Legal Project Management Plan & Checklist
Purpose of this Guide: Use this fork when the statutory limitation period for property proceedings has already expired and the other party will not consent to filing out of time. This is a high-risk situation requiring an application to the court for leave to file out of time before the substantive consent orders application can proceed. The leave application is itself contested or requires judicial assessment, which means the matter is no longer purely administrative. Open this fork as soon as you discover the limitation period has expired and mutual written consent cannot be obtained.
Jurisdiction: Federal Circuit and Family Court of Australia (FCFCOA). The leave application under s 44(4) (married) or s 44(6) (de facto) is filed and determined in the FCFCOA. The leave application may be dealt with on the papers or at a short hearing depending on the registry's practice.
The Process at a Glance: Advise the client in writing that the limitation period has expired and explain the leave application process and costs. Seek written consent from the other party to file out of time - if obtained, no leave application is needed. If consent is not forthcoming, prepare and file an application for leave accompanied by an affidavit establishing hardship and explaining the delay. Serve on the other party and await their response. Attend the leave hearing. If leave is granted, proceed immediately to file the Application for Consent Orders. If leave is refused, advise the client that the property claim has been extinguished.
Key Legislation and Case Law: Family Law Act 1975 (Cth) s 44(3) (12-month deadline from divorce absolute for married couples), s 44(5) (2-year deadline from separation for de facto couples), s 44(3)(b) and s 44(5)(b) (mutual consent exception), s 44(4) (leave application for married couples), s 44(6) (leave application for de facto couples). The hardship test requires: (1) a prima facie case with a real probability of success; (2) substantial detriment beyond a trifling loss if leave is refused; and (3) the court must weigh applicant hardship against prejudice to the respondent: ***Edmunds v Edmunds*** and ***Griffin v Turner (No 2)***. The length of delay, adequacy of explanation for delay, and whether the respondent has reorganised their affairs are all relevant discretionary factors.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Consent Orders - Property and Parenting (Administrative) - Out-of-Time Application - Leave to File Under s 44 matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for Family Law cases, outlining the standard Administrative Filing process. Utilize these tracking templates to manage your legal cases efficiently.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Hardship test authorities: Edmunds v Edmunds - the applicant must demonstrate a prima facie case with a real probability of success; hardship requires more than trifling loss. Griffin v Turner (No 2) - the court weighs hardship against prejudice to the respondent; length of delay and adequacy of explanation are relevant discretionary factors. Even if hardship is established, the court retains discretion to refuse leave.
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