Applications for family law orders out of time

Debilitating mental health difficulties may now be an explanation for delay in applying for family law orders, and justify a Court granting an applicant leave to apply for orders after the expiry of the statutory time limit.
 

1. If you miss the deadline for applying for Family Court orders after breakdown of a marriage of de facto relationship, an application to apply out of time has to be made. That application will be heard in a discrete interim hearing and will decide whether the applicant can carry on to a final determination of their claim or is prevented from going further.
    
2. The first question the Court will ask is whether “hardship” will be suffered by the applicant if they are not allowed to proceed. Hardship is measured by what the applicant would suffer if the chance to make a claim with reasonable prospect of success is lost. The benefit of a successful outcome will be compared to the legal costs of achieving that outcome; and if there will be negligible benefit, leave may not be granted.
    
3. If the Court considers hardship would exist, it has a wide discretion to exercise in deciding whether to grant leave or not. In that exercise, it considers the applicant’s explanation for their delay in making the application and the prejudice to the respondent if leave is granted. Even if the explanation of the delay in inadequate, the hardship may be such it outweighs that inadequacy and the Court may grant leave anyway. The parties may face adverse costs outcomes if they run an extravagant and wasteful case and lose.
    
4. I was recently preparing for an interlocutory application in the Family Court in a café at 6am on the day of the hearing. The others in the room were a humorous country barrister and a Sydney solicitor deeply committed to achieving a positive outcome for her client.
    
5. The trivial conversation that started morphed into the solicitor expressing her need for a barrister to run an application for leave in the Family Court on short notice. There was a three-day hearing set down recently that the incumbent counsel could not make. Luckily for me, I was available and after a couple of reference checks before her next coffee, the solicitor briefed me.
    
6. In December 2019, in that case, I acted for the husband in a de facto relationship of 23 years. The biggest issue in the case was my client’s mental health. He suffered chronic depression and bipolar. That was likely to be the reason the relationship really broke down and it was his reason for his six-year delay in applying for Family Court orders. After separation, he was hospitalised involuntarily twice, he was unable to fulfil functions as an employee, he was falsely accused of assaulting a colleague and he eventually had to appoint a manager to his legal practice.
    
7. The cold truth about my client’s mental health was exposed to the Court during the hearing. We were listening to his treating psychiatrist give evidence of his struggles with personal and professional issues over the past seven years. As my client heard the facts of his life being retold, he lost all control of his emotions and collapsed in the Court in uncontrollable tears.
    
8. The experience was harrowing: the Court room shocked. Proceedings were adjourned for him and the rest of us to recover and regroup. The psychiatrist’s evidence was that it was “absolutely plausible” that my client’s emotional isolation, fluctuating mood, sense of loss and despair and fleeting suicidal thoughts would render him without ability to address the legal issues in her personal life, despite being able to continue [haphazardly] in legal practice. The Court found that evidence credible and accepted it.
    
9. The pool of assets was worth about $1.95 million of which about 95% were in the wife’s name. the Wife had knowledge in 2015 from an email from my client that a claim was likely to be made by him. Her evidence was she had told him the time frame had run out, which he denied. If my client was not given leave to continue, he could lose the chance of an order for property settlement of approximately half of the asset pool. The cost of that claim would be about $100,000. There was then a clear financial benefit of pursuing the claim and a lot to lose if he couldn’t.
    
10. The conclusion was that the hardship to my client of the loss of the chance to make his claim outweighed the prejudice to the wife. The mental health explanation for the six-year delay was accepted. The Court did express the opinion that the competing arguments were “finely balanced”.
     
11. The Court applied a line of consistent Full Court authority that shortly after the Family Law Act was introduced and has developed since, including in diverse cases between 2014 and 2019. The current law in this area is modern and clear.
     
12. Obviously, every case turns on its own facts and close analysis may reveal a case is much more arguable that it first appears.
     
13. It was an extraordinary Court experience to experience my client collapse emotionally the way he did; it was personally very emotional to also be there to support and reassure him. It is nice to know he now has the chance to move forward and seek orders that divide up the pool of assets according to how the Court decides justice and equity should be done.

Article by Family Court barrister Giles Stapleton, 9 Selborne Chambers, Sydney, gstapleton@selbornechambers.com.au