LAYTON and LAYTON
[2019] FCWA 145
•26 JUNE 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LAYTON and LAYTON [2019] FCWA 145
CORAM: TYSON J
HEARD: 6 MARCH 2019
DELIVERED : 26 JUNE 2019
FILE NO/S: PTW 2958 of 2018
BETWEEN: MS LAYTON
Applicant
AND
MR LAYTON
Respondent
Catchwords:
FAMILY LAW – Where the husband and wife lived apart following the wife moving into residential care – Where the family home was owned by the husband and wife as joint tenants - Where the wife commenced proceedings, by her case guardian – Where the wife subsequently died - Where the wife's adult son seeks to be appointed as the wife’s case guardian nunc pro tunc – Where the wife's adult son seeks to be substituted as her legal personal representative - Where the husband opposes the proposed orders and seeks the application be dismissed – Where there is a dispute as to whether the final orders seek an alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) and/or a declaration, pursuant to s 78 – What is the impact on the wife’s death on the application - Discussion of the Court’s ability to make orders nunc pro tunc – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Berry SC |
| Respondent | : | Mr Beckerling |
Solicitors:
| Applicant | : | Thomson Family Lawyers |
| Respondent | : | Lynn & Brown Lawyers |
Case(s) referred to in decision(s):
Babbit & Babbit [2011] FamCAFC 151
Beck & Beck (2004) FLC 93-181
Calverley & Green (1984) 155 CLR 242
Camden Pty Ltd & Laue & Ors (2018) FLC 93-840
Cuza & Cuza (1986) FLC 91-721
Emanuele v Australian Securities Commission and Ors (1997) 1988 CLR 114
Fisher v Fisher (No 2) (1986) 161 CLR 438
Forster & Forster (2012) FLC 93-524
Frost (Deceased) & Whooten (2018) FLC 93-860
Goyal v Chandra [2006] NSWSC 239
Laue & Laue (Deceased) by his Legal Personal Representative Daniel Fellon [2016] FCWA 91
Midhurst (Deceased) & Midhurst [2008] FamCA 393
Murdoch & Brown (No 2) [2013] FamCA 732
Pertsoulis & Pertsoulis (1980) FLC 90-832
Phillips & Phillips (1985) FLC 91-634
Rampling & Rampling (1988) FLC 91-902
Re O’Toole; Taylor & O’Toole (1992) FLC 92-285
Simonds (Deceased) & Coyle (2019) FLC 93-895
Sims & Sims (1981) FLC 91-702
Slater & Slater (1985) FLC 91-641
Stanford v Stanford (2012) 247 CLR 108
Strelys & Strelys; Lukaitis (Executor) (1988) FLC 91-961
Turagadamudamu v PMP Ltd (2009) 75 NSWLR 397
V & V (unreported, Family Court of Western Australia, Holden J, 14 March 1995)
Whitehouse & Whitehouse [2009] FamCAFC 207
Yeates & Yeates [2013] FCWA 117
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1On 17 April 2018 [Ms Layton] [“the wife”], commenced proceedings by her case guardian, [Mr Adams], arising from her marriage to [Mr Layton] [“the husband”].
2The parties married [in] 1973. There is a dispute about separation. The Applicant’s case is separation occurred [in] April 2017, following the wife moving into full-time residential care. The Respondent denies the parties’ marriage ended. He considers they were physically separated only as a consequence of their health and his inability to continue to care for the wife at home. On 18 April 2018 the wife passed away, at the age of 92.
3The Applicant seeks orders to appoint Mr Adams ‘nunc pro tunc’ (now for then) with effect from 17 April 2018, to act as case guardian and to be substituted as her legal personal representative in the proceedings. The Respondent seeks the application be dismissed.
4The proceedings are to be determined under the Family Law Act 1975 (Cth). The issues in dispute, which I need to determine, are as follows:
•Was the wife a person with a disability, at the time the proceedings were commenced? If so, should the case guardian be appointed nunc pro tunc?
•Should Mr Adams be appointed as the wife’s legal personal representative?
•Can the proceedings continue following the wife’s death? Within that question, is the issue as to whether the orders sought by the wife are by way of an alteration of property interests pursuant to s 79, or for a declaration pursuant to s 78 of the Act?
WHAT IS THE EVIDENCE RELIED UPON?
5The Applicant relies upon Mr Adams’ affidavits filed 17 April 2018 and 24 July 2019, the affidavits of [Mr M] and [Ms C] filed 24 July 2018. The Respondent relies upon his affidavit filed 26 June 2018 and [Ms A] filed 17 July 2018.
6Both parties also filed detailed written submissions, which were of assistance to me.[1]
[1] The Applicant’s submissions filed 4 and 11 September 2018 and the Respondent’s submissions filed 11 September 2018 and 5 March 2019. In addition both counsel prepared a list of authorities.
7There are significant factual disputes between the parties, to which I have referred below. These are matters that cannot be determined on an interim application, as none of the deponents were tested by cross-examination on their affidavit evidence. For the benefit of the parties, I cannot make any findings of fact where the evidence is in dispute. That will be the task of the judicial officer at trial.
