Leave of the Court to apply out of time

Leave of the court is needed where you apply for property orders out of time

Leave of the court to be permitted to bring your claim before the court will have to be obtained I you wish to apply for final property orders outside the statutory period.

Pursuant to section 44 (3) of the Family Law Act 1975 (Cth) (FLA), an action seeking orders for the division of property cannot be made under the FLA after the expiration of 12 months after a divorce became effective except by leave of the court or with the consent of both parties to the marriage.  The court can grant leave at any time, even if the action has already been instituted.

The court cannot grant leave allowing a person to bring an action seeking final property orders unless it is satisfied:

  • That hardship would be caused to a party to the marriage or a child if leave were not granted; or
  • In relation to an action regarding the maintenance of a party to the marriage, that, at the end of the period in which the action could have been instituted without leave of the court, the applicant’s circumstances were such that the applicant would not have been able to support himself or herself without an income tested pension, allowance or benefit.

Contact our family lawyers Brisbane and family lawyers North Brisbane for practical, effective advice in any family law matter, whether you seek a family law property settlement, need leave of the court or seek a parenting order or child custody order. Our priority for you is in reaching an amicable agreement with your former partner wherever possible. We do however have the experience to represent you effectively in court if agreement cannot be reached and you have to go to court.

We recommend that you see a family lawyer for a consultation prior to or at least soon after separation from your former partner. You may expect that any family lawyer you see will advise you concerning time limits. If you have obtained a final divorce, it is important to make a careful dairy note and bring up well in advance of the date which is 12 months after the divorce becoming final and that you file proceedings if necessary well before that 12 month period expires.

You are also welcome to read on to see what happened in a case where a husband was seeking leave of the court to bring his claim before the court and how the court dealt with that application.

The Federal Court of Australia in the case of Castilla & Castilla [2018] FCCA 2079 made an orders  granting the Applicant Husband leave to apply to the Court for an order under section 79 FLA altering the interests of the parties to the marriage in property.

In that case, both parties to the marriage were 45 years of age. They had married in 1998, separated in October 2012 and divorced in December 2014. The action was commenced in August 2017.

The parties had purchased various properties during the relationship which had been sold. The wife’s evidence was that she held over $2,000,000 in property including a property purchased during the relationship which remained held in her name only and approximately $500000 from a personal injuries claim. The husband’s evidence was that he had $299,751 in debt and $29,546 in assets excluding superannuation. The debt was from a 2002 investment in a company and a school fees debt in respect of the parties’ son.

Legal Principles

The court confirmed that the question for the court in deciding whether leave should be granted is not whether the claim will succeed but “the exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim.” (See In the Marriage of Althaus (1979) 8 FamLR 169 at [13])

The court referred to the general principle summarised in the text Australian Family Law which notes that “on an application for leave two broad questions arise:

  • Whether hardship would be caused to a party or a child of the marriage if leave were not granted. If such hardship is not established, the application for leave must be dismissed.
  • If the court is satisfied that hardship would be caused, it should proceed to consider whether leave should be granted. This is a discretionary matter, and the court may have regard to a number of factors, including whether the applicant has an adequate explanation for the delay in bringing the proceedings, and whether to grant leave would prejudice or impose hardship on the respondent, or other persons…..it might be that an applicant establishes the necessary hardship to satisfy s44(4), but the court declines to grant leave because, for example, the hardship to the applicant if leave were refused is outweighed by the hardship to the respondent if it were granted.” (See LexisNexis, Australian Family Law, vol 1)

The court found that the husband had shown hardship. He only had debt from the relationship and the wife held assets.

Discretionary considerations

The court found that whilst the husband’s explanation for delay in bringing the matter to court was not satisfactory, it was not of itself a basis for not granting leave of the court. The court referred to a number of cases to the effect that the court in deciding whether to grant leave to an applicant must exercise its discretion in a manner that is consistent with justice being done to both parties.

The court also considered that the fact of the wife having a significant asset (a property) still in her name did not show that the wife had so organised her affairs that it would cause a prejudice to her for leave to be granted. However, the husband was in a very compromised financial position. The court considered that the prejudice to him of not being granted leave on balance outweighed any prejudice o the wife.

Our experienced family lawyers Brisbane and family lawyers North Brisbane are ready to assist you whether you need to bring an application seeking leave to bring your matter to court or wish to oppose such an application by your former partner. Each family lawyer in our team at LGM Family Law can assist you to resolve your family law issues, whether it be family law property settlement, a child custody order or parenting order that you seek or any other family law matter.  We are very much focussed on achieving an amicable agreement for you with your former partner but if you have to go to court, we have the experience to represent you in court effectively.