Caia Tallis by next friend Jillian Ruth Luscombe v Marcel Burger as executor of the estate of Caesia Burger
[2023] WASC 171
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CAIA TALLIS by next friend JILLIAN RUTH LUSCOMBE -v- MARCEL BURGER as executor of the estate of CAESIA BURGER [2023] WASC 171
CORAM: SEAWARD J
HEARD: ON THE PAPERS
DELIVERED : 23 MAY 2023
FILE NO/S: CIV 2500 of 2019
BETWEEN: CAIA TALLIS by next friend JILLIAN RUTH LUSCOMBE
Plaintiff
AND
MARCEL BURGER as executor of the estate of CAESIA BURGER
First Defendant
STEVEN MICHAEL TALLISS as beneficiary of the estate of CAESIA BURGER
Second Defendant
JILLIAN RUTH LUSCOMBE as beneficiary of the estate of CAESIA BURGER
Third Defendant
MARCEL BURGER as beneficiary of the estate of CAESIA BURGER
Fourth Defendant
KENNETH CHARLES ROYAL as beneficiary of the estate of CAESIA BURGER
Fifth Defendant
BURISS NOMINEES PTY LTD as trustee of the TALBURG FAMILY TRUST
Sixth Defendant
Catchwords:
Cross-vesting jurisdiction - Application to transfer proceedings to the Family Court of Western Australia - Proceedings related to proceedings pending in the Family Court - More appropriate and in the public interest proceedings be determined by the Family Court
Legislation:
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5(4)
Family Provision Act 1972 (WA)
Income Tax Assessment Act 1936 (Cth)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Leach Legal |
| First Defendant | : | Jackson McDonald |
| Second Defendant | : | Solomon Hollett Lawyers |
| Third Defendant | : | In Person |
| Fourth Defendant | : | In Person |
| Fifth Defendant | : | In Person |
| Sixth Defendant | : | In Person |
Cases referred to in decision:
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Fell v Fell [2007] WASC 157
H v D [2012] WASC 291
Mrowka v Format Finishing Pty Ltd [2009] WASCA 184
North v Peter North Superannuation Fund Pty Ltd [2022] WASC 16
SEAWARD J:
Introduction
In 2019 the plaintiff, who is now nine years old, commenced an application by her next friend her maternal grandmother seeking orders under the Family Provision Act 1972 (WA) that the will of her mother be amended to ensure adequate provision is made for her proper maintenance, support, education or advancement in life.
There are also currently proceedings in the Family Court of Western Australia by which the husband of the deceased seeks property settlement orders regarding parts of the deceased's estate.
The Supreme Court proceedings have been adjourned numerous times whilst the Family Court proceedings progress.
The plaintiff now applies to transfer the Supreme Court proceedings to the Family Court of Western Australia, pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). The other parties consent to the application.
For the reasons that follow, I am of the opinion that the Supreme Court proceedings should be transferred to the Family Court.
Background
Deceased and the plaintiff
The deceased died on 27 December 2018.
The deceased is the plaintiff's mother.[1] The plaintiff was five years old when her mother died.[2] The plaintiff sues by her next friend, her maternal grandmother.[3]
[1] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [6].
[2] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [7].
[3] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [9].
The deceased's will was executed in 2012 prior to the birth of the plaintiff.[4] Unsurprisingly, given the date of the will, it does not make any specific provision for the plaintiff. [5]
[4] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [16] - [17].
[5] Affidavit of Jillian Ruth Luscombe affirmed 22 August 2019 [20].
The plaintiff's evidence is that the deceased has not left adequate or indeed any provision for the plaintiff's maintenance, support, education or advancement in life.[6]
Supreme Court proceedings
[6] Affidavit of Jillian Ruth Luscombe affirmed 22 August 2019 [22].
The present proceedings are an application by the plaintiff pursuant to s 6 of the Family Provision Act 1972 claiming that the disposition of the deceased's estate effected by her will is not such as to make adequate provision for the plaintiff's proper maintenance, support, education or advancement in life. The plaintiff seeks orders that the deceased's will be amended such that some of the gifts made go to the plaintiff to be held on trust for her.[7]
[7] Originating Summons 23 August 2019.
