Out of time action in family court
Out of time proceedings in the family courts? if you have started an action in the family courts outside the period that the legislation allows, you will need to obtain leave of the Court before you may proceed with your claim.
Section 44(5) of the Family Law Act 1975 (Cth) (“Act“) provides amongst other things that subject to subsection (6), a party to a de facto relationship may apply for final orders dividing property between parties or for a maintenance order only if the application is made within the period of two years after the end of the de facto relationship (“standard application period“).
However, the Court may under Section 44(6) of the Act grant leave to the party to apply out of time., that is, after the end of the standard application period. The Court may grant that leave out of time 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.
If you would like some practical legal advice including regards the options available to you, 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 likely outcomes for your particular circumstances. This will allow you 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………
The Applicant seeking an order for leave to apply to the Court out of time (ie., outside the two year limitation period), has the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.
Before the Court may grant leave to proceed out of time, the Court must consider whether the Applicant has established:
a. A reasonable prima facie case for relief had proceedings been instituted in time;
b. That denial of the claim would cause the Applicant hardship;
c. An adequate explanation as to the delay
Once those three things are demonstrated, the Court must also consider any prejudice which the Respondent would suffer if the Court grants leave to proceed out of time, by reason of the delay in bringing the application.
In the decision of Quattro & Gaspar [2018] FCCA 3405, the COurt granted leave to the Wife to proceed out of time in circumstances where the parties had been married for a considerable number of years; the Wife had some $15,000 in assets in her own name and the Husband held assets of some $1,300,000 in his name.
Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice concerning your family law issues, including regards your prospects for success if you need to apply for leave to bring proceedings out of time. We are able to advise you concerning any area of family law. Our goal is to assist 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.
