Randall & Fadden
[2024] FedCFamC2F 400
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Randall & Fadden [2024] FedCFamC2F 400
File number(s): ADC 2272 of 2023 Judgment of: JUDGE MCGINN Date of judgment: 28 March 2024 Catchwords: FAMILY LAW – EXTENSION OF TIME – property settlement application – original filing within time – acknowledgement within time from court portal confirming filing– then subsequent notice from “Family Law e-Filing” of no acceptance for filing following expiration of standard application period on account of application not having not set out property orders – oversight by lawyers – out of time 9 days – delay short and satisfactorily explained – applicant’s case arguable case present – hardship present - lack of prejudice to the respondent – leave granted Legislation: Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia 2021 (Cth)
Cases cited: Arcand & Boen (2021) FLC 94-046
Edmunds & Edmunds (2018) FLC 93-847
In the Marriage of Frost and Nicholson (1981) FLC 91-051
Whitford & Whitford (1979) FLC 90-612
Division: Division 2 Family Law Number of paragraphs: 79 Date of hearing: 25 March 2024 Place: Adelaide Counsel for the Applicant: Ms Dichiera Solicitor for the Applicant: Legal Services Commission of South Australia Respondent: Self represented ORDERS
ADC 2272 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RANDALL
Applicant
AND: MR FADDEN
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
28 MARCH 2024
IT IS ORDERED
1.That pursuant to section 44(6) of the Family Law Act 1975 that leave for an extension of time to 24 May 2023 be granted to the applicant to have issued proceedings for property settlement pursuant to Part VIIIAB of the Family Law Act 1975 (Cth).
2.That pursuant to the leave granted in Order 1 that the Initiating Application filed 24 May 2023 be deemed to have been properly filed for the purposes of instituting the applicant’s application for property settlement.
3.That the parties and their legal representatives (if any) attend before Judge McGinn for the purposes of further directions and/or trial directions on 8 April 2023 at 9:30 am.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN:
Before the Court on 25 March 2024 was the applicant de facto wife’s application by way of her Amended Initiating application sealed 14 August 2023 by way of an interim order seeking. At paragraph 5, an order that leave be granted for that application to be received and heard “out of time” pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”).
That application was opposed by the respondent de facto husband.
For the reasons stated below, the date for filing within the standard application period was 15 May 2023. The application was acknowledged by the Court to the applicant as filed on 5 May 2023. The Court subsequently advised on 19 May 2023 at 4:12 pm that the application had been, despite the earlier correspondence to the contrary, “not accepted” for filing.
For the purposes of consideration of this application each party was directed to file written submissions.
For the purposes of her submissions the applicant relied upon her Initiating Application filed 24 May 2023, Financial Summary filed 24 May 2023, Amended Initiating Application filed 14 August 2023, affidavit of the applicant filed 14 August 2023, affidavit of the applicant’s solicitor filed 14 August 2023 and the respondent’s Response to Initiating Application filed 26 September 2023.
The respondent by his case outline and his submissions to the Court of 25 March 2024 also relied on those documents identified in the applicant’s written submissions. Apart from those documents and the respondent’s Response and his written submission no other material was relied upon by him.
