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Latest Notable Cases samples

This is a sample (posted 18 February 2018) of "latest notable cases", which is posted monthly with live links for members at the Members' Home Page under Members' Practice News. Also available at our Members' Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members' Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

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Property – Wife’s application filed electronically after 4.30pm accepted as filed before husband’s death hours later (thus within court’s jurisdiction) notwithstanding FLR 24.05(2) which deems such a filing to have occurred on the following day thus after the husband’s death – Held that a rule of court cannot be an instrument of injustice

In Whooten & Frost (Deceased) [2017] FamCA 975 (29 November 2017) Cronin J considered the wife’s property application brought when she learned that the husband (from whom she had been separated for two years) had been placed on life support after a farming accident. Her application – for an order that she be excused from particularising her final orders until the husband had made full and frank disclosure – was electronically filed and sealed at 7.40 pm. The husband died at about 11 pm on that day.

The Court referred to Rule 24.05(2) of the Family Law Rules which provides that a document filed electronically “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” (which would have been after the husband’s death, thus beyond the court’s jurisdiction).

The Court added that the order sought by the wife did not seek a property adjustment, such as to call into question whether jurisdiction was invoked. The estate argued that the application was filed after the husband’s death, did not plead a cause of action and that the wife could not amend her application to plead a cause of action as that cause abated upon the husband’s death ([22).

Cronin J said (from [21]):

“Section 79(8) of the Act provides that where property proceedings have not been completed and a party dies, they may be continued subject to certain conditions that are not immediately relevant here. It is fundamental that prior to the death of a party, ‘property settlement proceedings’ have been ‘instituted’ so that they may be ‘continued’. (See such authorities as In the Marriage of Simms (1981) FLC 91-072 and Smith & Smith (No 3) (1986) FLC 91-732).

( … )

[44] The estate submitted that the application needed amendment to claim specific relief (or indeed relief at all) if it was to invoke jurisdiction. It was said that if something other than the relief sought was then pursued, it would mean a new cause of action was being raised. I reject that.

[45] Jurisdiction must be distinguished from power. The jurisdiction in this case is enlivened by a party filing an application seeking a matrimonial cause. Did the wife’s application seek that the court exercise its jurisdiction in relation to ‘proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them’? Clumsily though the words may have been expressed, I accept that the wife invoked the jurisdiction seeking orders with respect to property. Her initiating application refers to the ‘type’ of orders sought. The form describes those as ‘Financial (Property and/or Maintenance)’. She sought to be excused from pleading particularised relief until after disclosure. Combined with the reference in the form to the type of orders she sought, her proposed order was a request not to plead with particularity but her application was unashamedly seeking that there be a property settlement.

[46] The first question to be answered is whether the jurisdiction was invoked seeking orders that fit within the description of a matrimonial cause. Having regard to the matters above, I am satisfied that the nature of the wife’s application was an application seeking relief within the meaning of s 4(1)(ca) and that she thereby validly invoked jurisdiction.

Can the application be brought within time?

[47] The wife seeks an order under Rule 1.14 which permits a court to exercise discretion to shorten or extend time under the rules. It was submitted on behalf of the estate that the provision should not be applied because the rules cannot create a substantive right.

[48] Most applications for extension of time require the court to contemplate such things as the merits of the action and the reason for the delay. It is submitted on behalf of the estate that there is no prejudice to the wife here because she has causes of action at law under state legislation.

[49] The traditional view about the extension of time can be seen in the judgment of McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479. There, his Honour said:

‘The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.’

[50] McHugh J went on to say:

‘In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No. 2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v Scott (1986) 12 FCR 187, at pp 194-195.’

[51] The particular rule under consideration was designed for the 21st Century computer-driven system. Because it was undoubtedly anticipated that litigants could file documents whenever they had access to a computer, some semblance of order was needed. The doors of the registry were closed at the end of business hours but litigants would keep on working on their litigation. To some, there may be a perceived advantage in having their document ‘filed’ within the court system yet another party (and indeed judicial officers) might justifiably complain that documents were not reasonably received allowing for time for consideration. In addition, where time is of the essence, it must be important to set times for things to be done for the ordered control of the court’s business. But as McHugh J observed, those objects cannot become instruments of injustice.

[52] As his Honour observed, in order to determine whether the rule would work an injustice, it is necessary to have regard to ‘the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time’. … To deny the right to litigate would be an injustice. To suggest that she still had remedies at law through the state courts does not overcome the problem because the relief she could seek would most likely be very different based upon either the absence of being properly considered in a will or on the basis of some form of trust. Under the Act, the wife still has to establish that it would be just and equitable to make any order. On the basis of the matters set out in her affidavit, one might conclude that she would have the probability of establishing that.

( … )

[60] At 7.40pm on the night that the husband died the wife would have been unable to file her application personally because the doors of the registry were closed. She could have filed her application by facsimile transmission or email but there would have been no-one there to receive it. Whilst there will be cases where litigants have sat of their rights and prejudice to another party follows but that is not the situation here. There is no doubt that the wife wanted to activate the jurisdiction and her lawyers knew of the importance of filing before the husband died because of the statutory consequences. At 7.40pm on the day of the husband’s death the wife’s clear intention was to file her application to invoke jurisdiction because she was conscious of the potential for the husband to die.

[61] Chapter 24 of the rules cannot work an injustice created as the result of a technicality. Such a technicality would impede a just outcome.

[62] Rule 1.14 therefore permits the alteration of time here. Rule 1.09 also provides that if the court is satisfied that if a difficulty arises or a doubt exists in relation to a matter of practice or procedure, the court may make such order as it considers necessary.

[63] I find in the circumstances that the court should treat the wife’s application as having been filed at the time that it was received by the court electronically.”

NOTE –A further 6 cases are summarised for members this month at our Members’ Home Page under “latest notable cases” under the following headings:

Property – Mr Harrison (who slept in a bus in Ms Ward’s backyard) failed to establish a de facto relationship – Order for release to Ward of her money held in trust by Harrison’s solicitor was disobeyed – Full Court disagreed that the order, being consequential, was not within power – Section 106B also applied – Order made that Harrison and his solicitor repay Ward her money with interest and her indemnity costs – Case referred to Queensland Law Society and Legal Services Commission

Child support – Full Court reinstates decision of SSAT erroneously set aside by primary judge for procedural unfairness – SSAT had no obligation to provide procedural fairness to mother because a change of assessment in the father’s favour resulted in an overpayment to her

Property – Interim costs – Wife who alleged husband was worth $11 million unsuccessfully seeks order for her interim costs in sum of $412,000 but was granted a dollar for dollar order

Property – When heads of agreement signed at a mediation are binding is a question of fact in each case – Husband sought interest on his cash entitlement from date of mediation – Court found that the parties’ language and conduct did not evidence such an intention

Children – Father successfully applies under FCCR 16.05 for the setting aside of a parenting order made in his absence – While the order had prohibited any paternal time, reinstatement of the case required the children’s relationship with the father to be promoted

Property – Declaration that parties were not in a de facto relationship, despite their 13 year intermittent sexual relationship and two children together – Elias principle (which “has fallen into disfavour”) is unhelpful where respondent claimed child support on the basis that she was single, but also said that the parties were in a de facto relationship in domestic violence proceedings