Midhurst (Deceased) & Midhurst
[2008] FamCA 393
•6 June 2008
FAMILY COURT OF AUSTRALIA
| MIDHURST (DECEASED) & MIDHURST | [2008] FamCA 393 |
| FAMILY LAW – PROPERTY SETTLEMENT – death of party – application by daughter seeking to be substituted for deceased wife pursuant to s 79(8) – consideration of difference in wording used in s 79(8) of Family Law Act and rule 6.15 of Family Law Rules 2004 with respect to substitution for a deceased party – Rules to be read subject to specific provisions of Family Law Act – s 79(8) permits proceedings to be continued by “the legal personal representative” – whether court has power to determine the “legal personal representative” of a deceased party – whether documents can be accepted in evidence as wife’s last will and testament – consideration of s 120 of Administration and Probate Act1919 (SA) and s 79 of Judiciary Act 1903 – court not able to determine wife’s “legal personal representative” – issue to be determined by Supreme Court of South Australia – application dismissed. |
| Family Law Act 1975 (Cth) s 79 Family Law Rules 2004 rr 6.15 & 10.11(2) |
| S (deceased) and S [2002] FamCA 1281 (unreported) Northern Territory of Australia v GPAO (1999) FLC 92-838 White and Tulloch v White (1995) FLC 92-640 |
| APPLICANT: | Mrs Midhurst (Deceased) |
| RESPONDENT: | Mr Midhurst |
| FILE NUMBER: | ADC | 1916 | of | 2007 |
| DATE DELIVERED: | 6 June 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 13 March 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J McGinn |
| SOLICITOR FOR THE APPLICANT: | Norman Waterhouse |
| COUNSEL FOR THE RESPONDENT: | Mr M Heffernan |
| SOLICITOR FOR THE RESPONDENT: | Heffernan & Co. |
Orders
(1)That the Further Amended Application filed on behalf of the estate of the deceased wife by Miss Midhurst (the daughter) on the 7 March 2008 be dismissed.
(2)That the Response to an Application in a Case filed by the husband be dismissed.
(3)That the proceedings for Final Orders be referred to the Docket Registrar for a directions hearing on the 11 day of September 2008.
(4)If proceedings are pending in the Supreme Court of South Australia concerning the estate of the late wife, the Registrar is directed to adjourn these proceedings pending the outcome of those proceedings until such time as Grant of Probate or Letters of Administration of the Estate are determined.
(5)That the orders of Justice Burr made on the 26 July 2007 are discharged.
(6)That the husband give written notice to the daughter, Miss Midhurst, by letter in writing to Norman Waterhouse solicitors within two [2] clear business days of lodging any application for probate of the will of the late wife or any application for Letters of Administration of her estate.
(7)That the daughter, Miss Midhurst, give written notice to the husband care of his solicitors, Heffernan & Co, within two [2] clear business days of any application by her for probate of the will of the late wife or Letters of Administration of the estate of the late wife.
(8)That until further order the husband is restrained and an injunction is granted restraining the husband from noting the wife’s death on the title of the listed real estate properties or otherwise dealing with his interests or the wife’s interest in the properties, EXCEPT in the ordinary course of maintaining and managing the said properties and for this purpose the listed real estate properties are:
(a)M property (Certificate of Title Register Book Volume … Folio …);
(b)D Street, F (Certificate of Title Register Book Volume … Folio …);
(c)R Street, F (Certificate of Title Register Book Volume … Folio …); and
(d)N Street, F (Certificate of Title Register Book Volume … Folio …).
IT IS NOTED that publication of this judgment under the pseudonym Midhurst & Midhurst is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1916 of 2007
| Mrs Midhurst (Deceased) |
Applicant
And
| Mr Midhurst |
Respondent
REASONS FOR JUDGMENT
Introduction
Application is made to the Court by the daughter of the deceased wife that she be substituted for the deceased wife in the property settlement proceedings before the Court.
Hearing
In the short trial list on the 13 March 2008 I heard the interim application. On that day the husband was represented by Mr Heffernan. Mr McGinn represented the late wife’s daughter. The complex argument raised several issues. I reserved my judgment.
