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– Review of Registrar’s decision – where consent to orders pursuant to s 79 of the Family Law Act 1975 (Cth) was withdrawn by the wife after the death of the husband – where the Application for Consent Orders was dismissed by the Registrar – where one party withdrawing consent did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.

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).

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

REASONS FOR JUDGMENT

MACMILLAN J

1. This matter, which was listed before me in the Judicial Duty List, was an application for the review of a decision of a Registrar dismissing an Application for Consent Orders and for an order pursuant to s 79(8) of the Family Law Act 1975 (Cth) (“the Act”) that the Executor of the husband’s estate be substituted as the legal personal representative for the husband in these proceedings. Being a review of the decision of a Registrar it was a hearing de novo.

2. The parties to this application are the applicant Mr Benton (“the husband’s Executor”) who is the Executor of the estate of the late Mr D Benton (“the husband”) and the wife Ms Hullet (“the wife”).

3. 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

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. On 18 January 2021 Registrar Matthews dismissed the Application for Consent Orders filed 4 December 2020.

10. 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.

11. 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

12. 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.

13. 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.

14. However the crux of the wife’s case is that notwithstanding that the orders sought are property orders that the Application for Consent Orders which is made pursuant to r. 10.15 of the Family Law Rules (2004) (“the Rules”) is different to an application for final property orders commenced pursuant to Chapter 4 of the Rules. And, that being an Application for Consent Orders made pursuant to r. 10.15, that pursuant to Rule 10.17 of the Rules the Registrar had and it was submitted on behalf of the wife that the Court now has the following three options for dealing with that Application for Consent Orders:

    (a)Make an order in accordance with the orders sought;

    (b)Require a party to file additional information; or

    (c)Dismiss the application.

15. The wife further submitted as follows:

    (a)Rule 10.17 does not contemplate the Court making an Order requiring the Filing of an Initiating Application for Final Property Orders pursuant to Chapter 4; and

    (b)That even if the Court could, when dealing with an Application for Consent Orders compel a party to file an Initiating Application for Final Property Orders, that Initiating Application could not be filed once a party to the marriage had died.

16. Although I accept as submitted by the wife that the provision of information pursuant to r. 10.17(b) of the Rules does not extend to an order requiring either the Executor or the wife to file an Initiating Application I do not accept that the filing of an Initiating Application would commence new and distinct proceedings.

17. Although the procedures and processes may be different the power the Court is exercising, whether it is an Application for Consent Orders or contested proceedings, is the power pursuant to s 79 of the Act to make such order or orders in property settlement proceedings as it considers appropriate.

    RELEVANT LEGISLATION, RULES AND LEGAL PRINCIPLES

18. “Property settlement proceedings” are defined in s 4 of the Act as proceedings with respect to the property of the parties or either of them. Section 44(1) of the Act provides as follows:

    Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.

19. Item 7 of r. 2.01 of the Rules provides that a person seeking to have orders made by consent, where there are no proceedings on foot, to file an Application for Consent Orders. Rule 10.11(2) provides that when the case relates to the property of the parties and one of the parties dies before the case is determined a party must apply to the Court for permission to discontinue the case. Rule 10.11(3) of the Rules provides however that even when one party discontinues their case, the other party’s case is not discontinued.   

20. Section 79(8) of the Act provides as follows:

    Where, before property settlement proceedings are completed, a party to the marriage dies:

    (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

    (b) if the court is of the opinion:

    (i) that it would have made an order with respect to property if the deceased party had not died; and

    (ii) that it is still appropriate to make an order with respect to property;

    the court may make such order as it considers appropriate with respect to:

    (iii) any of the property of the parties to the marriage or either of them; or

    (iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and

    (c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

21. Pursuant to r 6.15 of the Rules, “if a party dies the other party or the legal personal representative must ask the court for procedural order for the future conduct of the case”. The Executor of the husband’s estate seeks both an order appointing him as the husband’s legal personal representative and orders with respect to the future conduct of the proceedings.

22. Both parties relied upon the decision of the Full Court of the Family Court of Australia in In the Marriage of Strelys [1988] FLC 91-961 (“Strelys”) in particular the decision of Nygh J who said (at page 76,964) as follows:

    Is the word “proceedings” to be interpreted as constituted by an application or a cross- application, as his Honour clearly understood it, or is it to be understood as referring to the power of the court, once an application has been instituted under s 79, to adjust the property rights of the parties either way, as was argued for the appellant?

    The word “proceedings” is defined in s 4(1) of the Act as: “A proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connection with a proceeding.”

    ...

