MR ALLEN AS THE LEGAL PERSONAL REPRESENTATIVE FOR MS MURPHY - DECEASED and MURPHY

[2024] FCWA 147

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MR ALLEN AS THE LEGAL PERSONAL REPRESENTATIVE FOR MS MURPHY - DECEASED and MURPHY [2024] FCWA 147

CORAM: O'BRIEN J

HEARD: 15 JULY 2024

DELIVERED : Ex tempore

FILE NO/S: 567 of 2024

BETWEEN: MR ALLEN AS THE LEGAL PERSONAL REPRESENTATIVE FOR MS MURPHY - DECEASED

Applicant

AND

MR MURPHY

Respondent

Catchwords:

JURISDICTION - Where there is a dispute as to whether proceedings were validly instituted on behalf of the wife prior to her death - Where the husband contends that an Enduring Power of Attorney apparently executed by the wife is invalid as it purports to appoint three donees - Where the Enduring Power of Guardianship apparently also executed by the wife is not in evidence and neither party could address the question of whether that document was validly executed and, if so, whether reliance on it would validate the commencement of proceedings - Matter adjourned for parties to address those issues

Legislation:

Family Law Act 1975 (Cth)
Guardianship and Administration Act 1990 (WA)
Family Court Rules 2021 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms Sandman
Respondent	:	Ms Heng

Solicitors:

Applicant	:	Kim Wilson & Co
Respondent	:	O'Sullivan Davies Lawyers

Case(s) referred to in decision(s):

Ricetti v Registrar of Titles [2000] WASC 98

Simonds (Deceased) & Coyle (2019) FLC 93-895

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allen as LPR for Ms Murphy - Deceased and Murphy has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

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

1[Ms Murphy] ("the wife") and [Mr Murphy] ("the husband") were married [in] 1973. They had three children [Joanne], [Jacob] and [Stacey] all of whom are now adults.

2[In] January 2024, Joanne, Jacob and Stacey filed an application purporting to commence proceedings on behalf of the wife for alteration of property interests. The husband seeks the dismissal of that application, saying that he "objects to the jurisdiction" (sic) of the Court to deal with it.

3At this morning's hearing, the parties discussed possible procedural and other steps to be taken in light of the issues raised. It is necessary to set out the sequence of relevant events to give context to what follows.

Sequence of events

4It is common ground that the husband and wife were separated, albeit under the one roof in their jointly owned home in [Suburb A], by no later than August 2023, that their marriage had broken down, and that their relationship did not resume prior to the wife's death.[1] It is also common ground that in or about August or September 2023 they divided their investments, including superannuation and savings. The husband commenced a new relationship.

[1] As confirmed by counsel for the husband at a hearing on 6 February 2024.

5The wife, who was born in [redacted], worked part-time until she was admitted to hospital in November 2023. The husband, who was born in [redacted], is retired.

6On Joanne's evidence, the wife executed a new Will, an Enduring Power of Attorney, and an Enduring Power of Guardianship [in] October 2023. The husband says that he does not know and cannot admit that evidence. He says that he has not seen the Will or Enduring Power of Guardianship, and expresses "concern" as to the wife's capacity at the relevant time. In his most recent affidavit, the husband says that he understands that probate was granted [in early] 2024, but that he "continue[s] to investigate a challenge [to] the validity of [the wife's] will as [he does not] consider she had capacity at the time it was executed".

7The wife was hospitalised [in] November 2023 after a scan detected a lesion on her brain. She underwent surgery [in] November 2023 and was diagnosed with stage four Glioblastoma. She was discharged from hospital [in] December 2023, but readmitted [later in] December 2023 after her condition deteriorated. She commenced intensive chemotherapy and radiotherapy, which were not successful and were discontinued in mid‑January 2024.

8As already noted, the substantive application commencing these proceedings was filed [in] January 2024. At a hearing before a Magistrate [in] January 2024 the husband was ordered to file answering documents and the matter was assigned to the Complex Track.

9The wife died [in late] January 2024.

10The husband filed his responding documents [in early] February 2024. He sought the dismissal of the application, and costs. In "default" of that outcome, he sought orders for the proceedings to be adjourned so that pre-action procedures and mediation could be undertaken, and that he particularise the orders he would seek within 14 days of receipt of a "single expert valuation" of the Suburb A home, and "receipt of full and frank disclosure".

11In his affidavit filed in support of his response, the husband declined to admit that the adult children had been "validly appointed" as the wife's attorneys, disputing the validity of the executed Enduring Power of Attorney. He accordingly denied that Joanne had "legal authority" to swear her affidavit either on her own behalf or as the wife's attorney.

