Carlisle and Ridley

[2014] FamCA 938

FAMILY COURT OF AUSTRALIA

CARLISLE & RIDLEY [2014] FamCA 938

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to discontinue the proceedings – where the respondent is deceased – where the applicant and the respondent’s legal personal representative have reached agreement with respect to financial matters.  

Family Law Act 1975 (Cth)

APPLICANT: Mr Carlisle

RESPONDENT: Ms Jones as the legal personal representative of Ms Ridley (Deceased)

FILE NUMBER: MLC 7172 of 2011

DATE DELIVERED: 25 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 25 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Henderson

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Ms Philip

SOLICITOR FOR THE RESPONDENT: CE Family Lawyers

Orders

IT IS ORDERED THAT

1. Leave be granted to the applicant father and the legal personal representative of the deceased respondent mother to discontinue the proceedings as contained in the father’s amended initiating application filed 1 September 2011 and the mother’s response filed 25 January 2012.

2. The matter be otherwise removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT
The Deed of Release dated 23 August 2014 be marked “Exhibit 1”, the Confirmation of Terms of Trust dated 23 August 2014 be marked “Exhibit 2” and the Licence Agreement dated 23 August 2014 be marked “Exhibit 3” and they remain on the Court file.

AND THE COURT NOTES THAT
Neither party seeks any order for costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlisle & Ridley 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 MELBOURNE

FILE NUMBER: MLC 7172 of 2011

Mr Carlisle

Applicant

And

Ms Jones as the legal personal representative of Ms Ridley (Deceased)

Respondent

REASONS

1. This matter was listed for final hearing before me commencing this day and, as the parties had resolved the matter, was listed to enable the Court to consider the matter and, in particular, the parties’ application that they should be given permission to discontinue the proceedings.

2. The applicant father in this case commenced a de facto relationship with the respondent mother Ms Ridley in or about 2000 and they separated in or about March 2011.  There is one child of their relationship, B born in 2006.

3. The mother died in 2013 and at the time of her death she and the father were involved in proceedings in this Court for property settlement and parenting issues.

4. On 3 March 2014 I made orders appointing the maternal grandmother as the legal personal representative of the deceased mother, dismissed all parenting applications, discharged the appointment for the Independent Children’s Lawyer, and made orders setting down the property applications for final hearing.

5. The child B lives with the father and maintains a relationship with the respondent in these proceedings, who is the maternal grandmother.

6. At the time of her death, the mother had signed a contract of sale to purchase a property in Suburb C and that purchase was completed by the father following her death. The mother had assets in her name and death benefits which were paid to her estate.  The child is the beneficiary of the mother’s estate.

7. On 12 February 2014 letters of administration of the mother’s estate were granted to the respondent for the use and benefit of the child and limited until the child attains the age of 18 years and then herself obtains a grant of letters of administration.

8. The parties in this matter have agreed to establish a trust by which the father holds the real property, initially purchased by the mother and ultimately acquired by him, on trust for the benefit of the child, subject to certain terms and conditions which are set out in the deed which the parties have executed. The father and the respondent in these proceedings, and her husband, have executed a licence agreement by which the father agrees to allow them to occupy that real property and use certain furniture as licensees, subject to terms and conditions contained in the licence agreement which they have executed.

9. Ultimately, as Mr Henderson for the father submitted, “all paths lead to [the child]”.  The child E is the beneficiary of the trust, which holds the property, she is the beneficiary of her mother’s estate and, ultimately, will have rights with respect to her father’s estate.

10. It is on that basis that the parties, having had the advice of experienced counsel and solicitors and in order to avoid what would be protracted and difficult proceedings and in somewhat difficult circumstances in any event when a young child has lost her mother, have come to the Court today seeking to discontinue the proceedings on the basis of the settlement that they have reached.

11. I am certainly satisfied that I should make an order giving the parties leave to discontinue the proceedings in all of the circumstances that have been explained to me. I note that neither party seeks any order for costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 25 August 2014.

Associate:  Hayley Stevenson

Date:  31 October 2014