The Family Law Rules (2004) (“the Rules”) outline set time frames in which documents and applications must be filed. However the recent case of Whooten v Frost1 has demonstrated that the courts will not allow the Rules to be used as instruments of injustice.
In this case, the wife, (Ms Whooten), and husband, (Mr Frost), were married in 2003 and separated in June 2015. Between June 2015 and November 2016, there was correspondence between the lawyers for each party regarding a property settlement and spousal maintenance for the wife. This correspondence did not resolve their impasse.
In late 2016, the husband was involved in a serious accident and was placed on an electronic life support system. When the wife was made aware of the husband’s condition , the wife electronically ‘filed’ an application to initiate proceedings for a property settlement in the Family Court of Australia. The application was “That the Applicant Wife be excused from particularizing her final orders sought until the Respondent Husband has made full and frank disclosure in this matter”. Her application was filed at 7:40pm, and some time after this, but on the same evening, the husband passed away.
The application raised two jurisdictional issues. First, if the application was deemed to have been filed after the husband’s death, was jurisdiction denied; secondly, if the application made no reference to relief about the alternation of property interests, was jurisdiction denied on the basis that if not invoked before death, an amended or new application could not be filed after the respondent’s death.
Regarding the timing of the application, Rule 24.05(2) of the Rules outlines that a document sent for filing by electronic communication after 4:30 pm according to legal time in the Australian Capital Territory is taken to have been received by the filing registry on the next day when the filing registry is open (emphasis added). Accordingly, although the wife had technically filed the application prior to the husband’s death, by virtue of The Rules, the application was deemed to have been received and therefore “filed” the following day, and after the husband’s death. The wife then filed a subsequent application seeking that the wife’s initiating application be taken to have been received by the filing registry on [this day in] 2016 by extending the time pursuant to Rule 1.14 which allows a party to apply to the court to extend time under the rules.
The Court outlined that most applications for extension of time require the court to contemplate aspects of the case such as the merits of the action, the reason for the delay and the history of the proceedings. Importantly, the Court emphasized that the rules of the court cannot be an instrument of injustice.
On the facts of this case, there was no relevant history of the proceedings other than that the dispute had not been resolved, however importantly, the husband had control of the property but the wife did not, and to deny the wife the right to litigate would have been an injustice. The Court was careful to emphasize that cases such as this one must be read in their context; the overall consideration is that the rules cannot work an injustice as a result of a technicality. Accordingly, the Court held that Rule 1.14 of the Rules permitted the alteration of time, and the application was accepted to have been received at the time it was electronically filed.
The second jurisdictional issue, regarding the content of the application, was also determined in favour of the wife.
Section 79(8) of the Act holds that where, before property settlement proceedings are completed, a party to the marriage dies, the proceedings may be continued if certain conditions (which were not immediately relevant in this case) are met. The Court outlined that it is fundamental that prior to the death of a party “property settlement proceedings” have been “instituted” so that they may be “continued”. Accordingly, the Court was required to determine if the wife’s application had indeed ‘instituted’ the proceedings.
The husband’s estate, focusing on the word ‘proceedings’ argued that proceedings had not been commenced as the application did not plead a cause of action. However the Court, citing Jacobsen and Jacobsen (dec’d); Auston and Jacobson (Executors)2, determined that the relevant question was whether there was an application seeking a ‘matrimonial cause’. Under s39(1) of the Family Law Act 1975(Cth), a matrimonial cause may be instituted. A matrimonial cause is defined, relevantly, as ‘proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings arising out of the marital relationship. The question then became, ‘did the wife’s application seek that the court exercise its jurisdiction in relation to ‘proceedings between the parties…with respect of the property of the parties…’? The phrase ‘with respect to’ was held to have a very wide meaning. Despite the fact that the wife’s application did not seek specific orders, the Court held that there is a distinction between an application which seeks to invoke jurisdiction but does so in a general way as to remedies and one which also seeks specific relief or remedies. Accordingly in this case, the Court held that although clumsily worded, the wife invoked jurisdiction seeking orders with respect to property as her application was unashamedly seeking that there be a property settlement.
While the court in this case did determine that it was appropriate to alter the time for the filing of the application, it seems that the Court will carefully consider the facts of each case, and the potential for injustice to occur to either party. It is important to adhere as closely as possible to court-fixed time limits as only in special circumstances will the Courts allow a shortening or extension of time. This case also reinforces the broad scope of what the Court may consider a ‘matrimonial cause’ for the purposes of allowing an application. However legal advice should be sought when considering commencing legal action in court, particularly in cases where time limits are of concern.