    It follows in my view that “proceedings” cannot be interpreted as being synonymous with “application”. When s 44(1) provides that “proceedings under this Act shall be instituted by application”, the reference in the word “application” is to the document prescribed under the rules in which the various kinds of relief sought are to be set out. I would therefore agree with the view expressed by Mullane J In the Marriage of Jacobsen (1987) 11 Fam LR 990 at 991, that the words “application” and “cross-application” are procedural terms established and defined in the Family Law Rules.

23. Nygh J said further (at page 76,965) as follows:

    ..an application is the machinery whereby a proceeding under s 79 is instituted. Once that proceeding is instituted the whole of the property of the parties is affected by the power of the court to adjust the interest of each of the parties in favour of the other. It is true to say that no enforceable right can arise until an order is made, but an inchoate right or claim affecting the whole of the property of the spouses arises as soon as the proceeding is commenced. Hence it must follow that each of the applicant and the respondent has an interest in continuing the proceeding after the death of the other. The word “proceedings” in s 79(8) must therefore be taken to refer to the process of litigation which will result in an adjustment of the interests of each of the parties in relation to the whole of their property which is just and equitable in the circumstances. That process may under s 79(8) be continued by either the applicant or the respondent.

    DISCUSSION

24. Although counsel for the wife accepted as per Nygh J in Strelys that the reference to a “proceeding” was a reference to the “process of litigation” rather than the application which initiated that proceeding it was his submission that Strelys “does not stand for the proposition that a proceeding commenced by the filing of an Application for Consent Orders may be continued as if it were a proceeding commenced by the filing of an Initiating Application for Final Orders”. This submission in my view directly contradicts the principles enunciated in Strelys treating the application itself as the proceeding rather than as the process by which that proceeding is initiated.

25. Although neither party referred the Court to any authority directly on point in Bolt and Williams (1996) 127 FLR 30 Wilczek J dealt with a review of the decision of a Registrar dismissing an Application for Consent Orders following the death of the husband in that case. His Honour having considered the parties submissions and having been referred to Strelys said at page 313 as follows:

    In my view, when there is reference to “the proceedings”, or reference to “same proceedings, including as to subject matter”, or “the proceedings on foot at the time of the death…”, what is being referred to is the concept of “proceedings between the parties to a marriage with respect to property of the parties or either of them…’

    ..

    To that end a Form 12A Application relates to proceedings between the parties to a marriage with respect to property, as does a Form 7 Application seeking orders with respect to property. The fact that there are different form to cater for different procedure, is no more than the Court’s response to sneering that the parties have avenues to resolve their difference in the most cost efficient and time saving way….

    It follows that I consider the proceeding that were pending between the parties at the time of the husband’s death, were proceedings with respect to property and were therefore capable of being, “continued” after the husband’s death, albeit that the original intention of the parties may have been to seek consent orders, whereas now the wife seeks different orders, including orders that bring into account superannuation that has vested, whereas prior to the husband’s death the husband’s superannuation entitlements were not property but, rather, were a financial resource…

    (Emphasis in original)

26. I am satisfied that the proceedings in this case are the property proceedings as between the husband and the wife. Although prior to the husband’s death the husband and the wife were seeking to have the Court exercise its power pursuant to s 79 of the Act to make consent orders using the procedures provided for in the Rules for that purpose, following the husband’s death the Court is exercising the same powers albeit the process may be different. It is these proceedings pursuant to s 79 of the Act that the husband’s Executor seeks, acting as the husband’s personal legal representative, to continue.

27. In my view the submissions that the Court’s powers are limited to either making the orders, requesting further information or dismissing the Application for Consent Orders similarly confuses the proceedings and the Court’s practices and procedures. In my view the Rules make it clear that if a party to the proceedings dies either the other party or the deceased party’s legal personal representative must ask the Court for procedural orders for the future conduct of the case.

28. I am satisfied that the property proceedings were not discontinued as a consequence of the wife having withdrawn her consent to the orders, the Application for Consent Orders should not have been dismissed and that orders are required for the future conduct of the matter.

29. The wife did not take issue with the husband’s Executor being appointed as his legal personal representative for the purposes of the proceedings nor was it the wife’s case that the Court would not have made an order if the husband had not died or that it would not be appropriate for the Court to make orders pursuant to s 79 of the Act in the event that the Court did not accept the wife’s submissions with respect to the Application for Consent Orders being different to an application for final property orders. In all of the circumstances I am satisfied that the husband’s Executor should be appointed as his legal personal representative for the purposes of continuing the property proceedings. I propose in these circumstances to make orders in the terms sought by the Applicant.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan.

Associate:

Dated:       29 June 2021