WHAT ARE THE BACKGROUND FACTS?
8The parties commenced living together in 1972 and married in 1973. It was the second marriage for each. The husband and wife each had children from their previous marriages. Mr Adams is the wife’s youngest child, who was 16 years old when the parties commenced living together.
9At the commencement of cohabitation, the husband moved into the wife’s home at [the H Street property]. The H Street property was sold in 1981. The wife retained the proceeds of sale, which she says was applied for the family’s support.
10Both parties retired during the marriage: the wife in 1977 and the husband in 1980. The husband has since received a disability pension and the wife too received a pension.
11The husband bought [the C Street property], in his sole name, utilising the proceeds of sale of his business. He acknowledges the wife made financial contributions towards the fit out of the C Street property, however there is a dispute about the extent of her financial contributions.
12In 1993 the C Street property was sold. The parties then purchased [the matrimonial home] as joint tenants.
13The parties maintained separate bank accounts throughout their marriage. There is some controversy about various withdrawals from the wife’s account and gifting of funds to the wife’s family. In 2017 the husband made a police report claiming Mr Adams was stealing from the wife’s account. Mr Adams explained to the police he held an Enduring Power of Attorney for his mother. He denied the allegations and the matter went no further.
14The husband had possession of the wife’s bank cards and accessed her accounts. There are questions as to various withdrawals made from her accounts between November 2014 and June 2016. In March 2017 the husband returned the wife’s card to Mr Adams.
15In 2014 the wife was hospitalised for two months, following a fall. While in hospital, she suffered a stroke. The husband says he was unable to meet all of the wife’s needs due to his own age and health, and he obtained assistance.
16In 2017 the husband travelled interstate for around three weeks, to visit his daughter and for respite. Prior to his departure, the husband and Mr Adams spoke about the wife’s care. [In] March 2017 Mr Adams moved the wife into a nursing home.
17In May 2017 the wife executed a Will, following a medical assessment which affirmed her capacity. She also executed an Enduring Power of Attorney in favour of Mr Adams and his wife, [Mrs Adams].
18Following the wife being placed into care, the husband remained at the matrimonial home and changed the locks. As indicated, the husband denies the parties separated. He says the first time he became aware of the wife’s desire to separate, was after being served with the initiating documents.
19The husband also suffers from poor health and is in receipt of assistance, to enable him to remain at home.
20In March 2018 the wife’s health further deteriorated, following another fall. On 16 April 2018 the wife’s carers advised she had been placed on oxygen and recommended her family visit, in the event her health continued to decline.
21On 17 April 2018 the wife commenced proceedings by her case guardian, seeking orders as follows:
Final
1. The property situate at [the matrimonial home] in the State of Western Australia … currently registered in the joint names of the parties as joint tenants, be registered in the joint names of the parties as tenants in common (rather than joint tenants), to facilitate each party being able to deal with their share severally from the other.
2. Notwithstanding paragraph 1 (above), the Respondent Husband continue to have exclusive use and occupation of the [matrimonial home], pending such time that he requires residence in nursing care facilities, or otherwise, until his passing.
3. The Applicant Wife otherwise particularise her final Orders sought within 30 days following full and frank disclosure from the Respondent Husband.
4. Costs.
Interim
1. Pursuant to Rule 6.10(1) of the Family Law Rules 2004, [MR ADAMS] be appointed to act as case guardian for the Applicant Wife, [MS LAYTON], in these proceedings.
2. The costs of the case guardian in the Family Court of Western Australia be paid from the income or property of the Applicant Wife, [MS LAYTON].
3. Within 28 days, the parties exchange full and frank disclosure, in accord with Rule 13.04 of the Family Law Rules 2004.
22On 29 April 2018 the husband was served.
23On 22 May 2018 an amended Initiating Application was filed. On an interim basis, orders were sought for Mr Adams to be substituted as the late wife’s legal personal representative, that the husband be restrained from dealing with the matrimonial home pending final determination and leave to serve orders upon Landgate.
24The same orders were sought on a final basis, subject to an amendment which provided the wife’s legal personal representative particularise the orders sought, following disclosure.
25On 29 May 2018 the proceedings first came before the Court. Interim orders were made by consent restraining the husband from dealing with the matrimonial home, save for making a survivorship application.
26On 26 June 2018 the husband filed his responding documents, seeking the application be dismissed.
27On 24 July 2018 a further Amended Initiating Application was filed. The following final orders were sought:
1. Pursuant to section 4(2)(c) and section 78(1) of the Family Law Act 1975 (“the Act”), there be a declaration that the husband holds his interest in the property situated at (“the matrimonial home”), on trust as to 50% (“the beneficial interest”) for the late [MS LAYTON].
2. Pursuant to section 78(2) of the Act, the legal personal representative of the late [MS LAYTON] be at liberty to lodge a caveat over the title of the matrimonial home in respect of the beneficial interest.
