Hullet & Benton - [2021] FamCA 449

FAMILY COURT OF AUSTRALIA
Hullet & Benton [2021] FamCA 449

File number(s): MLC 13387 of 2020

Judgment of: MACMILLAN J

Date of judgment: 29 June 2021

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision – where consent to orders pursuant to s 79 of the Family Law Act 1975 (Cth) was withdrawn by the wife after the death of the husband – where the Application for Consent Orders was dismissed by the Registrar – where one party withdrawing consent did not discontinue the other party’s case – whether procedural orders should have been made following the death of the husband pursuant to r. 6.15 of the Family Law Rules 2004 (Cth) – where orders made discharging the Registrar’s orders and directions made for the further conduct of the property proceedings.

FAMILY LAW – PRACTICE AND PROCEDURE – Section 79(8) Family Law Act 1975 (Cth) – where the legal representative of deceased party makes application to be substituted in the proceedings – where it is proper for substitution order to be made substituting the Executor of the husband’s estate as the legal representative for the respondent husband in the proceedings.

Legislation:
Family Law Act 1975 (Cth) ss 4, 44, 79

Family Law Rules 2004 (Cth) rr 2.01, 6.15, 10.11, 10.15, 10.17, Ch 4

Cases cited:
In the Marriage of Strelys [1988] FLC 91-961

Bolt and Williams (1996) 127 FLR 30

Number of paragraphs: 29

Date of hearing: 22 March 2021

Place: Melbourne
ORDERS

MLC 13387 of 2020

BETWEEN:
MR BENTON AS TRUSTEE FOR THE DECEASED ESTATE OF MR D BENTON

Applicant

AND:
MS HULLET

Respondent

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:
1.The orders made by Register Mathews on 18 January 2021 dismissing the Application for Consent Orders filed 4 December 2020 be discharged.
2.Pursuant to section 79(8) of the Family Law Act 1975 (Cth) that Mr Benton as Executor of the Respondent Husband’s, the late Mr D Benton’s estate be substituted as the legal representative for the Respondent Husband in these proceedings.
3.Within fourteen (14) days of these orders the Applicant Wife, file and serve an Initiating Application, Affidavit and Financial Statement.
4.Within fourteen (14) days of receipt of the Applicant Wife’s material referred to above in paragraph three (3), the Executor for the Respondent Husband file and serve a Response to Initiating Application, Affidavit and Financial Statement.
5.The Application in a Case filed 8 February 2021, save and except any application for costs, be otherwise dismissed.
6.That the question of costs be reserved for determination in Chambers.
7.By 4.00 pm on 14 July 2021 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the Application in a Case filed 8 February 2021.
8.By 4.00 pm on 28 July 2021 the parties file and serve any written submissions in reply to any applications for costs.
9.Any submissions as to costs should be limited to 10 pages.

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 Hullet & Benton

Details

AGLC: Hullet & Benton [2021] FamCA 449
Case: [2021] FamCA 449
Decision Date: 29 June 2021

CaseChat Overview and Summary

In the matter of *Hullet & Benton*, the applicant, Mr Benton as Trustee for the deceased estate of Mr D Benton (the Executor), sought a review of a Registrar's decision to dismiss an Application for Consent Orders. The dispute arose after the wife, Ms Hullet, withdrew her consent to the agreed property settlement orders following the death of her husband, Mr D Benton. The Registrar had dismissed the Application for Consent Orders, leading to the Executor's subsequent application to the Court.

The central legal issues before the Court were whether the withdrawal of consent by one party to an Application for Consent Orders automatically discontinued the proceedings, and whether procedural orders should have been made following the husband's death pursuant to rule 6.15 of the Family Law Rules 2004 (Cth). Additionally, the Court considered the propriety of substituting the legal personal representative of a deceased party into property proceedings under section 79(8) of the Family Law Act 1975 (Cth).

Macmillan J reasoned that the withdrawal of consent by one party did not necessarily discontinue the other party's case, particularly in the context of property settlement proceedings under the Family Law Act. The Court found that it was appropriate to substitute the Executor of the husband's estate as the legal representative for the deceased husband, thereby allowing the property proceedings to continue. The Court also determined that the Registrar's dismissal of the Application for Consent Orders was premature and should be discharged.

Consequently, the Court ordered the discharge of the Registrar's orders dismissing the Application for Consent Orders. Mr Benton, as Executor of the deceased husband's estate, was substituted as the legal representative for the respondent husband. Directions were given for the parties to file and serve initiating applications, affidavits, and financial statements, and the question of costs was reserved for determination in Chambers.

Orders

Orders of the court

MLC 13387 of 2020

BETWEEN:

MR BENTON AS TRUSTEE FOR THE DECEASED ESTATE OF MR D BENTON

Applicant

AND:

MS HULLET

Respondent

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:

1. The orders made by Register Mathews on 18 January 2021 dismissing the Application for Consent Orders filed 4 December 2020 be discharged.

