Family law: August 2014

Property – Leave to proceed out of time – ‘Hardship’ – Stanford argued

In McCoy & Chancellor [2014] FamCAFC 62 (11 April 2014) the Full Court (May, Strickland & Kent JJ) dismissed Ms McCoy’s appeal from Judge Turner’s granting of leave to Ms Chancellor under s 44(6) FLA to apply for property orders three months out of time. The parties had been in a de facto relationship for 27 years. The appellant argued (para 33) that before considering hardship under s 44(6)(a) the judge was required to make findings that altering the property interests under s 90SM was necessary to do justice and equity between the parties and that a mere intermingling of property and financial resources was insufficient to demonstrate hardship. The Full Court said (para 37): “ … the voluntary severance of the de facto relationship rendered the just and equitable requirement ‘readily satisfied’ in the language of the High Court. As is made clear by Stanford [[2012] HCA 52] it is not necessary to find that an order adjusting property interests will be made, for the just and equitable requirement to be satisfied. Indeed [Stanford] allows for cases where the just and equitable requirement is fulfilled, but application of s 79(4) may result in no order being made adjusting the parties’ existing property interests.”