I’m Late! Understanding time limits in the Family Court

Greg Martinovich
Barrister and Solicitor

Posted on 11/08/2017, Last Updated on 29/01/2019

“within 12 months” and “within 2 years” – what do these phrases mean?

When parties to a relationship separate, it is generally considered to be in their best interests if their financial relationship is also brought to a conclusion.

Limitation period for married couples

The above principle is given express legislative force by way of section 44(3) of the Family Law Act 1975 which provides that ordinarily, property and spousal maintenance applications shall not be instituted after the expiration of 12 months after the date on which a divorce order becomes absolute, or the date of making of a decree of nullity, except by leave of the court or the consent of the parties.

Limitation period for de facto couples

Section 44(5) of the Act allows a period of 2 years following the end of a de facto relationship within which to file an initiating property or maintenance application. This provision is mirrored in the Family Court Act 1997 (WA) which applies to de facto couples in Western Australia.[1]

There are numerous reasons as to why a party may delay filing an application for property settlement or spousal maintenance. For example, a party may not actually require maintenance until some later date. Or they may seek to obtain an informal agreement between themselves, without court orders. Or they may simply be unaware of their legal rights and obligations.

An initiating application may nevertheless be filed after the prescribed period has elapsed, provided the court grants leave. The Act provides two alternative preconditions to the grant of leave, the most important of which is that hardship to a party, or a child, must be established.[2] The second, limited to spousal maintenance applications, is that, at the end of the prescribed period, the applicant would have been unable to support themselves without an income tested pension, allowance or benefit.

If hardship is established, the court must then go on to consider those elements relevant to the exercise of its discretion to grant leave, including:

  1. The length of the delay beyond the prescribed expiry date;
  2. The reasons for the delay;
  3. The strength on the merits of the Applicant’s case; and
  4. The prejudice to the Respondent resulting from the delay.[3]

What is the last day on which I can file my Initiating Application?

Given the additional legal, financial and practical impediments of embarking on a property or maintenance claim out of time, it is essential to ascertain the last day upon which an application can be filed within the prescribed statutory period, as of right.

Married couples: With respect to property settlement and spousal maintenance, section 44(3) provides that proceedings shall not be instituted after the expiration of 12 months after the date on which the divorce order took effect. The plain meaning of the subsection accords with s 36(1) (item 6) of the Acts Interpretation Act 1901 (Cth), which provides that if the period of time is expressed to begin after a specified day then the period does not include that day.

Example: if a divorce order became absolute on 2 January 2017, the prescribed period commences on 3 January 2017 and the last date for filing an application before expiration of the prescribed period will fall on 2 January 2018.

De facto couples: In relation to an application by a de facto couple under s 44(5) of the Act, or in Western Australia, s 205ZB(1) of the Family Court Act, the relevant sections provide that a party may commence proceedings only if an application is made within the period of 2 years after the end of the de facto relationship.

As an aside, please note that the Interpretation At 1984 (WA) (section 61(1)) applies to the interpretation of time frames specified in the the the Family Court Act 1997 (which is a Western Australian statute, and not federal legislation). 

The Family Court of Australia considered this issue in Madin & Palis.[4] After referencing s 36 of the Interpretation Act, the court went on to cite the Full Court of the Supreme Court of Victoria in Morton v Hampton, which noted:

The modern rule in relation to a period of time fixed by statute ‘within’ which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and, of course, including the first day.[5]

Example: if a de facto relationship ends on 2 January 2017, the prescribed application period will run from 3 January 2017 and the last day for filing within the prescribed period will fall on 2 January 2019.

However, unlike a divorce order, pin-pointing with reasonable accuracy when a de facto relationship finally ends can often be unclear, and can give rise to argument over whether the period within which filing can occur has expired. Accordingly, filing in such circumstances should not be left until the last moment.

Conclusion

Whilst the Family Court always retains discretion to allow property and maintenance applications to be heard out of time, the stress, cost, inconvenience and delay involved in rebutting the prima facie time limit would clearly be better spent on resolving the parties’ financial affairs.

Filing a property or maintenance application well within time ensures that issues of jurisdiction and the court’s prima facie ability to hear the case simply don’t arise.

[1] s 205ZB(1).

[2] Family Law Act 1975 (Cth) s 44(4), 44(6); Family Court Act 1997 (WA) s 205ZB(2).

[3] In the marriage of Whitford & Whitford (1979) FLC 90-612, 78,146.

[4] (2015) FLC 93-647.

[5] Madin & Palis (2015) FLC 93-647, 80,253.

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