By reference to those documents, it is evident that each of the parties relied upon the following chronology of factual matters which I find are relevant:
(a)the applicant had signed an Initiating Application on 30 January 2023. That Initiating Application identified that the parties finally separated on 13 May 2021 and that their de facto relationship had commenced in 2008 producing two children born in 2009 and 2014 respectively;
(b)between 6 February 2023 and 28 April 2023 there was correspondence exchanged between the parties with respect to participation in a Family Dispute Resolution Conference with respect to the question of property settlement disclosure. Despite that correspondence nothing was resolved between the parties with respect to the question of property settlement;
(c)amongst that correspondence was a letter from the applicant’s solicitors to the respondent of the 6 February 2023 confirming that instructions were held to issue proceedings in the Federal Circuit and Family Court of Australia with respect to the question of property settlement;
(d)on 13 February 2023 the father wrote back saying that he was open to a fair and equitable negotiated outcome and that he was willing to negotiate in good faith;
(e)on 23 February 2023 the applicant’s solicitor sought some disclosure by 9 March 2023 and acknowledged that their client would also need to provide “financial discovery”;
(f)on 28 February 2023 the respondent wrote to the applicant’s lawyers advising that he needed to seek further legal advice and that he was meeting with his solicitor. The respondent also enquired, amongst other things, whether the applicant would provide her application to the Court if she felt or thought that the respondent had not provided sufficient disclosure;
(g)on 7 March 2023 the applicant’s solicitor enclosed documents by way of “financial discovery” and indicating they were awaiting receipt of the respondent’s “financial disclosure”;
(h)on 10 March 2023 the respondent said that because there was no reply or assistance from the applicant’s solicitor he was not then willing to enter into mediation with the wife’s solicitor as the mediator but he was prepared to otherwise attend mediation with a third party in seeking a reply by 13 March 2023;
(i)on 17 March 2023 the applicant’s solicitor responded to the respondent’s correspondence explaining where a Family Dispute Resolution Conference would take place and who would chair the conference. The letter also sought the respondent’s response by 24 March 2023 as to his willingness to participate in the Conference;
(j)the respondent responded on Thursday 23 March 2023 commenting at length about matters of disclosure and the nature of the Family Dispute Resolution Conference and seeking a response by 30 March 2023;
(k)on 30 March 2023 the applicant’s legal representatives responded to the respondent again dealing with the issue of financial disclosure and suggesting a private mediator instead of that provided through the Family Dispute Resolution Conference procedure by the Legal Services Commission of South Australia. Further details as to the availability of alternative mediators was sent on 31 March 2023 and 4 April 2023;
(l)on 11 April 2023 the respondent wrote to the applicant’s legal representatives saying that he understood that the applicant is not willing to attend mediation with a particular organisation because he understood that the applicant would not be allowed to have legal representation. He also raised matters in regards to a “heads of agreement” in relation to children’s matters;
(m)the applicant provided instructions to her solicitors to issue proceedings on 26 April 2023;
(n)on 28 April 2023 the applicant’s solicitor wrote to the respondent about the lack of agreement about mediator and pointing out that they were conscious of the limitation date for the filing of material in the Court and that instructions were held to file the property settlement application in that it was anticipated the application be filed in early May 2023;
(o)the applicant’s Initiating Application and Financial Statement were first “filed” Friday, 5 May 2023 at 3:06pm. The use of the word “filed” on behalf of the applicant in her affidavit is not, for the reasons that appear below, apt as there is a distinction between lodging documents for filing and the filing of them;
(p)the email received from the Court at the time of that lodgement said, in part, as follows:
“Thank you for filing the Initiating Application via the Commonwealth Courts Portal.
The following documents have been sealed where required by court rules, and are available for viewing by authorised parties:
[Then under the heading “Date filed” there appears the date 5 May 2023 in respect of an Affidavit, Financial Statement, Genuine Steps Certificate, Application for Final Orders and for an Application in a Proceeding.]
Forms filed for fee exemptions are not included in this email.
Your file number is […] and this file will appear in your “Available Files” list in the Commonwealth Courts Portal. Select the star icon next to the file number to trace activity on that file.
After opening the file, you can choose to be notified by email when any activity occurs on your application by clicking the opt into activity link.
…
(q)the documents lodged on Friday, 5 May 2023 were not ultimately accepted by the Court as an “incorrect order sought was uploaded in relation to children’s matters instead of property settlement matters”[1] causing the Courts Portal to reject the Initiating Application;
(r)this rejection of acceptance by the Court Portal was advised to the applicant’s solicitors on Friday, 19 May 2023 by email from “[email protected].” This email identified the Application for Final Orders and Financial Statement as having been “lodged” on 5 May 2023. That email went on to say:
I advise that the application has not been accepted for filing as you have not set out property orders. You have attached a copy of the Heads of Agreement in relation to Children. The Application has been removed from the Court records and you will need to start the application process again.
(s)the attachment of the copy of the Heads of Agreement was an error that occurred in the applicant’s solicitor’s office as a result of an incorrect annexture being uploaded to the Initiating Application;
(t)the appropriate Initiating Application and other documents were “refiled” on 24 May 2023;
(u)that filing was said to be “out of time” by a period of “some 12 days”;
(v)an Amended Application was filed by the applicant on 14 August 2023;
(w)the respondent filed a Response to the Initiating Application on 3 October 2023. That Response agreed to final orders being made with the superannuation assets of the parties being divided equally between the parties and that each party do bear their own costs of the proceedings. Further, that Response sought an order by way of settlement of property that the assets bought during the relationship be divided equally to the respondent and the applicant. At the same time by that Response the respondent sought that applications for interlocutory orders sought by the applicant including the extension of time be “rejected and not accepted”.
