The Family Law System, like all Australian Legal systems is governed by a series of rules. These rules can be found in legislation and in other documents such a practice directions created by individual courts. A number of these rules impose time limits and it is important to be aware of the times limits and what they can mean for your rights.
Types of time limits.
There are different time limits that exist in the Family Law System. One type are limitation periods for commencing certain types of proceeding, such as the requirement to commence financial proceedings within 2 years of the separation date for a de facto relationship. Another type are the time frames set down either by the rules or a court order specifying when someone is to undertake a certain act or file a certain document.
It’s just a deadline. What’s the worst that can happen?
There can be significant consequences for failing to meet a deadline. In the case of a limitation period, if the deadline is missed a person might otherwise lose the right to pursue a claim they would otherwise be entitled to, such as appealing against a decision that they believe to be wrong at law.
In the case of a requirement to file or serve a document a person might be unable to rely on that document in their case or the hearing of their case might be delayed.
There may be financial penalties by way of a costs order, particularly where a court event is wasted due to the failure to comply with a timeframe.
I think I’ve missed a deadline. Is there anything I can do?
The court has the power to grants extensions to time limits, or in the case of limitation periods, grant leave for a matter to proceed even though it is ‘out of time’.
What matters a court will consider will be specific to the type of time limit that has not been met and a Judicial Officer exercises a degree of discretion on these issues. The factors to be considered are not always contained within the legislation and require careful consideration of decided cases.
For example, in the case of Rayburn and Pritchard [2014] FamCAFC the court, on appeal, considered the question of extending the time to file an itemised bill of costs. This was relevant to the ability of one party to recover a costs order in their favour.
In considering the question the court cited the factors contained in the case of KLD & SCVG [2009] FamCAFC 56 which stated, amongst other things:
…the discretion to extend time although unfettered will not be exercised automatically. In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 McHugh J said at 480……“[t]he discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties”. The discretion to extend time is given for the purpose of enabling the court to avoid an injustice and the court must determine whether justice as between the parties is best served by granting or refusing the extension sought.
If you feel you have missed a deadline it important to seek legal advice promptly as the sooner an application is brought to extend time, the less likelihood there will of prejudice to the non-defaulting party and that the court will be able to do justice between the parties.
Written by
Luke Shearston
Senior Associate
In most instances, it is important to speak to a family lawyer first. We have experienced solicitors in Newcastle and the Central Coast area that can help you through your family law matter.
We offer a fixed fee initial consultation from $330. Simply Contact one of our friendly staff members to make an appointment.