The other parties to this proceeding are:
(a)first defendant: Marcel Burger (the plaintiff's uncle in his capacity as executor of the deceased's will);
(b)second defendant: Steven Tallis (the plaintiff's father and a beneficiary of the deceased's estate);
(c)third defendant: Jillian Luscombe (the plaintiff's maternal grandmother and also a beneficiary of the deceased's estate);
(d)fourth defendant: Marcel Burger (in his capacity as a beneficiary of the deceased's estate);
(e)fifth defendant: Kenneth Royal (a beneficiary of the deceased's estate); and
(f)sixth defendant: Buriss Nominees Pty Ltd (as trustee of the Talburg Family Trust which forms part of the deceased's estate).
At the time of the deceased's death, she and the second defendant were married, but separated.[8] The plaintiff resided with the deceased and her grandmother prior to the deceased's death.[9] The plaintiff is currently being cared for by her grandmother.[10] The plaintiff was reliant on the deceased and her grandmother for her maintenance and support.[11] The second defendant was not paying any child support to the deceased at the date of her death.[12]
Family Court proceedings
[8] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [8].
[9] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [9].
[10] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [34].
[11] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [14].
[12] Affidavit of Jillian Ruth Luscombe, affirmed 22 August 2019 [15].
In light of her parent's separation (but not divorce) in 2018 proceedings were commenced by the second defendant in the Family Court of Western Australia concerning the division of the matrimonial property between the deceased and the second defendant, including various trusts and shareholdings in companies and dental practices owned by the family. The parties to the Family Court proceedings are:[13]
(a)applicant: Steven Tallis (the plaintiff's father and the second defendant in the Supreme Court proceedings);
(b)first respondent: Marcel Burger (the executor for the estate of Caesia Burger and the first and fourth defendant in the Supreme Court proceedings);
(c)second respondent: Jillian Luscombe (a trustee of relevant trusts and the plaintiff's next friend and third defendant in the Supreme Court proceedings); and
(d)third respondent: Marcel Burger (a trustee and shareholder and director of relevant entities and the first and fourth defendant in the Supreme Court proceedings).
[13] Affidavit of Jillian Luscombe, sworn 20 February 2023, annexure JRL1.
Those proceedings remain on-going.
In the evidence filed in support of this application, the plaintiff has attached the latest orders sought by the parties in the Family Court proceedings.[14]
[14] Affidavit of Jillian Luscombe, sworn 20 February 2023, annexure JRL1- JRL2.
The applicant in the Family Court proceedings is seeking orders that as part of the overall property settlement, the plaintiff's next friend do all things necessary to resign her appointment as the case guardian for the plaintiff in the Supreme Court proceedings.[15]
[15] Affidavit of Jillian Luscombe, sworn 20 February 2023, annexure JRL1, order 15.
As part of the overall property settlement, the first respondent in the Family Court proceedings is seeking orders including:[16]
(a) the establishment of a Child Maintenance Trust in accordance with section 102AG of the Income Tax Assessment Act 1936 (Cth);
(b) that the Supreme Court proceedings be discontinued; and
(c)the CB Family Trust, of which the plaintiff is the sole specified beneficiary, remains under the control of Marcel Burger as appointor and trustee.
[16] Affidavit of Jillian Luscombe, sworn 20 February 2023, annexure JRL2, orders 30 and 31.
In the evidence filed in support of the application, the plaintiff's next friend deposes that:[17]
I am informed by my solicitor, Ursula Stevens, and verily believe that the objects of a Child Maintenance Trust share many similarities with the objects of an order pursuant to the Family Provision Act 1972 (WA) with respect to a child claimant in the position of [the plaintiff].
[17] Affidavit of Jillian Luscombe, sworn 20 February 2023 [13].