[1] Applicant’s Affidavit sealed 14 August 2023, [15].
In the course of his submissions, the respondent indicated to the Court that he had received advice in respect of his filing of his Response.
THE APPLICANT’S SUBMISSIONS
The applicant’s submission was leave should be granted pursuant to s 44(6)(a) on the grounds of hardship and that the discretion to grant such leave should be exercised because:
(a)the applicant had a reasonable prima facie case;
(b)the delay comprised 12 days and that there was a reasonable explanation for that delay; and
(c)there was no prejudice to the respondent in the application being filed late.
THE RESPONDENT’S SUBMISSIONS
The respondent’s submission is that the applicant now finds herself out of time on account of her legal representatives’ negligence constituted by:
(a)“submission of a fundamentally incorrect application”[2];
(b)delay of five days in addressing that error; and
(c)further amending the Application filed on 24 May 2023 on 14 August 2023.
[2] Respondent’s Written Submissions sealed 22 March 2024, page 1.
Further the respondent submitted:
(a)that the applicant did not suffer “undue hardship”;
(b)the respondent would be prejudiced by an extension of time;
(c)The delay in filing the application was 3 months and not 12 days (as claimed by the applicant).
THE STANDARD APPLICATION PERIOD IN THIS CASE
The parties’ de facto relationship finally broke down and final separation occurred on 13 May 2021. There were periods of separation during that same relationship and prior to the final separation of the parties.
The Act provides that a party to a de facto relationship can make application for property settlement in a court exercising jurisdiction under that Act provided that, amongst other things, that such application is made within a standard application period of 2 years after the end of the de facto relationship.[3]
[3] Family Law Act 1975 (Cth), s 44(5)(a)(i).
By application of s 36 of the Acts Interpretation Act 1901 (Cth) and, in particular subsection (2) of that section, the last day for filing of the application was Monday, 15 May 2023.
The subsequent filing of the application on 24 May 2023 was therefore 9 days outside of the standard application period.
There is no dispute that the other matters required to found the Court’s jurisdiction are present. Putting questions of the standard application period to one side, the Court otherwise has jurisdiction to entertain the present property settlement applications of each of the parties.
LEGAL PRINCIPLES
The applicant has sought an extension of time pursuant to section 44(6)(a) of the Act.
That subsection provides:
The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted…
In respect of an application for leave under section 44(6) two broad questions arise for determination.[4]
[4] Whitford & Whitford (1979) FLC 90-612.
The first is whether hardship would be caused to the applicant if leave were not granted. If the Court is not satisfied that hardship would be caused to the applicant that is the end of the matter.
If hardship does exist then the second question is whether the Court, as an exercise of its discretion, should grant or refuse leave to institute the proceedings.
The concept of “hardship” does not necessarily entail financial necessity or need. The loss of a prospective entitlement to a property settlement by way of a receipt of a division of property or payment or adjustment or the resolution of property and/financial relations can constitute the required hardship.[5]
[5] Whitford & Whitford (1979) FLC 90-612; In the Marriage ofFrost and Nicholson (1981) FLC 91-051.
The mere loss of the right to institute proceedings is not “hardship” in the required sense.[6] The applicant must demonstrate that she has a prima facie claim worth pursuing or what has been termed as a “real” probability of success in the sense of being reasonable or arguable.[7]
[6] Arcand & Boen (2021) FLC 94-046.
[7] Edmunds & Edmunds (2018) FLC 93-847; Arcand & Boen (2021) FLC 94-046.
That assessment of the applicant’s prospective claim is made summarily without a detailed hearing on the merits.[8]
[8] Arcand & Boen (2021) FLC 94-046.
HARDSHIP
In determining whether there is hardship the Court has regard to the documents relied upon by each the parties.
This matter is case managed as part of the “Priority Property Pools under $500,000” list.
The Initiating Application discloses that the parties cohabited between mid-2008 and mid‑2021. The applicant’s affidavit and the subsequent Response to Initiating Application indicates that there were separations during that period and on the respondent’s case for a total of about 2 years.
There are 2 children of their relationship aged 14 years and 9 years.
The Financial Summary filed on 24 May 2023 by the wife discloses that the property pool is largely unknown and exceptionally modest. The identified assets constitute no more than $34,400 in the name of the applicant. However, there are a large number of items of property which are marked as “unknown” and in the respondent’s possession.
