Lasic and Lasic (No. 2)

[2007] FamCA 1188

FAMILY COURT OF AUSTRALIA

LASIC & LASIC (NO. 2) [2007] FamCA 1188

Family Law Act 1975 (Cth) Sections 79; 79A

Fisher & Fisher (1986) 161 CLR 438
F v M [2001] FamCA 1585
Smithers & Smithers [2007] FMCAfam 143

APPLICANT: MR LASIC

RESPONDENT: MRS LASIC

FILE NUMBER: PAF 7534 of 1997

DATE DELIVERED: 5 October 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Coleman J.

HEARING DATE: 16, 17 & 18 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. Durston

SOLICITOR FOR THE APPLICANT: Home Wilkinson Lowry

COUNSEL FOR THE RESPONDENT: Mr. Foster

SOLICITOR FOR THE RESPONDENT: Turner Freeman

Orders

1. That within 60 days the respondent pay the sum of $319 081.38 to Mr M.

2. That liberty be reserved to the applicant or Mr M to apply for orders to enforce Order 1 in the event of the respondent failing to pay the sum therein ordered together with interest accrued thereon pursuant to the Rules within 90 days of this order.

3. That submissions in support of any application for the costs of the proceedings be filed and served within 28 days and that submissions in response to any such submissions be filed and served within 14 days thereafter.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of The Honourable Justice Coleman delivered this day will for all publication and reporting purposes be referred to as Lasic & Lasic.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

File Number: PAF7534/1997

MR LASIC

Applicant

And

MRS LASIC

Respondent

SUPPLEMENTARY REASONS FOR JUDGMENT

1. On 17 August 2007 the Court published its Reasons for Judgment in the substantive proceedings between the parties. The Court then declined to make final orders having regard to the fact that, subsequent to the completion of the proceedings but prior to the delivery of Judgment, the Court was informed that the husband in the proceedings had passed away.

2. In accordance with the Court’s directions, submissions have subsequently been made by the parties. There remains time for the applicant to file a reply in submission to those of the respondent. The substance of the respondent’s submissions suggest that the parties are in agreement as to what the Court should do by way of order to give effect to its substantive judgment. There seems little point in refraining from making final orders in those circumstances, particularly as the applicant has indicated his desire to appeal the Court’s decision, albeit by filing a wholly misguided application.

3. On behalf of the applicant some complaint appears to have been made with respect to the manner whereby the Court was informed of the husband’s death.

4. It was submitted in that regard that:

   Given that a finding of fact has now been made it is submitted that the appropriate sanction (emphasis added) against the respondent is that there should be no alteration with respect to the substantive outcome of the proceedings.

5. In the alternative it was submitted on behalf of the applicant that:

   [T]he death of the husband should not alter the substantive outcome of the proceedings.

6. On behalf of the respondent it was submitted that the death of husband ought not affect the outcome of proceedings.

7. It was further submitted on behalf of the respondent that the husband’s death potentially enlivened the provisions of s 79(8) of Family Law Act 1975 (Cth) (“the Act”) and that the Court could and should make orders in the terms previously foreshadowed. It was also submitted that the applicant trustee “stands in the shoes” of the deceased husband for the purpose of s 79(8) of the Act by virtue of the provisions of ss 79(11) and 79(12).

8. The Court accepts that the death of the husband ought not alter the substantive outcome of the proceedings which were heard in August of this year. Relevant in that context is the fact that, on the conclusion the Court reached as to his entitlement to a settlement of property, the husband was never going to personally benefit from any order which this Court might make. The death of the husband and consequential absence of any potential for personal benefit by virtue of any order made under Part VIII thus cannot assume any significance. The authorities suggest that the death of a party to proceedings who would otherwise have benefited from an order under Part VIII of the Act generates difficult issues. (See Fisher & Fisher (1986) 161 CLR 438; F v M [2001] FamCA 1585; Smithers & Smithers [2007] FMCAfam 143). Those issues cannot arise in the present circumstances.

9. The Court proposes making the order previously considered to be just and equitable, not by way of “sanction”, but because it is satisfied of the matters required of it by s 79(8)(b) of the Act.

10. The order of the Court will accordingly be that the wife pay the sum of $319 081.38 to M, that the consent orders of April 1998 be accordingly amended and that payment be and remain a charge on the wife’s assets until it has been paid in full.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate: 

Date:  5 October 2007