Hamilton and Paton

[2019] FamCA 1043

FAMILY COURT OF AUSTRALIA

HAMILTON & PATON [2019] FamCA 1043

FAMILY LAW – PROPERTY – Deceased estate – where the respondent husband died intestate during the proceedings – where the applicant wife is the executor of the late husband’s estate and his legal personal representative – where the wife has obtained letters of administration – where the wife is substituted for the deceased as a party to the property proceedings

Family Law Act 1975(Cth) s 79(8)

APPLICANT: Ms Hamilton

RESPONDENT: Ms Paton

FILE NUMBER: MLC 9154 of 2016

DATE DELIVERED: 26 November 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 26 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Robinson Gill

SOLICITOR FOR THE RESPONDENT: Plaza Legal

Orders

IT IS ORDERED THAT

1. Pursuant to s 79(8) of the Family Law Act 1975 (Cth) Ms Hamilton of B Street, Suburb C in the State of Victoria the legal personal representative of the deceased husband is substituted for the deceased as a party to the property proceedings.

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 Hamilton & Paton 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9154 of 2016

Ms Hamilton

Applicant

And

Ms Paton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties to these proceedings commenced cohabitation in 1993 and were married on 16 March 1996.  The wife, who is the applicant in this application, initiated proceedings by way of an Initiating Application filed on 22 September 2016.  The application has been amended a number of times and the most recent being Further Amended Initiating Application was filed on 3 May 2018. 

2. The matter had been set down for a final hearing commencing on 26 February 2019. However, on 1 January 2019, the husband, who was the respondent to these proceedings, died. The parties were not divorced and the wife is therefore the next of kin. The husband dying intestate, the wife was granted letters of administration on 17 September 2019. She has now filed an Application in a Case, in which she seeks orders pursuant to s 79(8) of the Family Law Act 1975 (Cth), to be substituted as the legal personal representative of the respondent husband. The letters of administration having been granted, the wife deposing in her Affidavit in support of the application, that she is aware of her obligations as the administrator of the husband’s estate and intends to meet her obligations in that regard, including identifying creditors and satisfying all estate liabilities, I am satisfied that it is appropriate to make the order she seeks.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 November 2019.

Associate: 

Date:  14 February 2020