2. Pursuant to section 79(8) of the Family Law Act 1975 (Cth) that Mr Benton as Executor of the Respondent Husband’s, the late Mr D Benton’s estate be substituted as the legal representative for the Respondent Husband in these proceedings.

3. Within fourteen (14) days of these orders the Applicant Wife, file and serve an Initiating Application, Affidavit and Financial Statement.

4. Within fourteen (14) days of receipt of the Applicant Wife’s material referred to above in paragraph three (3), the Executor for the Respondent Husband file and serve a Response to Initiating Application, Affidavit and Financial Statement.

5. The Application in a Case filed 8 February 2021, save and except any application for costs, be otherwise dismissed.

6. That the question of costs be reserved for determination in Chambers.

7. By 4.00 pm on 14 July 2021 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the Application in a Case filed 8 February 2021.

8. By 4.00 pm on 28 July 2021 the parties file and serve any written submissions in reply to any applications for costs.

9. Any submissions as to costs should be limited to 10 pages.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The crux of the dispute is in relation to what if any proceedings remain on foot following the death of the husband and the wife withdrawing her consent to the orders for property settlement agreed upon by the husband and wife prior to his death. BACKGROUND The husband was born in 1948. The wife was born in 1956 and is 65. The husband and wife were married in 1982 and separated on 1 August 2018, a marriage of 36 years. There are two adult children of the marriage who live with the wife. The husband and wife were divorced in 2020. In late 2019 the parties commenced negotiations for a property settlement. On 4 December 2020 the parties filed an Application for Consent Orders in the Family Court of Australia. For the purposes of that application the wife was named as the applicant and the husband as the respondent. The husband was diagnosed with cancer in July 2020 and died in early 2021. It is part of the wife’s case, although not relevant for the purposes of the matters I must determine, that the husband did not disclose his ill health and that she was not aware that he was ill, let alone terminally ill, until after his death. In 2021 the solicitors for the wife wrote to the Court as follows:…We are instructed that the respondent husband unexpectedly passed away today. This has brought about a material change in circumstances and as such our client no longer consents to orders being made in accordance with the application. The husband’s former solicitor was copied into this email to the Court. The husband’s former solicitor has sworn an affidavit in support of the Executor’s application filed 17 March 2021 in which he deposes that although he was copied into that email, due to an a administrative error, he was not aware of it at that time. On 18 January 2021 Registrar Matthews dismissed the Application for Consent Orders filed 4 December 2020. On 8 February 2021 the husband’s Executor filed the Application in a Case seeking inter alia a review of the orders made by the Registrar dismissing the Application for Consent Orders and on 16 March 2021 the wife filed a Response to the Application in a Case, together with a supporting Affidavit, seeking orders that the husband’s Executors application be dismissed and an order for costs on an indemnity basis. The matter was dealt with on the papers and the parties relied upon both written and oral submissions. The matter was reserved to a date to be fixed for judgment. THE WIFE’S CASE Although addressed at some length by the wife in her submissions it was not the applicant’s case that the Court should make orders in the terms sought by the husband and the wife in the Application for Consent Orders. The wife concedes:(a)That an Application for Consent Orders “is a property settlement proceeding within the meaning of section 4 of the Act”; and(b)That pursuant to s 79(8) of the Act the Court can substitute the legal personal representative of a deceased party allowing for the proceedings to be continued by or against the deceased party’s legal personal representative.

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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File number(s):	MLC 13387 of 2020
Judgment of:	MACMILLAN J
Date of judgment:	29 June 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision – where consent to orders pursuant to s 79 of the Family Law Act 1975 (Cth) was withdrawn by the wife after the death of the husband – where the Application for Consent Orders was dismissed by the Registrar – where one party withdrawing consent did not discontinue the other party’s case – whether procedural orders should have been made following the death of the husband pursuant to r. 6.15 of the Family Law Rules 2004 (Cth) – where orders made discharging the Registrar’s orders and directions made for the further conduct of the property proceedings. FAMILY LAW – PRACTICE AND PROCEDURE – Section 79(8) Family Law Act 1975 (Cth) – where the legal representative of deceased party makes application to be substituted in the proceedings – where it is proper for substitution order to be made substituting the Executor of the husband’s estate as the legal representative for the respondent husband in the proceedings.
Legislation:	Family Law Act 1975 (Cth) ss 4, 44, 79 Family Law Rules 2004 (Cth) rr 2.01, 6.15, 10.11, 10.15, 10.17, Ch 4
Cases cited:	In the Marriage of Strelys [1988] FLC 91-961 Bolt and Williams (1996) 127 FLR 30
Number of paragraphs:	29
Date of hearing:	22 March 2021
Place:	Melbourne

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	29 JUNE 2021