Mooney and Ors and Mooney
[2015] FCWA 84
•22 SEPTEMBER 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MOONEY & ORS and MOONEY [2015] FCWA 84
CORAM: CRISFORD J
HEARD: 1 SEPTEMBER 2015
DELIVERED : 22 SEPTEMBER 2015
FILE NO/S: PTW 4853 of 2006
BETWEEN: MS S MOONEY
First Applicant
MS K MOONEY
Second ApplicantMS L MOONEY
Third ApplicantMS C MOONEY
Fourth ApplicantAND
MR G MOONEY
Respondent
Catchwords:
PROPERTY SETTLEMENT – ABATEMENT – where proceedings were initiated by the husband in 2006 – where the wife was diagnosed with ovarian cancer in late-2008 – where in 2012 a court hearing was vacated by consent without any further hearing date sought – where in 2014 the court sent a letter advising of a possible dismissal of proceedings if no request to re-list the proceedings was sought within three months of the date of the letter – where the Court did not receive a request to re-list the proceedings – where orders were made in chambers dismissing the proceedings (“the orders”) – where the wife died nine days prior to the making of the orders – where the proceedings abated upon the death of the wife – where the court exceeded its jurisdiction in making the orders because of the intervention of the death of the wife – where, as the Family Court of Western Australia is a court of record, there is no presumption the orders are valid and binding until set aside and are a nullity.
PROPERTY SETTLEMENT – APPLICATION TO SET ASIDE ORDERS – where counsel for both parties proceeded on the basis that the orders needed to be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) – where the applicants were the daughters of the parties and the executors of the wife’s estate – where the husband submitted that the applicants were not “persons affected” by the orders – where the Court found that the applicants, as the wife’s legal personal representatives for the purposes of the Act, were “persons affected” by the orders – where the applicants submitted there had been a miscarriage of justice – where the Court found that the inability of the legal personal representatives to continue the property proceedings on behalf of the wife would be a breach of the rules of natural justice and procedural fairness.
Legislation:
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Category: Not Reportable
Representation:
Counsel:
First Applicant : Mr M Berry SC
Second Applicant : Mr M Berry SC
Third Applicant : Mr M Berry SC
Fourth Applicant : Mr M Berry SC
Respondent: Mr F Castiglione QC
Solicitors:
First Applicant : Hearty & Tam
Second Applicant : Hearty & Tam
Third Applicant : Hearty & Tam
Fourth Applicant : Hearty & Tam
Respondent: Elizabeth Wiese & Associates
Case(s) referred to in judgment(s):
Cameron v Cole (1944) 68 CLR 571
Pertsoulis and Pertsoulis (1979) FLC 90-613
Somerton & Wells (Deceased) and Anor (2015) FLC 93-631
Taylor and Taylor (1979) 143 CLR 1
Teo & Guan (2015) FLC 93-653
Wade-Ferrell & Wade-Ferrell (2001) FLC 93-069
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Background
1After a marriage of over 22 years [Mr G Mooney] (“the husband”) and [Mrs M Mooney] (“the wife”) separated [in] March 2004.
2On 29 August 2006 the husband filed an application initiating proceedings in relation to both parenting and financial matters.
3When the parties separated their four children were all under the age of 18. The parties’ major asset was a property at [M Place, Suburb A] (“the [Suburb A] property”) which they held as joint tenants. In late-2007 the agreed value of the Suburb A property was $520,000. It is common ground that any borrowings relating to the purchase had been paid off during the currency of the relationship.
4By late-2008 the parties had participated in numerous court events including a conciliation conference and five procedural conferences. Negotiations for settlement had taken place.
5The wife was diagnosed with ovarian cancer in late-2008. She underwent major surgery. This was followed by several years of intensive chemotherapy treatment.
6On 17 November 2010 the proceedings relating to children’s issues were dismissed by consent.
7During the years after the wife’s diagnosis little was done in relation to the property settlement proceedings. There were a few subpoena hearings and some further procedural conferences. However, the parties took steps to adjourn or vacate most of such listings.
8In particular, a readiness hearing, listed for 20 June 2012, was vacated by consent without any further date being sought. The court, itself, then took steps to rejuvenate or else finalise the proceedings.