12At a hearing [in] February 2024, orders were made by consent in the following terms as proposed by the parties:

1.Pursuant to Rule 105(1) of the Family Court Rules 2021 (WA), JOANNE MURPHY be appointed nunc pro tunc to act as Case Guardian for MS MURPHY.

2.Pursuant to Section 79 (8) of the Family Law Act 1975 (Cth) and Rule 110(3) of the Family Court Rules 2021 (WA) [MR ALLEN], being the brother of Ms Murphy and named executor and trustee of her Will dated [redacted], be appointed as the legal personal representative for the Applicant and be substituted as the Applicant in this proceeding.

3.The costs in respect of today's hearing be reserved.

13Further orders were made, with the agreement of those representing the parties, for a Conciliation Conference and for the filing of particulars and a minute of orders sought for the purposes of that conference. The conference took place before a senior Registrar [in] April 2024. The recitals to the orders made at the conclusion of the conference record that the parties made a genuine effort to settle the proceedings, were unable to reach agreement, but proposed to exchange further offers. Orders were made requiring the exchange of written offers of settlement, and the matter was otherwise adjourned to a further directions hearing.

14That directions hearing took place [in] May 2024. Consistently with the terms of the husband's Response as it then stood, he was ordered to file by 8 July 2024 an amended Response "setting out with precision the final orders for alteration of property interests which he seeks".

15The husband's amended Response was then filed on 8 July 2024. It seeks orders in unusual form.

16Primarily, the husband seeks the dismissal of the Initiating Application. He seeks that relief both on a final and interlocutory basis.

17In the alternative, if that relief is not granted "and the court finds that property settlement proceedings were before the court at the date of death of [the wife]" he seeks the delivery up to him of various items of chattel property, including a car, apparently removed by the adult children from the Suburb A property. He otherwise seeks costs, and an order that "save as otherwise provided in these orders each party retain the assets and any liabilities in their possession and control" (sic). Again, that relief is sought both on a final and interlocutory basis.

The questions raised by the husband as to the validity of commencement of proceedings

18The affidavit filed by Joanne in support of the Initiating Application had exhibited to it a copy of the Enduring Power of Attorney executed in the presence of two solicitors [in] October 2023. Copies of the Will and Enduring Power of Guardianship apparently executed on the same day were not exhibited.

19The parties appear to have proceeded on the basis that Joanne and her siblings relied upon the Enduring Power of Attorney as the source of their authority to commence proceedings on behalf of their mother.

20The husband accordingly argues that the proceedings were not validly commenced, referring to ss 102 and 104 of the Guardianship and Administration Act 1990 (WA). Those sections provide for the execution of an Enduring Power of Attorney[2] and define the donee of the power to "include 2 persons appointed, whether jointly or severally, to act under a power of attorney".[3] In short, the husband says that the Enduring Power of Attorney purports to appoint three donees in circumstances where the legislation permits no more than two, and is thus invalid.

[2] Guardianship and Administration Act 1990 (WA) s 104.

[3] Ibid s 102.

21 While counsel did not refer to any authority in support of that proposition, it is found in an unreported decision of Miller J in Ricetti v Registrar of Titles.[4]

The potential difficulty with the husband's argument

[4] [2000] WASC 98.

22Were the Enduring Power of Attorney the only asserted source of authority for the commencement of the proceedings, the husband's argument might have some force.

23As already noted, Joanne's evidence is that the wife executed an Enduring Power of Guardianship [in] October 2023. The document is not in evidence, and Joanne's evidence does not descend even to the detail of the donees of the power.

24I cannot, accordingly, presently find that the Enduring Power of Guardianship executed by the wife provided the adult children with authority to commence the proceedings. The tacit acceptance by the husband of the proposition that the proceedings were validly commenced, by his consent to the orders made [in] February 2024, does not necessarily determine the matter given the position now adopted by him, acknowledging that the parties have not yet made submissions in that regard.

25I note, however, the following:

(a)there is nothing to preclude the appointment of more than two people as joint enduring guardians of a person executing an Enduring Power of Guardianship. Indeed, that is expressly contemplated by the legislation;[5]

(b)an Enduring Power of Guardianship has effect, subject to its terms, at any time the appointor is "unable to make reasonable judgments in respect of matters relating to his or her person".[6] It is common ground that as at [redacted] January 2024, the date on which the Initiating Application was filed, the wife was unable to make such judgments; and

(c)an enduring Guardian may "commence, conduct or settle any legal proceedings on behalf of the represented person".[7]

[5] Guardianship and Administration Act 1990 (WA) s 110B.

