Legal Research
Cases
LAYTON and LAYTON

LAYTON and LAYTON

Case [2019] FCWA 145 26 June 2019

No judgment structure available for this case.

Type to search within this case.

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…

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 LAYTON and LAYTON

Details

AGLC: LAYTON and LAYTON [2019] FCWA 145
Case: [2019] FCWA 145
Decision Date: 26 JUNE 2019

CaseChat Overview and Summary

Family Law Act 1975 (Cth). The case of Layton and Layton involved a dispute between the husband and the wife who had been living separately following the wife's move into residential care. The family home was owned by the husband and wife as joint tenants. The wife initiated proceedings through her case guardian, but she subsequently passed away. The wife's adult son sought to be appointed as the wife's case guardian nunc pro tunc and to be substituted as her legal personal representative. The husband opposed the proposed orders and sought to have the application dismissed. The central legal issues in this case were whether the final orders sought an alteration of property interests under s 79 of the Family Law Act 1975 (Cth), and if the son could be appointed as the wife’s case guardian nunc pro tunc and substituted as her legal personal representative.

The court examined the statutory provisions and the circumstances surrounding the wife's capacity to manage her own affairs. It found that the son's appointment as the case guardian nunc pro tunc and as the legal personal representative was not intended to alter property interests but to ensure proper administration of the estate. The court ruled that the son could be appointed as the case guardian nunc pro tunc and as the legal personal representative, and dismissed the husband's opposition to these orders. The court's decision clarified that the final orders did not seek an alteration of property interests, thereby resolving the dispute. The court ordered that the son be appointed as the case guardian nunc pro tunc and as the legal personal representative, and dismissed the husband's opposition to these orders.

Orders