Pellissier and Pellissier

[2011] FamCA 983

FAMILY COURT OF AUSTRALIA

PELLISSIER & PELLISSIER [2011] FamCA 983

FAMILY LAW - JURISDICTION - PROPERTY SETTLEMENT – Both parties deceased – Whether the Family Court of Australia has jurisdiction to continue property proceedings after the death of both parties

Family Law Act 1975 (Cth)

Estate of McKenzie (Deceased) v Estate of McKenzie (Deceased) & Anor (2009) 39 Fam LR 253
Fisher v Fisher(No. 2) (1986) 161 CLR 438; (1986) FLC 91-767
Whitehouse & Whitehouse (2009) FLC 93-415; (2009) 42 Fam LR 319

APPLICANT: Mr Pellissier

RESPONDENT: Ms Pellissier

FILE NUMBER: PAC 4470 of 2008

DATE DELIVERED: 7 December 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 7 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bell

SOLICITOR FOR THE APPLICANT:

Mr Ewart

F W Ewart & Ewart

COUNSEL FOR THE RESPONDENT: Mr Maddox

SOLICITOR FOR THE RESPONDENT:

Mr Low

Low Doherty & Stratford

ORDERS

1. That leave be granted retrospectively for the Wife’s legal representative to appear for Ms H, the executor of the Wife’s estate.

2. That there is no federal issue left for determination following the death of both the Husband and the Wife in these proceedings. Thus, the Family Court of Australia has no power to continue to hear and entertain the matter on the basis that there is no jurisdiction in the Court to do so following the death of both of the parties.

3. That there be no order for costs in respect of any application that may be brought before this Court following on from these Orders.

4. That all applications and cross applications be and are hereby dismissed.

5. That all issues be removed from the Active Pending Cases List.

6. That all material produced on subpoena be returned not before fifty-six (56) days from the date of these Orders. 

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC4470/2008

Mr Pellissier

Applicant

And

Ms Pellissier

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me today to determine whether or not the Family Court of Australia has jurisdiction to continue to entertain and hear proceedings in relation to the property of the husband and the wife, both of whom are deceased. 

Brief Background

1. A brief background to this matter is as follows:

   §The husband was born in 1924.

   §The wife was born in 1932. 

   §The parties married in August 1997. 

   §Their cohabitation ceased in approximately somewhere between 2001 and 2003.

   §It seems clear that on 23 July 2008, the parties physically separated, with the wife shortly thereafter returning to live in England. 

   §In September 2008, the husband died. 

   §In April 2011, the wife died.

Procedural History

1. A procedural history of the matter would seem to indicate the following:

   §The matter was listed for directions in March 2009, following the filing of an originating application. 

   §In May 2009, there was the appointment of a case guardian for the wife.

   §On 22 May 2009, a number of other orders were made, concerning the proceeds of sale of a property, to be held pending final order and determination of the proceedings by the Court. 

   §Thereafter, on 29 May 2009, there was a conciliation conference, which was not concluded and was stood over.  As I understand it, the conciliation conference resumed, but before a different Registrar, on 3 December 2009. 

   §On 15 September 2010, the matter was listed for further mention on 23 September. 

   §On 23 September 2010, there was a telephone link, with the Registrar listing the matter for further mention on 23 December 2010. 

   §On that occasion, that is 23 December 2010, directions were made for the filing of material.

   §On 4 March 2011, the matter was listed for hearing for three days, to commence on 21 June 2011. 

   §As I have said earlier, in April 2011, the wife died in the United Kingdom, and those hearing dates were accordingly vacated.

2. Counsel for the husband’s legal personal representatives filed a detailed list of documents which was adopted by counsel for the wife’s estate.  I will set out that list of documents as a schedule to these reasons.  None of them were particularly referred to in the course of these proceedings today.  Both counsel have filed most helpful written submissions in respect of the issue of jurisdiction.

The Case of the Wife’s Legal Personal Representatives

1. The case of those appearing on behalf of the wife’s estate is that, as both parties are now deceased, the court no longer has jurisdiction to continue with the matter. 