[6] Ibid s 110F.

[7] Ibid ss 110G, 110H and 45(2).

26If, therefore, the Enduring Power of Guardianship was validly executed in favour of the adult children then on a preliminary assessment[8] the proceedings in this Court were likely validly commenced. At present, the husband must be presumed to reserve his position both on that point, and as to whether the Enduring Power of Guardianship was validly executed, given his foreshadowed position in relation to the wife's Will.

[8] Acknowledging that the parties have not yet made submissions in relation to the matters just raised.

27The effect of the orders made [in] February 2024 (as distinguished from the husband's consent to them) should not be misunderstood.

28The appointment of Joanne as Case Guardian for the wife nunc pro tunc acknowledged the common position that the wife was a person under a disability within the meaning of the Family Court Rules 2021(WA) at the time the proceedings were commenced on her behalf, and until her death. It did not purport to confer jurisdiction,[9] or validate the commencement of proceedings, retrospectively. Provided the Enduring Power of Guardianship was validly executed in favour of the adult children, such conferral or validation was not required.

[9] As to which see Simonds (Deceased) & Coyle (2019) FLC 93-895.

29The appointment of Mr Allen as Legal Personal Representative, and his substitution as the Applicant in the proceedings reflected the necessity for that appointment and substitution following the wife's death so that the proceedings could be continued.[10]

Conclusion and orders

[10] Family Law Act 1975 (Cth) s 79(8); Family Court Rules 2021 (WA) r 110(3).

30For the reasons just summarised, the evidence does not presently permit a conclusion as to the validity of the commencement of the proceedings. In circumstances where both parties are represented by specialist family law firms, who might have been expected to consider the evidentiary deficiencies just outlined, that is unfortunate.

31The matter cannot sensibly progress until that is addressed.

32I therefore propose to order the Applicant to place into evidence copies of the executed Enduring Power of Guardianship and the Will. That will afford the husband and those advising him the opportunity to consider those documents. The husband will, if he accepts that the Enduring Power of Guardianship on its face would authorise the commencement of these proceedings by the adult children, then need to consider whether he wishes to pursue his foreshadowed actions premised on the proposition that the wife did not have capacity at the time the documents were executed. He will no doubt do so against the background of the documents having been executed [in] October 2023, and his admission that the wife continued to work part-time as an [administrative assistant] prior to her diagnosis and hospitalisation the following month.

33Only once those matters are clarified will it be appropriate to consider listing interim and interlocutory matters for hearing and determination. Indeed, that is the approach foreshadowed by the husband; the Applicant's counsel sensibly acknowledged this morning that the Applicant's would not seek to press their interlocutory application for the sale of the Suburb A property. I do not propose to formally dismiss that aspect of the application this morning given the uncertainty as to the status of the proceedings more generally. I will make administrative orders in relation to filing fees that were overlooked at an earlier hearing; obviously, the making of those orders does not forestall any finding on the question of whether the proceedings were validly commenced.

34There will be the following orders:

1.By no later than 4.00 pm on 29 July 2024 the Applicant MR ALLEN as the Legal Personal Representative for MS MURPHY must file and serve an affidavit exhibiting:

(a)a copy of the Enduring Power of Guardianship executed by the wife [in] October 2023;

(b)a copy of the Will executed by the wife on [redacted] ; and

(c)a copy of the Grant of Probate in respect of the said Will.

2.The solicitors for the parties must personally confer by face-to-face meeting or telephone and file by no later than 4.00 pm on 29 August 2024 a joint minute setting out clearly:

(a)any interlocutory or procedural orders that can be made by consent; and

(b)any interlocutory or procedural orders otherwise sought by either party.

3.The proceedings are adjourned to 10.00 am [in] September 2024 for directions only.

4.No earlier than the allocation of the trial date but no later than 28 days before the first hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption:

(a)the Applicant and the Respondent, MR MURPHY shall each pay 50% of the non-refundable setting down fee for a 3 day trial; and

(b)for the purposes of this order, the fees payable by the Applicant be rounded up to the nearest dollar and the fees payable by the Respondent be rounded down to the nearest dollar.

5.No later than close of Registry 2 business days before the second and each subsequent hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption:

(a)the Applicant and the Respondent shall each pay 50% of the hearing fee for that day of the trial; and

(b)for the purposes of this order, the fees payable by the Applicant be rounded up to the nearest dollar and the fees payable by the Respondent be rounded down to the nearest dollar.

6.Costs reserved.

These reasons are the reasons for decision delivered on 15 July 2024, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

16 JULY 2024