9On 9 April 2014 the Principal Registrar sent a letter to the parties advising of a possible dismissal of the proceedings if a request to re-list was not made by 9 July 2014, some three months hence. The letter was sent to the husband at the Suburb A property, where he lived, and to the solicitors on the record for the wife, CB Legal at: PO Box 394, South Perth, WA 6951.
10Relevantly, the letter states:
The Presiding Magistrate has directed that these proceedings should be finalised. Unless otherwise requested it is proposed to make final orders dismissing the outstanding proceedings. Alternatively, if all parties seek that the Court make different orders on a final basis and file a Minute Final Consent Orders, then the presiding Magistrate will consider making new orders as proposed and otherwise dismissing the proceedings. Unless a written request to relist the proceedings is received before 9 July 2014, your matter will be finalised as indicated.
Accordingly, the presiding Magistrate has made the following orders in Chambers:
1.In the event that either a Minute of Final Consent Orders signed by all parties or a written request to relist the remaining substantive proceedings is not received from either party of the Independent Children’s Lawyer (if relevant) by the close of Registry on 9 July 2014, then the Client Administration Officer shall refer the matter to the presiding Magistrate or a Magistrate in Chambers for final orders to be made without further notice to the parties as follows:
(a)All subpoenaed documents be returned to source.
(b)All outstanding proceedings be otherwise dismissed.
2.These orders need not be extracted.
3.The proceedings otherwise be transferred to the Family Court of Western Australia.
11The husband received the letter a few days after 9 April 2014. There is an issue of whether the wife either received or even knew about the letter and its content.
12[In] May 2014 the wife executed a new will. On 23 June 2014 the court received an application for divorce from the wife. This was accepted for filing on 27 June 2014.
13On 30 June 2014 the wife died. The court was not advised. On 11 July 2014 the financial proceedings were dismissed as indicated in the correspondence of 9 April 2014. The husband wrote to the court on 5 August 2014 advising of the wife’s death and that the divorce application would not proceed.
14On 25 September 2014 [Ms S Mooney], a daughter of the parties, filed an application initiating proceedings as executor of the wife’s will seeking to set aside the orders of 11 July 2014 and that she be substituted for the wife as a party to the proceedings.
15Probate of the wife’s last will and testament was granted to the parties’ daughters, [Ms K Mooney] and [Ms C Mooney] [in] December 2014. Leave was reserved to [Ms L Mooney] and Ms S Mooney , the other two executors appointed under the will, to apply for Probate.
Issues for determination
16The executors of the estate, through Mr Berry of Senior Counsel, seek that the court consider the following issues:
•whether there has been a miscarriage of justice by reason of any other circumstance, pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”);
•if there has been a miscarriage of justice, by reason of any other circumstance, whether the orders made on 11 July 2014 should be set aside; and
•whether, pursuant to s 79(8)(a) of the Act, the executors of the late wife’s estate should be substituted for the deceased wife as a party to these proceedings.
17Mr Castiglione of Queen’s Counsel for the husband, agrees these are the matters for the court to decide. If the executors are successful in persuading the court there has been a miscarriage of justice, it is agreed there would need to be a further hearing to allow the parties to prosecute or settle the property settlement proceedings.
18It was also agreed by both counsel that I could proceed to determine the preliminary issue, relating to a miscarriage of justice, on the basis of the documents filed by each party as supplemented by counsel’s oral submissions.
19Neither party raised the fact of and the timing of the wife’s death as an issue of significance. The court drew this to the attention of counsel and each had an opportunity to address it. I intend to deal with this matter first as I consider it to be pivotal in determining the issues.
•Death of the wife on 30 June 2014
20The death of the wife occurred after the finalisation letter had been sent to the parties, but before the time limit for them to take further action had expired.
21Section 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, … 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;
22The Family Law Rules 2004 (Cth) (“the 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.
Note 1: The court may make other procedural orders, including that a person has permission to intervene in the case (see rules 1.12 and 6.05).
Note 2: For the effect of the death of a party in certain cases, see subsections 79(1A), 79(8), 79A(1C) and 105(3) of the Act.
