BROWN & SHALLOW
[2015] FamCAFC 22
•19 February 2015
FAMILY COURT OF AUSTRALIA
| BROWN & SHALLOW | [2015] FamCAFC 22 |
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant is deceased – Where the respondent seeks that the appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where there is no interested party, including the Public Trustee, who wishes to proceed with the appeal – Where no application to substitute a legal personal representative has been made pursuant to r 6.15 of the Family Law Rules 2004 (Cth) – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where the respondent sought his costs of the appeal – Where it is not possible to make an order for costs as there is no party or having established an Estate of the deceased appellant – No order for costs made.
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Somerton & Wells and Anor (2014) FLC 93-574 |
| APPELLANT: | Ms Brown |
| RESPONDENT: | Mr Shallow |
| FILE NUMBER: | TVC | 425 | of | 2013 |
| APPEAL NUMBER: | NA | 15 | of | 2014 |
| DATE DELIVERED:: | 19 February 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Kent JJ |
| HEARING DATE: | 2 October 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 February 2014 |
| LOWER COURT MNC: | [2014] FCCA 673 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | CS Legal |
| SOLICITOR FOR THE RESPONDENT: | Hopgood Ganim |
Orders
The notice of appeal filed by Ms Brown on 18 March 2014 be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brown & Shallow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 15 of 2014
File Number: TVC 425 of 2013
| Ms Brown |
Appellant
And
| Mr Shallow |
Respondent
REASONS FOR JUDGMENT
In an application in an appeal filed 8 September 2014, Mr Shallow (“the respondent”) asks that the appeal filed 18 March 2014 by Ms Brown (“the appellant”) be dismissed and that the appellant pay his costs.
That application was listed for hearing on 2 October 2014. As a result of the solicitors for the appellant complying with directions made that day, these reasons and orders are given without the need for a further appearance.
The appellant is deceased, having passed away in April 2014. The Notice of Appeal was filed on 18 March 2014.
On 18 February 2014 Judge Coker made orders by way of enforcement of the orders for property settlement made by consent between the parties on 2 December 2013.
The judge also ordered that the appellant pay costs on an indemnity basis having found:
13.…One could not imagine a clearer case of the inaction of the [appellant] being a direct cause of expense and therefore difficulty for the [respondent].
In an affidavit filed by Mr Watmore on 22 September 2014, a solicitor employed by CS Legal, the appellant’s solicitors, it is explained that the appellant is deceased, the firm having been informed of her death by her father in April 2014.
Mr Watmore has conducted searches to determine if an application for Probate has been filed by making enquiries at the Queensland Supreme Court and made various other investigations seeking to locate the appellant’s adult children, her parents, and her other relatives.
The solicitor was successful in contacting the brother of the appellant. Through him attempts have been made to contact the adult children of the appellant. A letter was sent to the appellant’s brother dated 18 September 2014 notifying him that an application has been brought to have the appeal dismissed, and that the application was listed on 2 October 2014.
Rule 6.15 of the Family Law Rules 2004 (“the Rules”) allowing a legal personal representative to be substituted for the appellant was referred to in the letter together with the advice that most likely in the absence of such application the appeal will be dismissed. All the relevant documents were attached.
A similar letter was written to the appellant’s son, on the same date (at the address provided by the appellant’s brother).
Letters were written to the appellant’s parents on 10 July 2014 advising of the rule allowing for substitution of the legal personal representative of the appellant and enclosing the relevant documents.
A further letter was written to them on 18 September 2014 in similar terms to the other letters.
Although no person was substituted for the appellant, her solicitors filed a draft appeal index on 29 April 2014. Thus the appeal has not been deemed abandoned.
At the procedural hearing before Registrar Kane on 30 June 2014 orders were made requiring the solicitors for the appellant to give notice to any relevant person who may have an interest in the appellant’s estate.
On 15 September 2014 an order was made by the Registrar extending the time for compliance with those orders.
It seems the solicitors for the appellant have now complied with these orders.
No further steps have been taken by the solicitors or any other person on the appellant’s behalf in relation to the appeal.
There was no appearance before us on behalf of the appellant other than her former legal representatives.
In an affidavit by the respondent, filed on 8 September 2014, he explains that he had no contact with the appellant after their separation in 2009. The adult children of the appellant are not his children. He has attempted to contact them without success.
The respondent seeks his costs of the appeal and the application in an appeal.
As explained in the affidavit of Alison Leanne Ross filed 24 September 2014, the solicitor for the respondent, her firm has also contacted the adult children of the appellant.
The application and affidavit of the respondent has been served on the following persons, at the email addresses provided:
·The parents of the appellant;
·The son of the appellant;
·The daughter of the appellant.
The solicitors have received no reply to the email correspondence until recently as has been explained in the further affidavits filed 1 October 2014 and 2 October 2014.
The wife of the appellant’s son has contacted both the solicitors for the appellant and the solicitors for the respondent. She informed them that she had obtained legal advice and that her husband does not wish to pursue the appeal.
The solicitors for the respondent have searched the Queensland and Western Australian Supreme Court files to ascertain whether an application for Probate in the estate of the appellant has been made. No results were found. The wife of the appellant’s son informs that her belief is that the appellant died without a will.
It therefore appeared, as at the hearing date 2 October 2014, that all persons potentially having any interest in the appellant’s estate (and consequently any interest in this application and the appeal) had been given notice of the application for dismissal of this appeal. No person had come forward to resist the application or to be substituted for the appellant in the appeal.
As it also appeared that the appellant had died intestate and in Queensland; but had previously retained legal advisors based in Western Australia; out of an abundance of caution we made orders that the Public Trustee in each of those States, as the only remaining person or entity with a potential interest, be notified of the application.
The solicitors have given the court notice that they have complied with the orders. The affidavit of Alison Ross filed 9 January 2015 attaches letters sent to the Public Trustee of Queensland and also Western Australia. Neither Public Trustee indicated an interest.
Conclusions
There is no doubt that an appeal may be pursued by the substitution of a legal personal representative for the appellant (see Somerton & Wells and Anor (2014) FLC 95-574). There has been no application for substitution.
Rule 22.45 provides for the dismissal of an appeal which is not taken to have been abandoned. In addition, the court may dismiss an appeal if, at least 14 days’ notice has been given to the parties about the date and time an order to dismiss the appeal may be made. Notice has been given to all interested parties. There is no person, including the Public Trustee, who wishes to proceed with the appeal.
The respondent submits that in view of the steps taken by both solicitors there is no reasonable likelihood that any further steps will be taken in the appeal.
The appeal should be dismissed.
Costs
It is also asked that the Full Court make an order for the costs of the appeal. Although there may be grounds in terms of s 117(2) of the Family Law Act 1975 (Cth) (“the Act”) to make an order for costs it is not possible to make an order where there is no party. In this case it is not established that there is an Estate of the late appellant or a personal representative.
No order for costs can be made.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 February 2015.
Associate:
Date: 19 February 2015
0
0
2