Becker (deceased) & Anor and Becker

[2013] FamCA 66

FAMILY COURT OF AUSTRALIA

BECKER (DECEASED) AND ANOR & BECKER [2013] FamCA 66

FAMILY LAW - PROPERTY – final orders – where one of the parties to the marriage has died – where the proceedings have continued in the name of the estate – consideration of Stanford v Stanford [2012] HCA 52 – where it is necessary to determine whether an order would have been made if the deceased had not died – where it would have been just and equitable in the circumstances to make an order if the deceased had not died – consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – orders made.

Family Law Act 1975 (Cth) ss 75, 79

Stanford v Stanford [2012] HCA 52

APPLICANT: Ms Becker (deceased)

APPLICANT OTHER PARTY: Mr Launders

RESPONDENT: Mr Becker

FILE NUMBER: ADC 2302 of 2010

DATE DELIVERED: 7 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 7 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT OTHER PARTY: Ms Parker

SOLICITOR FOR THE APPLICANT OTHER PARTY: Norman Waterhouse

COUNSEL FOR THE RESPONDENT: Mr Adey

SOLICITOR FOR THE RESPONDENT: Adey Lawyers

Orders

UPON NOTING that there has been full compliance with the orders of 19 July 2012 and the proceedings are now finalised.

Remove all matters from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2302 of 2010

Ms Becker (deceased)

Applicant

And

Mr Launders

Applicant Other Party

And

Mr Becker

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. It is clear from the provisions of the Family Law Act 1975 (Cth) (“the Act”) that notwithstanding the death of the wife, the proceedings which were commenced before her death may be continued. What is before me today is a Consent Order made on an interim basis in July 2012 and adjourned to enable the parties to make final arrangements, in particular to deal with the estate of the late wife and make some arrangements with the Public Trustee to hold certain of parts of the estate of the late wife on trust for the children.

2. The provisions of section 79 of the Act have recently been considered by the High Court who delivered their judgment in November 2012 in the matter of Stanford v Stanford [2012] HCA 52. They emphasised that section 79, subsection (8) requires that the Court consider the matters set out, in particular in subsection 79(8)(b), which is:

   If the Court is of the opinion that it would have made an order with respect to property if the deceased party had not died and (2) that it is still appropriate to make an order with respect to the 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.

3. The wording of section 79(8)(b) refers to the Court having an opinion that it would have made:

   …an order…if the deceased party had not died

   and that it is still appropriate to make an order with respect to property. 

4. It is not difficult in this matter to be very quickly satisfied that the Court is of the opinion that it would have made an order if the wife had not died. 

5. There were property settlement proceedings on foot, and the length of the parties’ relationship, the care in relation to the two children of the marriage, would have been significant factors to have been taken into account when considering those proceedings.  I am satisfied that it would have been appropriate to make an order with respect to property if the wife had not died.

6. It is also easy to make a decision in this case that it is still appropriate to make an order with respect to property notwithstanding the death of the wife. I do that on the basis that I consider whether it is appropriate to make an order, bringing into account the other provisions of section 79 and, in particular, the provisions of subsections (1) and (2) of section 79.

7. In particular, subsection (2) requires that the Court not make an order under this section unless the Court is satisfied in all the circumstances that it is just and equitable to make the order. 

8. The Court is then required to take into account the matters set out in subsection (4).  In particular in relation to this matter, the contributions of the parties and the contribution both to the assets and to the welfare of the children of the parties are significant.

9. The other major factor, of course, is the ongoing needs pursuant to section 75(2) which is required to be considered under section 79(4). Section 75(2) in particular deals with the ongoing need for the husband, in this case, to make provision for, and be involved in, the upbringing and ongoing care of the two young children of the marriage.

10. Taking all of the factors in section 79(4) (and as they cover section 75(2)) and in particular my decision in relation to 79(8), I am satisfied that it is just and equitable to make the orders of 19 July 2012 final orders by way of property settlement and dismiss all other proceedings.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 7 February 2013.

Associate: 

Date:  15 February 2013