A Matter of Interpretation: The Difference One Day Can Make

Lawyers are nothing else if not sticklers for the letter of the law. So often, it is the interpretation of the letter of the law that causes controversy and in turn, litigation.

The recent case of Madin & Palis[1] is an example of the where the Appeal Court held that the trial judge had erred in his decision and interpretation of a section of the Family Law Act.

In the Madin case the court found that the period for the de facto relationship commenced in March 2002 and ended on 9 January 2011. The appellant filed an initiating application on 9 January 2013, the trial judge found that was outside the statutory time limit in s44(5)[2]. (The statutory time limit provides for parties in de facto family law matters to commence proceedings with in two years of the date of separation. )

The appellant appealed the trial judge’s decision and the appeal was successful with the Appeal Court finding that the time limit in s44(5) expires on midnight 9 January 2013, the appellant’s initiating application having been filed in time.

It is not uncommon for people to try and finalise their family law matters on their own by completing, signing and filing their own court documents, however, this sometimes leads to its own problems. Those litigants may then find themselves seeking the help of a lawyer to try and undo or fix problems which have been created. This case highlights the importance of client’s obtaining legal advice at an early point in their matter to avoid having to incur the cost and time in arguing such matters before court and is a reminder to practitioners to act promptly on their client’s instructions, knowing …what a difference ONE day can make.

[1] Madin & Palis [2015] FamCAFC 65

[2] S44(5) Family Law Act:

“Subject to subsection (6), a party to a de facto relationship may apply for:

                     (a)  an order under section 90SE, 90SG or 90SM; or

                     (b)  a declaration under section 90SL;

only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period )”

If you need advice regarding Family Law matters, we invite you to contact McLaughlins Lawyers today on (07) 5591 5099.

Author: Joelene Nel

Partner: Sophie Pearson

Date: 18/04/2016