Background and Chronology
The Amended Application before me for determination was the application filed on the 7 March 2008 which sought:
“That pursuant to Section 79(8) of the Family Law Act (as amended) that upon noting the death of the wife named in these proceedings, [Mrs Midhurst], that the wife be substituted in these proceedings by [the daughter, Miss Midhurst].”
Certain other injunctions were also sought restraining the husband from dealing with real estate. The main matter before the Court was, however, the question of who should be substituted for the late wife in the property settlement proceedings.
Initially the children of the late wife had filed applications to be substituted in these proceedings. Those applications have been amended and various adjournments took place before the matter came on for determination by me on the 13 March 2008.
The husband was born in April 1961 and is now aged 47. The wife was born in January 1962. The husband and wife commenced living together in 1980 and were married in June 1981. There are two adult children of the marriage, a daughter and a son, aged 21 and 25 years respectively. The daughter is the applicant seeking to be the person substituted for the late wife in the property settlement proceedings.
The parties accumulated assets during their marriage and in particular several pieces of real estate which are held in the joint names of the husband and wife as joint tenants. The former matrimonial home and three investment properties are the significant assets of the parties. Taking into account the mortgages on the real estate, the net financial situation of the parties could be described as modest.
On the 2 February 2007 the husband assaulted the wife. The parties separated on this date. On the 25 March 2007 the wife gave a statement to the police which was incorporated into an affidavit in support of her application for a Domestic Violence Restraining Order.
In that affidavit the wife set out the events relating to her application for a Domestic Violence Restraining Order including her particulars of the assault on the 2 February 2007 which resulted in her suffering two black eyes, a broken nose and bruising to her left breast, left shoulder, fingers and right arm.
The husband was arrested on 2 February 2007. The husband was charged in relation to the assault upon the wife.
On the 27 March 2007 the Magistrates Court of South Australia made a restraining order restraining the husband from attending at or within 100 metres of the premises at which the wife resides or works and from otherwise approaching, contacting or communicating with the wife in any way either directly or indirectly other than through her lawyer. The husband was permitted to attend the place of residence as per the bail agreement upon giving proper notice, in the presence of a police officer, to collect personal effects. That restraint order application was adjourned for further hearing on the 3 April 2007.
On the 12 April 2007 the wife commenced proceedings in this Court in which she sought final orders for property settlement as follows:
“1.That in full and final settlement of all claims that either party has against the other whether by property settlement or alteration of interest in property whether past, present or future:
(a)That the husband transfer to the wife his interest in property located at [N Street, F] in the State of South Australia.
(b)That properties at:
(i) [M];
(ii) [R Street, F]; and
(iii) [D Street, F],
be sold.
(c)That from the net proceeds of the sale of the properties [the son] receive the sum of Five Thousand Dollars ($5,000.00).
(d)That the wife receive a percentage of the balance of the net assets and financial resources of the parties or either of them as agreed between them or failing agreement as ordered by this Honourable Court.
2.That the husband pay the wife’s costs of and incidental to this application.
3.Such further or other orders as this Honourable Court deems fit.”
The husband filed a Response to the Application for Final Orders for property settlement on the 14 June 2007 in which he sought the following orders:
“1.That in full and final settlement of all claims that either party has against the other whether by property settlement or alteration of interest in property whether past, present or future:
(a)That the husband transfer to the wife his interest in property located at [N Street, F] in the State of South Australia and that the wife transfer to the husband all her interest in the property located at [R Street, F] in the State of South Australia.
(b)That the properties at:
(i)[M]; and
(ii) [D Street, F]
be sold.
(c)That 50% of the net proceeds of the sale go each to the husband and wife subject to the husband and wife each paying $1,800 to [the son] in respect of the garage.
(d)The remaining assets to be divided and agreed between the parties and if agreement cannot be reached then the assets be sold and divided equally between the parties
2.That the wife pay the husband’s costs of and incidental to this application.
3. Such further or other orders as this Honourable Court deems fit.”
The wife died in June 2007. In the Case Outline for the wife it is stated: “The wife may have died by her own hand and her death certificate discloses that there is a coronial inquiry being undertaken.”
