Hullet & Benton

Case [2022] FedCFamC1A 13

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hullet & Benton [2022] FedCFamC1A 13

Appeal from: Hullet & Benton [2021] FamCA 449
Appeal number(s): SOA 43 of 2021
File number(s): MLC 13387 of 2020
Judgment of: AUSTIN, TREE & MCEVOY JJ
Date of judgment: 11 February 2022
Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Leave to appeal – Where a registrar made orders dismissing an application for property settlement orders after the wife withdrew her consent to the proposed orders, following the death of the husband – Where the primary judge on review discharged that order and made orders substituting the executor for the deceased husband and for the proceedings to progress as an adversarial contest between the wife and the executor – Where the wife seeks leave to appeal from those orders – Where the orders were a mere ruling on a question of law and not decisive of the parties’ rights – Where the appeal is incompetent – Where the appeal lacks merit – Where proceedings are not comprised of merely the application which initiates the cause, nor determined by its grant or dismissal – Where proceedings are not invalidated by any formal defect or irregularity – Where the orders of the primary judge do not compel the institution of fresh proceedings – Leave to appeal refused – Application in an Appeal dismissed – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 4, 39, 79, 79A

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26, 66, 69

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 5, Pt 4, Div 2

Family Law Rules 2004 (Cth) ch 4, rr 10.15, 24.04

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.22, 10.26, 10.27, 12.17
Cases cited:

Bain & Bain (Deceased) (2017) FLC 93-772; [2017] FamCAFC 80

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Greval v Estate of the late Greval; Sandalwood Lodge Pty Ltd (Intervener) (1990) FLC 92-132; [1990] FamCA 31

Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104

In the Marriage of Strelys (1988) FLC 91-961; [1988] FamCA 1

Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 1277

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4

Number of paragraphs: 63
Date of hearing: 3 February 2022
Place: Heard in Melbourne (via video link), delivered in Newcastle
Counsel for the Applicant: Mr Wraith
Solicitor for the Applicant: Robinson Gill
Counsel for the Respondent: Dr Matta
Solicitor for the Respondent: Kenna Teasdale

ORDERS

SOA 43 of 2021
MLC 13387 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS HULLET

Applicant
AND:

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

Respondent

ORDER MADE BY:

AUSTIN, TREE & MCEVOY JJ

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Hullet & Benton [2022] FedCFamC1A 13
Case
[2022] FedCFamC1A 13
Decision Date

CaseChat Overview and Summary

In the matter of Hullet v Benton, the wife sought leave to appeal from orders made by the primary judge, who substituted the deceased husband's executor for him in the proceedings and allowed the property settlement dispute to continue as an adversarial contest. The wife had initially applied for consent orders for the division of property, which were dismissed after the husband's death and the wife's withdrawal of consent. The primary judge's orders allowed the executor to be substituted for the deceased husband and the proceedings to continue as an adversarial contest between the wife and the executor.

The legal issues in the case were whether the appeal was competent and whether leave to appeal should be granted. The court held that the appeal was incompetent because the primary judge's orders were a mere ruling on a question of law and not decisive of the parties' rights. The court also held that the appeal lacked merit because the orders of the primary judge did not compel the institution of fresh proceedings. The court further held that the proceedings were not invalidated by any formal defect or irregularity and that the orders of the primary judge did not affect the inter-related questions of whether the executor should be substituted for the deceased and whether jurisdiction and power existed to make property settlement orders between the wife and the executor other than on a consensual basis.

The court refused leave to appeal and dismissed the wife's application in an appeal. The court also ordered the wife to pay the executor's costs of and incidental to the appeal in the fixed sum of $15,000. The court held that the executor's costs were reasonably high, but the wife did not oppose a costs order being made against her. The court fixed the costs at $15,000, which was proportionate to the work necessary to resist the application for leave to appeal and the appeal. The court's decision was based on the principle that the proceedings were not comprised of merely the application which initiates the cause, nor determined by its grant or dismissal. The court also held that orders 3 and 4 should be construed to only mean that, if either the wife or executor wishes to prosecute an application for property settlement orders, then by the given dates she or he should file the Application or Response setting out the relief sought. The only consequence of either party choosing not to do so is that the original proceeding might then be concluded on an undefended basis.

Orders

Orders of the court

SOA 43 of 2021

MLC 13387 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS HULLET

Applicant

AND:

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

Respondent

ORDER MADE BY:

AUSTIN, TREE & MCEVOY JJ

DATE OF ORDER:

11 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 18 October 2021 is dismissed.