3. In the alternative to paragraphs 1 and 2, pursuant to section 79(8)(b) of the Act, the husband transfer to the legal personal representative of the late [MS LAYTON] a 50% interest in the matrimonial home as tenants in common.
4. Pursuant to paragraphs 1, 2 and 3, the husband have exclusive use and occupation of the matrimonial home until he moves to nursing care facilities or passes away.
5. Such further or alterative (sic) orders as the Court deems fit.
28On an interim basis:
1. Pursuant to Rule 6.10(1) of the Family Law Rules 2004 (“the Rules”) [MR ADAMS] be appointed nunc pro tunc (with effect from 17 April 2018) to act as case guardian for [MS LAYTON] (“the wife”).
2. Pursuant to Rule 6.15 of the Rules and section 79(8)(a) of the Act, [MR ADAMS], as the legal personal representative of the wife, be substituted as the applicant in these proceedings.
3. Such further or alterative (sic) orders as the Court deems fit.
29On 11 September 2018 the matter was marked complex. On 5 November 2018 procedural orders were made by consent and the matter was adjourned for hearing.
WHAT IS THE APPLICANT’S CASE?
30The wife was under a physical disability at the time the application was made and as a consequence, she was unable to adequately conduct or give instructions in the proceedings. It was therefore appropriate for the proceedings to be commenced by her case guardian. The application was made when both parties were alive and engaged s 79 of the Act.
31The wife’s estate has an existing equitable interest in the matrimonial home which the Court should recognise, despite the legal title passing to the husband by right of survivorship. She seeks at trial the Court consider s 78 of the Act and the relevant principles of equity and trusts, noting the High Court’s comments in Stanford v Stanford (2012) 247 CLR 108 about the importance of identifying the parties’ existing legal and equitable interests in property. If the Court does not find in favour of the Applicant, then she says the principles of s 79(8)(b) are engaged and relies upon Stanford (supra), noting the deceased wife in that case, or her estate, had no subsisting beneficial interest in the real estate registered in the husband’s sole name.
32On an interim basis, the Applicant says to regulate the proceedings it is necessary to acknowledge the proceedings were commenced by the wife’s case guardian and following her death, they were continued by her legal personal representative. The Court is entitled to order that, when the proceedings started, Mr Adams was the wife’s case guardian and the status can be conferred on him nunc pro tunc. The orders sought are procedural and facilitate the legislative intention, to enable a person under a disability to commence proceedings.[2]
[2] See Babbit & Babbit [2011] FamCAFC 151.
33The Court in exercising its discretion, should consider the Applicant’s case has sufficient merit or otherwise discloses serious issues to be determined. The orders sought by the husband effectively entail a summary dismissal, which should only be made in the clearest circumstances including where a case is doomed to fail. This is not such a case.[3] The Applicant argues on any reading, the orders sought are by way of alteration of property interests because the parties’ interests are being altered from joint tenants to tenants in common.
WHAT IS THE RESPONDENT’S CASE?
[3] See Beck & Beck (2004) FLC 93-181.
34The husband submits a litigant is presumed to be competent to manage their own affairs, unless the contrary is established. The onus of establishing that a party has a disability falls upon the party seeking the appointment of a case guardian. He says in the absence of medical evidence, the Court should not be satisfied the wife had a disability at the time the application was filed. Therefore the application to appoint Mr Adams as case guardian should be dismissed.
35The husband says Mr Adams should not be appointed as the late wife’s legal personal representative until he has a Grant of Probate. Until a legal or personal representative is appointed, the proceedings are suspended and no further steps may be taken.
36The Initiating Application was filed hours prior to the wife’s death, seeking a declaration and severance of the parties’ joint tenancy. The further Amended Initiating Application filed 24 July 2018 sought declarations that the husband held his interest in the matrimonial home on trust for his late wife or alternatively, that the husband transfer to the wife’s legal personal representative a one half interest in the property. The husband says the amendments filed following the wife’s death are of no effect, because upon her death, the proceedings were suspended and the Applicant was not entitled to take any further step.[4] Further, implicit in the relief sought, the filing of the applications did not, of themselves, sever the joint tenancy.[5]
[4] Strelys & Strelys (1988) FLC 91-961; and Family Law Rules 2004 (Cth), Rule 6.15(2).
[5] Pertsoulis & Pertsoulis (1980) FLC 90-832 at paragraph 42.
37Upon the wife’s death, her interest in the matrimonial home was extinguished and the husband’s interest was correspondingly enlarged by his right of survivorship. Thereafter, there was no ‘matter’ before the Court and s 78 could have no further application.[6] Because the proceedings were brought under s 78, they abated upon the wife’s death and there is no legislative mechanism for the continuation of such proceedings. Being concluded proceedings, the application cannot be amended, nor may any fresh proceedings be commenced for alternative relief under s 79.
WAS THE WIFE A PERSON WITH A DISABILITY ON 17 APRIL 2018, AT THE TIME PROCEEDINGS WERE COMMENCED?
[6] Frost (Deceased) & Whooten (2018) FLC 93-860.
