Our Blog

Death no protection from property settlement


In the recent decision of Whooten & Frost (Deceased) [2017] FamCA 975, Justice Cronin explored the power of the Family Court to make orders following the death of a party to proceedings. The Wife (Whooten) and Husband (Frost) had married in 2003 and divorced 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 sought one order:

“That the Applicant Wife 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 day, shortly after at 11.00pm.


The circumstances raised two issues, namely:

  1. Is jurisdiction denied, and the Application deemed to be filed after the Husband’s death if it was filed at 7.40pm. If it had been physically filed it would not have been sealed until the following day as the filing occurred after the closure of the court’s business hours at 4.30pm, and
  2. As the Wife’s application made no clear reference to what relief she sought, is jurisdiction denied, as a new or amending application is unable to be filed after the Respondent’s death


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 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.

As such, the Court ordered that the Wife’s application had initiated proceedings and her filing had been received at 7.40pm. In turn, the court will now make orders following the Husband’s death in relation to the parties’ property settlement.


Return to blog