to the Court pursuant to s370 of the Fair Work Act 2009 (Cth) (FW Act). The applicant did so after the respondent made its own interlocutory application for orders including that the originating application be dismissed because it was not made within the time frame prescribed by the FW Act (Respondent’s Interlocutory Application). Section 370 of the FW Act is concerned with matters involving taking a general protections dismissal dispute to court. On the face of the documents, the originating application was lodged with the Court 28 minutes late. The reason for the delay was provided by the applicant’s solicitor, who stated that he had determined that lodgement occurred at 3.58pm Brisbane time, which was 4.28pm in Adelaide time. The applicant’s solicitor believed that lodgement occurred prior to the closure of the South Australia Registry so that lodgement was within time (at [9]). Besanko J did not accept this reasoning, including because the applicant’s solicitor did not produce the accounting records to which he referred (at [10]). The Court did not accept that the application was filed within time (at [10]) but applied the well-known principles relevant to whether time should be extended (at [12]) and granted an extension of time (at [17]). Section 570(2)(b) of the FW Act provides that a party may be ordered to pay costs only if the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs. In Hennessy v Barminco Limited (No 2) [2022] FCA 33 (27 January 2022) Besanko J ordered the applicant’s solicitor to pay half of the respondent’s costs of the Respondent’s Interlocutory Application because: there was no reason the originating application could not have been filed within time; the applicant only made his application for extension of time after the Respondent’s Interlocutory Application; and the explanation for delay was unsatisfactory (at [3]).
Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
FAMILY LAW CASE NOTES Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book
Spousal maintenance – Consent order (made as part of property orders) that husband pay wife’s mortgage could only be a maintenance order In Thorpe & Stirling [2021] FedCFamC1A 86 (15 December 2021) the Full Court (Aldridge, McEvoy & Altobelli JJ) allowed an appeal from a decision of Judge Kemp where a final consent order required the wife to sell a property and provided that she receive $430,000 of the sale proceeds on the basis that the husband would be guarantor and pay mortgage payments on a future loan of up to $500,000. The order provided that the husband would continue to pay the mortgage until its loan balance was discharged. The husband refused to pay after the wife re-married, contending that the order was a spousal maintenance order that had no effect upon re-marriage per s 82(4) of the Act. Considering the order (“Order 36”), the Full Court said (from [20]):
[45] … Order 36 can be seen as being made as a spousal maintenance order …”
Property – Full Court holds that noncommutable disability income insurance payment is not “property” but a financial resource In Tomaras [2021] FedCFamC1A 82 (13 December 2021) the Full Court (AinslieWallace, Aldridge & Watts JJ) dismissed an appeal from Judge Purdon-Sully’s decision in Tomaras & Tomaras & Anor (No. 2) [2019] FCCA 2830 . At first instance, the Court dismissed the wife’s application for a property adjustment where there was no property other than the husband’s total and permanent disability insurance policy (“TPD policy”), which the Court held was not property, where the husband’s monthly payment under the policy was contingent upon his establishing an entitlement to payment each month.
“ … [T]he husband’s liability under the mortgage remains until it is paid out. … [T]hat liability could … exceed what the husband otherwise received under the … orders ( … )
Ainslie-Wallace & Aldridge JJ cited Crapp [1979] FamCA 17, Mullane v Mullane [1983] HCA 4, Marchant [2012] FamCAFC 181 and Pates [2018] FamCAFC 171 and said (from [80]):
[26] … [P]roperty, as defined, is limited to existing property, whatever it may be (Stanford v Stanford [2012] HCA 52; … ), and does not extend to property that might be received in the future … [Section 79] does not empower the Court to make an order against property which does not presently exist but could be brought into existence by the exercise of borrowing capacity … ( … )
“ … [T]he capitalised value of the pension is not property capable of division because no such property exists in that sum … The pension can only be regarded as a financial resource or income. … [T]here is no more than a right to receive the next payment provided the relevant disability continues ( … )
[36] … [H]is Honour found … the husband’s obligations under Order 36 ‘were likely to be paid out of the husband’s future income stream including his receipt of any … bonus payments’ ( … ) [37] Order 36 does not work an alteration of the interests of the parties in their property but rather creates an obligation which is separate to the division of that property. [38] … [T]herefore, that Order 36 could not be an order made under s 79 of the Act … ( … )
[82] A … difficulty arises in this case because there was no other property to be divided. If there was such property, then … the expected receipt of the payments could properly be taken into account as a financial resource in any property division under s 79 of the Act so as to allow the other party to receive more of that other property. [83] The appellant submitted that as the TPD policy could be commuted and the respondent’s entitlements assigned, this case could be distinguished from those just discussed. [84] … [S]uch a course would require the respondent and the insurer to
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