Bachus & Kadris
[2021] FedCFamC2F 316
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bachus & Kadris [2021] FedCFamC2F 316
File number: ADC 1093 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – application for leave to institute proceedings out of time for the alteration of property interests – whether the husband’s application lodged on 25 February 2021 was filed with the Court – whether the Registrar had authority to refuse to accept the application for filing – where the husband lodged the first application with the Court on 25 February 2021 – where the husband failed to pay the correct fee associated with the application pursuant to the Family Law (Fees) Regulations 2012 (Cth) – where the husband indicated that he did not wish to disclose his residential address but failed to omit his residential address from the application – where the Registrar advised the husband the application was refused for filing pursuant to rule 2.06 Federal Circuit Court Rules 2001 (Cth) – where the documents were voided and the file was finalised – where the husband filed a fresh application on 5 March 2021 which was one day outside the time limit to institute proceedings – where the Court is satisfied and declares the application lodged on 25 February 2021 was filed with the Court on 26 February 2021 – where the Court is satisfied the application was filed within the statutorily prescribed 12 month time limit to institute proceedings – where the Court is satisfied the application for leave to institute proceedings out of time is unnecessary. Legislation: Family Law Act 1975 (Cth) ss 44
Federal Circuit Court Act 1999 (Cth)
Family Law Rules 1984 (Cth)
Federal Circuit Court Rules 2001 (Cth) rr 2.05, 2.06, 2.07A, 2.07B, 4.01
Federal Magistrates Court Rules 2001 (Cth)
Family Law (Fees) Regulation 2012 (Cth) reg 2.09, sch 1Cases cited: Frost (decd) & Whooten (2018) 58 Fam LR 496
In the Marriage of R P and F K Gornalle (1992) 16 Fam LR 101
Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171
Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512
SZICV v Minister For Immigration & Citizenship [2007] FCAFC 39Division: Division 2 Family Law Number of paragraphs: 44 Date of hearing: 21 September 2021 Place: Darwin The Applicant: Appearing on his own behalf Solicitor for the Respondent: Mr Tinning of Boylan Lawyers ORDERS
ADC 1093 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BACHUS
Applicant
AND: MS KADRIS
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT DECLARES:
1.The husband’s application (numbered ADC914/2021) was filed on 26 February 2021 and instituted within the time provided for in s 44(3) of the Family Law Act 1975 (Cth).
THE COURT ORDERS THAT:
1.The husband’s application (numbered ADC914/2021) be reinstated and all voided documents associated with the application be marked as filed with the Court.
2.The file numbered ADC1093/2021 be finalised and all documents associated with that file be amalgamated into the husband’s application (numbered ADC914/2021).
3.The husband’s application for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings out of time is dismissed.
4.The matter is adjourned to 25 November 2021 at 9:30am before Judge Jenkins for further directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bachus & Kadris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG:
This is an application for leave to institute proceedings out of time for the alteration of property interests. The application arises out of somewhat unusual circumstances. The parties’ divorce became absolute on 4 March 2020. On 25 February 2021 the husband, who was self-represented, lodged an application for parenting and property orders in the Adelaide registry of the Court (“the first application”). That same day the husband was informed by email that his documents had been filed with the Court. On 1 March 2021, however, the husband was advised by email that his application had not been accepted for filing pursuant to r 2.06 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) because, first, it was not accompanied by the correct fee and, secondly, because the application indicated that the husband did not wish to disclose his residential address but the applicant had, in fact, disclosed his address on the filed documents. The registry officer said that he needed to file a new application dealing with the inconsistency and pay the correct fee. The husband said he did not see the email immediately and was not able to file the new application until 5 March 2021 (“the second application”), which is one day outside the time limit for instituting proceedings pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”).
The respondent’s response did not initially take the point that the applicant refiled his application late but she subsequently took the point.
The applicant argued that the application for the alteration of property interests was filed within the statutorily prescribed 12 month time limit pursuant to s 44(3) of the Act and therefore the jurisdiction of the Court was properly invoked. The applicant said that the date the proceedings should be taken to have been instituted is 25 February 2021, being the date the first application was lodged with the Court.