2. The Response to the Application in an Appeal filed on 31 January 2022 is dismissed.

3. Leave to appeal is refused and the Amended Notice of Appeal filed on 8 October 2021 is dismissed.

4. The applicant shall pay the respondent’s costs of and incidental to the appeal in the fixed sum of $15,000.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

The wife contended the proceedings were correctly dismissed by the registrar and incapable of revival, though, for the following reasons, the appeal is incompetent and leave to appeal is refused.BACKGROUND After a long marriage, the spouses separated in 2018. The spouses reached a compromise over the division of their property and, in December 2020, an application was filed with the Court for consent orders to ratify their agreement. The wife was designated as the applicant and the husband as the respondent. The husband died in early 2021, just before the application was determined. He was diagnosed with cancer about six months before, about which the wife knew nothing. Upon learning of his death, the wife notified the Court and the deceased’s lawyers of her withdrawal of consent to the proposed consent orders. As a consequence, on 18 January 2021, the registrar dismissed the application for consent orders. A dispute then arose over the dismissal order. The deceased’s executor (“the executor”) filed an application in February 2021 to review the registrar’s decision and the wife responded in March 2021 seeking the dismissal of the review application. Those were the two applications listed for hearing before the primary judge. The primary judge characterised the gist of the dispute in this way: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. The executor contended the filing of the application for consent orders by the spouses constituted the commencement of proceedings, which same proceedings could then be pursued in a different form upon either or both of the deceased’s death and the withdrawal of the wife’s consent, which contention the primary judge accepted to be correct. Her Honour summarised the executor’s position on the review application in this way:21.… 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. Conversely, the wife contended the application for consent orders (made under r 10.15 of the now repealed Family Law Rules 2004 (Cth) (“the old Rules”)) was a quite different species of application to an adversarial application for property settlement (made under ch 4 of the old Rules) and had to be treated differently, notwithstanding both types of application seek to invoke the Court’s discretionary power under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). In determining the review application, the wife submitted the primary judge’s power was confined to either the grant or the dismissal of the application for consent orders and, since she had withdrawn her consent to the consent orders, there was no option but to dismiss the application, as the registrar had already correctly done.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Of course, the property settlement orders ultimately made between the wife and the executor in the discretionary exercise of such power will certainly be influenced by the fact of the deceased’s death, but that is an entirely different issue.CONCLUSION Leave to appeal is refused. The Application in an Appeal filed by the wife on 18 October 2021 is dismissed, as is the Response to the Application in an Appeal filed by the executor on 31 January 2022. The executor sought costs of some $30,000 in the event the appeal failed, which sum is unreasonably high. However, the application for leave to appeal was wholly unsuccessful and, given the wife did not oppose a costs order being made against her, the executor should recover some costs. To avoid the inconvenience, delay and additional expense which would attend the assessment of the executor’s costs, pursuant to r 12.17(1)(a) of the new Rules, we fix costs at $15,000 which sum is proportionate to the work necessary to resist the application for leave to appeal and the appeal.

Ratio Decidendi

Legal Principle Established

Orders 3 and 4 should be construed to only mean that, if either the wife or executor wishes to prosecute an application for property settlement orders, then by the given dates she or he should file the Application or Response setting out the relief sought. For the proceeding to progress sensibly, both the wife and the executor must formally notify the Court and one another of the new suite of orders for which they apply. The only consequence of either party choosing not do so is that the original proceeding might then be concluded on an undefended basis (ss 69(3), 69(4) and 69(5) of the FCFCA Act; rr 10.22, 10.26 and 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the new Rules”).Ground 6 – failing to take a material consideration into account This ground asserts the primary judge erred by holding that the deceased’s failure to notify the wife of his terminal illness when the application for consent orders was pending was irrelevant “for the purposes of the matters to be determined”. The primary judge said this in the reasons for judgment: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.(Emphasis added) The wife took issue with her Honour’s characterisation of the deceased’s concealment of his ill health as being “not relevant” to the matters in issue. Significantly, the only material “matters” to be determined by the primary judge were, first, whether the executor should be substituted for the deceased, and secondly, whether the property settlement proceeding, commenced consensually between the spouses, could be continued as an adversarial contest between the wife and the executor. The deceased’s concealment of his terminal illness may indeed have been relevant if the consent orders had been made before his death and the wife was then seeking to set the orders aside at first-instance under s 79A of the Act, but that is not the situation at hand. Since the consent orders were not made, we are unable to see how the deceased’s concealment affected the inter-related questions of whether the executor should be substituted for the deceased and whether jurisdiction and power existed to make property settlement orders between the wife and executor other than on a consensual basis. In support of this ground, the wife submitted in her Summary of Argument:73.It is submitted that in light of the Wife’s evidence that she would not have consented to the making of the orders sought had she known of the husbands’ diagnosis, and in light of the concession that orders sought could not be pronounced by consent in circumstances where the wife’s consent had been withdrawn, it is apparent that had the husband not died, in light of the facts now known, it would not have been appropriate for the Court to make any orders in the proceeding commenced by the Application for Consent orders had the husband not died.(Footnotes omitted)