Time limits in family law

Posted 6th September 2016 by Dirk Klicker

What is the topic of your discussion today?

The topic of today’s video blog is time limits in family Law.

Why are time limits important?

Time limits are very important in family Law, because if you do not get into the court in time or if you do not resolve your issues in time, then you may be barred from pursuing those issues.

Every jurisdiction has it’s time limits. You have time limits in commercial law and personal injury law.  Family law is no different.

What time limits are there in family law?

In family law you’re looking at 3 main areas: child support, children’s issues and financial issues.  The time limits vary depending on the area.  In addition to those strict time limits, you also have rules of thumb, which I will also talk about.

When you are looking at child support, you have only got a very short period of time.  Generally, you only have 28 days.  That timeframe is very strict. You have got to lodge any objection or apply to the State Administrative Tribunal within those 28 days or you will potentially be barred.

When it comes to children’s issues, there is no strict time limit per se.  There is a rule of thumb that as far as children’s issues go no orders are final.  As a rule of thumb the longer you leave the situation in place, and the longer you do not apply to the Court to change it, then the less likely the Court will change that situation.  The rule of thumb for children’s issues is, do not wait, do not delay and make sure you address any issues promptly.

When it comes to financial issues there are strict time limits as well.  There is a difference between married couples and de facto couples.  When it comes to married couples, you have 12 months from the date of the divorce.  It is the divorce that starts time limit running.  If you have not got a divorce than the time limit does not commence to run.  I have had cases where parties are being separated but have not divorced.  It has been 9 years. Both parties have moved on.  Both parties have re-partnered.  Both parties have bought new homes.  They have done their own property settlement but they have not done consent orders.  They have not formalised a property settlement with consent orders. In terms of that time limit, they have not had the divorce so both parties able to apply to the Family Court to pursue financial issues.

With de facto couples, the time limit is different.  The parties have 24 months from the date of separation.  There is no requirement for anyone lodge any forms or documents.  It is from the day that you separate that you have 24 months.

So the problem with de facto couples is there is no formal document evidencing the date of separation.  So parties may often get into a dispute about the date of separation.  The parties will obviously potentially have a dispute about whether they are in or out of time. The key rule of thumb when it comes to de facto partners is, and with married couples, when you are looking at financial issues, do not delay.  Get advice as soon as possible.  Address the issues sooner rather than later.

As is widely reported in the press, there is no hiding from the fact that the Family Court is heavily overworked and that there are significant delays in the Court.  It now takes up to 24 months for cases to go from the commencement of proceedings to a trial.  If that is what the parties need to do to resolve their dispute.  So there is no point delaying.  There is no benefit to delay a resolution of the case when the potential minimum delay is a period of 2 years.  So if you wait 12 months or 6 months before you start to address these issues, then you can add that potentially to the 2 year delay.

Because not everyone is able on separation to address or deal with these matters straightaway.  In theory you can deal with financial issues the day after you separate.  There is no requirement to wait.  Unlike a divorce, you have to wait the mandatory 12 months.  When you dealing with financial issues, or with children’s issues, you do not have to wait.  You can start dealing with those issues, the week that you separate.  You can have those discussions even before you physically separate if it is possible.

There really is no reason why a party should wait especially with the huge delays.  There are sometimes cases and factors where a delay is in a party’s interests.  But parties ought to get legal advice before they make a conscious decision to delay and wait before they address their financial issues and look at getting consent orders or a binding financial agreement.

With regard to divorce, there is no time limit on getting a divorce, but the parties have to wait be mandatory 12 months from the date of separation before they can apply for a divorce.

I often hear clients saying that been advised, do not apply for a divorce, wait, resolve the financial issues, resolve the children’s issues first.  But I think the general rule is get the divorce the day after the 12 months has elapsed.  Do not delay getting the divorce.

There is really no reason why a party should wait especially with the huge delays.  There are sometimes cases and factors where a delay is in a party’s interests.  Parties ought to get legal advice before they make before they make a conscious decision to delay and wait.  A divorce has time limit implications for your financial settlement.  It has estate planning implications.  There is no reason to delay getting the divorce.  Often that advice is given for what I would say is tactical reasons.  As a general rule when you analyse those reasons they do not stand up. You should just get your divorce as soon as possible.  Both parties have been separated for that period of time, it is not likely that they are going to reconcile.  Very rarely is there a valid reason for holding off doing a divorce.

