B and B (No.1)
[2002] FMCAfam 177
•27 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2002] FMCAfam 177 |
| PROPERTY – Death of a party to property proceedings. |
G and the Estate of G (dec’d), (1990) FLC 92-125
M v H (1993) FLC 92-398
Family Law Act1975, ss.75(2);79;79(8);79(8)(a);79(8)(b)
Federal Magistrates Court Rules 2001, rule 11.01(1)
| Applicant: | A J B |
| Respondent: | E G B |
| File No: | PAM 2999 of 2001 |
| Delivered on: | 27 June 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 14 May 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant in person: | Mr B |
| Solicitors for the Applicant: | Mr D G, G & W Solicitors, PO BOX 66 WELLINGTON NSW 2820 |
| The Respondent in person: | Mrs B |
ORDERS
That the matter be adjourned to Tuesday 6 August 2002 at 9:30am.
Leave is granted to the legal personal representative of the applicant to file and serve an application to be substituted as a party to these proceedings returnable 9:30 am Tuesday 6 August 2002.
FEDERAL MAGISTRATES |
PAM 2999 of 2001
| A J B |
Applicant
And
| E G B |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the husband for certain property orders, relating to a number of chattels and an interest in land, being a Permissive Occupancy. Unfortunately, the applicant died shortly after the hearing.
Background
The proceedings before the Court have had a protracted history. The Applicant originally commenced proceedings in the Local Court of New South Wales at Wellington by means of an application filed on 1st September 2000. In that application, he sought the following injunctive orders:
“(a) That the Respondent be restrained from removing property, goods, chattels and livestock from the property ‘W’ B S until further order of the Court.
(b) That the Respondent be restrained from directing any other person to remove property, goods, chattels and livestock from the (c) property ‘W’ B S, on her behalf, until further order of the Court.
(d) That any regulation or order not complied with be dispensed with.’
The Applicant filed an affidavit in support of his application, in which he stated that the Respondent or other people had attended at the premises known as “W” on 23rd August 2000 and removed a significant amount of property. He deposed that he believed the Respondent intended to remove more property and convert it to her own use.
The Respondent consulted a solicitor, one J W of the Community Legal Service for Western NSW Inc., of Dubbo, who filed a Response and an affidavit. In that Response, the Respondent sought to be permitted to remove certain chattels from the property and that both parties be restrained from disposing of certain other items “before final property orders can be made in the Family Court.”
On 16th November 2000, the Wellington Local Court ordered the parties to attend “compulsory counselling, s.62 of the Family Law Act.” The Deputy Manager, Mediation, at the Dubbo Registry of the Family Court sent a memorandum dated 22nd November 2000 to the Magistrate at Wellington, advising him that counselling could not be carried out as the proceedings between the parties related to property matters, and their mandate was only to deal with children’s issues.
The husband then filed a property application, which was returnable before the Wellington Local Court on 25th January 2001. By this time the husband had obtained legal advice, from Messrs G & W, Solicitors of Wellington. In this application, the husband sought orders to the following effect:
a)that he be declared the beneficial owner of a list of items in Annexure “A” to his application;
b)that the wife be declared the beneficial owner of another list of items, being Annexure “B”;
c)that the wife return to him the contents of a third list of items, being Annexure “C”; and
d)certain incidental and procedural orders.
The wife had by this time instructed another solicitor to act for her, from the firm of C and W, of Orange. The wife filed a Response, seeking that the proceedings be transferred to the Family Court of Australia at Dubbo, and that the parties should attend an Order 24 Conference.
On 15th February 2001, the Wellington Local Court made the following order:
“Transferred to Family Court, Parramatta for inclusion on the Dubbo circuit.”
The Clerk of the Local Court at Wellington despatched the Local Court file to the Parramatta Registry of the Family Court that same day.
Shortly after this took place, the wife again instructed another solicitor to act for her. On 16th March 2001, the firm of N and B, Solicitors of Dubbo, filed a Notice of Address for Service.
On 23rd August 2001, the parties were required to attend a Directions Hearing before a Registrar at the Dubbo Sub-registry of the Family Court. An Order 24 conference was not held. The Registrar transferred the proceedings to the Federal Magistrates Court.