38Mr Adams deposed in March to April 2018, the wife’s health declined, following her breaking her collarbone.[7] On 16 April 2018 the wife’s carers advised the wife had been placed on oxygen, they were unsure if she would make another day or week and suggested that loved ones visit, in the event her health continued to deteriorate. His mother repeatedly sought to have her share of the matrimonial home transferred into her name, to be held as tenants in common, to enable her to gift that share in accordance with the terms of her Will. Mr Adams sought to urgently commence proceedings and be appointed as the wife’s case guardian, to ensure a property settlement could be effected in accordance with her wishes and to enable her assets to be dealt with in accordance with the terms of her Will. As a consequence of the wife’s deteriorating state of health, the application was filed urgently, without further attempts to liaise with the husband or engage in pre-action procedures.
[7] In paragraphs 30 to 33 of his affidavit filed 17 April 2018.
39The husband also gave evidence about the wife’s health.[8] He deposed from 2014 the wife required significant assistance: she had only 20% vision, a blockage to the main artery to her heart and she had suffered two aneurysms. When he visited in the days prior to her death, the wife was not speaking and barely opened her eyes.
[8] Affidavit filed 26 June 2018.
40[Mr C] is a legal practitioner who saw the wife in April 2017 at [a] Care Centre. He was satisfied the wife had capacity to give instructions for her Will. The wife told Mr C her marriage had broken down, her husband was travelling and had changed the locks on their home. She wanted a divorce, but she was concerned about her longevity, due to her poor physical health.
41The husband’s counsel relies upon the Full Court’s comments in Forster & Forster (2012) FLC 93-524 where it was stated the appointment of a case guardian in the absence of medical evidence “should be approached with extreme care”.
42Rule 6.08(1) provides that a person with a disability may start proceedings only by a case guardian.
43Rule 1.16 refers to the dictionary within the Rules, where a person with a disability is defined as follows:
in relation to a case, means a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of the case.
44The appointment of a case guardian is not dependent upon the Court having medical evidence before it. The husband’s counsel acknowledged, appropriately in my view, that the means by which a Court will determine whether a case guardian should be appointed may vary from case to case.
45An application for appointment of a case guardian can be made at the same time and within the same document as the commencement of substantive proceedings.[9]
[9] Cuza & Cuza (1986) FLC 91-721.
46I am readily satisfied that the wife was a person with a disability at the relevant time. She suffered a physical disability at the time the application was filed, which meant she was incapable of adequately conducting or giving adequate instructions for the conduct of her case. She was in full-time care; she had been placed on oxygen and the staff considered the wife’s health was in a state of rapid decline.
47Accordingly, I accept that the wife was entitled to commence proceedings through her case guardian.
CAN THE COURT ORDER MR ADAMS BE APPOINTED AS THE DECEASED WIFE’S CASE GUARDIAN NUNC PRO TUNC?
48The Applicant seeks an order appointing Mr Adams as case guardian from the date the Initiating Application was filed, nunc pro tunc. That is opposed by the Respondent, whose counsel referred the Court to various authorities in support of the proposition that leave can only be granted nunc pro tunc, in circumstances where the leave relates to a procedural condition. That is in contrast to if the statutory provision is jurisdictional, then leave cannot be granted nunc pro tunc.
49The Applicant’s counsel relies on the Full Court decision in Babitt & Babitt [2011] FamCAFC 151. In that case, the mother successfully sought a departure from an administrative assessment, against the father under the Child Support (Assessment) Act 1989 (Cth). The father argued on appeal the mother had required and not obtained leave to make her application. The Full Court, comprising of Bryant CJ, Austin and Thackray JJ, dismissed the appeal and found the mother’s failure to secure leave was a mere defect or irregularity, that did not disturb the presiding Federal Magistrate’s jurisdiction and the Court was at liberty to grant leave nunc pro tunc.
50In considering the question of granting leave “now instead of then”,[10] the Full Court in Babitt (supra) referred to the High Court’s decision in Emanuele v Australian Securities Commission and Ors (1997) 1988 CLR 114. In that case the trial judge made an order winding up corporations pursuant to s 459A of the Corporations Act on ASIC’s application, without first granting ASIC leave, as required by s 459P(2) the Act. On appeal, the issue was raised of the Court’s failure to grant leave as a condition precedent to the existence of jurisdiction to make the order. The Full Court cured the defect by granting leave nunc pro tunc. The High Court dismissed the appeal and the majority upheld the Full Court’s authority to make the order, as s 459P(2) did not impose a condition precedent to the exercise of the Court’s jurisdiction. On that basis, the Court was satisfied the failure to obtain leave was procedural, it did not go to jurisdiction and as such, it was entirely appropriate for the Court to cure the irregularity by granting leave nunc pro tunc.
[10] See Turagadamudamu v PMP Ltd (2009) 75 NSWLR 397 at [48].