On the 23 July 2007 the first application in the property settlement proceedings was made by the children and sister of the late wife. Certain injunctions were made on the 26 July 2007 as follows:
“2.The husband be restrained and an injunction is hereby granted restraining the husband from:-
(a) obtaining Probate of the estate of [the wife];
(b)noting the wife’s death on the title or otherwise dealing in any way with the properties registered in the joint names of the parties and situated at:-
(i)[M] (Certificate of Title Register Book Volume […] Folio […]);
(ii)[D Street, F] (Certificate of Title Register Book Volume […] Folio […]);
(iii)[R Street, F] (Certificate of Title Register Book Volume […] Folio […]); and
(iv)[N Street, F] (Certificate of Title Register Book Volume […] Folio […]).”
On the 22 August 2007 the husband pleaded guilty to charges of “intentionally cause harm aggravated offence” in the Magistrates Court of South Australia. The husband was sentenced to six months imprisonment commencing on the 22 August 2007. The husband appealed the decision to a single judge of the Supreme Court. He was unsuccessful. He subsequently sought a further appeal to the Full Court of the Supreme Court of South Australia. On the 27 November 2007 that appeal was dismissed.
Having been sentenced to six months imprisonment, the husband spent time in custody and was released on the 11 March 2008 on probation (shortly before the hearing before me on the 13 March 2008).
The husband has obtained what he asserts is the Last Will and Testament of the late wife, being a document which he says is an original will signed by the wife in the presence of a solicitor and a member of the solicitor’s staff on the 21 October 2004. A copy of that will is annexed to the affidavit of the husband filed on the 11 March 2008. It purports to appoint the husband as sole executor and trustee and to bequeath the whole of the wife’s estate to the husband.
Annexed to an affidavit of the applicant daughter, filed on the 7 March 2008, are documents which the daughter says were written by the late wife indicating and confirming her advice to her daughter that she wished her son and daughter should benefit from her estate and not the husband.
The documents are handwritten and not signed. The daughter says these were written after the separation and events of February 2007.
The Issues
The adult daughter seeks to be substituted for the late wife in the property settlement proceedings.
There is a dispute about which document represents the Last Will and Testament of the late wife.
The husband maintained that it was not “still appropriate” to make an order for property settlement. This refers to section 79(8)(b)(ii). On his behalf it was asserted that by virtue of the will (upon which he seeks to rely) the whole of the wife’s estate has passed to the husband.
The case for the adult daughter emphasises the fact that the property settlement proceedings do not come to an end upon the death of one of the parties and that the Rules provide for a “person” to be substituted for a deceased party.
It was submitted that:
“This Honourable Court can construe the meaning of a “person” pursuant to rule 6.15(3) to be broader than a legal personal representative and permits the adult son and daughter and the wife’s sister to be substituted for the wife in these proceedings and the injunctions granted by paragraph 2 of the orders of 26th July 2007 do continue.”
The Family Law
Section 79 of the Family Law Act 1975 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; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(1A)An order made under subsection (1) in property settlement proceedings may, after the death of a party to the marriage, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
…
(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)an 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.
Emphasis needs to be placed upon the specific wording of section 79(8)(a) which refers to the legal personal representative of the deceased party being the person who can continue the proceedings and for whom provision can be made in relation to the substitution as a party.
Rule 6.15 of the Family Law Rules 2004 provides as follows:
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 a person be substituted for the deceased person as a party.
It is significant that the previous rule (prior to the amendment of the Rules) was Order 15 Rule 8 which provided as follows:
Proceedings after death of a person
(1) A court may make any orders it thinks proper with respect to proceedings if:
(a) a person dies; and
(b)under the Act, the proceedings may be instituted or continued by or against the person's estate or legal personal representative.
(2) The orders may include:
(a)an order that the legal personal representative be substituted for the deceased person as a party; (my underlining) and
(b)an order that notice of the proceedings be given to a person in the manner directed by the court; and
(c)an order granting leave to a person to intervene in the proceedings on the terms the court thinks fit; and
(d)an order for the amendment of an application or other document in the proceedings, in the manner and subject to the conditions that the court thinks fit.