The applicant gives evidence that the respondent invested in a financial resource in his name and believed it might be worth approximately $190,000.
The applicant also gives evidence that the husband received a compensation payment following separation arising from his service in the armed forces and a medical condition.
The applicant did not hold any significant assets or liabilities at the commencement of the relationship. At that time the position of the respondent was on the applicant’s understanding to own a motor vehicle and be responsible for some credit card liability. Each of the parties worked during the course of the relationship with the applicant being the primary carer for the parties’ children and the primary homemaker.
In about 2017 the respondent received a compensation payment in respect of a workplace issue of around $170,000 which funds were used to purchase motor vehicles and to pay for a family trip.
The parties did not acquire any real property during the course the relationship and were living in rental accommodation.
As referred to above, the applicant understood that the respondent invested in a financial resource during the relationship.
Motor vehicles and household items were also purchased.
At separation the wife retained a motor vehicle which she believes to be worth about $15,400 and the parties equally divided joint savings of $6000. Following separation wife attended to the payment of the Centrelink liability of about $5000 sustained during the course the relationship.
Currently the children live with the applicant and spend 5 nights a fortnight with their father (the respondent) pursuant to the heads of agreement of early 2022.
The applicant presently works on a casual basis earning about $80,000 per annum. In addition, she receives Centrelink income family tax benefits of a proximally $10,000 per annum. No child support is paid as she has an exemption from applying for child support payments. The respondent provides what the applicant describes as minimal and sporadic financial assistance for the children’s school fees, medical expenses and extracurricular fees.
The respondent is in receipt of B Authority payments approximately $50,000 per annum and has established his own business having recently (as at mid-2023) left his school of further education.
The applicant understands that the respondent has a diagnosis of Post Traumatic Stress Disorder.
As a result of enquiries in late 2023 the respondent is understood to have superannuation of approximately $186,214 with Super Fund 1 and $10,145 with Super Fund 2 and the applicant has superannuation of about $31,900.
The applicant says she lives week to week, has re-partnered but does not live with her new partner and is not financially dependent upon that partner.
There are a number of assertions in the respondent’s submissions as to the financial circumstances of the parties being somewhat different. However, as there is no affidavit evidence other than that of the applicant before the Court I consider that for the purposes of the present application the description of the financial circumstances of the parties, the history of the contributions and the so called “future needs” factors of the parties as are set out above.
The evidence of the applicant by her affidavit and financial summary is that disclosure is still outstanding on behalf of the respondent.
The Amended Initiating Application of the applicant for final orders for property settlement is for the superannuation of the parties to be equally divided between them (about which there is no dispute according to the terms of the respondent’s Response to Initiating Application) and that there should be a division of the net asset pool between the parties as to 65% to the applicant and the balance to the respondent (with which the respondent does join issue saying it should be an equal division).
In all the circumstances I consider that the applicant has disclosed a prima facie case that there should be a property settlement and that there exists a real possibility that there will be an order for property settlement.
I consider in the circumstances that the applicant will suffer hardship should she not be granted leave to proceed with her application.
I reject the submission that the applicant has not suffered or will not suffer hardship if leave is not granted for her application to be filed.
I am not satisfied that any prejudice which the respondent might suffer would cause me to decline to exercise my discretion to grant the extension of time sought by the applicant.
The amendment on 14 August 2023 of the applicant’s Initiating Application filed 24 May 2023 is a matter of little or no moment in determining the present application. The applicant is entitled subject to the rules and directions of the Court to amend her application.
I reject the respondent’s submission that the delay in filing the application was 3 months.
With respect to the other matters which might affect the exercise of discretion I note that the delay in this matter is a matter of a few days and has not been caused by the applicant herself. Secondly, I also note that the placement of the application outside of time was caused not by any inaction on behalf of the wife’s legal representatives but rather by an action of the Court in initially accepting and filing documents and then subsequently advising that that filing had to be recommenced.
I am satisfied that the respondent was on notice of the claim and that any delay in the filing of the application does not prejudice his position especially in circumstances where by his Response to Initiating Application he himself seeks orders for property settlement.
Further, I note that it has been the position of the parties for many months at least that they have each been seeking to adjust their respective financial position by way of a property settlement. I also note that the parties have been seeking to undertake dispute resolution and/or mediation and failed to arrive at an agreement as to who the mediator might be but have still been conducting themselves as though there was a need for their financial relationship to be finalised.
