Cullen & Cullen - [2011] FMCAfam 375

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CULLEN & CULLEN

[2011] FMCAfam 375

FAMILY LAW – Property – death of a party – s.79(8) Family Law Act 1975 – appointment of legal personal representative of deceased party – executor/administrator acquires title to a chose in action upon a grant of probate of the Will or letters of administration in the estate.

Family Law Act 1975, s.79(8)
Federal Magistrates Court Rules 2001, r.1.05
Family Law Rules 2004, rr.1.12, 6.05, 6.15
Superannuation Industry (Supervision)Act 1993, s.10
Probate and Administration Act 1898 (NSW), ss.44 & 61

Vuletic & Vuletic number PT700 of 1995 (unreported)
Slater & Slater (1985) FLC 91-641
Strelys & Strelys (1987) FLC 91-827
Daily Pty Ltd v White (1946) 63 WN (NSW) 262
Nolan v Nolan & Ors [2004] VSCA 109
In the Marriage of GF & ER Strelys 12 FAMLR 437
Byers v Overton Investments Pty Ltd (2001) 109 FCR 554

Applicant:

MS CULLEN

Respondent:

MR CULLEN

File Number:

DUC 372 of 2009

Judgment of:

Kemp FM

Hearing date:

11 April 2011

Date of Last Submission:

11 April 2011

Delivered at:

Sydney

Delivered on:

27 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr Hodgson

Solicitors for the Applicant:

Booth Brown Samuels Olney

Counsel for the Respondent:

Mr Berry

Solicitors for the Respondent:

M J Duffy & Son

ORDERS

Pursuant to Rule 6.05 of the Family Law Rules 2004, Mr P is granted permission to intervene as a party, becoming the second applicant in the proceedings.
That upon grant of the Probate of the last Will of Ms Cullen dated

1 June 2009 appointing Mr P as an Executor and Trustee of the Estate of the first applicant and within 24 hours of a sealed copy of the said grant being provided to the Court, Mr P be substituted as the legal personal representative of the first applicant, pursuant to s.79(8) of the Family Law Act 1975 and at the same time be removed as the second applicant in the proceedings.
By consent, that leave be granted to the parties’ solicitors to inspect and if required, photocopy the exhibits tendered at the hearing of these proceedings by arrangement with the Associate to Federal Magistrate Kemp.
By consent, that the parties be granted liberty to restore on 7 days notice.

THE COURT NOTES

That a copy of the Death Certificate and Will of the late Ms Cullen have been produced to the Court as part of Exhibit “1” on the application.
The Court will reserve the position as to whether the parties will be required to attend a further conciliation conference.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

DUC 372 of 2009

MS CULLEN

Applicant

And

MR CULLEN

Respondent

REASONS FOR JUDGMENT

Introduction

These are property proceedings which were heard in Dubbo on 26 & 27 October 2010 when the parties’…

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 Cullen & Cullen

Details

AGLC: Cullen & Cullen [2011] FMCAfam 375
Case: [2011] FMCAfam 375
Decision Date: 27 April 2011

CaseChat Overview and Summary

In the case of Cullen & Cullen, the Family Court of Australia was called upon to resolve issues related to the intervention and substitution of parties in a family law matter. The first applicant was the estate of the deceased, Ms Cullen, and the second applicant was Mr P, who sought to intervene and subsequently be substituted as the legal personal representative of the estate. The dispute arose from the need to address the procedural aspects of the substitution of the estate's representative following the death of the applicant and the subsequent grant of probate. The court was tasked with determining whether Mr P should be permitted to intervene in the proceedings and, if so, whether he should be substituted as the legal personal representative of Ms Cullen's estate.

The legal issues before the court involved the interpretation and application of the Family Law Rules 2004 and the Family Law Act 1975. Specifically, the court had to consider the procedural requirements for Mr P's intervention and substitution as the legal personal representative of Ms Cullen's estate, including the appropriate timing of these actions in relation to the grant of probate. The court was also required to consider the implications of these procedural steps on the ongoing proceedings and the rights of the parties involved.

The court granted permission for Mr P to intervene as a party, recognising the necessity of his involvement in the proceedings. The court determined that Mr P should be substituted as the legal personal representative of Ms Cullen's estate upon the grant of probate and the provision of a sealed copy of the grant to the court. This substitution would occur within 24 hours of the grant being provided. The court also allowed the parties' solicitors to inspect and, if necessary, photocopy the exhibits tendered at the hearing. Additionally, the court reserved the decision on whether a further conciliation conference would be required. The court's orders reflected a careful consideration of the procedural rules and the specific circumstances of the case, ensuring that the interests of all parties were appropriately addressed.

The final orders of the court included granting permission for Mr P to intervene as a party and subsequently substituting him as the legal personal representative of Ms Cullen's estate. The court also granted leave for the inspection and photocopying of exhibits and allowed the parties the liberty to restore on seven days' notice. The court reserved the position on the need for a further conciliation conference, indicating that this decision would be made at a later stage in the proceedings.

Orders

Orders of the court

Pursuant to Rule 6.05 of the Family Law Rules 2004, Mr P is granted permission to intervene as a party, becoming the second applicant in the proceedings.

That upon grant of the Probate of the last Will of Ms Cullen dated

1 June 2009 appointing Mr P as an Executor and Trustee of the Estate of the first applicant and within 24 hours of a sealed copy of the said grant being provided to the Court, Mr P be substituted as the legal personal representative of the first applicant, pursuant to s.79(8) of the Family Law Act 1975 and at the same time be removed as the second applicant in the proceedings.

By consent, that leave be granted to the parties’ solicitors to inspect and if required, photocopy the exhibits tendered at the hearing of these proceedings by arrangement with the Associate to Federal Magistrate Kemp.

By consent, that the parties be granted liberty to restore on 7 days notice.

THE COURT NOTES

That a copy of the Death Certificate and Will of the late Ms Cullen have been produced to the Court as part of Exhibit “1” on the application.

The Court will reserve the position as to whether the parties will be required to attend a further conciliation conference.

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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