There is a clear difference between the wording of the two rules. Significantly the reference in the current rule is to the appointment of “a person” rather than the appointment of “the legal personal representative”.
Family Law Rules 2004 Rule 10.11(2) provides:
“A party must apply to the court for permission to discontinue a case if:
(a)the case relates to property of the parties, or a party, and one of the parties dies before the case is determined;”
Discussion of Issues
Both parties before me conceded that the issues between the husband and the children concerning the status of the wills, the grant of probate and any claim by the children pursuant to the Inheritance (Family Provision) Act 1972 (SA) are matters to be determined by the Supreme Court of South Australia.
The husband’s case assumed that the will signed in October 2004 would be binding and that he would therefore inherit any moneys which the Court might otherwise order be paid by way of property settlement to the wife. He asserted that the joint tenancy of the real estate also provided that he was now the owner of the real estate and that therefore there was no point in any further proceedings.
However, it must be noted that the wife’s estate would include the right to a possible substantial asset, namely the cause of action against the husband by way of property settlement. If therefore the husband were found not to be the sole beneficiary of the wife’s estate this would be significant.
The term “personal representative” or “personal legal representative” will usually refer to the executor of the will of the deceased or a person to whom a grant of Letters of Administration has been made for the estate of the deceased. The executor of the will is often identified as the personal representative of the deceased regardless of whether probate has been granted or not.
In the matter of S (deceased) and S [2002] FamCA 1281 (unreported) His Honour Justice Mullane was considering the law as it then stood in New South Wales as it applied to the Family Law Act. Justice Mullane considers the authority of Vuletic and Vuletic an unreported 1995 Western Australia case in which Justice Holden dealt with the necessity for an executor to obtain a Grant of Probate before being described as “the legal personal representative”.
At the conclusion of S (deceased) and S (Supra) Justice Mullane says:
“25.Subsection 79(8) does not give power to this Court to appoint someone as “legal personal representative” of a deceased party to be substituted to continue the proceedings or to be the person against whom the proceedings may be continued. It does not appear to contemplate an appointment by the Court of a representative like a guardian ad litem, for example. Indeed, par 79(8)(a) says:
“The applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings.”
26.Clearly from the language of the section and the authorities, the person who is to be substituted must already be the legal personal representative of the deceased. This court has no power to appoint a person as legal personal representative of the deceased.
27.In the present circumstances, the Applicant would need to obtain from the Supreme Court, Letters of Administration with the Will annexed, or Letters of Administration ad litem making her the legal personal representative of the deceased wife before the Court can make an Order under s 79(8) substituting her for the deceased party.”
Clearly this decision was made on the basis of the law as it then stood including the provisions of Order 15 Rule 8 of the Family Law Rules.
The current Rules, however, clearly refer to “a person” rather than “the legal personal representative”.
Although the Rules now refer to “a person” rather than “the legal personal representative” the Rules cannot amend or alter the Act. The Rules need to be interpreted in a manner which is consistent with the provisions of Section 79(8).
The Rules must always be read subject to the specific provisions of the Family Law Act 1975. Specifically Section 79(8)(a) only permits the proceedings to be continued by “the legal personal representative of the deceased party”.
At the original hearing neither counsel referred me to the provisions of the Administration and Probate Act 1919 (SA) in particular Section 120:
No will to be registered or admissible in evidence until proved
(1)No will of any person dying on or after the twenty-sixth day of October, 1893, shall be registered, or be admissible or receivable in evidence, except in criminal proceedings or upon application for probate or letters of administration, until administration in respect of the estate comprised therein has been issued or obtained. (My underlining)
(2)In this section—
administration means any probate or letters of administration with or without a will annexed and any rule or order of any Court or Judge, and any deed or document of any kind whatsoever whereby any person becomes entitled at law to administer, take charge of, or become receiver of any property of deceased persons.
By virtue of Section 79 of the Judiciary Act 1903 (Cth) this is binding on the Family Court of Australia in South Australia.
I gave notice of these provisions to the parties and called for their further submissions prior to delivering my judgment.
Section 8(1) of the Evidence Act states:
“(1)This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.”
The other provisions of the Evidence Act do not deal with the issues before me.