What can you do if you are out of time?

The time limits we had mentioned a strict time limits.  They are enforced.  To get around those time limits or to apply out of time is expensive.  It is not guaranteed.  But it can be done.

If you feel the time limit has elapsed on you, then you must immediately get legal advice.

I often have to give people advice about that.  Some people do not know about the time limits.

I often give advice to de facto couples who had an informal agreement that they did not document with consent orders.  I ask them, When did with separate?  And they say 4 years ago.  Technically speaking they are out of time.

You are able to apply out of time. But do not hang your hat on that. There is no guarantee.  There are strict conditions that have to be satisfied before you will be given leave by the Court to apply to time.

You do not want to find yourself in that situation.  But if you are in that situation, you need to get legal advice urgently. Your lawyer may be able to help in the circumstances.  There is no guarantee.  From a negotiating point of view it certainly puts you on the back foot.

What should I do if I am concerned that I am out of time?

As I mentioned before, you do not want to be out of time.  If you are out of time, then you should go straight your lawyer.  You need to get legal advice straightaway.  You cannot wait around.  You cannot delay.  You need to get on the telephone. Telephone a number of family law firms.  I note that law firms are very busy.  May not be able to get in for a month.  That is not good enough.  Find a law firm that will see you.  That specialises in family law.  Ask them if they have dealt with out of time applications.  You want to see someone that week.  You need to go and see them without delay.  You may have other commitments in your life.  You might be working FIFO and you have to leave for work.  You have to cancel that.

If you are out of time there is no guarantee that you will be allowed to seek redress from the Family Court.  What that effectively means is that you may be stuck with the legal entitlements as they stand.  That may or may not be a good thing.  Generally it is not a good thing because the assets are all tied together.  For example, the home may be jointly owned in which scenario if you are out of time that is a 50-50 proposition.  That may be a disastrous outcome.

You have to go and see a lawyer straightaway.  You have to go and see a lawyer the next day or that week stop.  You cannot wait.

Do you have to go to court if you are out of time?

If you are out of time, and your lawyer feels you have a good case to apply of time, your lawyer can write to the other party, indeed that is best practice, to request to consent to proceed out of time.  If the other party consents, then you will be allowed to proceed out of time.  The problem of course, if they do not consent.  Then, unfortunately, you will have to apply to the Court.  That is where things get expensive.  That is where there’s a lot of stress and uncertainty.

A lot of people cannot afford to spend that sort of money simply to get over that first hurdle to be out of time.  It certainly something you do not want to have to do.  You would rather spend your money on other things.

I am surprised that this still happens.  I suppose it is not known what these time limits exist.  It is not well published.  Also, life is busy.  There are a lot of distractions.  It is also hard to deal with these issues.  So people often do not address these things in a time timely manner.  Then, if the other party is not going to agree, then you have to end up spending significant legal costs to potentially go to court.

The general rule of thumb, to not delay, is not something that is written in the legislation.  That comes from experience, in family law.  Dealing with family law day in, day out.  Rules of thumb are any general rules only.  Parties need to get advice from a solicitor.  You cannot rely on a rule of thumb that that may be totally inapplicable to your case.  The general rule is do not delay.  Generally, it is not in your interest to delay a case.

If it is one thing I want people to take out of this video blog, is do not delay.  Get legal advice as soon as possible.

What should I do if the party does not respond to my emails or letters?

Often on separation one person may not be ready, emotionally or mentally, to deal with the matters that need to be resolved and sorted out when parties separate.  It is not uncommon that one party simply will not address the other parties’ e-mails, questions or proposals for settlement and things of that nature.  Sometimes they will respond, but they will not respond on point.  They will have a rant about something that is completely unrelated different.  The net effect being the same that you are not able to reach in an agreement.  You have to get legal advice as soon as possible.

You may need to commence the next stage of the process which in relation to financial matters is the pre-action procedures and in relation to children’s matters is family dispute resolution.  You cannot wait. You should not wait.  Some people wait a number of months before they take any action.  As a general rule of thumb, if parties cannot resolve the matter within 1 to 2 months of separation, they need to get legal advice.  It is adding to the stress. You are adding to the delay by waiting.

Child-support is obviously a bit different.  In relation to child support, you have to get advice as soon as you get decision.