In the recent case of Whooten & Frost (Deceased) [2017] FamCA 975 (29 November 2017) , Justice Cronin explored the power of the Family Court to make orders following the death of a party to proceedings. The Wife (Wooten) and the Husband (Frost) had married in 2003 and separated in June 2015. Between the time of their divorce and November 2016, they attempted to reach an agreement over the division of their property and the Wife’s claim for spousal maintenance, outside of the courts. The Wife eventually filed an Application that was vague as to the parameters of the dispute and her desired relief.

In 2016, the Husband was in a serious accident and was left on ventilation in a critical condition. At this point with no order in place, the Wife electronically filed an application that that she be excused from particularising her final orders sought until the Respondent Husband has made full and frank disclosure in this matter.
The Application was filed and “electronically sealed” by the court’s computer system at 7.40pm. The Husband died on the same night, shortly after at 11.00pm. The Court rules require that if a court document is filed electronically after 4:30pm, it is taken to be filed on the next day. By then, of course, the husband would have been dead and her application could not have proceeded.

Wife’s Submission

The Wife’s lawyers asked for permission for the court to extend time under the Rules, which the court can do in certain circumstances. Ordinarily the court would look at the merits of the case and the reasons for the delay but the general approach is that Rules that fix time for doing things do not become instruments for injustice.

The Estate’s Submission

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.

Court Analysis

The general rule under section79(8) of the Family Law Act is that if the Wife had filed her court application before the death of her husband, then she could continue the case after his death and against his estate.

The Court considered that the timing of the Wife’s filing was not attempting to prejudice the Respondent but instead was reacting to circumstances that were unforeseeable. The Wife wanted to activate the jurisdiction before the Husband died and it was therefore necessary for her to file outside of court hours.

The Court found that “Chapter 24 of the Family Law Rules cannot work an injustice created as the result of a technicality. Such a technicality would impede a just outcome”. Rule 1.14 permitted the alteration of time and Rule 1.09 provided the court with the power to make any order it deemed necessary to overcome the doubt that had arisen regarding the procedure and practice of time associated with electronic filing.

In the circumstances the Court accepted the time of the application to be filed as when it was received by the court electronically at 7.40pm and not the next day. The Court found it necessary to use their discretion in the circumstances so that rules which fix times for doing acts do not become “instruments of injustice”.

The second issue raised the question of whether an Application had been commenced that purported to invoke jurisdiction, as no orders were sought. The Court found the Wife had filed an Initiating Application of matrimonial cause and therefore the whole issue of property was to be determined within this application. The proceedings were “proceedings with respect to the property of the parties” and this combined with the request to not plead with particularity, provided enough clarity to the Court to invoke the Court’s jurisdiction.


The Court ordered that the Wife’s application had initiated proceedings and her filing had been received at 7.40pm.

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