In this case there are two questions to be answered. The first question is whether the first application should be treated as instituting the proceedings for the alteration of property interests. If the first question is answered in the negative, the second question is whether leave should be granted to extend the time to institute proceedings for the alteration of property interests. If the first question is answered in the affirmative it is unnecessary to answer the second.
Relevant facts
On 25 February 2021 the husband electronically lodged with the Court, through the Commonwealth Courts Portal, the following documents:
(1)Application for Final Orders;
(2)Affidavit;
(3)Financial Statement; and
(4)Notice of Child Abuse, Family Violence or Risk.
Under “Part A: The orders sought” of the application, of the three possible options to select from:
(1)Children (parenting);
(2)Financial (property and/or maintenance); and
(3)Child support
the husband only selected “Financial (property and/or maintenance)”. He was, therefore, liable to pay a fee for filing an application for final orders in financial proceedings pursuant to Schedule 1 of the Family Law (Fees) Regulation 2012 (Cth) (“the Regulations”). However, on examination of the application it is apparent that the husband also sought orders relating to parenting matters including “FULL CUSTODY OF X AND Y” which appears in the application at order 6 of the final orders sought by the husband.
On 25 February 2021 the Commonwealth Courts Portal Team sent an email to the husband with the subject line:
Commonwealth Courts Portal – successful filing
Among other things, the body of the email said:
The following documents have been sealed where required by court rules, and are available for viewing by authorised parties:
Date filed Document title
25-Feb-2021 Notice of Child Abuse Family Violence or Risk
25-Feb-2021 Affidavit
25-Feb-2021 Application for Final Orders
25-Feb-2021 Financial Statement
The email said that the husband’s application was allocated the file number ADC914/2021.
Despite this, on 1 March 2021 the Commonwealth Courts Portal Team emailed the husband to advise him that the application and supporting documents were not accepted for filing pursuant to r 2.06 of the Rules and specified the reasons for doing so. The email said:
Dear Mr Bachus,
The Court acknowledges receipt of the application and documents referenced above [the documents referred to in paragraph 5], through the Commonwealth Courts Portal and advises the following:
We advise that pursuant to rule 2.06 of the Federal Circuit Court Rules 2001, that the application and documents have not been accepted for filing for the following reason:
· You have stated in your application that you are seeking both Financial and Parenting final Orders.
You will be required to complete a new application, and pay the fee applicable for both Parenting and Financial Final Orders.
· You have flagged that you do not wish to disclose your residential address, however, you have disclosed your address on all the documents referenced above, including the application for final Orders Coversheet.
You will be required to file a new application. If you do not wish your residential address or any other contact address to be disclosed, you must ensure that your address and/or other personal details are removed from any documents before uploading to the Portal.
Simultaneously, or thereabouts, with this email being sent to the husband, the registry officer voided the documents associated with ADC914/2021 and finalised the file.
The husband filed the second application on 5 March 2021 which was allocated the file number ADC1093/2021.
When are proceedings instituted?
Sub-s 44(1) of the Act outlines the process for invoking the jurisdiction of the Court in the following terms:
Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.
The applicable rules of the Court at the time the application was lodged were the Federal Circuit Court Rules 2001 (Cth). R 4.01(1) said:
Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the approved form.
Sub-s 44(3) of the Act specifies the time limit for instituting proceedings for the alteration of property interests:
Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c)in a case referred to in paragraph (a)—the date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b)—the date of the making of the decree.
The court may grant such leave at any time, even if the proceedings have already been instituted.
(Emphasis added)
The Act and the Rules make clear that proceedings are instituted by application. Proceedings are instituted and the jurisdiction of the Court is invoked on an application being filed with the Court within the prescribed 12 month time limit.
Was the husband’s first application filed with the Court?
To determine whether the application lodged on 25 February 2021 was filed with the Court within the 12 month time limit it is necessary to consider the meaning of “file” or “filing” as used in the Rules. Neither the Rules nor the Federal Circuit Court Act 1999 (Cth) define “file” or “filing”. R 2.05 of the Rules does, however, describe how a document may be filed and when a document is considered to have been filed. It says as follows:
2.05How documents may be filed
(1) A document may be filed by:
(a) delivering it to the registry; or
(b) sending it to the registry by post; or
(c) fax or electronic communication, as permitted by this Division.