On 30 August 2001, the husband’s solicitor filed an amended application and a financial statement. The documents were received by the Family Court on 31st August, and filed in the Federal Magistrates Court on 10th September 2001. The matter was set down for mention at the sitting of the Federal Magistrates Court on 2nd October 2001.
On 17th September, Messrs N & B forwarded a notice to the Court, indicating that they were no longer acting for the wife. On 19th September, the husband’s solicitors sought an adjournment of the matter until the next circuit sittings of the Court. On 24th September 2001, Messrs P, D & P, Solicitors of Dubbo, who by that stage were acting for the wife, informed the Court that they consented to the matter being adjourned to the sittings of the Court commencing on 4th February 2002. This was apparently an administrative adjournment.
The matter was mentioned before the Federal Magistrates Court at Dubbo on 4th February 2002. Both parties were legally represented. The Court directed the parties to file and serve any further affidavits by 26th April, and the application was listed for final hearing on Monday 13th May 2002.
On Monday 13th May 2002, the parties appeared before this Court. The husband was still represented by Mr G, solicitor of Wellington, but the wife was unrepresented. The following day, Messrs P, D & P filed a Notice to Court that Solicitor has Ceased to Represent Party, dated 10th May 2002. The husband was granted leave to file an up-dating affidavit in court.
The application was heard by the Court on the afternoon of 13th May. Both the applicant and the respondent gave oral evidence and were cross-examined. Judgment was reserved and the Court rose at 5.35 pm.
Early the following week, the wife telephoned the Court with the news that the husband had died. She stated that he had been found deceased on Saturday 18th May.
Death of a party to property proceedings
Section 79(8) of the Family Law Act contains an exception to the general rule that proceedings abate if a party to those proceedings dies before they are completed. Section 79(8) makes the following provisions in respect to property proceedings:
“(8) [Death of a party before proceedings completed] Where, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies:
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion:
(i)that it would have made an order with respect to property if the deceased party had not died; and
(ii)that it is still appropriate to make an order with respect to property,
the court may make such order as it considers appropriate with respect to any of the property of the parties to the marriage or either of them; and
(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.”
It is clear that these proceedings cannot be regarded as having been completed. The Full Court of the Family Court examined the question of when a proceeding can be regarded as ‘complete’ for the purpose of s.79(8) in Re G and the Estate of G (dec’d), (1990) FLC 92-125, where the court held:
“In our view both the content and the wording of s.79(8) make it clear that the phrase ‘before proceedings with respect to the property of the parties or either of them are completed’ refers to proceedings commenced under s 79(1) in which no order has been made before one of the parties to the marriage has died. If an order is made under s 79(1) the proceedings are completed”.
In these proceedings, evidence had been taken and final submissions had been made. All that was left to do was for the court to formulate its judgment, but the death of the husband intervened within a few days. Section 79(8)(b) permits the court to make an order which takes into account the fact of death and the circumstances which follow.
Conclusions
As to what orders should be made, the sub-section gives the court a wide discretion. The proceedings will now be continued between the Respondent and the estate of the Applicant. A number of different considerations will apply, including the fact that the deceased will no longer have any s.75(2) considerations, whilst the surviving Respondent may well have. The court should not be influenced by the identity of the beneficiaries of the deceased’s estate, especially as there are no children under the age of 18 years. I am guided, with respect, by the decision of Moss J in the Family Court in M v H (1993) FLC 92-398, where his Honour held that, having taken into account all the relevant matters under section 79, the court should not take into account factors relevant to the persons who would take the property under the will of the deceased party or upon that party’s intestacy.
An order would certainly have been made in this case had it not been for the death of the applicant. It may well be the case, however, that a different order or orders would be made. At this stage, no copy of a certificate of particulars of death has been provided, let alone evidence of a grant of probate or letters of administration. Clearly, steps must be taken for the substitution of the applicant’s legal personal representative as a party, as provided in s 79(8)(a). I am satisfied that the legal personal representative of the applicant is a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in this matter [Federal Magistrates Court Rules 2001, rule 11.01(1)].
I propose to adjourn this matter to a suitable time to enable the legal personal representative of the applicant to apply to be substituted as a party to these proceedings, once the appropriate grant of probate or letters of administration has been made. Once that has been done, I will take submissions from the parties as to the appropriate orders to be made, having regard to the matters set out in s.79(8).
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 25 June 2002
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