- Madin & Palis  FamCAFC 65
- Donald & Forsyth  FamCAFC 72
- Doolan  FCCA 634
Property – Deadline for filing de facto financial causes – Meaning of ’within the period of 2 years’ in s 44(5)
In Madin & Palis  FamCAFC 65 (29 April 2015) the Full Court (Finn, May & Strickland JJ) allowed Mr Madin’s appeal against the dismissal of his de facto property application by Judge Howard who held that it was not filed ‘within the period of 2 years after the end of the de facto relationship’ as required by s 44(5) of the Family Law Act. The parties’ relationship ended on 9 January 2011, the appellant filing his application on 9 January 2013.
The Full Court said (at -): ‘ … the two year period provided in s 44(5) commenced on 10 January 2011 by virtue of the operation of s 36(1) (Item 6) of the Acts Interpretation Act. That agreed position was undoubtedly correct. The question on this appeal therefore became whether 9 January 2013, being the date of filing of the initiating application, was ‘within’ the two year period which, it is agreed, commenced on 10 January 2011.’
The Court went on to state (at ): ‘It is interesting to observe that although the expression ‘year’ or ‘years’ appears in a number of sections of the Family Law Act (other than s 44(5)) for the purpose of prescribing a period of time during which an action must be taken or during which a particular situation must prevail (see: s 39(3)(c), s 44(1B), s 90SB(a), and s 104(3)(b) and (e)), the expression is not defined in that Act. Nor indeed is ‘year’ defined in the Acts Interpretation Act, although in that Act the expression ‘month’ is defined, and for present purposes that definition is of some interest because of its provision for the end date of a period of a month to be the day immediately before the day which corresponds with the day at the start of the period.’
The Full Court further noted: ‘The only authority to which we were taken and which we consider to be of assistance … is the decision of Beaumont J of the Federal Court of Australia in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574. One of the questions which his Honour had to consider in that case was the meaning of the term ‘within’. In endeavouring to answer that question, his Honour cited … from the decision of the Full Court of the Supreme Court of Victoria in Morton v Hampson VR 364 (at 365):
“The modern rule in relation to a period of time fixed by statute ‘within’ which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and … including the first day.”’ (at -).
After consideration of the submissions, the Court found (at -): ‘We are … prepared to conclude at least by analogy with Beaumont J’s decision in Susiatin that in the present case the two year limitation period provided in s 44(5) of the Family Law Act commenced on 10 January 2011 and ended at midnight on 9 January 2013. The appellant’s initiating application, having been filed on 9 January 2013, was therefore filed within time, and the primary judge was in error in holding that it was not. That result accords with the plain meaning of the sub-section, and there is no warrant in that sub-section, in s 36(1) of the Acts Interpretation Act, or in any relevant authority for, in this instance, excluding from the calculation of when the two year period ends, the last day of that two year period, ie 9 January 2013.’