51More recently, the Full Court in Simonds (Deceased) & Coyle [2019] FamCAFC 47; (2019) FLC 93-895 addressed the question of granting leave nunc pro tunc. In that case, the de facto wife filed an Initiating Application for orders for an alteration of property interests, after the application period, without obtaining leave. She then sought leave to institute the proceedings out of time and after the death of the de facto husband. The trial judge granted the wife leave, nunc pro tunc, to commence proceedings out of time and to continue that application against the executors of the estate of the deceased de facto husband.
52The Full Court found the trial judge erred in law and lacked jurisdiction to make those orders. In considering the Court’s ability to grant leave nunc pro tunc, Justice Strickland said, at paragraph 30:
…That is a rule of practice and procedure to regularise the records of the court, and it cannot create jurisdiction where there is none. In other words, if there was no jurisdiction to entertain the application filed on 25 May 2018, the court still did not have jurisdiction at the time his Honour made the orders.
53To invoke the Court’s jurisdiction to grant relief, the Court must have before it a ‘matter’ within s 76 of the Constitution. In this case, that must be a matrimonial cause.
54Section 39(1) and s 31(1)(a) of the Act confer upon the Court jurisdiction to deal with “matters arising under this Act…in respect or which matrimonial causes are instituted”.
55“Matrimonial causes” include “proceedings between the parties to a marriage with respect to property of the parties to the marriage or either of them,[11] and “any other proceedings…in relation to concurrent, pending or completed proceedings…”.[12]
[11] Family Law Act 1975 (Cth) s 4(1), paragraph (ca).
[12] Family Law Act 1975 (Cth) s 4(1), paragraph (f).
56I am satisfied the Application raises a matrimonial cause within that definition, for the reasons detailed below. I reject the submission that the Application did not seek orders by way of alteration of property interests. I am satisfied the Court’s jurisdiction was invoked when the Initiating Application was filed, at a time when both parties were still alive.
57I consider the order for the appointment of the wife’s case guardian can be made nunc pro tunc. Such an order is procedural and facilitates the legislative intention to enable a person under a disability to commence proceedings. The order is appropriately made, to cure a defect or irregularity. It does not create jurisdiction.
SHOULD MR ADAMS BE APPOINTED AS THE DECEASED WIFE’S LEGAL PERSONAL REPRESENTATIVE?
58Section 79(8)(a) of the Act provides that upon the death of a spouse who is a party to property proceedings “the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party.”
59The Rules deal with the progress of a case after the death of a party:
6.15 Death of party
(1)This rule applies to a property case or an application for the enforcement of a financial obligation.
(2)If a party dies, the other party or the legal personal representative must ask the court for procedural orders in relation to the future conduct of the case.
(3)The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party.
60Legal personal representative is not defined in the Act or the Dictionary within the Rules. The Explanatory Guide to the Rules offers the following explanation as to what the term means:
Legal personal representative, for a deceased party - the executor or administrator of the party’s estate.
61The Applicant’s counsel drew the Court’s attention to the note within the Explanatory Guide, which provides it is “offered only as an explanation of the words and expressions mentioned in this guide”. Further, Rule 1.17(2) states that the Guide does not form part of the Rules and is not to be used in interpreting the Rules. One wonders what the purpose of the Guide is.
62In any event, I can take the ordinary meaning of the phrase, which is an executor or administrator of a party’s estate.
63Justice Nygh stated in Strelys & Strelys; Lukaitis (Executor) (1988) FLC 91-961 sitting as part of the Full Court, at 76,965:
…it is clear that in Australia at least… proceedings for property settlement under sec. 79 abate on the death of one of the parties… The reason for this is that the claim has been regarded as purely personal and incapable of surviving for the benefit of the estate. Section 79(8)(a) allows the proceedings to be continued by the substitution of the legal personal representative of the deceased. In my view, until and unless such a person is appointed, the proceedings are, as it were, suspended and no legally effective step can be taken either to continue or discontinue them.
(citations omitted)
64There is unreported authority for the proposition that where there is an executor, a Grant of Probate is not required for an order for substitution.[13] The Honourable Justice Holden in V & V (supra) considered the relevant authorities regarding the role of the executor and in particular, whether a Grant of Probate is required before the executor acquires the capacity to be appointed or substituted as the legal personal representative for the deceased.
[13] V & V (unreported, Family Court of Western Australia, Holden J, 14 March 1995).
65His Honour referred to the following extract from Australian Family Law & Practice which stated:
Where there is an Executor, it seems clear that probate must have been granted before an order for substitution can be made. See Slater & Slater (1985) FLC 91-961 at p76,222; Strelys & Strelys (1987) FLC 91-827 at p76,222.
66His Honour concluded that Probate was not necessary, because the executor derived authority from the Will, as opposed to the Grant of Probate. He stated for the purposes of the Family Law Act “a grant of probate is not a prerequisite to the making of an order substituting the Legal Personal Representative for the deceased”.[14]
[14] Page 4.
67That approach has since been adopted by the Court.[15]
[15] For example: Murdoch & Brown (No2) [2013] FamCA 732 per Cronin; Yeates & Yeates [2013] FCWA 117.
