When has a document been filed in Court?

Both the husband and wife, or in the case of defacto couples, the partners, must be living at the time an application is filed for property settlement. If one or both are not living at the time of application then the Family Law Courts have no jurisdiction to hear and determine the case. However, if one or both dies after an application has been filed then the proceedings can continue.
But in the age of cyberspace, how does the Court determine when an application has been filed? Is it when the application is electronically uploaded to the Court portal? Or is it when the Court staff process the application, often the next business day?


This issue became crucial in the recent case of Frost (Deceased) & Whooten [2018] Fam CAFC 177 dated 17 September 2018. In that case the husband died in the period of time between the wife's solicitors uploading the application for property settlement to the Court portal, and the Court staff processing the application the next day.


The husband and wife were separated, but not divorced. The husband suffered a serious injury and died in hospital at 11.00pm. At 7.39pm on the day of the husband's death, the wife's solicitor had electronically uploaded to the Court portal the wife's application for property settlement. Under the rules of Court it was taken to have been received at the filing registry the next day at start of business, by which time the husband had died.


The legal personal representatives of the estate of the late husband claimed that the Family Court of Australia had no jurisdiction to hear the matter and the wife's application for property settlement should be dismissed, as it was filed after the husband had died.


The Justices of the Full Court of the Family Court of Australia on appeal agreed with the legal personal representatives of the late husband's estate and dismissed the wife's application for property settlement for want of jurisdiction.


Here's what they said;


'It is axiomatic that a court can only act if it has jurisdiction to do so.'


'It does not automatically follow that a document is filed at the same time it is presented or received (by the Court). The acts of lodgement and filing are not necessarily contemporaneous.'

The Court staff are empowered to reject documents filed by a party and decline to file the document.
So the wife's claim for property settlement died with the husband. At the time of his death the wife owned assets valued at less than $450,000 and the husband's estate had a net value in excess of $5 million.


It would be very interesting to know what the late husband's will said. But that's another question!

"The acts of lodgement and filing are not necessarily contemporaneous"

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Jane Ekin-Smyth

Jane Ekin-Smyth

Consultant
Stephen White

Stephen White

Partner