Note:The Federal Court and Federal Circuit Court Regulation 2012 and the Family Law (Fees) Regulation 2012 provide that a document may not be filed in a registry of the Court unless the fee payable for the filing has been paid. Both regulations also provide for an exemption or deferral of a fee, or payment of the fee on invoice, in certain circumstances.
…
(2)A document is filed when it is accepted for filing by a Registrar and sealed with the seal of the Court or marked with a Court stamp, as required by Division 2.4.
(3)However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a)if the whole document is received by 4.30 pm on a day the Registry is open for business—on that day; and
(b) in any other case—on the next day the Registry is open for business.
The Full Court of the Federal Court in Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512 (“Purden”) at p. 515 describe the word “filing” as a word “traditionally used to describe the act or process of placing documents in the records of courts or registries”. Courts, across jurisdictions, have been careful to draw a distinction between the act of lodging a document, which is an act of a party, and the act of filing a document, which is an act of the Court (see e.g. Frost (decd) & Whooten (2018) 58 Fam LR 496 (“Frost & Whooten”) at [51]; In theMarriage of R P and F K Gornalle (1992) 16 Fam LR 101 (“Gornalle”) at p. 106; Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 at [16]; Purden at p. 515). This is consistent with r 2.05 of the Rules which distinguishes between the act of a party in lodging a document with the Court at sub-r (1) and the act of the Court in filing the document at sub-r (2).
Act of a party
In this case, the husband did an act of a party in lodging the documents electronically (by the Commonwealth Courts Portal) pursuant to sub-r 2.05(1) of the Rules.
However, the husband failed to pay the correct fee for the application which, pursuant to the Regulations, is an act of a party that must be done prior to the filing of the documents. It is likely that this error arose from the husband’s failure to mark the “Children (parenting)” box under “Part A: The orders sought” of the application despite seeking parenting orders as well as financial orders. Consequently, the husband only paid the fee required for an application for financial final orders rather than the higher fee required for an application for financial and parenting final orders.
As the note below sub-r 2.05(1) says, a document may not be filed unless the correct fee has been paid. Reg 2.09 of the Regulations also requires payment of a filing fee before a document is filed:
2.09 When fee must be paid
Filing fee
(1) A filing fee for a document must be paid before the document is filed.
On the face of it, the husband’s failure to pay the correct fee meant the application was unable to be filed. Notwithstanding this, the Court performed the acts described in sub-r 2.05(2) that are consistent with the document being treated as filed.
Acts of the Court
The first application was sealed with the seal of the Court as required by sub-r 2.05(2). However, it is less clear whether the application was accepted for filing by the Registrar.
In Butler J’s decision in Gornalle the facts are somewhat similar to this matter. In that case, the husband lodged an application for the alteration of property interests with the Registry of the Family Court of Australia on 21 July 1989, being the last day for filing pursuant to the 12 month time limit to institute proceedings under s 44(3) of the Act (as it existed then). The husband, at that date, did not, however, accompany the application with a supporting affidavit, as was required by the Family Law Rules 1984 (Cth). The registry officer accepted the application subject to the husband’s solicitor providing an oral undertaking that the supporting affidavit would be filed. The husband’s solicitor did not file the supporting affidavit until 30 August 1989. The Court was required to consider whether the filing of the application fell within the 12 month time limit and subsequently instituted proceedings, invoking the jurisdiction of the Court.
The cover sheet, page 1, and page 5 of the application displayed the filing date of 21 July 1989, however, page 2 displayed the filing date of 1 September 1989 (a day after the supporting affidavit was filed). It was observed that the file numbers on either side of the relevant file number allocated to the husband’s application were for files opened on 1 September 1989. In Butler J’s view this required a finding that the file was opened on 1 September 1989.
