Case note – Frost (Deceased) & Whooten (2018)

The Facts

The Husband had an accident and suffered significant injuries. The Husband died at 11pm the following day. At 7.40pm on the date of the Husband’s death, but before the Husband’s died, the Wife uploaded onto the Courts online portal an application for a property settlement against the Husband.

It is well established that the Family Courts cannot hear a matter if one party has died before the Application was filed [Fisher v Fisher (1986) 161 CLR 438 at 457]. The Husband’s executors argued the Court was not able to make Orders as the application was filed after the Husband’s death. The Family Court Rules state any documents uploaded to the Courts online portal after 4.30pm is deemed to be filed the next day.

The Wife argued her application had been received and filed by the Court the day of the Husband’s death, and because of this the proceedings had been commenced by the Wife before the Husband died.

The Law

The Court held that uploading a document to the Courts online portal did not mean the document was filed. The Court stated: -

 it does not automatically follow that a document is filed at the same time it is presented or received.

If parties to a family law matter have been asked to “file” a document, it is important for them to remember that uploading documents onto the Courts online portal, or delivering them to the Registry, is not the same as “filing” the documents.

Parties must take note of the Court rules and, if unsure, seek legal advice.

Please note: the information in this article is general in nature. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.