Childs v Waverley Christian College Inc [2026] FedCFamC2G 590

FedCFamC2G|2026-04-14

The applicant contends in her Form 2 that she exercised her workplace right/s to make a complaint or inquiry in relation to her employment and to seek compliance with workplace obligations. The applicant contends that as a consequence of exercising those workplace rights, adverse action was taken against her in the form of reducing her hours of work, ceasing to roster her for work and subsequently terminating her employment.
The material contained in the Form 2 is light on and has the appearance of material prepared by a litigant in person. In the substantive application, if the applicant could prove that she did or proposed to exercise a workplace right (as defined), and if she could show that the first respondent dismissed her and thereby took adverse action against her, the onus would then fall on the first respondent to show that it did not dismiss the applicant because she did or proposed to exercise a workplace right.
The applicant contends that at least the second respondent was a decision maker in relation to her dismissal. On the material before the Court, it does not appear contested that it is at least arguable that the applicant exercised some of the workplace rights she asserted or that she was dismissed.
Accordingly, the claims made in the applicant's material would appear to give rise to an arguable claim under s 340 of the FW Act pending further evidence.

It follows from the above that I consider that the applicant has an arguable claim for relief in relation to her dismissal, although the ultimate merit of that is yet to be decided. The existence of an arguable claim favours the grant of an extension of time.

For the reasons set out above, I have found that the applicant has an adequate explanation for the delay in filing. I have found that the applicant took action to contest her dismissal. I have also found that the applicant's claim, insofar as it relates to the dismissal, gives rise to an arguable claim under s 340 of the FW Act. There is no suggestion of any prejudice to the respondents. Indeed, the respondents do not suggest the Court should refuse to grant an extension of time in the present circumstances.
Accordingly, I make the orders set out at the commencement of this judgment.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan.

[1] See para 5-11 of applicant's affidavit sworn 26 March 2026 and Annexures KC-3-KC-5

[2] See Case 950585 [1995] IRCA 601 (31 October 1995)

[3]This affidavit was lodged on 2 April 2026 and accepted for filing on 8 April 2026.

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Section 370(a)(ii) of the FW Act vests in the Court a broad general discretion to grant an extension of time if it is deemed appropriate to do so.
In Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 (Brodie-Hanns) at 299 - 300[2], Marshall J set down the principles relating to the exercise of the Court's discretion to extend time beyond the prescribed period. Those principles, regularly applied in this jurisdiction, are as follows:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
The considerations identified in Brodie-Hanns are not an exhaustive list of matters the Court may have regard to, and the Court may consider any other matters it considers relevant to the exercise of its discretion to grant an extension of time: Clarke v Service to Youth Council Incorporated [2013] FCA 1018.
The onus falls on the applicant to satisfy the Court that grounds exist for exercising the Court's discretion to grant an extension of time in their favour, and the respondents bear an evidentiary onus to raise any consideration telling against the exercise of that discretion: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Toohey and Gummow JJ at [547].
The Brodie-Hanns principles were more recently considered in decisions of the Federal Court in Hamilton v Department of Justice and Community Safety [2024] FCA 558 and Wilson v Victorian Aboriginal Child and Community Agency [2025] FCA 559.

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