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Preservation order made pending an application to extend time to appeal

The members of the Full Court determined that when a Full Court or a single Judge is to hear an application for an extension of time to appeal, an order can be made for the purpose of preserving assets which would be the subject of the appeal and which, i

Preservation order made pending an application to extend time to appeal

In the case of Allen and Allen (2007) FLC 93-334 the Full Court of the Family Court of Australia considered an application by the husband for a preservation order in relation to the proceeds of sale of a property pending his application for an extension of time to appeal.

The husband's application for an extension of time to appeal was listed for hearing at a later date before a single judge of the appeal division pursuant to s 94(2D) of the Family Law Act 1975 (Cth) and not before the Full Court as the trial Judge had anticipated.

As a result, the proceeds of sale were to be distributed prior to the listing of the application for an extension of time to appeal.

The wife submitted the Full Court did not have jurisdiction to interfere with previous orders where a stay was refused in relation to the orders the husband sought to appeal out of time.

The members of the Full Court determined that when a Full Court or a single Judge is to hear an application for an extension of time to appeal, an order can be made for the purpose of preserving assets which would be the subject of the appeal and which, if not preserved, would cause the appeal to be rendered nugatory.

Given the history of the matter, and the fact that the proceeds of sale would be distributed prior to the listing of the application for an extension of time to appeal, the Full Court determined the interests of justice required a preservation order.


Executive Secretary - Shared Parenting Council of Australia
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