Most people would appreciate that if you have a right to take someone to court it is a good idea to do that without delay. For personal injuries, there is a time limit of 3 years and for breach of contract, 6 years to go to court.
The time limits in family law are much shorter, one year from a divorce order taking effect for a married couple (a divorce can’t be granted unless the couple has been apart for one year) and two years from separation for a de facto couple.
The short family law time limits are for practical reasons. The longer a couple is separated the harder it can be to untangle their finances; even if they kept things separate there might still have to be an accounting. What they each had at separation, and what happened in relation to income and assets before and after separation will likely need to be considered.
Recently a party in Wellard & Hawthorn [2021] FedDFAMC1A (the names are changed to protect the privacy of the parties) complained of significant difficulty in bringing their application in time and asked the Court to extend the time, arguing that they would suffer hardship. While the Court could have granted the application, the court refused the extension of time, allowing the other party to avoid a financial accounting.
The Family Court of Western Australia was set up when ‘no fault’ divorce was introduced in 1975 to be the “helping court”. Even if it is no-one’s fault a relationship has failed, it can be difficult for parties to move on and deal with their situation.
Since 1975, the Family Court system has been greatly expanded to include de facto relationships, relationships that are treated just like a marriage even if the parties are not married and didn’t have a party to celebrate their union.
Arrangements for children have become more complex too, where the principles guiding how parties should make arrangements for their children changed in 2006. Now both parents are expected to be involved in their children’s lives, as long as that is in their best interests. In 2012, the Family Law legislation was amended to reflect a greater understanding of the endemic presence of family violence.
Does the recent decision send a message that the Court will not tolerate parties seeking more time to come to the court unless they can make out a strong case? Is the court becoming stricter than it might have been in the past, where the pressures on the court’s limited resources are unrelentless? Possibly yes.
A stricter approach could have a heavy impact on de facto couples, where their circumstances tend to be less formalised than married couples. In Western Australia despite the best efforts of family lawyers in seeking reform of the law so it falls in line with every other state and territory, superannuation splitting is still not available. Legislation to provide for super splitting has been drafted but not yet passed by the Western Australian parliament.
Get in Touch With Our Family Lawyers
If you would like advice in this area please contact Rhonda Griffiths at rgriffiths@bbvlegal.com.au.
Our Family Lawyers in Perth can provide you with information, advice and legal representation on a range of family law issues on a fixed fee price basis.
