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09 January 2018

Calculating time in family law matters

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Ensuring compliance with Court Orders can be a tricky beast if you do not know what you are doing.  Usually, there are consequences contemplated in the Orders if a party fails to comply with an action by a particular date/time.  A crucial, but often overlooked, part of all family law proceedings is correctly calculating the time by which actions provided for in the Orders are to occur.

Family law matters usually proceed as follows:-

  • First, we negotiate settlement of all property and/or spouse maintenance matters between you and your former spouse/ de facto partner.
  • If agreement is reached, the next step is to formalise same by way of an Application for Consent Orders filed in the Family Court of Australia.
  • If you do not reach agreement, you will need to file proceedings in the Family Court or Federal Circuit Court of Australia seeking property and or spouse maintenance orders pursuant to the Family Law Act 1975.  If matters are not finalised by consent, a Judge will decide same after a hearing.
  • Thirdly, Orders are made by the Court.
  • The last step in all family law matters is to calculate the time by which the matters set out in the Orders are to be completed.  For example, this may include when the matrimonial home is to be transferred to one spouse or when joint bank accounts are to be closed.

So how do you calculate time?

The time by which matters in a Court Order are to be completed is set out in the applicable Rules.  This is either rule 1.21 of the Family Law Rules 2004 or rule 3.04 of the Federal Circuit Court Rules 2001.  Which of these Rules applies depends on whether your matter is before the Federal Circuit Court or Family Court of Australia.

What you need to know when calculating time is:-

1. Do not include the date on which the Orders were made.

2. Include weekends and public holidays (or non-business days) when calculating time (save for the exception referred to below).

3. If the last day by which an action is to be completed falls on a non-business day or a day on which the office where the filing or registration is to be done is              closed, the action may be taken on the next business day or day when the registry is open.

For example, your Orders may provide that the family home is to be transferred to one spouse within 21 days.  If the Orders were made on Friday 5 January 2018, the last day by which you are to comply with the Order would be Friday 26 January 2018.  However, as 26 January 2018 is Australia Day, and a public holiday, the last day will be Monday 29 January 2018, being the first business day after the 21 day period expires.

The only exception to the above calculations is if the Orders provide an action is to occur within 5 days, in which case you do not include the non-business days or a day on which the office where the filing or registration is to be done is closed.

For example, if your Orders may provide that all jointly owned bank accounts are to be closed within 5 days.  If the Orders were made on Friday 5 January 2018, the last day by which you are to comply with the Order will be Friday 12 January 2017.

Why is it so important to get it right?

If you miscalculate the time by which matters are to be completed, you risk being in breach of the Orders made.  This may trigger default clauses (if same is provided for in the Orders) or the other party may bring enforcement proceedings against you.

Please contact us if we can assist you with drafting your Court Orders or advice in relation to your family law matter generally.

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