Barron and Chesley

[2020] FamCA 260

FAMILY COURT OF AUSTRALIA

BARRON & CHESLEY [2020] FamCA 260

FAMILY LAW – PROPERTY SETTLEMENT – Death of a party – De facto relationship – Where the parties made an Application for Consent Orders – where the respondent died before the Orders were made – Whether the Court is able to substitute one of the respondent’s children as the respondent’s legal personal representative – Where there is no will – Where there is no grant of probate or letters of administration.

Family Law Act 1975 (Cth) s 90SM(8)

Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Barron

RESPONDENT: Mr A Chesley (Deceased)

FILE NUMBER: ADC 4987 of 2019

DATE DELIVERED: 9 April 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 9 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cocks

SOLICITOR FOR THE APPLICANT: Jennifer M Bradley

COUNSEL FOR THE RESPONDENT: Mr Gamble

SOLICITOR FOR THE RESPONDENT: Gamble Law & Estate Planning

Orders

1. Further consideration of the proceedings be adjourned to 9.15 am on 2 July 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barron & Chesley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4987 of 2019

Ms Barron

Applicant

And

Mr A Chesley (Deceased)

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

introduction and background

1. Ms Barron (“the applicant”) and Mr A Chesley, now deceased (“the respondent”) commenced a de facto relationship in 2011.  They separated in 2018.  There are no children of the relationship but the respondent had adult children from an earlier relationship.

2. At the date of separation, the applicant was a trained health professional but due to physical disabilities is not able to work and has been assessed as permanently disabled.  She is 62 years of age and is in receipt of a disability pension.

3. The respondent was employed as a supervisor.

4. The parties recognised that they were possessed of modest net assets totalling $27,000.  The applicant is a member of a Super Fund 1 with accrued entitlements in excess of $55,792.  The respondent was a member of Super Fund 2 with accrued entitlements of about $182,243.

5. Given that the net pool of assets was small, the parties were able to reach an agreement for property settlement pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).

6. They agreed to enter into an order that would have the effect of a superannuation split in favour of the applicant with a base amount of $70,000 from the respondent’s interest in his Super Fund 2 Fund.

7. The parties entered into an Application for Consent Orders pursuant to r 10.15 of the Family Law Rules 2004 (Cth) on 13 November 2019. The application was accompanied by a proposed minute of order signed by each of them.

8. The respondent died on … 2019 prior to the orders being made.

9. It is not known whether the respondent left a will, or whether his superannuation entitlement was the subject of a binding death benefit nomination.

10. Following the death of the respondent, his son (“Mr Chesley”) has been attending the Court proceedings.  Initially, he was uncertain as to a way forward, but ultimately he instructed solicitors to assist him in resolving the proceedings.

11. The applicant filed an Application in a Case on 19 December 2019 seeking a flagging order in respect of the respondent’s interest in the Super Fund 2 Fund.

12. On 20 February 2020 a flagging order was made.

13. On 31 March 2020 Mr Chesley was represented by a solicitor and the following order was made:-

    That further consideration of the matter generally is adjourned to 10am on 9 April 2020 NOTING that if documents are provided to Chambers that satisfy the Court that Mr Chesley can be considered as the legal personal representative of Mr A Chesley deceased, then orders if by consent will be made in Chambers.

LEGAL PRINCIPLES

1. Section 90SM(8) of the Act provides:-

   If a party to the de facto relationship dies after the breakdown of the de facto relationship, but before property settlement proceedings are completed:

   (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; and

   (b)…

   (c)…

2. Accordingly, the ordinary rule is that upon the death of a party to property settlement proceedings no further steps can be taken until and unless there is a person who satisfies the test of a legal personal representative who can then be substituted for the deceased party.

3. There is a two-step test confirmed by the High Court in Stanford v Stanford (2012) 247 CLR 108 where at [24] the majority said:-

   in cases where s 79(8) applies, a court must consider whether, had the party not died, it would have been just and equitable to make an order and whether, the party having died, it is still just and equitable to make an order.

4. The first inquiry is, whether Mr Chesley can be considered as the legal personal representative of the deceased respondent.

5. If a will exists, it has not been found.  At this stage Mr Chesley and his siblings have not determined to apply for either a grant of probate or letters of administration.

6. Mr Chesley has the confidence of his siblings, enabling his solicitor to indicate to the Court that the deceased’s adult children are prepared to authorise Mr Chesley, if possible, to consent to the orders.

7. Ordinarily there is little difficulty in determining the identity of the legal personal representative.  It is self-evident where a person is named either as an executor or trustee in a will, by their nomination in an application for letters of administration or if a court is asked to consider the validity of a will.

8. In the absence of any formality to the nomination of Mr Chesley as a legal personal representative, I do not consider that merely having the confidence of all beneficiaries is sufficient for the Court to consider that he is able to be substituted for the deceased respondent.

9. Given the paucity of available assets, it is apparent that the siblings would not wish to incur unnecessary expense in obtaining letters of administration.

10. There may even be the existence of a binding death benefit nomination in respect of the deceased’s superannuation entitlements.

11. Unless and until a will is discovered which shows Mr Chesley as the respondent’s executor, or he is the applicant for a grant of probate or letters of administration, I do not consider that the Court is able to make an order of substitution pursuant to s 90SM(8) of the Act.

12. I do not propose to dismiss the proceedings but rather they are suspended until action is taken that would enable the Court to consider Mr Chesley or some other person as the respondent’s legal personal representative and therefore a person able to be substituted.

13. The parties may consider that letters of administration may be necessary to be able to deal with the deceased respondent’s superannuation entitlement.  If it vests in the estate then a cash sum could be paid to the wife rather than a splitting order being put in place.

1. I propose to adjourn the proceedings for a period of three months to enable the applicant and/or the respondent’s family to consider the next appropriate step to be taken.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 April 2020.

Associate: 

Date:  22 April 2020