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DELRIO & JINDRA (No.2)

DELRIO & JINDRA (No.2)

Case [2020] FCCA 2234 15 September 2020

Statutory Construction

Family Law

Civil Procedure

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DELRIO & JINDRA (No.2)

[2020] FCCA 2234

Catchwords:
FAMILY LAW – Alteration of property interests – where applicant husband died before hearing – where application carried on by his legal personal representative – where financial agreement did not cover all of the property of the parties – interpretation of the financial agreement and its relevance to later s.79 application – whether contribution made to property that is covered by financial agreement is relevant to assessment of contribution to property not so covered – interaction of s.71A and s.79(4) – whether it is just and equitable to make any order – whether it is appropriate to make any order under s.79(8)(b) – where application is dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.15AB

Family Law Act 1975 (Cth), ss.4, 71A, 75, 79, 90DA

Family Law Amendment Act 1983 (Cth)

Family Law Amendment Act 2000 (Cth)

Cases cited:

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99

Bevan & Bevan [2013] FamCAFC 116

Delrio & Jindra [2019] FCCA 1186

Fulton v Fulton [2014] NSWSC 619
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395

Hospital Product Ltd v United States Surgical Corp (1984) 156 CLR 41

Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60

Pretswell (Deceased) & Pretswell [2019] FamCA 395

Ross v R [1979] HCA 29; (1979 141 CLR 432

Stanford & Stanford [2012] HCA 52

Tasmanian Trustees Ltd v Gleeson (1990) FLC 92-156
Wood v Riley (1867) LR 3 CP 26

Applicant:

MS GRAY AS PERSONAL LEGAL REPRESENTATIVE OF MR DELRIO

Respondent:

MS JINDRA

File Number:

WOC 1021 of 2017

Judgment of:

Judge Altobelli

Hearing dates:

9 – 10 June 2020

9 July 2020

Date of Last Submission:

9 July 2020

Delivered at:

Wollongong

Delivered on:

15 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Ahmad

Solicitors for the Applicant:

Adams Legal Pty Ltd

Counsel for the Respondent:

Mr Dura

Solicitors for the Respondent:

Delaney Lawyers

ORDERS

The Further Amended Initiating Application filed 26 March 2018 be dismissed.
The Respondent must notify Chambers within 7 days in the event they intend to make an application for costs, so that directions may be made for such application to proceed by way of written submissions.

IT IS NOTED that publication of this judgment under the pseudonym Delrio & Jindra (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1021 of 2017

MS GRAY as Personal Legal Representative of MR DELRIO

Applicant

And

MS JINDRA

Respondent

REASONS FOR JUDGMENT

Introduction

These Reasons for Judgment explain the Orders that the Court has made in an application for alteration of property interests, commonly known as a property settlement, between the Legal Personal Representative of the deceased Husband, and the Respondent Wife.

Background

On 12 June 2019 the Court made orders and published its Reasons for Judgment in what the Court considers to…

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 DELRIO & JINDRA (No.2)

Details

AGLC: Delrio and Jindra (No.2) [2020] FCCA 2234
Case: [2020] FCCA 2234
Decision Date: 15 September 2020

CaseChat Overview and Summary

The applicant husband died before the hearing of the proceedings, and his legal personal representative continued the application for an alteration of property interests. The dispute concerned the interpretation of a financial agreement made between the parties and its relevance to a subsequent application under section 79 of the *Family Law Act 1975* (Cth) concerning property not covered by that agreement. The court was asked to determine whether contributions made to property covered by the financial agreement were relevant to the assessment of contributions to property not so covered, and the interaction between section 71A and section 79(4) of the Act.

The court was required to consider whether it was just and equitable to make any order, and specifically whether it was appropriate to make any order under section 79(8)(b) of the *Family Law Act 1975* (Cth). The central legal issue was the extent to which a financial agreement, which did not encompass all of the parties' property, could preclude or limit a section 79 application concerning the remaining assets.

Judge Altobelli dismissed the Further Amended Initiating Application. The court ordered that the respondent must notify Chambers within 7 days if they intended to make an application for costs, so that directions could be made for such application to proceed by way of written submissions.

Orders

Orders of the court

The Further Amended Initiating Application filed 26 March 2018 be dismissed.

The Respondent must notify Chambers within 7 days in the event they intend to make an application for costs, so that directions may be made for such application to proceed by way of written submissions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Delrio and Jindra (No.2) [2020] FCCA 2234

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

HARLE & NORCOTT (No.3)
[2020] FCCA 22

…[2020] FCCA 22 34…
Pretswell (deceased) and Pretswell
[2019] FamCA 395 Para 5

…In Pretswell (Deceased) & Pretswell [2019] FamCA 395 (4 July 2019) Harper J considered at length the cases pertaining to s.79(8) at [52] – [65]: The Court respectfully adopts His Honour’s statement of the law: [51] Pursuant to s 79(8)a), the property proceedings, having been commenced prior to the husband’s death,…
DELRIO & JINDRA
[2019] FCCA 1186 Para 1

…ts Reasons for Judgment in what the Court considers to be the first stage of the present proceedings. Those Reasons were published as Delrio & Jindra [2019] FCCA 1186. It is important to understand what was the effect of those Orders and its relevance to the present proceedings.…
Neubert (deceased) and Neubert & Anor (No. 2)
[2017] FamCA 829 Para 5