23The explanatory guide to the Rules offers an explanation of what the term legal personal representative means:
legal personal representative, for a deceased party – the executor or administrator of the party’s estate.
24Neither the husband nor the legal personal representatives of the wife sought such directions prior to 9 July 2014. This was nine days after the death of the wife from cancer.
25Proceedings for property settlement under s 79 of the Act are based upon a claim which is purely personal. This being the case, the claim abates on the death of one of the parties to the proceedings. Until a legal personal representative is appointed, and substituted for the deceased party, the wording of s 79(8) lends itself to the position that the proceedings are suspended and no further legally effective steps can be taken to either continue or discontinue them.
26Section 79(8) of the Act operates to reverse the result which would otherwise have followed from the death of a party. The section provides a method for the continuation of the determination of property proceedings.
27The general principle that a claim for a property order abates on the death of one of the parties can be compared to the position of an actual order for property settlement which does not so abate (Pertsoulis and Pertsoulis (1979) FLC 90-613 and s 79(1A) of the Act).
28This said, I find that these proceedings, which relate to a claim for property settlement, abated upon the death of the wife. The orders of 11 July 2014 were made in the absence of any knowledge of the wife’s death. I do not consider those orders to have any legal affect.
29In dismissing the proceedings the court exceeded its jurisdiction. This was not because it lacked jurisdiction, but because of the intervention of the death of the wife and about which the court had no knowledge.
30The Family Court of Western Australia is a court of record, unlike the Family Court of Australia, which is a superior court of record. In the recent decision of Teo & Guan (2015) FLC 93-653, the Full Court addressed the difference between a superior and inferior court in the context of the possession of inherent or implied powers. The Full Court found that in:
[81]Construing the subject matter, scope and purpose of the State and federal Acts, we find a clear intention that a State Family Court should have precisely the same powers in the exercise of federal jurisdiction as the Family Court of Australia. …
31The Full Court made clear, at [34] and [35], that the only difference between superior and inferior courts relevant to their decision related to the possession of powers.
32What is relevant here, is the validity of the orders. In that respect there is a difference between a superior and an inferior court. In contrast with a superior court of record, there is no presumption that the orders made by a court of record are valid and binding until set aside (Wade-Ferrell & Wade-Ferrell (2001) FLC 93-069 at [31], Somerton & Wells(Deceased) and Anor (2015) FLC 93-631). As the orders of 11 July 2014 were made by a court of record, exceeding its jurisdiction, I thus find that the orders are a nullity.
33The court may now proceed to determine the issues between the parties, on the basis it substitutes the legal personal representative for the deceased wife. There is no need to set aside the order of 11 July 2014. It can only be described as void (Cameron v Cole (1944) 68 CLR 571; Taylor and Taylor (1979) 143 CLR 1).
34The executors have filed an application initiating proceedings. The orders sought, in my view, complicate the matter unnecessarily. There was simply a need for either the husband or the legal personal representative, pursuant to r 6.15(2) of the Rules, to ask the court for procedural orders in relation to the future conduct of the case. This includes the substitution of the legal personal representatives as the respondent in the proceedings.
35There is a controversy to be resolved between these parties. It remains a live issue.
Section 79A of the Act
36Both counsel proceeded on the basis that the order of 11 July 2014 needed to be set aside. They referred to s 79A of the Act. I will deal with this briefly, simply for the sake of completeness. However, such a position, in my view, fails to take into account the effect on the proceedings of the death of the wife.
37Section 79A(1)(a) of the Act reads relevantly in part as follows (emphasis added):
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence; or any other circumstance…
the court may, in its discretion, vary the order or set the order aside…
•Persons affected
38A convenient starting point is a submission of Mr Castiglione QC which maintains that the applicants are not “persons affected” by the order of 11 July 2014 and therefore cannot utilise.
39It is clear from the legislation that the ability to make an application, pursuant to s 79A of the Act, is not limited to the parties of the proceedings in which the order was made. A person affected can include a creditor; a bankruptcy trustee; and a trustee. This is not an exhaustive list.
40The applicants are the legal personal representatives of the deceased wife. They are beneficiaries under her will. As executors and trustees they have an obligation to call in the estate.
