BASKIN & BASKIN

[2020] FamCA 401

FAMILY COURT OF AUSTRALIA

BASKIN & BASKIN [2020] FamCA 401

FAMILY LAW – PRACTICE AND PROCEDURE – where the husband died intestate during the proceedings – where the wife having been granted Letters of Administration now seeks to be substituted as the husband’s legal personal representative – where there is no one else that can be substituted for the husband – where six months has elapsed since the wife filed this application and there has been no claim made on the husband’s estate – where the wife’s initiating application and response of the husband is dismissed.

Administration and Probate Act 1958 (Vic) s70K
Family Law Act 1975 (Cth) s 79(8)
Family Law Rules 2004 (Cth) r 6.15(3)

Bailey and Bailey (1987) FLC 91-803

APPLICANT: Ms Baskin

RESPONDENT: Mr Baskin

FILE NUMBER: MLC 5480 of 2019

DATE DELIVERED: 25 May 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 11 February 2020 &
22 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fuller

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

SOLICITOR FOR THE RESPONDENT: Swifty Legal

Orders

1. Pursuant to Rule 6.15(3) of the Family Law Rules 2004 (Cth), Ms Baskin in her capacity as Administrator of the Estate of Mr Baskin be substituted as a party for the respondent husband.

2. The Amended Initiating Application filed by the applicant wife on 16 December 2019 and the Response filed by the respondent husband on 25 June 2019 be dismissed and the matter be removed from the list of cases awaiting hearing.

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 Baskin & Baskin 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 MELBOURNE

FILE NUMBER: MLC 5480  of 2019

Ms Baskin

Applicant

And

Mr Baskin

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before me in the Judicial Duty List on 11 February 2020. The wife is seeking firstly that she be substituted as a party for the husband and ultimately although not immediately, for reasons that will become clear, that her Amended Initiating Application filed 16 December 2019 be dismissed.

2. The husband was born in Country G on … 1955. He died on … 2019. The wife was also born in Country G and is 58 years of age. She is a finance professional and earns approximately $80,000 per annum. The wife is in good health.

3. The husband and wife were married in Country G on … 1982. There were two children of their marriage Mr C who died on … 2015 aged 30 and Mr D who is 31 years of age. Mr D was present at the hearing before me.

4. The parties and the children relocated to New Zealand in 1996. In 2001 the husband moved to Australia and the wife followed with the children in or about 2004 and has since remained in Australia.

5. The parties separated under the one roof in December 2018.

6. Following an incident in June 2019 the wife contacted Victoria Police and the husband was removed from the former matrimonial home at E Street, Suburb F (“the former matrimonial home”) and an application for an intervention order was made on the wife’s behalf. On 11 June 2019 an interim intervention order was made in the wife’s favour which included inter alia the condition that the husband not go to or remain within 200 meters of the former matrimonial home.

7. The wife filed an Initiating Application on 21 May 2019 seeking orders for property settlement. The husband filed a Response to Initiating Application on 25 June 2019 setting out the orders he sought by way of property settlement. The parties attended a Case Assessment Conference on 3 July 2019. On that date interim orders were made by consent inter alia with respect to the parties’ properties, including the sale of two properties and the preparation of valuations. The matter was otherwise listed for a Conciliation Conference on 18 September 2019.

8. The wife deposes that following the Case Assessment Conference she and the husband agreed that the husband could attend at the former matrimonial home on … 2019 to collect his personal belongings. Neither the wife nor the parties’ son who lived at the former matrimonial home with the wife were at home. When Mr D arrived home he found the husband dead in the garage. The husband left a suicide note in which he said “Now you have all my money and my life”.  

9. The husband died intestate and the wife was granted Letters of Administration of his estate on 19 November 2019.

Legal Principles

1. Section 79(8) of the Family Law Act 1975 (Cth) (“The Act”) provides as follows:

   (8)  Where, before property settlement proceedings are completed, a party to the marriage 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:

   (iii)  Any of the property of the parties to the marriage or either of them; or

(iv)  Any of the vested bankruptcy property in relation to a bankrupt party to the marriage; 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.

1. Rule 6.15 of the Family Law Rules 2004 provides as follows:

   Death of party

   (1)  This rule applies to a property case or an application for the enforcement of a financial obligation.

   (2)  If a party dies, the other party or the legal personal representative must ask the court for procedural orders in relation to the future conduct of the case.

(3)  The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party. Property proceedings can in these circumstances be continued by the deceased person’s legal personal representative being substituted for the deceased person in the proceedings. There is no definition in the Act of “legal personal representative”. In the memorandum to the Rules the “legal personal representative” is defined although it is not a binding definition as “the executor or administrator of a party’s estate”. 

1. The wife having been granted Letters of Administration now seeks to be substituted as the husband’s “legal personal representative”.