…sband and wife before the claims of other beneficiaries are taken into account. [55] In Neubert (deceased) & Neubert and Anor (No. 2) [2017] FamCA 829, Benjamin J at [91] cited with approval the following statement of principle by Wilson FM (as he then was), in Cornell & Stokes [2008] FMCAfam 774, after a review of…
Fulton v Fulton
[2014] NSWSC 619 Para 17

…nces, where sadly, the applicant was not capable of being cross examined on matters that might have been readily conceded. [2.5] In Fulton v Fulton [2014] NSWSC 619, Hallen J provided some guidance as to the way evidence should be treated where that evidence was not the subject of cross-examination and cross-examin…
Stanford v Stanford
[2012] HCA 52 Para 6

…ch as this one, because it would not be just and equitable to make an order inconsistent with that clause. Indeed the majority in Stanford & Stanford [2012] HCA 52 (15 November 2012) stated at [41]: If the parties have made a financial agreement about the property of one or both of the parties that is binding un…
Grace v Grace
[2012] NSWSC 976 Para 5

…ion of the preconditions has been the subject of comment in several decisions in the context of final hearings. [54] In Grace v Grace [2012] NSWSC 976, Brereton J stated the applicable principles at [242]-[243] as follows: [242] Under Family Law Act, s 79(8), there are two necessary conditions for a court to make a…
Cornell & Stokes
[2008] FMCAfam 774 Para 5

…A 829, Benjamin J at [91] cited with approval the following statement of principle by Wilson FM (as he then was), in Cornell & Stokes [2008] FMCAfam 774, after a review of the relevant authorities, including the Full Court decision in Bourke & Bourke [1998] FamCA 69:- [23] From the above authorities, I conclude that…
Hickey & Hickey
[2003] FamCA 395 Para 3

…tinuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey…
Fisher v Fisher
[1986] HCA 61 Para 5

…death, may continue. The proceedings do not abate. Section 79(8) has been upheld as constitutionally valid: Fisher v Fisher (1986) 161 CLR 438; [1986] HCA 61. It is helpful to set out the terms of s 79(8) of the Act in full… [52] It appears from the terms of s 79(8), the Administrator, in conducting these procee…
Hospital Products Ltd v United States Surgical Corporation
[1984] HCA 64 Para 10

…because there is no cogent extrinsic evidence to assist in the interpretation of the Agreement: Hospital Product Ltd v United States Surgical Corp (1984) 156 CLR 41 at 62. Finally the Court does not consider its interpretation of the language used in the Agreement to be capricious, unreasonable, inconvenient or unj…
Ross v The Queen
[1979] HCA 29 Para 8

…]) when it is not possible to reconcile two sections in an Act, the later section prevails over the earlier: Wood v Riley (1867) LR 3 CP 26; Ross v R [1979] HCA 29; (1979 141 CLR 432 at 440.…
Australian Broadcasting Commission v Australasian Performing Right Association Ltd
[1973] HCA 36 Para 10

…be capricious, unreasonable, inconvenient or unjust: Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109-110. For all present purposes the W Street, Town Y property was not covered by the Financial Agreement.…
Bevan & Bevan
[2013] FamCAFC 116 Para 3

…In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by…
Life Insurance Company of Australia Limited v Phillips
[1925] HCA 18 Para 15

…were the intentions of the parties to the Agreement ascertained objectively from the language used: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78.…
FLC 91-969, 77,010; Re Berry & Berry
[1989] FAMCA 76 Para 5

…ncial circumstances of the beneficiaries of the deceased spouse's estate [Menzies & Evans (1988) FLC 91-969, 77,010; Re Berry & Berry [1989] FamCA 76;(1990) FLC 92-118, 77,779; Mason v Hannaford; Mason-King (1993) FLC 92-398, 80,055, 80,056, 80,057]. This means that the claim of or against the surviving spouse is…
Bourke v Bourke
[1998] FAMCA 69 Para 5

…good cause of action for an order under s 79 in respect of which the court's jurisdiction had been regularly invoked [Bourke v Bourke [1998] FamCA 69, [4.8]-[4.10]]. The court is not required to work out the precise order it would have made had the deceased not died [Allan & Allan (1987) FLC 91-824; Randle & Randl…
[2004] FAMCA 424
[2004] FAMCA 424 Para 5

…nian Trustees Ltd (Administrators of Estate of Gleeson, B J) & Gleeson, D W (1990) FLC 92-156, applied by Carmody J in Rutter [2004] FamCA 424; and by Boland J in Ford & Marchant [2001] Fam CA 1585. [56] In Neubert (supra) at [92], Benjamin J also accepted that exercising discretion to permit the continuation of pr…
Life Insurance Co of Australia Ltd v Phillips
159 ER 375 Para 15

…to be decided by contractual principles: what were the intentions of the parties to the Agreement ascertained objectively from the language used: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78.…

Legislation cited in this decision · 5

Family Law Act 1975 (Cth)
4, 71A, 75, 79, 90DA 11 mentions (from Para 4)
Acts Interpretation Act 1901 (Cth)
15AB 2 mentions (from Para 8)
Family Law Amendment Act 1983 (Cth)
2 mentions (from Para 5)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)
Family Law Amendment Act 2000 (Cth)
1 mention (from Para 6)