Application out of time in family court

If a party wishes to obtain the assistance of the family courts to make orders for the division of property or maintenance, the application to court should be made within 12 months after a divorce order becomes final. After that time, an application out of time may only be brought to court where  leave is granted by the court permitting the party to bring his or her claim.

If you would like some practical legal advice regards an application out of time whether for property orders and/or maintenance orders, contact our experienced Brisbane Family Lawyers or our North Brisbane family lawyers. We can assist you in all areas of family law, including regards family law property settlement, maintenance claims and parenting arrangements. We will advise you regards options available for your particular circumstances,
allowing you then to make an informed decision and to retain control over how your family law issue is resolved. You are also welcome to read on for further information right now………

In the Full Court of the Family Court of Australia in Emerald & Emerald [2018] FamCAFC 217, the parties had married in 1997 and divorced in 1984. Three of the parties’ five children had been born post divorce. After divorce, the parties had also purchased two properties and the Wife lived with the Husband and his second wife for nine years with the Husband and wife (the first wife) separating in 2004.

The Wife applied to the Family Court of Australia seeking leave to bring her application out of time before the Court for property orders and maintenance orders. The Wife had to seek leave as her application was brought out of time.

The trial judge granted the Wife leave for a maintenance application out of time on the basis of section 44(4)(b) Family Law Act 1975 (Cth) (FA) and the Wife’s Centrelink pension. However, the trial judge found that since the Wife had not particularised her claim, it was “difficult if not impossible” to make a finding of hardship if leave for a property case was
refused.

The Full Court allowed the Husband’s cross appeal against leave for a maintenance case, finding that the trial judge had made an error in applying section 44(4)(b) FLA where that section had not come into operation until a time after the Wife’s time limit had expired.

However, the Full Court agreed that the criteria for establishing hardship for maintenance were different from those that apply for a property order. The majority of the Full Court considered that since the Wife had failed to
particularise her property case, the Wife had not satisfied the test in Sharp [2011] FamCAFC 150 that she had a
prima facie claim worth pursuing.   The Wife’s application out of time for leave to proceed with a claim for maintenance was remitted for re-hearing.

Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning making an application out of time or defending such an application. We are able to advise you concerning any area of family law. Our priority is assisting our clients to reach an amicable agreement with their former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from our Brisbane family lawyers or our family lawyers Brisbane Northside.