Legal Principles
Section 5(4) of the Jurisdiction of Courts (Cross-vesting) Act provides:
(4)Where –
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court or the State Family Court (in this subsection referred to as the first court); and
(b)it appears to the first court that –
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the other of the courts referred to in paragraph (a) and it is more appropriate that the relevant proceeding be determined by that other court;
(ii) having regard to –
(A)whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in that other court; and
(B)the interests of justice,
it is more appropriate that the relevant proceeding be determined by that other court; or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by that other court,
the first court shall transfer the relevant proceeding to that other court.
Section 5(4)(b) provides three alternative paths to the grant of a transfer of proceedings pending in this court to the Family Court.[18] Relevant to the present application are s 5(4)(b)(i) and s 5(4)(b)(iii).
[18] Fell v Fell [2007] WASC 157 [1] - [3]; North v Peter North Superannuation Fund Pty Ltd [2022] WASC 16 [19].
The questions that emerge on an application of this kind are simply whether the statutory criteria are made out. If the requirements of s 5(4)(a) and either s 5(4)(b)(i) or s 5(4)(b)(iii) are met, then the court must order the transfer of the Supreme Court proceedings.[19]
[19] Fell v Fell [2007] WASC 157 [7]; North v Peter North Superannuation Fund Pty Ltd [2022] WASC 16 [23].
The first precondition in s 5(4)(b)(i) is whether the Supreme Court proceedings arise out of, or are 'related to', the Family Court proceedings. A direct relationship need not arise between the two sets of proceedings for the proceedings to be related.[20] In H v D Pritchard J observed:[21]
The authorities do not suggest that a direct relationship between the two sets of proceedings is required. The expression 'related to' should be given a wide, rather than a restricted, meaning: Seymour v Devine and Ors [9] (Pullin J, citing Carey v Carey (Unreported, SCt of WA, Lib No 8307, 14 June 1990 (Franklyn J)).
The term 'related' means 'associated' or 'connected' and in order to be 'related' there needs to be some nexus or association between the two sets of proceedings in order that the conclusion can be drawn that they are related: Fell v John Fell [2007] WASC 157 [12] (Beech J); Armstrong v Armstrong [2004] WASC 121 [52] (Barker J); Re Hamilton-Irvine and the Companies Act 1985 (1990) 94 ALR 428, 432 - 433 (Beaumont J); Leithead v Leithead (1991) 109 FLR 177 and Hoddell v Hoddell Pty Ltd [1999] WASC 156 [21] (Murray J).
[20] North v Peter North Superannuation Fund Pty Ltd [2022] WASC 16 [22].
[21] H v D [2012] WASC 291 [31] - [32].
Section 5(4)(b)(i) also requires that it be more appropriate that the proceedings in the Supreme Court be determined by the Family Court, whilst s 5(4)(b)(iii) requires that it is 'otherwise in the interests of justice' that the proceedings in this Court be determined by the Family Court. Previous decisions of this Court have held that these alternatives are 'closely aligned concepts' that can often be determined together in that it will otherwise be in the interests of justice for the Family Court to hear the case if that court is the more appropriate court for the determination of the relevant proceedings.[22]
[22] BHP Billiton Ltd v Schultz (2004) 221 CLR 400 [14] and [77]; Fell v Fell [2007] WASC 157 [5]; North v Peter North Superannuation Fund Pty Ltd [2022] WASC 16 [29].
To determine whether these preconditions are met, the court must engage in an evaluative judgment of all the circumstances of the particular case. Where the interests of justice lie and which court is more appropriate will depend upon an analysis of all the circumstances of each case.[23]
[23] North v Peter North Superannuation Fund Pty Ltd [2022] WASC 16 [30]; Fell v Fell [2007] WASC 157 [17].
As has been submitted by the plaintiff, decisions to cross-vest proceedings are very fact-specific.[24] Applying the cross-vesting legislation involves a 'nuts and bolts management decision' as to which court is more appropriate in the interests of justice.[25]
[24] Plaintiff's submissions [3].
[25] Fell v Fell [2007] WASC 157 [8].
