Marsten & Marsten

Case [2023] FedCFamC2F 1587

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Marsten & Marsten [2023] FedCFamC2F 1587

File number(s): MLC 422 of 2022
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 12 December 2023
Catchwords: FAMILY LAW – adjournment or stay application pending probate – where one party dies shortly after issue – whether the deceased needed a litigation guardian – whether proceedings invalid – where contested probate proceedings are underway in the Supreme Court of Victoria – where one party seeks an adjournment or stay until the probate proceedings are finalised   
Legislation:

Evidence Act 1995 (Cth) s 121

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 140, 141, 143, 189, 190

Federal Circuit and Family Court of Australia (Division 2) Rules 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.05, 1.31, 2.01, 2.14, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17, 3.18, 3.19, 6.06, 10.09

Powers of Attorney Act 2014 (Vic) ss 22, 26, 39, 51

Cases cited:

Frost (Deceased) & Whooten (2018) FLC 93-860

Gilliam & Cantrell [2022] FedCFamC2F 478

Harry & Harrison and Ors [2011] FamCA 457

Hullet & Benton (2022) FLC 94-072

Midhurst (Deceased) v Midhurst [2008] FamCA 393

Murdoch & Brown (No.2) [2013] FamCA 732

Phillips and Phillips (1985) FLC 91-634

S (Deceased) & S [2002] FamCA 1281

Simonds (Deceased) & Coyle [2019] FamCAFC 47

Slater and Slater (1985) FLC 91-641

Smith and Smith (No 3) (1986) FLC 91-732; (1986) 161 CLR 217

Tate & Hunter (Deceased) [2015] FamCA 1242

Division: Division 2 Family Law
Number of paragraphs: 116
Date of hearing: 19 September 2022, 12 October 2022, 27 October 2022
Place: Melbourne
Counsel for the Applicant: Mr Wraith
Solicitor for the Applicant: Mitchell Family Law
Counsel for the Respondent: Mr Anthill
Solicitor for the Respondent: Casey Business Lawyers

ORDERS

MLC 422 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MR MARSTEN by his litigation guardian Ms Hanley

Applicant
AND:

MS MARSTEN

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

12 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application of Ms Marsten for the summary dismissal of the Initiating Application for property alteration orders filed on 19 January 2022 by Mr Marsten, by his Litigation Guardian Ms Hanley, be and is dismissed.

2.The matter be listed before Judge O’Shannessy for directions on Monday 19 February 2024 at 10:00am at the Federal Circuit and Family Court of Australia (Division 2). 

3.Any applications for costs be and is adjourned to the adjourned date.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.

B.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must…

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AGLC
Marsten & Marsten [2023] FedCFamC2F 1587
Case
[2023] FedCFamC2F 1587
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Marsten, represented by his litigation guardian Ms Hanley, brought proceedings against Ms Marsten for property alteration orders. Mr Marsten passed away shortly after the issue of the proceedings. Ms Marsten applied for the summary dismissal of the proceedings on the basis that Mr Marsten had died and therefore needed a litigation guardian, rendering the proceedings invalid. The court was required to determine whether the proceedings were invalid due to the death of Mr Marsten and the absence of a litigation guardian, and whether the proceedings should be adjourned or stayed pending the outcome of probate proceedings in the Supreme Court of Victoria.

The court considered that Mr Marsten's death did not automatically invalidate the proceedings as he was represented by a litigation guardian at the time the application was made. The court further held that while the absence of a litigation guardian during the period before the application was made could have rendered the proceedings invalid, the presence of a litigation guardian at the time of the application cured any prior defect. The court also noted that there were no grounds to stay the proceedings pending the outcome of the probate proceedings in the Supreme Court of Victoria, as the two matters were not closely connected and the probate proceedings were not likely to affect the outcome of the family law proceedings.

The court dismissed Ms Marsten's application for summary dismissal and ordered that the matter be listed before Judge O’Shannessy for directions on 19 February 2024. The court also noted that any applications for costs be adjourned to the adjourned date.

Orders

Orders of the court

MLC 422 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MARSTEN by his litigation guardian Ms Hanley

Applicant

AND:

MS MARSTEN

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

12 DECEMBER 2023

THE COURT ORDERS THAT:

1. The application of Ms Marsten for the summary dismissal of the Initiating Application for property alteration orders filed on 19 January 2022 by Mr Marsten, by his Litigation Guardian Ms Hanley, be and is dismissed.

2. The matter be listed before Judge O’Shannessy for directions on Monday 19 February 2024 at 10:00am at the Federal Circuit and Family Court of Australia (Division 2).

3. Any applications for costs be and is adjourned to the adjourned date.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.

B. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

E. The parties are at liberty to request that the 19 February 2024 listing be vacated if convenient.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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