in de facto relationships if the application is made within the period (the standard application period) of:

  1. Two (2) years after the end of the de-facto relationship; or
  2. 12 months after a financial agreement between the parties was set aside or found to be invalid; or
  3. Both parties consent to the application.

The Act provides that proceedings may be instituted “out of time” in certain situations. In the recent case of Gadzen & Simkin [2018] FamCAFC 218, the Family Court considered in detail the application of that law and explained what type of circumstances qualify.


Mr Gadzen (“the de facto husband”) and Mrs Simkin (“the de facto wife”) commenced cohabitation in 2001. The de facto husband was then aged 51 years and the de facto wife was aged 45 years. There were no children of the relationship and the parties separated in 2009. The parties since married other parties, with the de facto wife commencing cohabitation with her current husband in 2013 and marrying him in 2016.

At the beginning of the relationship the de facto wife had net assets worth a total of $83,000. The de facto husband’s total net assets were valued at $4,750,000, which included various residential properties, businesses and trust interests.  It was undisputed that the de facto wife made no direct or indirect financial contribution to the acquisition, conservation or improvement of the de facto husband’s various properties or businesses.

During the relationship, the de facto husband contributed significantly to the de-facto wife’s finances. The de facto husband added the de facto wife to his self-managed super fund, contributing $100,621 to her membership in that fund. On 27 March 2015 the de facto wife withdrew her membership with that fund and an amount of $213,118 was rolled out to the de facto wife’s nominated superannuation fund.

Later in their relationship, the de facto husband established a family trust for the de facto wife and transferred fifty (50) per cent of his shareholding in one of his companies to that trust for no consideration. The de facto wife’s shareholding in that Trust was transferred back to the de facto husband following separation in about 2015 for $25,000, a sum significantly less than its initial value.

It was undisputed that following separation the de facto husband continued to make financial contributions to the de facto wife by way of informal agreements between the parties, including:

  1. Paying a deposit of $100,000 on the purchase of residential premises in the de facto wife’s sole name and making interest-only mortgage repayments on behalf of the de facto wife until the end of December 2017, totalling $268,301;
  2. Paying the de facto wife’s rent from separation in April 2009 until the purchase of the above property in October 2010, totalling $31,199;
  3. Purchasing furniture and electrical equipment for the de facto wife in the sum of $20,000;
  4. Providing a legacy to the de facto wife in the sum of $1,000,000 in his Will with the terms of such Will to remain unchanged for two (2) years; and
  5. Giving to the de facto wife one third of the balance of his superannuation account, The Gadzen Superannuation Fund.

The de facto wife filed an application on 25 January 2018 seeking orders under section 90SM and 90SE of the Act for the purpose of property and maintenance orders. The Application filed by the de facto wife was seven (7) years out of time and therefore required the Court to determine whether leave should be granted for the proceedings to be dealt with.

Family Law

As set out above, section 44(5) of the Family Law Act provides the standard application period for initiating proceedings, generally speaking, this requires proceedings to be initiated within two (2) years of a de facto relationship breaking down (in the case of a marriage, section 44(3) provides the standard application period as twelve (12) months from the date of divorce or decree of nullity).

Pursuant to section 44(6) of the Act (or section 44(4) in the case of a marriage), the Court may grant a party leave to apply after the end of the standard application period if it is satisfied that:

  • Hardship would be caused to the party or a child if leave were not granted; or
  • In the case of an application for an order for the maintenance of the party – the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

Section 44(4) in the case of a marriage and section 44(6) in the case of de facto relationships are in identical terms and, for practical purposes, the requirement for granting leave under section 44(6) will follow the authorities in respect of section 44(4).

Section 44(4) was considered in the earlier case of Whitford and Whitford in which the Court emphasised that hardship within the meaning of the section must first be established for the Family Court to exercise its discretion and grant leave. In discussing hardship, the Full Court in Whitford said:

The hardship referred to in section 44(6) is the hardship which would be caused to the applicant… if leave were not granted. The loss of the right to institute proceedings is not the hardship to which the subsection refers.

In Sharp the Court noted that:

Hardship is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship.

In assessing hardship… the applicant must have a prima facie claim worth pursuing or a “real” possibility of success.

The meaning of “hardship” in subsec. 44 (4) is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment.

These authorities provide that, in determining an application for leave, the applicant must demonstrate a prima facie or arguable case and, having regard to all of the circumstances, that if it were not heard would result in hardship to the applicant or a child of the marriage. This will take into account the costs or likely costs to be incurred in pursuing a claim.

At First Instance

In the present case of Gadzen & Simkin the trial judge found that the de facto wife would suffer hardship if leave were not granted for her to bring property settlement and maintenance proceedings against the de-facto husband and made an Order granting leave.

In determining the question of hardship the trial judge extracted a segment of the de facto wife’s Affidavit, outlining her current income and expenses and the fact that the de-facto husband ceased paying mortgage payments. On this evidence the trial judge found that hardship was established.

On Appeal

It was found that the trial judge erred in determining the question of hardship as she failed to undertake any consideration of whether the de facto wife had a prima face or arguable claim and whether the loss of her right to make that application would lead to hardship that was substantial having regard to all the circumstances of the case, including her potential costs in pursuing that claim.