68I am satisfied and the authorities establish the Court may proceed to treat an executor as the appropriate legal personal representative, notwithstanding that a Grant of Probate has not been obtained. That is in contrast to cases where there is conflict as to whom should act in that role.
69Consistent with that approach, the Court has concluded that s 79(8) does not give the Court the power to appoint someone as a legal personal representative, as opposed to allowing the Court to substitute a person who has already been identified as the legal personal representative.[16]
[16] For example, Laue & Laue (Deceased) by his Legal Personal Representative Daniel Fellon [2016] FCWA 91 per Walters J; Murdoch & Brown (No 2) [2013] FamCA 732; Midhurst (Deceased) & Midhurst [2008] FamCA 393.
70Mr Adams is the executor of his late mother’s Will, which is in evidence.[17] No formal Grant of Probate has been sought in the Supreme Court of Western Australia. It is unclear whether no such application has been made, because there is no property of any value owned by her estate. There is no suggestion of any challenge to the late wife’s Will.
[17] Annexure B to Mr Adams’ affidavit filed 17 April 2018.
71Mr Adams is prepared to act as the legal personal representative. He derives his power and responsibility from the Will, not from the Grant of Probate. The wife’s estate has no legal personality other than through the legal personal representative.
72There are a number of authorities which stress the importance of the legal personal representative being the person to maintain any proceedings already instituted in the Court.[18]
[18] Fisher v Fisher (No 2) (1986) 161 CLR 438; Strelys & Strelys; Lukaitis (Executor) (1988) FLC 91-961; Re O’Toole; Taylor & O’Toole (1992) FLC 92-285.
73None of the authorities to which I have been referred suggest that an order made under the machinery provisions of the Rules is invalid because of the lack of a Grant of Probate. The Rules require the legal personal representative to ask for procedural orders and the Court may substitute the legal personal representative for the late wife, as a party.
74In my view, the orders simply authenticate the position of the legal personal representative. In the circumstances, I am satisfied that Mr Adams should be substituted as the deceased wife’s legal personal representative.
CAN THE PROCEEDINGS CONTINUE FOLLOWING THE WIFE’S DEATH?
75Proceedings for property settlement under s 79 are based upon a claim which is personal. As a consequence, it abates upon the death of a party to the proceedings. Until a legal personal representative is appointed and substituted for the deceased party, the wording of s 79(8) supports the position that the proceedings are suspended and no further legally effective steps can be taken to either continue or discontinue them.
76Section 79(8) operates to reverse the result which would otherwise have followed from the death of a party. The section provides a method for continuation of the determination of the property proceedings, by or against the legal personal representative.
77Until such time as the legal personal representative is substituted, the proceedings are suspended.[19] As a result, no further step can be taken in the proceedings until that occurs and any documents filed thereafter are void and of no effect.
[19] Strelys & Strelys; Lukaitis (1988) FLC 91-961.
78As a consequence, I consider the purported amended Initiating Application filed on 22 May 2018 and the further amended Initiating Application filed on 24 July 2018 to the extent they sought to amend the substantive relief sought, are void and of no effect. That is distinct from the proposed procedural orders, for the appointment of the legal personal representative, which were appropriately sought following the death of the wife.
79The only application for substantive relief, which in my view is properly before the Court, is the original Initiating Application. I have already referred to the final orders then sought.
80At the time the Application was made, the husband and wife were joint tenants of the matrimonial home. Joint tenancy is not severed by the simple filing of an application pursuant to s 79. Severance only occurs at the time an order is made.[20]
[20] Pertsoulis & Pertsoulis (1980) FLC 90-832.
81Death does not sever the tenancy, rather it invokes the right of survivorship upon the death of a joint tenant, his or her interest is extinguished and ceases to form part of that person’s deceased estate and the survivor automatically becomes the sole owner of the property.
82Any equitable interest a party may have in property is not defeated by a severance of joint tenancy.[21]
[21] See Goyal v Chandra [2006] NSWSC 239.
83In Western Australia, joint tenancy and tenancy in common are created by registration of a transfer instrument.[22] Registration of the Survivorship or Transfer documents is conclusive for parties who rely on the Register, however registration is not conclusive for ownership that may exist between parties named on the title.[23]
[22] Transfer of Land Act 1893 (WA) ss 58 and 82.
[23] Calverley & Green (1984) 155 CLR 242.
84Joint tenancy has been defined as:
“characterised by the co-owners enjoying ‘four unities’ – possession, interest, title and time. Unity of possession means that each co-owner is as much entitled to possession of any part of the property as the other co-owner or co-owners. The interests of joint tenants must also vest in them at the same time (‘unity of time’), by the same deed, will or other instrument (‘unity of title’), and they must all have the same type of interest (‘unity of interest’) joint tenants are said to hold aliquot shares and to hold ‘per mie et per tout’….(which) could mean either ‘for nothing and yet for everything’ or ‘for half and yet for everything’. However, the sense in which it is in fact used is that no joint tenant has any distinct share in the land, but together the joint tenants are seised of the whole property.”[24]
What is the nature of relief sought in the Initiating Application?