Butler J, in finding that the application was not filed within the time required by s 44(3) of the Act, concluded at p. 107 (in a passage which was cited with approval by the Full Court of the Family Court in Frost & Whooten at [57]):
However in this case the Registrar did not open a file, and did not date the body of the document as filed on 21 July 1989, for very good reason that the necessary affidavit in support was lacking….the Registrar was under a duty or obligation not to file an application until the affidavit in support had been lodged. Indeed, the Rule [Order 7, Rule 9(4)] forebade him from doing so. Accordingly, the lodgement was accepted, but no act of filing was carried out. The delivery of the application to the Registry, without the affidavit in support, could not invoke the jurisdiction of the Court.
In this case, unlike in Gornalle, the file numbered ADC914/2021 was opened on 25 February 2021. If we look at the files either side of this, as was done in Gornalle, we see that the two files - ADC913/2021 and ADC915/2021 – were opened on 25 February 2021 and 26 February 2021, respectively. The body of the application was dated as having been filed on 25 February 2021 and a seal of the Court was affixed to each document with a sealing date of 25 February 2021. These matters have been found by courts in other jurisdictions to sufficiently demonstrate that the document has been filed (see e.g. Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 at [16] and SZICV v Minister For Immigration & Citizenship [2007] FCAFC 39 at [1], noting that the Federal Magistrates Court Rules 2001 (Cth) were the applicable rules in that matter).
In my view, the actions which occurred after the husband initially lodged the application, are distinct acts of the Court. These actions meant the first application bore all the characteristics of a document which has been accepted for filing and filed with the Court on 26 February 2021 (taking into account sub-r 2.05(3) of the Rules as the documents were accepted for filing at 9:51pm on 25 February 2021).
Did the Registrar have the authority to refuse to accept the documents for filing?
A complicating factor in this matter that seemingly contradicts a finding that the documents were accepted for filing is that on 1 March 2021, as stated above, a registry officer wrote to the husband indicating that the Registrar had refused to accept the documents for filing pursuant to r 2.06 of the Rules for the following two reasons:
(1)The husband had failed to accompany the application with the fee required for an application concerning both financial and parenting orders; and
(2)The application indicated that the husband did not wish to disclose his residential address but the applicant had, in fact, disclosed his address on all the documents.
R 2.06 of the Rules gives the Registrar authority to refuse to accept a document for filing if:
(a)the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or
(b)the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or
(c)the rules relating to the electronic filing of documents have not been complied with.
A basis for the Registrar refusing to accept the documents for filing does not appear to be found in r 2.06. Neither the failure to pay the correct fee nor the failure to exclude the address from the application, nor any other factual circumstances of this case, could give rise to a basis on which the Registrar could conclude the documents were an abuse of process or were frivolous, scandalous or vexatious pursuant to sub-r 2.06(a). Sub-r 2.06(b) is not relevant. The rules relating to electronic filing referred to in sub-r 2.06(c) can be found at rr 2.07A and 2.07B. These concern the form of documents and other technical matters and there is nothing to suggest either of those rules were not complied with. In my view, the advice provided by the Registrar was erroneous because none of the circumstances that gave the Registrar the authority to exercise the power pursuant to r 2.06 were present.
Conclusion about the first application
The husband lodged the application with the Court on 25 February 2021 but failed to pay the correct fee associated with his application for financial and parenting final orders which, pursuant to the Regulations, should occur prior to a document being filed. However, after these acts, the Court took the necessary steps to allow the application to bear the characteristics of a document which had been filed with the Court. These steps taken by the Court may have been undertaken in error, considering the language of the Regulations which requires the correct fees to be paid prior to the documents being filed. Notwithstanding, steps were taken by the Court which, in my view, merit a conclusion that the documents were filed with the Court.
As I have said, the Registrar had no express authority under the Rules to refuse to accept the documents for filing. It is for these reasons that I conclude that the husband’s application was filed with the Court on 26 February 2021 and therefore within the prescribed 12 month time limit pursuant to s 44(3) of the Act. In the circumstances, the file numbered ADC1093/2021 should be finalised and all documents associated with that file should be amalgamated into the husband’s first application (ADC914/2021). I will make an order accordingly.
Application for the extension of time
As I have found the application was filed within time, it is not necessary to consider the application for extension of time. However, I heard submissions from the parties and, in the event that I am wrong about the filing issues, I would have refused the application for extension of time for the following reasons.
