Flinton and Flinton

[2018] FamCAFC 90

FAMILY COURT OF AUSTRALIA

FLINTON & FLINTON [2018] FamCAFC 90

FAMILY LAW – APPEAL – Appellant deceased – Where the respondent seeks an order dismissing the appeal for want of prosecution – Where even after notification of listing of the appeal for dismissal no-one came forward to pursue the appeal – Appeal dismissed.

Family Law Act 1975 (Cth)

APPELLANT: Mr Flinton (Deceased)

RESPONDENT: Ms Flinton

FILE NUMBER: DGC 398 of 2008

APPEAL NUMBER: SOA 56 of 2016

DATE DELIVERED: 10 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 10 May 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 24 June 2016

LOWER COURT MNC: [2016] FCCA 1536

REPRESENTATION

THE APPELLANT: Deceased

COUNSEL FOR THE RESPONDENT: Dr R. Smith

SOLICITOR FOR THE RESPONDENT: Waters Lawyers

Orders

1. The Amended Notice of Appeal filed on 10 August 2016 be dismissed. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Flinton (Deceased) & Flinton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 56 of 2016
File Number: DGC 398 of 2008

Mr Flinton (Deceased)

Appellant

And

Ms Flinton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an oral application by Ms Flinton (“the wife”) seeking an order that the appeal filed by Mr Flinton (“the husband”) on 10 August 2016 be dismissed.

2. On 10 August 2016, the husband filed an Amended Notice of Appeal appealing against orders made by Judge Phipps on 24 June 2016, those orders being orders by way of property settlement.  That same day, namely 10 August 2016 the husband also filed a draft appeal index. 

3. Shortly thereafter the husband sought the indulgence of the court to delay the hearing of the appeal because of his illness.  That was agreed to by the respondent, and thus the appeal was held in the list pending information as to the husband’s health. 

4. Unfortunately the husband passed away on 9 September 2016, and on 12 September 2016 the solicitors for the wife advised the court of that.  They also advised the court that they were unaware as to whether or not the appeal would be prosecuted by or on behalf of the husband’s estate.

5. Upon enquiry by the court in March 2017 as to what was happening, and specifically enquiring as to the names and addresses of the executors of the husband’s estate, the wife’s solicitors advised the court that they did not have any further information about that, and their requests to the prospective executors had not elicited any more information, save that letters of administration were apparently being prepared.  They had no details of the lawyers involved in that process, but indicated that they would continue to make enquiries.

6. Nothing further happened until again, upon enquiry by the court, a letter was received from the wife’s solicitors on 19 December 2017 indicating that there had not been any development in relation to the issue of the probate of the husband’s estate.  Their current instructions were that the issue of probate of the estate had not progressed in any significant way, and they had no further information in relation to that.  Given that, they indicated that they had instructions to request that the court dismiss the appeal for want of prosecution.

7. Before the matter was then listed for dismissal, the court again enquired of the wife’s solicitors as to whether they could provide the name of the person or persons that they had been dealing with in relation to the estate, with a view to formal notice being given to that person or those persons.  Unfortunately no further information was forthcoming from the wife’s solicitors, and thus the appeal was listed for dismissal on 27 March 2018.

8. On that day, counsel for the wife appeared, but no-one appeared for or on behalf of the deceased husband or his estate.  Counsel confirmed that his instructors had not been able to ascertain what the position was with the husband’s estate, or who should be contacted, or who should be given notice to.  Two letters were handed up, being letters sent by the wife’s solicitors to two persons who were thought to be cousins of the husband, enquiring as to the estate and whether either of them had been appointed executor and trustee of the estate.  However, no response had been received.

9. Counsel advised though, that there were adult children of the relationship, and given that information, I determined to adjourn the matter on the basis of the court providing notice to the two persons abovementioned, and also the three adult children of the parties, that there was an appeal on foot, it was to be listed for dismissal, and if they wished to pursue the matter they had the opportunity to appear at that hearing.

10. Letters advising of the listing of the matter today were sent by the court respectively on 3 April 2018 to Ms X, Mr Y and Ms Z, the three adult children of the parties, and on 28 March 2018 to the two persons abovementioned, Mr C and Mr D.

11. There has been no response from any of those persons save and except for Mr D, and all he has done is telephone the court advising that he is unable to attend the hearing today because he has been ill.

12. In those circumstances, counsel who appears for the wife today has sought that the appeal be dismissed.  Given in particular the history of the matter, and there being no-one coming forward to pursue the appeal, if indeed that is possible in the circumstances, I propose to make an order dismissing the appeal.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 10 May 2018.

Associate: 

Date:  22 May 2018