Capelinski and Patton - [2010] FamCA 1243

FAMILY COURT OF AUSTRALIA

CAPELINSKI & PATTON

[2010] FamCA 1243

FAMILY LAW – DE FACTO PROPERTY CLAIM – Respondent deceased – Legal personal representative by prior order substituted as respondent – Current and prospective proceedings in the State Courts concerning the Deceased’s Will and other matters – Application by Deceased’s legal personal representative for stay or adjournment of proceedings here – Relevant principles considered – Application for stay or adjournment refused – Directions made

Family Law Act 1975 (Cth) ss 79 (5), 90SM (1), (2), (3), (4), (5) and (8), s90SF (3)
Succession Act 1981 (Qld) s 41
Family Law Rules 2004 rules 1.04, 6.15(3), 11.01

Blue & Blue and Ors [2008] FamCA 787
Grace & Grace (1988) FLC 92-792
Prince & Prince (1984) FLC 91-501
Whitehouse & Whitehouse (2009) FLC 93-415

APPLICANT:

Ms Capelinksi

RESPONDENT:

J Patton as the legal personal representative of Mr Patton (Deceased)

FILE NUMBER:

DGC

764

2010

DATE DELIVERED:

7 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

6 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sara

SOLICITORS FOR THE APPLICANT:

Thynne & McCartney Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Carew

SOLICITORS FOR THE RESPONDENT:

Small Myers Hughes

Orders

IT IS ORDERED BY CONSENT

The Executor of the Will of Mr Patton (Deceased) as soon as possible sign all documents necessary to release to Ms Capelinski all moneys presently in account no …494 in her name with Suncorp Banking Corporation, but in default this order be sufficient authorisation for Suncorp Banking Corporation to release those moneys to Ms Capelinski with such moneys to be paid into Thynne & McCartney Lawyers Trust Account.

AND IT IS FURTHER ORDERED

The Deceased’s legal personal representative file and serve a response to Ms Capelinski’s initiating application and a financial statement by 4.00pm on Friday 7 January 2011.
The case assessment conference at 10.15am on Thursday 9 December 2010 is vacated.
The parties and their legal advisers attend on a Registrar for a conciliation conference at 9.00am on Wednesday 9 February 2011.
The parties must comply with all requirements under the Family Law Rules 2004 in relation to the steps to be taken preceding a conciliation conference.
The costs of and incidental to Deceased’s legal personal representatives’ application in a case filed 14 October 2010 and Ms Capelinski’s response filed 3 December 2000 are reserved to the trial judge.

IT IS NOTED that publication of this judgment under the pseudonym Capelinski & Patton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: DGC 764 of 2010

MS CAPELINKSI

Applicant

And

J PATTON as the legal personal representative of MR PATTON (Deceased)

Respondent

REASONS FOR JUDGMENT

Background

Twenty six years ago, in 1984, Mr Patton, now deceased, and Ms Capelinski commenced a de facto relationship. Mr Patton was then 67 years and Ms Capelinski 59 years.
They separated on 6 January 2010.
On 10 March 2010, Ms Capelinski commenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Capelinski and Patton

Details

AGLC: Capelinski and Patton [2010] FamCA 1243
Case: [2010] FamCA 1243
Decision Date: 7 December 2010

CaseChat Overview and Summary

In the matter of *Capelinski and Patton*, heard by O’Reilly J, the dispute concerned the release of moneys held in a Suncorp bank account and the procedural steps to be taken in relation to an initiating application and response filed by the parties. The Executor of the Will of Mr Patton (Deceased) was the respondent, and Ms Capelinski was the applicant.

The court was required to determine the immediate release of funds from a specific bank account to Ms Capelinski, and to set a timetable for further procedural steps in the proceeding. This included the filing of a response and financial statement by the Executor, the vacation of a previously scheduled case assessment conference, and the attendance of the parties at a conciliation conference.

By consent of the parties, O’Reilly J ordered that the Executor sign all necessary documents to release the moneys in account no …494 to Ms Capelinski, with this order serving as sufficient authorisation for Suncorp Banking Corporation to release the funds into Ms Capelinski’s legal representatives’ trust account. The court further ordered the Executor to file and serve a response and financial statement by a specified date, vacated the case assessment conference, and directed the parties to attend a conciliation conference. The costs of the applications were reserved to the trial judge.

Orders

Orders of the court

IT IS ORDERED BY CONSENT

The Executor of the Will of Mr Patton (Deceased) as soon as possible sign all documents necessary to release to Ms Capelinski all moneys presently in account no …494 in her name with Suncorp Banking Corporation, but in default this order be sufficient authorisation for Suncorp Banking Corporation to release those moneys to Ms Capelinski with such moneys to be paid into Thynne & McCartney Lawyers Trust Account.

AND IT IS FURTHER ORDERED

The Deceased’s legal personal representative file and serve a response to Ms Capelinski’s initiating application and a financial statement by 4.00pm on Friday 7 January 2011.

The case assessment conference at 10.15am on Thursday 9 December 2010 is vacated.

The parties and their legal advisers attend on a Registrar for a conciliation conference at 9.00am on Wednesday 9 February 2011.

The parties must comply with all requirements under the Family Law Rules 2004 in relation to the steps to be taken preceding a conciliation conference.

The costs of and incidental to Deceased’s legal personal representatives’ application in a case filed 14 October 2010 and Ms Capelinski’s response filed 3 December 2000 are reserved to the trial judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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