41There can be no doubt that the wife had a valid claim for property settlement that she had been pursuing since 2006. The wife always sought over 50 per cent of the value of the Suburb A property. This takes into account the course of the parties’ financial relationship during their long marriage, including an inheritance she received. At the time of her death the parties had not resolved the financial issues.
42It is useful to firstly consider any evidence about the wife’s attitude to her claim at or about the time of her death.
43Ms Janene Bon, a solicitor working at HHG Legal Group, deposes that she provided legal advice to the wife from April 2014 to May 2014. The wife was referred to her by the Cancer Council of Western Australia. Ms Bon attended at the wife’s residential address. This was due to the poor state of the wife’s health.
44Ms Bon was made aware that there were current Family Court proceedings. They had not been finalised.
45Ms Bon was instructed to prepare:
•a last will and testament;
•an enduring power of attorney;
•an enduring power of guardianship; and
•a transfer of land to sever the joint tenancy of the Suburb A property.
46Ms Bon was present at the wife’s home when she signed the above documents [in mid] May 2014.
47Ms Bon deposes that the transfer of land was prepared in an attempt to achieve an economical and timely way to sever the joint tenancy of the Suburb A property. Ms Bon says that her instructions were that the wife did not want her share in the Suburb A property to pass to the husband on death.
48Ms Bon also deposes that the wife told her she would make her own attempts to obtain the husband’s consent to change the ownership of the Suburb A property. Ms Bon received no further instructions after [mid] May 2014.
49The husband deposes that between June 2012 and April 2014 he spoke to the wife about every three weeks. He said that the wife never raised the court proceedings or expressed any desire to resume them. He said he “formed the view” that the wife no longer wanted to pursue the property settlement because she did not talk about it and she took no steps to pursue the proceedings. He said she did not want to proceed to trial given her diagnosis with cancer.
50The husband deposes that he received the court letter of 9 April 2014 some days after it was posted. He says that on 16 April 2014 he spoke to the wife by telephone. He enquired whether she had received the letter from the Family Court. He said she said she had not received it so he read the content of that letter to her. The husband said the wife conveyed to him she was relieved the proceedings would be over. The records show the duration of the call to have been five minutes and one second. At that time it appears the husband was living in the Suburb A property and the wife lived more or less across the road [in M Place, Suburb A].
51The wife’s failure to pursue the property proceedings with any vigour after her diagnosis of ovarian cancer, and then so close to her death, does not necessarily signal that she wanted her share of any property to simply go to the husband. There are other inferences equally open on the evidence. As an example, although she was gravely ill, the wife took steps to secure a property division through a transfer of land thus obviating the need for further legal proceedings. This is inconsistent with the husband retaining all of the property built up over their marriage.
52The husband had no reason to progress the proceedings given his desire to retain the Suburb A property in which he lived. This would and did happen, in any event, by way of survivorship upon her death.
53I find the legal personal representatives of the wife are, in the wife’s stead, persons very much affected by the order of 11 July 2014, which effectively puts an end to a claim that has merit. They have a right to pursue her claim.
•Miscarriage of Justice
54I turn to whether there has been a miscarriage of justice by “any other circumstance”. Both parties identify this issue as being whether or not the wife had any notice, or any adequate notice, of the letter from the court of 9 April 2014.
55On 5 November 2007, CB Legal filed a Notice of Address for Service on behalf of the wife. This address was PO Box 7058, Applecross. In December 2008 the court updated, in its internal system, CB Legal’s address to Canning Highway, South Perth. Mr Bloxham, on instructions from CB Legal, attended numerous court events on behalf of the wife until around November 2010.
56An informal notification of a change of address for each of the parties was contained in a jointly signed letter, drafted by the husband, on 29 November 2011. On 2 December 2011, in an internal memorandum placed on the court file, the Caseflow manager noted that the parties were to file Form 8, Notices of Address for Service. Elizabeth Weise and Associates filed a Notice of Ceasing to Act, on behalf of the husband, on 15 December 2011. This included the husband’s last known address. The husband filed a Notice of Address for Service on 12 June 2012. Neither CB Legal nor the wife took any steps.
