A guide to time limits and family law in Western Australia
Whether you are in a marriage or a de facto relationship, time limits can significantly change the steps available to you in progressing your family law matter.
Time limits are strictly applied and expire on a specific date, after which parties are barred from commencing proceedings without the permission of the court, referred to as ‘leave out of time’. The exact date of this deadline varies and is determined by applying a statutory time limit to the facts of each case.
This article is specific to legislation and rules on family law in the state of Western Australia.
The Family Court of Western Australia
In all other Australian jurisdictions, parties can commence proceedings in the Federal Circuit and Family Court of Australia under the Family Law Act 1975 (Cth). However, most married parties and all de facto parties living in Western Australia proceed through the Family Court of Western Australia.
The Family Court of Western Australia is separately established and governed by the Family Court Act 1997 (WA). This statute adopts the same time limits that apply to married parties in the Federal Circuit and Family Court of Australia, but also introduces additional limits for parties to consider.
Time limits in parenting proceedings (marriages and de facto relationships)
In Western Australia, there are no time limits where parties are seeking or intend to seek parenting orders. However, parenting orders can only be sought in relation to a child who is less than 18 years of age.
Therefore, parties can seek parenting orders in relation to a child at any time after ending their relationship, but only before the child reaches 18 years of age.
Time limits in property/maintenance proceedings (marriages)
Parties should note that this period begins from the date that a divorce order takes effect, and not from the date an application for divorce is made or contemplated.
Importantly, parties may need to act quickly after agreeing to a property settlement that necessitates a payment to one party from the superannuation of the other, referred to as a ‘superannuation split’. In these situations, parties are required to give 28 days written notice to the relevant superannuation fund before applying to the Court for consent orders.
If proceedings have not been commenced and several months have passed since divorcing, parties must act quickly to allow themselves time to give notice before the time limit expires.
Time limits in property/maintenance proceedings (de facto relationships)
De facto parties seeking property or maintenance orders after separating must commence proceedings within 2 years after ending their relationship.
Where parties have been in a de facto relationship for less than 2 years, the Court will not make orders unless failing to do so would cause serious injustice to a partner who either made substantial contributions to the relationship or has care of a child of the relationship
Unlike married parties, de facto parties in Western Australia are not permitted to split their superannuation in a property settlement. The Court instead considers superannuation as a financial resource of the parties.
What can I do if a time limit has expired in my family law matter?
The expiration of a time limit is not necessarily fatal to securing a favourable outcome in family law matters in Western Australia, as the Court may grant parties leave to commence proceedings out of time, especially where both parties consent to an extension of time.
Where a time limit has expired, leave may be granted to married parties where it can be shown that hardship would be caused to a party or child of the relationship if leave were not granted except by leave of the court or with the consent of both of the parties to the marriage. De facto parties must show that hardship would be caused to a de facto partner.
The expiration of a time limit affects both parties equally; while one party may be left in a better financial position than the other, neither can commence proceedings to claim any item of property that is not in their name or possession. Parties are also not precluded from negotiating an informal agreement.
Again, no time limits apply where parties are seeking parenting orders.
Should I be concerned about time limits in my family law matter in Western Australia?
Parties should note all applicable time limits in their family law matters as a matter of course, as it is often more difficult (and costly) to commence proceedings in the Family Court of Western Australia after a time limit expires.
Not from WA? Read our guide to family law and time limits for the rest of Australia.
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