Disposition
I am satisfied that the Supreme Court and Family Court proceedings are 'related' for the purpose of s 5(4)(b)(i), in that there is a sufficient nexus or association between them. The factual connection between the two sets of proceedings is such that it must necessarily follow that they are related. Not only is there an overlap of parties, but the subject matter of the proceedings overlaps. In the Family Court proceedings, the parties seek a property settlement as between the deceased's estate and her husband. The property the subject of consideration in the Family Court proceedings overlaps with the property that is currently the subject of the Supreme Court proceedings. As part of the Family Court proceedings, regard will also need to be had to the maintenance and support of the plaintiff. Accordingly, the first precondition in s 5(4)(b)(i) is met.
Consistent with previous authorities, I have considered the remaining preconditions (being whether it is more appropriate that the Supreme Court proceeding be determined by the Family Court and whether it is in the interests of justice that the Supreme Court proceedings be determined by the Family Court) together.
I am satisfied that these preconditions are met. In this regard, I accept that the parties will be unable to advance the Supreme Court proceedings until the Family Court proceedings have been resolved, as there is no way of knowing the value of the deceased's estate or what assets are within it, until the property settlement as between the deceased's estate and her husband is resolved by the Family Court.
I accept that the Family Court is the appropriate court to resolve the property settlement as between the deceased's estate and her husband.[26]
[26] Plaintiff's submissions [20].
I also note that it is currently proposed by the deceased's estate in the Family Court proceedings that the property settlement include the establishment of a Child Maintenance Trust in accordance with s 102AG of the Income Tax Assessment Act 1936 (Cth). In accordance with the Australian Taxation Office Taxation Ruling TR 98/4 a Child Maintenance Trust is:[27]
… a trust set up to provide support for a child (or children). Most commonly, [Child Management Trust] arrangements are put in place where there is an obligation to provide maintenance for the child, and income under the [Child Management Trust] to which the child is presently entitled or that is distributed to the child is taken to satisfy that obligation.
[27] Australian Taxation Office Taxation Ruling TR 98/4 [19].
I accept the plaintiff's submission that the purpose of a Child Maintenance Trust largely mirrors the objects of an order pursuant to the Family Provision Act 1972 (WA) in that both have the object of making provision for what is considered the appropriate maintenance of a person (in this case a child).[28]
[28] Plaintiff's submissions [17] - [18].
I also note that it is currently proposed by the deceased's estate in the Family Court proceedings that the CB Family Trust, of which the plaintiff is the sole specified beneficiary, remain under the control of the first defendant.[29]
[29] Plaintiff's submissions [13].
I accept that it is not in the interests of justice to have two parallel sets of proceedings involving the same parties and the same property being undertaken in different courts. This runs the risk that orders made in one court may be at odds with orders made in the other court. I also accept that it is preferable that all issues concerning the property of the deceased and the maintenance of the plaintiff be decided in one proceeding.
I also note that the effect of s 4(6) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) is that the jurisdiction of the Supreme Court to hear and determine the plaintiff's claim is transferred to the Family Court.[30] Further, s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) provides that the Family Court may exercise jurisdiction conferred on that court by provision of that act, and may hear and determine a proceeding transferred to the Family Court under such a provision.[31]
[30] North v Peter North Superannuation Fund Pty Ltd [2022] WASC 16 [36].
[31] Mrowka v Format Finishing Pty Ltd [2009] WASCA 184 [107].
Therefore, in all the circumstances, I consider that it is more appropriate that the proceedings in the Supreme Court be determined by the Family Court and that it is in the interests of justice that the Supreme Court proceedings are transferred to the Family Court.
As all the statutory preconditions for a transfer have been met, I am required to grant the plaintiff's application.
Conclusion
For the above reasons I will therefore grant the plaintiff's application and make the following orders:
1.Pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), Supreme Court proceedings CIV 2500 of 2019 be and are hereby transferred to the Family Court of Western Australia to be heard together with Family Court of Western Australia proceedings PTW 5540 of 2018.
2.The costs of the proceedings in Supreme Court proceedings CIV 2500 of 2019 be reserved to the Family Court of Western Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Honourable Justice Seaward
23 MAY 2023
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