57On 22 March 2012, CB Legal’s address was updated in the court’s internal system to PO Box 394, South Perth. On 23 April 2013 the court again updated CB Legal’s address to Level 27, St Martin’s Tower, 44 St Georges Terrace, Perth. A further and final update was made on 26 April 2013 to PO Box 5179, St Georges Terrace. All of these were general updates provided by CB Legal. Each update was not allocated to any specific court file in the same manner as a Notice of Address for Service would be.
58The 9 April 2014 finalisation letter was sent to the husband at his address for service and to the wife via CB Legal, for some reason, at its then outdated 2012 South Perth address.
59The orders made in Chambers on 11 July 2014 dismissing the proceedings were sent to the husband’s address for service and to the wife via CB Legal’s current address, at PO Box 5719, St Georges Terrace.
60Mr Bloxham, Barrister and Solicitor, now of Bloxham Legal deposes that the letter of 9 April 2014, addressed to his old PO Box and then redirected, was not received prior to the stipulated deadline. Once it weaved its way through Australia Post to his current address he then forwarded it to the wife’s address last known to him. Unfortunately this was also an outdated address and the letter was finally returned to Mr Bloxham.
61I accept that through a combination of CB Legal failing to file a Notice of Ceasing to Act, the wife failing to file a Notice of Address for Service and administrative errors she did not receive the letter of 9 April 2014 before her death.
62There is a second aspect to the issue of notice. If the Court accepts the husband read the court letter of 9 April 2014 to the wife, can this be construed as notice of its content and thereafter acquiescence by the wife to the dismissal of the proceedings?
63I do not accept that it can be so construed. Even if I accept the husband read the letter to the wife, and she said she was relieved the proceedings would be over, this is a far cry from agreeing to the husband retaining all the matrimonial property. It is ambiguous about her intent, especially when a few days earlier she had instructed solicitors to prepare a transfer of land form and to redo her will. It does not suggest the wife intended the husband to take all the property but rather that she was simply relieved that the court with its emotionally draining processes would no longer be involved.
64I have already dealt with some of the competing inferences that can be drawn. I find the most likely inference is the wife had no intention of abandoning her rights to a claim for a just and equitable property settlement. However, she died before she could further negotiate with the husband or failing that proceed through the court.
Conclusion
65I have little hesitation in finding that had the wife not died, but had simply sought, within a relatively short timeframe after 9 April 2014, to set aside the orders of 11 July 2014, she would have been successful. This is based on her illness and the incapacity it brought to her. It also takes into account the merits of her claim.
66I have no doubt that she would have been able to continue the proceedings. To do otherwise is likely to constitute a breach of the rules of natural justice and procedural fairness. Medical circumstances of this magnitude are not infrequently a reason for the court to extend timeframes for procedural compliance.
67As the written submissions of the husband say:
69.We note that the High Court decision in Allesch v Maunz (2000) FLC 93-033 sets out the principles governing the right of a party to be heard, particularly where the parties’ interests might be affected by the decision. Thus, ordinarily, it is a principle of justice when a person whose interests may be adversely affected by a decision be given an opportunity to present material information and submissions relevant to such a decision before it is made.
70.It was said further in Allesch “a Court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear, is adequately explained, unless it also appears that a different result would be reached by a rehearing or that a rehearing would work an irremediable injustice to the other side”.
68Whether the death of the wife caused the proceedings to abate, or because there has been a miscarriage of justice which requires the setting aside of the order of 11 July 2014, I find the matter should be programmed to proceed to a determination.
Orders
69I intend to make the following orders:
1.Pursuant to s 79(8)(a) of the Act, the legal personal representatives of the late Applicant’s estate, [Ms S Mooney], [Ms K Mooney], [Ms L Mooney] and [Ms C Mooney] be substituted for the Applicant, [Mrs M Mooney] (deceased), as a party in these property settlement proceedings.
2.The parties and lawyers attend a Conciliation Conference on a date to be advised.
3.Subject to any subsequent costs order made by the Court, waiver or exemption, within 28 days prior to the Conciliation Conference, the Applicant, by her legal personal representatives, shall pay the Conciliation Conference listing fee.
4.By no later than close of Registry, 14 days prior to the Conciliation Conference, each party provide a Conciliation Conference Document to the other party and to the Court.
I certify that the preceding [69] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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