Do the Courts ever sleep?

The answer to this question is normally, yes.

The filing registry of the Commonwealth Courts normally closes at 4:30pm. A document sent for filing after this time is taken to have been received when the filing registry is open on the next day pursuant to rule 24.05(2) of the Family Law Rules 2004. This rule is important for the ordered control of the Court’s business, among other reasons.

However, in the recent decision of Whooten & Frost (Deceased) [2017] FamCA 975 the Court held that a document sent for filing at 7:40pm was taken to have been received at that time.


Ms Whooten married Mr Frost in 2003. They separated in June 2015.

In late 2016, Mr Frost sustained serious injuries following a farming accident. So serious were his injuries that he was placed on an electronic life support system.

Having been made aware of his position, Ms Whooten electronically filed an application instituting property settlement proceedings at 7:40pm on 1 December 2016. Mr Frost passed away at 11:00pm on 1 December 2016 after the hospital turned off his life support with the knowledge of his family.

If an application instituting property settlement proceedings is filed before the death of a party, the proceedings may be continued by the deceased party’s estate. This is not the case if an application has not been filed at the time of death.

Ms Whooten’s application instituting property settlement proceedings was filed electronically before the death of Mr Frost but it was deemed by the operation of rule 24.05(2) to have been filed after his death because it was received by the filing registry after 4:30pm (and therefore, it was taken to have been received on 2 December 2016).

Should the application be continued?


The Family Court of Australia found that the rules cannot become instruments of injustice.

No new or unforeseen right was being created in treating the application as having been filed at the moment it was electronically filed. There is no history here other than that both parties knew that their property settlement had not been resolved. There was no doubt that Ms Whooten had wanted to activate the jurisdiction of the Court. This was not a case in which the parties had sat on their rights such that prejudice to the other party follows. As such, to deny Ms Whooten the right to institute property settlement proceedings would be an injustice.

It was ordered that Ms Whooten’s application received electronically by the Court at 7:40pm be deemed to have been filed on the same day at that time notwithstanding rule 24.05(2).

Do the Courts ever sleep? Yes, but they are awake to prevent an injustice.

Written by Emario Welgampola and Brooke Nickerson.

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