The Full Court found that in all of the circumstances, the de facto wife received very significant benefits post-separation. In total it was estimated that the de-facto wife had received $467,121 in post separation benefits and it was estimated that she would expend approximately $150,000 pursuing her claim.

Taking into consideration all the evidence, the Full Court found that even if the de facto wife’s potential claim succeeded, it was unlikely to equate to, let alone exceed, the benefits which she already held, together with what she had received from the de facto husband following separation.


It is possible to initiate Court proceedings where separation occurred a significant time ago however hardship must be proved in order for the Family Court to grant leave to make an application after the standard application period. In making this determination, the Court must have regard to all of the circumstances of case.

We hope that our December 2018 Case Watch has provided you with some clarity about the role of the Family Court where proceedings are initiated out of time.

If you have separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional family lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Enjoying Christmas and Other Family Celebrations After Separation

Australian’s love a celebration.

If you’re not convinced, scroll back to recent photos of kids in their Halloween regalia or think about your walk down the aisle of your local supermarket in the first week in October seeing the shelves already stocked with tinsel and stockings.

Making decisions about how your family celebrates these special occasions can be difficult. With all the wonderful events and facilities available to us on Sydney’s North Shore we are really spoilt for choice. Willoughby Carols in the Park, Mosman Carols by Candlelight at Balmoral Rotunda, and Pymble Carols in the Park, just to name a few Christmas events in this area.

It doesn’t change when you separate. In fact managing celebrations for your family after separation can present even greater challenges.

Trying to cram two celebrations into one day, even when you live in close proximity to your former spouse, can lead to mounting tensions and frayed nerves.

It can be particularly tough trying to reach agreement with your ex-spouse about how your children will spend special occasions each year.

There are really sound options available to separating families to resolve these differences and avoid extraordinary delays and costs that are incurred when the Court gets involved.

First and foremost it is important to be open minded and embrace marking these celebrations in different ways. In all separations where children are involved the paramount principle is determining what is in their best interests. When deciding how to provide for special occasions in family law matters it is important to really place the children’s interests first.

As children get older their wishes become more important. If your children love spending time with their cousins on Christmas night then, even after separation, it is important that you do all things possible so as to make that happen. If there is a history of an Easter egg hunt at Nanny’s home then try not to make arrangements so that they will miss out on that fun. Make plans that will work for them.

Not only do plans for special occasions need to be very child focussed, they also need to be flexible. Not all family celebrations are set in stone from year to year. It usually works best if you try to accommodate these arrangements to ensure that your children enjoy the best that each of you and your respective extended families can offer.

After separation some families choose to alternate occasions each year. In even numbered years Christmas might be spent with Mum and Easter with Dad and then in odd numbered years the children will spend Christmas with Dad and Easter with Mum. Other families decide to “split” these special occasions so that the children can spend some time with both Mum and Dad each year. This can work well for families who live in very close proximity of each other. Otherwise it can be disastrous, especially for the children…sitting in a car for two or more hours on Christmas Day is simply not their idea of fun and remember it’s really about them.

Also, remember that special occasions are special because you make them special…when couples separate it may be time to think about creating new traditions. If your children will be with the other parent on Christmas Day consider creating a Christmas Eve celebration. If your children are with the other parent at Easter time invent a new Anzac Day tradition of trips to Balmoral Beach, Clifton Gardens or Naremburn Park. You can even see fireworks on Darling Harbour on a Saturday night if you want to organise your own child-friendly mid-year New Year’s Eve celebration!

There is a good chance that you will find everything you need in your local shopping centre to quickly make that party happen. Because Australians love a celebration, you can almost guarantee that you will be able to find party gear for almost any public holiday which certainly makes it easier to “get into the spirit” and really celebrate with your children. And just like you would at Easter or Christmas, make sure to get photos or keepsakes of your celebration so you can remember and have real records of the happy times spent with your children in years to come.

Reaching agreement with your ex-spouse about any matter can be difficult. Special occasions can bring even greater angst.

I am sure that if most of you were asked what Christmas means to you then typical answers would be “stockings” or “Christmas dinner” and “presents under the tree”.

Don’t forget that Christmas also symbolises new birth and new beginnings. Coming just on the tail end of Christmas is a brand new year and all that represents.

In family law matters, especially when considering special occasions, reminding yourself about the message of “new beginnings” can help you adjust to the necessary changes that separation brings and ensure that you and your family continue to celebrate and enjoy special occasions for many years to come.

Finally, none of these tips on their own are likely to achieve success. It is critical that you learn to communicate with your ex-spouse (even if that is just by way of email or text) so that everybody understands what arrangements are in place and what is expected of them, and nobody, most importantly the children, are disappointed.

So to recap, some helpful suggestions to ensure you reignite the “celebration” in your celebrations after separation:

  1.  Remain child focussed.
  1.  Be flexible in your thinking.
  1.  Create new traditions.
  1.  Be clear and certain about arrangements.
  1.  Keep the channels of communication open.

These tips will all ensure that you and your family continue to enjoy and celebrate special occasions even in the event that your family have separated.

If you are experiencing a separation, haven’t made plans for an upcoming celebration or special occasion, and really don’t know what step to take next or how to handle the situation and do what is best for your kids then please get in touch with us at Doolan Wagner Family Lawyers on (02) 9437 0010 or We are conveniently located in St Leonards on Sydney’s Lower North Shore. We offer accredited family law specialists to help you with parenting and all family law matters.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.