[24] Young, Croft & Smith, On Equity (Thomson Reuters, 2009).
85The Full Court in Sims & Sims (1981) FLC 91-702 stated at 76,534:
The jurisdiction of this Court is based entirely on statute. Save as expressly provided, this statute does not confer any general power on this Court to entertain proceedings against or by the legal personal representative of the deceased party…
86Section 79(8) of the Act provides that property settlement proceedings may be continued against the husband, by the deceased late wife.
87The “property settlement proceedings” must meet the relevant statutory definition. The terms of s 79 make it clear that the Court’s power under the section can only arise in the defined “property settlement proceedings”.
88The expression is defined in s 4 as follows:
Property settlement proceedings means
(a) In relation to the parties to a marriage – proceedings with respect to:
(i)The property of the parties or either of them; or
89“Proceedings” is defined separately to “property settlement proceedings” in s 4. It means:
proceedings in a court…and includes …an incidental proceeding in the course of or in connexion with a proceeding.
90Justice Murphy in Simonds (Deceased) (supra) at paragraph 52 considered whether taking the provisions together, might be seen to permit an argument that an application for leave pursuant to s 44(6) constitutes an ‘incidental proceeding’, in connection with the property settlement proceedings, and was “with respect to” the property of the parties. His Honour rejected that interpretation and noted it had also been rejected in other cases.[25]
[25] Refer to Slater & Slater (1985) FLC 91-641 at 80,173; Phillips & Phillips (1985) FLC 91-634; and Rampling & Rampling (1988) FLC 91-902.
91Section 78 provides:
(1) In proceedings between the parties to a marriage with respect to existing title or rights in respect of property the Court may declare the title or rights if any that a party has in respect of the property
(2) Where a Court makes a declaration under (1) it may make consequential orders to give effect to the declaration, including orders as to the sale or partition and interim or permanent orders as to possession.
92The Full Court has referred to s 78 and stated the section “in a sense, doesn’t create new rights. It empowers this Court, in the circumstances of which it is enlivened properly, to declare existing rights”.[26]
[26] Whitehouse & Whitehouse [2009] FamCAFC 207 at [31].
93Dr Dickey QC writes that the power conferred upon the Court by s 78: [27]
…is limited to declarations of title and rights according to the ordinary rules of law and equity. It does not enable the Court to vary the interests of spouse in their property according to any notions of justice or fairness. The power of Court to alter the interests of spouses in their property is the subject of s79.
[27] Anthony Dickey, Family Law (Thomson Reuters, 6th ed, 2014).
94Section 79 provides:
(1) In property settlement proceedings, the Court may make such order as it considers appropriate:
(a) In the case of proceedings with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property.
(2) The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
…
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)The effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)The matters referred to in subsection 75(2) so far as they are relevant; and
(f)Any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
…
(8)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)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.
95Justice Brennan in Fisher v Fisher (No 2) (1986) 161 CLR 438; (1986) 67 ALR 513, in considering s 79(1) and s 79(8) said at pages 526 to 527:
A proceeding under s 79(1) of the Act arising out of the marital relationship subjects the whole of property of the spouses to the discretionary jurisdiction of the Family Court. The interests of the spouses in the property may be altered and either or both of them may be ordered to settle or transfer property “for the benefit of either or both of the parties [to the marriage] or a child of the marriage”. The property of the spouses is thus made available to answer the moral claims of either spouse or the children of the marriage against the spouse who is entitled to the property.
The question in this case is whether a jurisdiction can be created to make such an order after the death of one spouse. That jurisdiction is not created by s 79(1), but by s.79(8) of the Act. Section 79(1) in conjunction with para (ca)(i) of the definition of “matrimonial cause” in s 4(1) empower the Family Court in “proceedings between the parties to a marriage” to make an order “altering the interests of the parties in the property”. Those words cannot be satisfied if one of the parties to the marriage has died and that party has disposed by will of his or her interests in property or those interests have devolved on others. The language of s 79(1) temporally restricts the exercise of the jurisdiction it confers to the lifetime of both parties to the marriage. Section 79(8), however, authorises the making of an order after the death of one party.
Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within para (ca) of the definition of “matrimonial cause” in s 4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s 79(1). The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property” (s 79(8)(b)(ii)). That qualification on the power, coupled with para (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out the marriage remain unsatisfied.
Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party’s property or by any other devolution of that property on the parties’ death.
96Gibbs CJ said:[28]
Viewed in another way, s 79(8) operates to reverse the result which would otherwise have followed from the death of a party, viz that the proceedings would have abated.
(citations omitted)
[28] At page 520.
97The High Court in Stanford (supra),[29] affirmed that proceedings do not cease to be a matrimonial cause upon the death of a party, because:
…as s79(8)(b) demonstrates, the proceedings retain the character they had when they were instituted, such that the death of a party does not transform the nature of the claim.
[29] At [30].