The respondent, although he has had the benefit of at least some legal advice, has otherwise acted on his own behalf and has not sustained any legal expenses of which there is any evidence.
I am not satisfied on the material relied upon by the parties and in light of their respective submissions that the applicant finds herself out of time on account of her legal representatives’ negligence and I would reject the respondent’s submissions to that effect.
In all the circumstances, I am satisfied that hardship for the purposes of s 44(6)(a) of the Act exists and that it is otherwise proper and just that leave be granted to the applicant to bring proceedings for property settlement and there should be orders in the terms set out the beginning of these reasons.
THE ROLE OF THE RULES AND “FILING” PROCEDURES
Although it is not necessary to do so in the light of the determination that I have now made, I consider that it is also necessary to make the following observations in relation to the manner in which the material, communicated by the Court to the wife on 5 May 2023 to have been filed, came to be not so regarded.
The submissions of each of the parties did not take the Court to the relevant Rules of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) in relation to the filing of documents. Those Rules are found in Parts 2.1, 2.5 and 6.1 of the Rules.
Rule 2.01(1) provides that proceedings must be started by filing an application for final orders in accordance with the relevant form.
Here, there does not appear to have been any lapse in compliance other than a failure to set out the property orders in an attachment as the inappropriate of “Heads of Agreement” about parenting matters was attached.
Part 2.5 of the Rules require documents to be filed electronically unless it is not reasonably practicable to do so. Electronic filing was practicable in the circumstances of this case.
Sub-rule 2.23(3) says that:
(3) A document is filed when
(a) filing fee has been paid (or an exemption or deferral applies); and
(b)the document is accepted for filing by the Registry Manager and sealed with the seal of the court or marked with a Court stamp is required by Part 15.1.
…
The correspondence from the Court of 5 May 2023 informs the applicant that the document has been accepted for filing and an exemption of filing fees has been received. This exemption appears to be an alternative to or sufficient to amount to the payment, in the sense of the rendering, of the appropriate fee.
Sub-rule 2.24(1) provides that a Court may reject a “document filed” or received for filing if the document does not satisfy a number of criteria including it not being in proper form in accordance with the Rules or does not otherwise comply with the requirement of the Rules.
It can be seen that sub-rule 2.24(1) says that a document might be rejected despite it being a document that has, in fact, been filed but does not identify what the consequence of that “rejection” might be. The Rule does not state that a document which has been filed becomes “unfiled” or that the filing is void ab initio.
Such a document is, however, amenable to direction including, presumably, a direction as to amendment rather than recommencing any filing process. A judicial officer’s decision to reject a document, where not subject to review, would appear to be amenable to appeal.
The notice of the non-acceptance of the application on 15 May 2023 effectively removed from the applicant, without notice, entitlements to amend the filed application.[9]
[9] Federal Circuit and Family Court of Australia 2021 (Cth), r 2.50.
Here, no judicial officer appears to have made the decision determining the rejection of the application.
Relief that is sought under the Act must be by application.[10]
[10] Family Law Act 1975 s 44(1); Federal Circuit and Family Court of Australia 2021 (Cth), r 2.01.
The documents to be filed with the application in a financial proceedings in Rule 6.06(5) is a Financial Statement and an affidavit or financial questionnaire.
I infer from the letter of 5 May 2023 from the “Commonwealth Courts Portal Team” that an affidavit and Financial Statement was filed with an Initiating Application on 5 May 2023. A consideration of those documents should have made apparent that that the proceedings then filed were financial proceedings. The annexure of the “Heads of Agreement” was nothing more than a conspicuous error that should not have led to the character of the proceedings being seen as other than being financial proceedings (for property and/or maintenance) and the associated application as being viewed as other than financial proceedings and in need of mere amendment.
The circumstances make it plain that the application that finally came to be accepted and has remained as accepted by the Court as having been filed on 24 May 2023 came to be so filed not on account of any contended negligence on behalf of the applicant’s legal advisers.
To the contrary, the applicant solicitors filed within time and when it became apparent that that filing was sought to be undone acted with expedition in remedying the position without prejudice to the respondent.
None of the matters to which I have made reference in paragraphs 59 and following of these reasons causes me to depart from the determination I have made at paragraph 58 of these reasons.
NEXT STEPS
The matter can be listed for trial upon the Court being satisfied that disclosure and the necessary valuations have been undertaken.
The matter should come back before me for the necessary directions to be made.
For these reasons there are to be orders as appearing at the outset of these reasons.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 28 March 2024
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