Baldwin & Sands
[2023] FedCFamC2F 559
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baldwin & Sands [2023] FedCFamC2F 559
File number: BRC 7859 of 2017 Judgment of: JUDGE YOUNG Date of judgment: 27 April 2023 Catchwords: FAMILY LAW – application for review of a decision of the Registrar to refuse to execute a transfer document – where the respondent has died - where section 106A(1) provides an appropriate mechanism for a transfer order to be made – where the phrase “for any other reason” should be interpreted broadly – where previous orders have been made that provided for the respondent to execute a transfer in favour of the applicant – where this application for review can be treated as an application in proceedings – where there is no respondent on whom the applicant can serve the application – where the respondent’s next of kin have been identified and given the opportunity to be heard – where the court is satisfied there is nothing practical to be done in the circumstances – where the appointment of a personal legal representative would be unduly expensive and futile. Legislation: Family Law Act 1975 (Cth) s 106A Cases cited: Paullin & Paullin [2020] FamCA 364 Division: Division 2 Family Law Number of paragraphs: 7 Date of hearing: 27 April 2023 Place: Darwin Counsel for the Applicant: Ms Treharne Solicitor for the Applicant: Attwood Marshall Solicitor for the Respondent: No Appearance ORDERS
BRC 7859 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BALDWIN
Applicant
AND: MR SANDS
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
27 APRIL 2023
UPON NOTING THAT:
The respondent is deceased.
THE COURT ORDERS THAT:
1.The applicant be permitted to proceed ex parte.
2.Service of the Application for Review is dispensed with.
3.Pursuant to 106A of the Family Law Act 1975 a Registrar of the Federal Circuit and Family Court of Australia is appointed to execute in the name of the respondent, and shall do all acts and things necessary to give validity and operation to, the transfer to the applicant of the respondent’s interest in the property known as B Street, Suburb C, Queensland, being the whole of the Land comprised in certificate of title reference No. … being Lot … on Registered Plan ….
4.That the Application for Review filed 20 December 2022 be otherwise dismissed.
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 Young:
This is an application for review of a decision of the Registrar to refuse to execute a transfer document under section 106A of the Family Law Act 1975 (Cth) (“the Act”). The Registrar was apparently of the view that as the respondent had died after the relevant court order for transfer but before the transfer took place, section 106A did not provide an appropriate mechanism for an order, presumably because the Registrar was interpreting section 106A(1)(b) as applicable only where there was a refusal by a party or neglect to comply with an order.
I accept the interpretation offered by Ms Treharne that the operation of 106A(1) is not so limited and she has referred to Paullin & Paullin [2020] FamCA 364 as authority for that proposition. I do note that decision was somewhat different in that the respondent was still alive and the Court anticipated that there would be a refusal or neglect so the decision is perhaps weak authority for the proposition.
Upon reading the section, it is clear enough that the phrase “for any other reason” has a much wider ambit than the refusal or neglect of a party to comply with an order to execute a transfer.
From a procedural point of view, considering that the respondent is deceased, it appears convenient that the relevant orders that provided for the respondent to execute a transfer in favour of the applicant, made on 6 April 2018 in this Court, provide for liberty to apply. It seems that, as far as I can ascertain from a perusal of the court file, the proceeding was never dismissed and remains on foot. This means the application made by the applicant appears technically, at least, to be an application in that proceeding and I am content to treat it as an application pursuant to the liberty to apply at order 15 of those orders.
More substantially, the background of the matter is that after the orders of 6 April 2018 were made, the applicant was unable to obtain finance to discharge the existing joint mortgage and refinance the property in her own name and there was a delay of about four years before she was able to do that. That delay was not contemplated in the orders but it was not inconsistent with the orders.
By the time the applicant was in a position to refinance the respondent had died and was accordingly not in a position to execute a transfer. The affidavits filed on behalf of the applicant demonstrate that a search was made in the probate registry in Western Australia where the respondent had resided and there was no evidence of an application for probate or the appointment of a personal legal representative. In other words, there was no respondent on whom the applicant could serve this application in a proceeding. That was the matter that concerned me when the matter came before me last and I enquired as to whether the respondent had any known next-of-kin. After some inquiries were made, there were three children identified, two in the UK, and one in Country D and there was some communication with the respondent’s son in the UK and he was informed of this proceeding and given the sign-in details for today if he wished to be heard. Nothing further has been heard from him or the other identified children and I am satisfied that they have no interest with which they wish to advance in this Court.
Of course, as there is not a party, that potentially creates some difficulties. Short of the applicant actually seeking the appointment of a legal personal representative there appears to be nothing practical that can be done in the circumstances. I am satisfied that that would be an unduly expensive and, I am satisfied, futile endeavour, and is not one that should be imposed upon the applicant.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 27 April 2023
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