Section 8 does not have the effect of over-riding the provision of section 120 of the Administration and Probate Act (SA). The specific provision is not inconsistent with any provision in a Commonwealth Act because the State provisions are specifically directed to an area of State jurisdiction, namely probate and wills, whilst the Evidence Act is general and does not cover this topic. See Northern Territory of Australia v GPAO (1999) FLC 92-838.
Section 92(1) of the Evidence Act states:
“(1)Subsection 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove:
(a)the death, or date of death, of a person; or
(b)the due execution of a testamentary document.”
The specific provisions of the State Act relating to the requirement of Probate or Letters of Administration of the will of a deceased person continue to apply to proceedings in the Family Court of Australia.
Submissions on behalf of the husband referred to White and Tulloch v White (1995) FLC 92-640. That decision concerned the relevance and admissibility of a will of a relative of one of the parties to the marriage being a will of a person who was still living. The provisions of any legislation concerning evidence of a will of a deceased person were not relevant and were not considered.
Therefore neither the document (being the alleged will of October 2004 nor the handwriting of the wife alleged to have been written after February 2007) can be before me as the Last Will and Testament of the deceased wife. These are matters which need to be determined in the Supreme Court of South Australia taking into account the provisions of the Administration and Probate Act 1919 (SA) and the Wills Act 1936 (SA). (Section 12 of the Wills Act 1936 (SA) makes specific provision for a document to be admitted to probate as a will even though it has not been executed with formalities required by the Act.)
Considering the combined effects of Section 120 of the Administration and Probate Act 1919 and the provisions of Section 79 of the Judiciary Act 1903, the documents which are now before this Court cannot be accepted by this Court as the Last Will and Testament of the wife because neither of those documents can be admitted or received in evidence as the last will until administration in respect of the wife’s estate has been “issued or obtained”.
The Family Court of Australia is therefore now not in a position to determine who is “the legal personal representative” of the deceased wife.
The issue of whether the Court is of the opinion that it is still appropriate to make an order with respect to property is to be determined by the Court once the proceedings continue and all matters in relation to Section 79 are considered. This is a determination to be made after hearing all relevant evidence about what order is just and equitable in the circumstances.
The claim of the late wife to property settlement establishes a cause of action which can be continued on behalf of the deceased estate once the appropriate procedural orders are made. When the legal personal representative has been appointed and substituted for the late wife in the Family Court proceedings, then full consideration should be given to all of the provisions of Section 79 as previously indicated.
Summary and Conclusions
The provisions of Section 120 of the Administration and Probate Act 1919 are binding on this Court because of the provisions of Section 79 of the Judiciary Act 1903. The documents produced to this Court alleged to be wills or testamentary instruments cannot therefore be admissible or receivable in evidence until administration of the estate has been obtained. The Supreme Court of South Australia will determine who is the legal personal representative of the late wife. Until then this Court cannot appoint any person to substitute for the wife in the proceedings because Section 79(8) requires this Court to appoint the legal personal representative.
In this particular matter until such time as the order has been made in relation to the substitution for the wife in these proceedings, it is not appropriate for the Court to determine whether it is still appropriate to make an order with respect to property.
The application of the daughter in its present form must therefore be dismissed.
In order to ensure that the underlying objects of Section 79 including Section 79(8) are duly taken into account, it will be necessary to continue the injunctions which restrain the husband from registering the death of the wife on any of the jointly owned property.
Having decided that the matters should be determined by the Supreme Court of South Australia it is necessary to discharge the injunction which prevents the husband from applying for probate if he decides to do so. An injunction made by his Honour Justice Burr on the 26 July 2007 restrained the husband from “otherwise dealing in any way” with the properties. I propose to amend the order to prevent the husband from dealing with his interests or the wife’s interest in the properties by way of transfer or further encumbering or changing the interests.
The proceedings are suspended until such time as a legal personal representative is appointed. I therefore refer the matter to the Docket Registrar. If by the 31 August 2008 no further application has been made to this Court by the legal personal representative of the late wife, I direct the Docket Registrar to bring the matter on for further directions before the Docket Registrar and if necessary referral to a Judge of this Court for further directions.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 6 June 2008
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