Letters of Administration

1. The wife in this case, subject to any application pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“Administration Act”), is entitled to the whole of the husband’s residuary estate (s 70K of the Administration Act).

2. In her Affidavit filed in support of her Amended Initiating Application filed 16 December 2019 the wife deposed that she was unaware of anyone who would be able to make a claim against the husband’s estate pursuant to Part IV of the Administration Act. She further deposed that her surviving son had told her that he did not intend making a claim against his father’s estate. This was confirmed by her son who was also present in Court.

3. Counsel also referred to the possibility of the husband and wife’s grandchild, the child of their deceased son, making a claim pursuant to Part IV of the Administration Act, albeit counsel submitted that this grandchild, not being financially reliant upon the husband, would not be an “eligible person” for the purposes of a Part IV application. Although it is the wife’s evidence that the child’s mother has advised her that she does not propose making a claim, counsel for the wife proposed, and in my view appropriately so, that the order his client seeks dismissing the proceedings should not be made until after the expiration of the requisite period of 6 months from the date upon which the Letters of Administration were granted and within which an application pursuant to Part IV of the Administration Act is to be filed.

4. The effect of the substitution order the wife seeks is that she will be both the applicant and the respondent to the property proceedings. Whilst on the face of it as submitted by her counsel this might appear to give rise to a conflict as Nygh J said in Bailey and Bailey (1987) FLC 91-803 (at 76-072) (“Bailey”) it was not the intention of Parliament that the right pursuant to s79(8) of the Act to continue proceedings against a deceased party -

   …It is my view that it was not the intention of Parliament that this right should be defeated merely because the deceased appointed as his executor the person who is the applicant and in the language of the passage I have just cited from the judgment of Roper J., the acceptance by the wife of the grant of probate in this case should not be seen as disqualifying herself from making or continuing, in this case, her application under the Family Law Act.

5. The wife deposes and I accept that she disclosed the proceedings in this Court in her Affidavit in support of her application for the grant of Letters of Administration.

6. I accept as submitted by counsel for the wife that there is in this case no-one else who could be substituted for the husband in these proceedings. Whilst in this case the wife has been granted Letters of Administration rather than a Grant of Probate, I am satisfied the principles referred to in Bailey apply and that she should in all the circumstances be substituted for the husband in the property proceedings.

The Property Case

1. Counsel for the wife submits that the wife, as the husband’s legal personal representative, having been substituted for the husband in the property proceedings, these proceedings should be dismissed. Counsel submitted that although the Court could be satisfied that it would have made an order for property settlement if the husband had not died, it could not in all of the circumstances of this case be satisfied that it is still appropriate to make an order with respect to property and on that basis should dismiss the proceedings.

2. The husband and wife were married for some 36 years. They did not have assets of any significance at the time of their marriage. During the marriage they both worked and although the husband generally earned more than the wife she was primarily responsible for the children’s care and maintaining the household. It is the wife’s case that her contributions were made more arduous as a result of the husband’s violence. The parties bought and sold properties both in Australia and overseas contributing time and money to renovating those properties. After separation the husband directed that the rental income from the various properties in their name be paid into an account in his name and retained the benefit of that rental income.

3. The wife deposes to a total asset pool of some $3 million including superannuation. The husband had superannuation entitlements of $212,726, which form part of his estate and the wife has entitlements of $112,403. According to the inventory annexed to the Affidavit the wife swore as administrator of the husbands’ estate, the husband left assets valued at approximately $1,934,706 in addition to his interest in the parties jointly owned property which passes to the wife upon his death. He had liabilities of approximately $516,160.

4. I am satisfied, having regard in particular to the length of the marriage, the disparity of the assets and superannuation in their respective names and the husband’s greater income earning capacity that it would have been just and equitable for the Court to have made orders adjusting those property interests pursuant to s79 of the Act.

5. The Court must then be satisfied as to whether it is still appropriate to make orders pursuant to s79 of the Act. A relevant matter for the purposes of the Court determining whether or not it is still appropriate to make an order adjusting the parties’ interests in property is the consequences of the death of one of the parties upon the position of the other party. The wife in this case being entitled to the husband’s estate, there is no utility in the Court making orders for property settlement.

6. The Letters of Administration having been granted on 19 November 2020. On 20 May 2020 the wife filed an Affidavit confirming that there has been no claim made in relation to the husband’s estate. The six month period during which any claim is to be made having now expired, I propose to substitute the wife for the husband in the proceedings and being satisfied that it is no longer appropriate for the Court to make property orders will dismiss the Amended Initiating Application filed by the wife on 16 December 2019 and the husband’s Response to Initiating Application filed 25 June 2019.  

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 25 May 2020.

Associate: 

Date: 25 May 2020