The parties began living together in 2009 and were married in 2016. They separated in about October 2018 and a divorce was obtained on the wife's application which took effect on 4 March 2020. The husband claimed that he did not find out about the divorce until July 2020. However, the husband admitted he was served with the divorce application and presumably was aware that the matter was progressing through the court. It is not necessary to pursue that issue.
It appears the parties had little in the way of assets when their relationship began. The husband was declared bankrupt in 2010 and was discharged in 2015. The husband said the bankruptcy was a result of him being overwhelmed by small debts over a period. He said he was not required to make any payments to the trustee during his bankruptcy.
At some point during the marriage the parties received a Centrelink benefit to which they were not entitled. Apparently Centrelink ascribed individual amounts to each party which it sought to recover. The husband said he had repaid about $17,000 to Centrelink since separation and about $4,000 was outstanding. The wife said she still owes Centrelink $23,055 in respect of this debt. The wife said that her total indebtedness is $25,955.
The husband deposed that his debts currently were $32,000 including a Bank SA personal loan of $19,500. The balance of his indebtedness was primarily related to credit card debt.
The wife is not currently employed and has the care primary care of the parties’ two children who are aged 11 and eight years. She has re-partnered and has a 2 year old child from her present relationship.
The husband is employed as a labourer and transport worker. His financial statement filed on 5 March 2021 said that his weekly income was $1,100. He said he has a superannuation accumulation account with a balance of $50,000.
The parties both reside in rental properties.
The husband asserted that the wife gambled heavily during the relationship although he said he himself at gambled but to a much lesser extent. The husband claimed in an affidavit that the wife had lost about $147,000 from gambling during the relationship. He provided some evidence to support this claim, such as repeated small withdrawals on a single day from a Queensland RSL club. I accept there is some independent evidence to support the husband's claim. Further, the wife said in her affidavit of 20 April 2021 that "I did gamble fairly large sums, but have overcome playing poker machines". In the same affidavit the wife claimed that her grandmother "would replace any losses".
The father's affidavit filed on 17 May 2021 contains a reasonably detailed breakdown of the mother's gambling and the amounts received from her grandmother. According to him the amount received by the wife from her grandmother was $98,563, leaving a difference between the amount lost by the wife and the amounts given to the wife by her grandmother of $49,319. During the hearing the husband tendered some bank statements and the like along with a handwritten piece of paper claiming that the wife had lost about $304,000. It was not apparent how this sum was calculated or whether it was intended to supersede the calculation in his affidavit.
I am prepared to accept there is evidence that the wife's gambling constituted waste of matrimonial assets to a significant degree. Once offset by her grandmother's cash contributions the net loss is significantly smaller. The husband's application sought a payment to him of $42,000. He said in his affidavit that he expected the wife would receive an inheritance of approximately $200,000. In fact, the evidence shows that the wife received an inheritance of about $69,000 from her grandmother and, in addition, an additional sum of $69,000 was placed in trust for the parties’ children's education and advancement. Although her counsel asserted from the bar table that little was left of the wife’s bequest the wife's affidavit was vague about how the $69,000 bequest to her had been spent.
The husband said that the wife withdrew amounts from her superannuation under hardship provisions during the marriage. The evidence was that she had little more than $100 in a superannuation account.
I am prepared to accept that the husband's financial burden, particularly responsibility for a joint debt of $19,500, has been made heavier because of the wife's waste. However, it appears to me that if a "compensatory" payment was made to the husband of, say, $25,000, representing half the difference between the wife’s gambling losses of $147,000 and her grandmother’s gifts or payments to her of $98,000, then the wife could equally argue that there ought to be a similar compensation to her from the husband's superannuation fund. All in all, I am not satisfied that the outcome of any property proceedings would be likely to see any real change in the parties’ positions. The wife does not appear to have any funds easily accessible to pay the husband any amount, although there may be some residue of her inheritance. In other words, the balance of benefit and hardship is about equal. For these reasons, I am not satisfied that hardship would be caused to the husband if leave were not granted to proceed out of time.
I certify that the preceding forty-four (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 4 November 2021
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