Milwell and Milwell

[2017] FamCA 610

FAMILY COURT OF AUSTRALIA

MILWELL & MILWELL [2017] FamCA 610

FAMILY LAW – PRACTICE AND PROCEDURE - Application for expedited hearing

Family Law Rules 2004 (Cth)

APPLICANT: Ms Milwell

RESPONDENT: Mr Milwell (by his Legal Personal Representative, State Trustees Limited)

FILE NUMBER: MLC 11672 of 2015

DATE DELIVERED: 16 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lander & Rogers

SOLICITOR FOR THE RESPONDENT: Bailey Timms Lawyers

Orders

1. All extant applications for final orders be allocated to a judicial docket for the purposes of listing the matter for final hearing as soon as is reasonably practicable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milwell & Milwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11672  of 2015

Ms Milwell

Applicant

And

Mr Milwell (by his Legal Personal Representative, State Trustees Limited)

Respondent

REASONS FOR JUDGMENT

1. The applicant wife and the respondent husband were married in 2001 in Asia, where the parties had met. They moved to Australia following their marriage and separated in December 2015. Proceedings were commenced by way of an Initiating Application filed by the wife in this Court on 11 December 2015 seeking final property and spousal maintenance orders. The husband died in 2015.

2. The wife seeks an expedited final hearing pursuant to r 12.10A(1) of the Family Law Rules 2004 (Cth) (“the Rules”). The State Trustees Limited as Executors of the Estate of the husband have been appointed as the Legal Personal Representative for the husband (“STL”) pursuant to orders made 8 June 2016 by Registrar Field. The wife relies upon her Summary of Argument in support of expedition dated 5 July 2017 filed pursuant to orders made by Registrar Field on 21 June 2017. STL rely on their reply to the wife’s application for an expedited hearing dated 12 July 2017. STL indicate that they have no interest in delaying the family law proceedings, but they do take issue with some of the wife’s submissions relating to her claims of the asset pool being dissipated, her asserted medical condition and her claims of financial hardship.

Legal principles

1. Pursuant to r 12.10A(1) of the Rules a party may apply to expedite the first day before a Judge. As set out in the Rules:

   (2)  The court may take into account:

   (a) whether the applicant has acted reasonably and without delay in the conduct of the case;

   (b) whether the application has been made without delay;

   (c)  any prejudice to the respondent; and

   (d)  whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

   (3)  If the court is satisfied of the matters in subrule (2), the court may:

   (a) set an early first day before the Judge; and

   (b) make procedural orders for the further conduct of the case.

   (4)  For paragraph (2)(d), a relevant circumstance includes:

   (a)  whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;

   (b)  whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;

   (c)  whether the applicant is suffering financial hardship that:

   (i)  is not caused by the applicant; and

   (ii)  cannot be rectified by an interim order;

   (d)  whether the continuation of interim orders is causing the applicant or a child hardship;

   (e)  whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

   (f)  whether the case involves allegations of child sexual, or other, abuse; and

   (g)  whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Discussion

1. In support of her application that his matter be given priority the wife submits that:

   ·she has acted reasonably and without delay in the conduct of the matter, filing documents promptly and ensuring full and competent representation in Court and at mediation;

   ·there will be no prejudice to either side if the matter is expedited and the finalisation of the husband’s estate is dependent on the finalisation of the family law proceedings;

   ·the estate is being eroded by costs and fees charged by STL;

   ·the wife is in very poor health and suffers from a facial palsy;

   ·the wife has very limited English and no family or support in Australia;

   ·the wife has no personal income or financial resources and is unfit for employment;

   ·the wife is currently residing in Asia and seeks the certainty of a priority hearing date to avoid travel and accommodation costs being thrown away if the matter does not proceed on its allocated trial date;

   ·further delays will result in financial hardship and dissipation of assets available for distribution; and

   ·STL have a conflict of interest in their role as executors of the husband’s estate and as the legal representatives in these proceedings, as they need to have regard to the interests of the beneficiaries of the estate.

2. STL do not oppose the wife’s application for expedition and much of their reply is focussed on refuting the wife’s claim that the estate is being eroded by fees and charges and providing an explanation for those fees. 

3. There is a suggestion by the STL that the wife has not complied with orders made at a Conciliation Conference on 7 September 2016 as she has failed to make discovery of her bank statements. I am not in a position to determine what if any reason there might be for the wife’s failure to comply if in fact she has not done so. Even if the wife has not produced her bank statements as asserted I am satisfied that she would appear to have acted without delay both with regard to the proceedings generally and this application for priority.

4. Significant time has passed since the wife commenced these proceedings however I am satisfied that is more likely than not to be because of the matters that arise when one of the parties to proceedings dies rather than any failing on the part of either party.

5. The factors that I consider most relevant in deciding whether to expedite this matter are the financial circumstances the wife currently finds herself in, her health and the possible impact a delay in finalising the proceedings will have on the value of the property the subject of the proceedings. That is not intended to be a criticism of STL.  

6. The wife is aged 50 years and says she is poor health, including suffering from a facial palsy as a result of a suspected stroke. Although STL submits that there is no medical evidence provided that evidence would not necessarily by available until the matter is listed for a final hearing. Whilst that remains to be tested I am satisfied that at least for the purposes of the question of priority that I should have regard to the wife’s health.  

7. The wife submits that she has no personal income or financial resources and is unfit for employment, having had no formal education or employment skills. In the STL’s reply to the wife’s submission, they refute the suggestion that the wife is in financial hardship and point to the fact that she has had available to her the proceeds of the husband’s MLC Super Wrap policy (valued at $106,568) and death benefit entitlements (valued at $97,724) totalling $204,292. Although the evidence about these matters is yet to be tested, even if it were the case that the wife did have access to these funds, this case was commenced at the end of 2015 and it is now mid-2017 and the wife asserts that she has expended over $60,000 in legal costs and fees and has had to move back to Asia due to the lower cost of living. Her financial circumstances, combined with her low likelihood of finding employment and poor health are relevant circumstances that in my view point in favour of the matter being expedited.

8. Although Rule 12.10A(4) of the Rules sets out various circumstances that are relevant to the to the question of whether a matter should be afforded priority that list is not intended to be exhaustive. In my view a significant factor in this case is the link between these proceedings and the administration of the husband’s estate. The two matters are inextricably linked and as the wife submits, the estate cannot be finalised and proceeds cannot be distributed to beneficiaries until the family law proceedings have concluded. There is also the potential Capital Gains Tax that will be incurred if the real property in the estate is not sold within two years from the date of the husband’s death.

9. The last factor that I have considered relevant to expedition is the prejudice to the respondent, STL in this case. STL have submitted they have no interest in delaying the family law proceedings and I am satisfied that both parties would actually be likely to benefit from an expedited hearing, allowing the wife to have property matters resolved giving her an opportunity to move forward with her life and will allow STL to finalise the estate and commence distribution to beneficiaries.

10. In all of the circumstances I propose to order that this matter be allocated to a judicial docket and listed for a trial management hearing as soon as practicable.  

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 August 2017.

Associate: 

Date:  16 August 2017