98The Full Court in Whitehouse (supra) expressed doubt that s 78 proceedings for a declaration could be continued after the death of a party. The Court said that view was reinforced by the legislation itself and the judgment of Brennan J in Fisher (supra) to which I have referred. In that case, both parties made an application for an alteration of property interests through their case guardians. The husband died shortly thereafter. The wife then amended her application and sought a declaration that the husband and his successors held an interest in property pursuant to an implied or resulting trust. The wife then died. The husband’s legal personal representative challenged the jurisdiction of the Court to hear the wife’s amended application. The trial judge concluded and the Full Court upheld the finding, that the relief sought in the amended application was a matrimonial cause which could have been brought under s 78 and therefore could only be sought pursuant to that section. Since the relief sought in the amended application was not sought under the Act, it was void ab initio, for want of jurisdiction.
99More recently the Full Court in Camden Pty Ltd & Laue & Ors (2018) FLC 93-840 stated declaratory relief does not subsist beyond the death of a party to the marriage. In that case, the Court found that while property settlement proceedings had been commenced prior to the husband’s death, the application for declaratory relief was not available to the wife in those proceedings, following his death.
100Given the comments of the Full Court, and absent any express provision in the Act for proceedings pursuant to s 78 to continue after the death of a party, I consider any right to seek a declaration abated upon that event.
101There is no controversy that s 79(8) of the Act provides that property settlement proceedings may be continued against the husband by the deceased late wife.
102The question is whether the orders sought are for an alteration of property interests, or a declaration?
103In Frost (Deceased) & Whooten [2018] FamCAFC 177; (2018) FLC 93-860; the wife’s Initiating Application only sought an order that she be excused from particularising the final orders until after the husband had provided full and frank disclosure. The trial judge found “clumsily though the words may have been expressed”, that the wife validly invoked jurisdiction seeking orders with respect to property and the orders sought fell within the description of a matrimonial cause.[30]
[30] Paragraphs 45 and 46.
104The Full Court upheld those findings, and considered the orders sought fell within both paragraphs (c) and (ca) of the definition of ‘matrimonial cause’.
105I am satisfied that the orders sought in the Initiating Application seek orders by way of alteration of property interests. I have reached that view for the following reasons:
Firstly, an examination of the Initiating Application, in Part A headed “orders sought” is followed by “1. Type of orders sought (Mark all boxes that apply). The Applicant crossed the box marked ‘financial (property and/or maintenance)’.”
Secondly, further information in the Initiating Application refers to the date of the parties’ marriage and separation in questions 13 to 15. The orders sought arise from the parties’ marriage.
Thirdly, while the orders sought are poorly drafted, I am satisfied that the wife was seeking orders by way of alteration of property interests. The orders proposed the tenancy in the matrimonial home be severed, such that the wife have the ability to deal with her interest separate and apart from the husband’s interest. The order is not simply a declaration as to the parties’ rights. It seeks to alter the parties’ interests, from joint tenants to tenants in common. The Application proposed that further orders would be specified at a future date. Consistent with the Full Court’s findings in Frost (Deceased) (supra), I accept the orders sought fell within the description of a matrimonial cause.
106I consider the Application validly invoked jurisdiction seeking orders with respect to property and the orders sought fall within the description of a matrimonial cause.
107For these Reasons, the Applicant’s claim seeking orders by way of alteration of property interests remains before the Court. That should not be read as in any way predetermining the issues. The Court will ultimately need to determine whether, had the wife not died, it would have been just and equitable to make an order with respect to property and whether, in light of the wife’s death, it is still just and equitable to make an order.
108I am not satisfied on the current disputed evidence that the application is without merit or doomed to fail. The evidence from Mr C is that the wife considered the marriage had ended, she wanted a divorce but was concerned about her health. The terms of the late wife’s Will purported to bequest her interest in property to her beneficiaries. The evidence is that she wanted to deal with the matrimonial home, which was not attended to prior to her death, hence the Application was made.
109I consider there is a bona fide issue to be considered. I do not consider it would be just or equitable to effectively summarily dismiss the Applicant’s case.
110In my view, it is appropriate now that these preliminary matters have been determined, for the parties to attend either a Conciliation Conference or alternatively, to attend private mediation. I consider neither party has a considerable amount to gain, if there is any chance of a negotiated outcome. I would recommend each party carefully consider their position. Subject to hearing from the parties as to the form of the orders and what further directions are sought arising from my Reasons, I propose to pronounce orders as follows:
1. Pursuant to Rule 6.10(1) of the Family Law Rules 2004 [Mr Adams] be appointed nunc pro tunc to act as Case Guardian for the Applicant [Ms Layton].
2. Pursuant to Rule 6.15 of the Rules section 79(8) of the Family Law Act 1975 (Cth) [Mr Adams] be appointed as the legal personal representative for the Applicant and be substituted as the Applicant in to the proceedings.
3. The interim applications otherwise be dismissed.
4. Both parties’ costs be reserved to the trial judge.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary26 JUNE 2019
15
0