Why deadlines are important; and why ignorance of the law is no excuse!
One of the most important deadlines in family law proceedings relates to when a party can ask the court to determine a property division. For married parties, the deadline is one year after a divorce order is granted. For de-facto parties, the deadline is two years after separation.
If that deadline is missed, it is possible to convince the court to hear an application “out of time” but only if the court is convinced that hardship would be caused to the party (or a child) if leave to commence these proceedings was not granted. If the court is satisfied that hardship would be caused by not granting leave, then then next question is whether the court should grant a party leave to commence proceedings out of time.
When considering whether the court should grant leave, the court considers:
- Whether the applicant has a reasonable claim and what would likely be the outcome of their case.
- Whether there is an adequate explanation as to why there has been a delay in coming to the court to seek assistance.
- What the potential prejudice might be to the other party. The length of the delay may be relevant here.
In a recent case, the applicant, who had been in a de-facto relationship with the respondent from 1999 to 2018 sought to commence property settlement proceedings in 2023 – nearly 3 years past the deadline; her application was dismissed by a Senior Judicial Registrar of the court. The applicant appealed that decision.
The judge hearing the appeal decided the applicant’s delay could be explained by her reasonable belief that the parties could resolve the matter out of court, especially in circumstances where they had an ongoing business relationship. The judge also thought the applicant had a prima facie (at first sight) case for property adjustment orders and was satisfied she would suffer hardship if leave were not granted. That hardship was found to outweigh any prejudice to the respondent.
Unsurprisingly, the respondent appealed. His appeal was heard by the Deputy Chief Justice of the court, who granted the respondent’s appeal and determined that the applicant could not commence her property proceedings out of time. Aside from the various lessons to judicial officers and legal professionals arising from the Deputy Chief Justice’s decision, there are lessons for parties to proceedings as well, specifically that:
- Adhering to deadlines is important.
- If you do miss the deadline, an adequate explanation is necessary.
The applicant did not provide an explanation as to why she had failed to commence her property proceedings out of time. The applicant did say that when she saw a lawyer in early 2020, she was “not advised about the time limits for commencing proceedings”.
Unfortunately for the applicant, her explanation was not adequate, the Deputy Chief Justice stating quite clearly that:
“…ignorance of the law, including ignorance as a result of inadequate information being provided by a party’s legal advisor, is not a valid reason to extend time. Were it otherwise, any self-represented litigant or poorly advised litigant would be able to circumvent the relevant statutory limitation period. This would be contrary to the public policy goal of the inclusion of limitation periods…”
Ignorance of the law therefore will not be an appropriate excuse to explain a delay in commencing proceedings. Nor will having received potentially negligent or neglectful legal advice.
Public policy considerations are important.
Limitation periods, like the ones establishing the above deadlines, are sometimes more important than individual rights. The effect of the passage of time effects the quality of the justice that can be provided to individuals, but in addition:
- The more time that passes, the more likely relevant evidence will be lost.
- It can be oppressive, and sometimes “cruel” to the other party to allow court proceedings to be commenced long after an event has taken place.
- Parties should be able to “move on”, arrange their lives and utilise their financial resources without fearing court proceedings.
“If a litigant were able to avoid time limits by asserting ignorance of the law, including as a result of negligent or neglectful legal advice, those important public policy considerations would be circumvented.”
Substantial injustice to the other party must be considered.
In this case, the court determined that the parties estimated legal costs would likely be higher than the approximately $152,000 estimated by the parties’ lawyers and involve the applicant’s mother as an additional party. The respondent’s position was that the applicant would likely receive far less than the $350,000 sought by her. The respondent also asked the court to consider the emotional stress of litigation when considering any potential benefit the applicant might receive.
The court agreed that the respondent would suffer a substantial injustice if the applicant was allowed to commence proceedings out of time, especially given the disproportionate amount in dispute between them.
Any potential hardship arising from not being able to obtain property adjustment orders may be outweighed by costs incurred to get those orders.
The Deputy Chief Justice determined that the applicant was unlikely to receive monies in addition to those she already held, at best, she could expect to receive orders for an additional approximately $171,000. In circumstances where that was only a little more than the parties’ estimated legal fees, that was seen as disproportionate to the amount in dispute between the parties.
So, while the court was conscious that the applicant would likely suffer hardship if she was not allowed to start her proceedings out of time, it decided it was not appropriate to exercise its discretion to allow her application to proceed. Not only was the applicant’s explanation of the delay inadequate, but the hardship she would suffer was reduced by the excessive costs she (and the respondent) would incur to achieve that result.
Important takeaways for clients include:
- Get specialised family law advice about deadlines.
- Stick to deadlines and get help from your lawyer if that deadline is fast approaching.
- If you cannot stick to deadlines, make sure you have appropriate reasons for doing so; a specialised family lawyer will be able to advise you if your reasons are good enough to be able to file “out of time”.
From your very first conference with us you will know where you stand, what your options are and what to expect.
That is why your first 30-minute consultation with us is FREE.