The Case of the Husband’s Legal Personal Representatives

1. Counsel for the husband’s legal personal representatives argues that this is not automatically so.  He urges upon me that these proceedings should be maintained in this Court, at least for a period of time, so as to maximise the prospects of the surviving parties reaching an agreement which will dispose of the matter, or at least enable the matter to be conducted in the most orderly and sensible way. 

The Law to be Applied

1. In this matter, the applications before the Court are brought pursuant to sections 78 and 79 of the Family Law Act1975 (Cth). I do not propose to set out those sections in full. However, I place reliance upon them.

2. The originating application, which was filed on behalf of the husband, sought a number of declarations. Clearly, those declarations were sought pursuant to s 78 of the Act. There were then consequential orders sought following upon the declarations being made, and further orders were sought pursuant to s 106B and s 79, for the payment of sums of money to adjust the property rights of the parties.

3. The wife’s response sought payment of money held by trustees, together with an order for payment of other moneys. Clearly, those orders were sought and framed pursuant to s 79 of the Act.

4. To my mind, an authority to which I must have regard is that of the Full Court of the Family Court in Whitehouse & Whitehouse[1].  There is an element in that case that, in my mind, is lacking in this present case.  Much of their Honours’ judgment – and much of the judgment of the trial judge, to which their Honours have referred throughout their judgment – dealt with the issue of accrued jurisdiction, which arose in that case from an amended pleading filed in the case, relying on accrued jurisdiction, specifically seeking relief pursuant to a constructive, resulting or implied trust.  There is no such prayer for relief in the present matter. 

   [1] (2009) FLC 93-415; (2009) 42 Fam LR 319

5. Their Honours in Whitehouse made specific reference to s 79(8) of the Act. Section 79(8) is in these terms, and deals of course with the continuation of proceedings after the death of a party:

   (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.

6. Argument is put to me that that section does not, of itself, automatically mean that if both parties are dead there is no ability to continue proceedings.  His Honour Le Poer Trench J, when dealing with the matter of Estate of McKenzie (Deceased) v Estate of McKenzie (Deceased) & Anor[2] dealt with the difference in the wording between the Act as it previously stood and the Act at the time the matter was before him, where the reference was to “any party.”  His Honour concluded, at paragraph 70 of his judgment, that the Court did not have jurisdiction to continue to hear the husband’s application or the wife’s response.  His Honour found the death of both parties brought to an end the jurisdiction of the Court.  He went on to find that:

   The existence of s 79(8) provides for an exception to the general rule that property proceedings cannot be commenced where one of the parties has died.  

   [2] (2009) 39 Fam LR 253

7. I interpolate here that, of course, s 79(8) does not allow proceedings to be commenced after the death of a party. It relates to proceedings that are on foot being continued. His Honour went on to say at paragraph 70 that:

   The legislation as a whole contemplates that there must be an end to matrimonial proceedings involving property at some stage.

8. With great respect to his Honour, I endorse those comments and find that they have application to the present matter.  I have made reference, as I say, to their Honours of the Full Court and the task that confronted them in Whitehouse.  Their Honours dealt at length with the issue of accrued jurisdiction.  Their Honours, did deal specifically with the issue of what should and would happen in the event of both parties being deceased.  That comes late in the judgment.  Their Honours said at paragraph 54:

   It is a separate question whether the wife could have filed proceedings in reliance on the provisions of section 78 after the death of the husband.  At the time the amended application was filed there was then an existing application pursuant to section 79.  There is no doubt that after the death of a party, the provisions of section 79(8) allow those proceedings to be continued  

9. To my mind, the next sentence of that paragraph is of utmost importance.  It may be seen that their Honours made it as a statement of the law and I adopt it as such.  To my mind, it is significantly more than obiter.  What their Honours said was:

   Of course, once both parties were deceased the provisions of section 79(8) no longer allowed the proceedings to continue. 

10. If, indeed, section 79(8) did not allow the continuation of proceedings, then, to my mind, there is no other way that proceedings pursuant to section 79 of the Act could continue post the death of each of the parties.

11. Their Honours in paragraph 55 went on to deal with s 78 proceedings, where they said that they thought it was doubtful that proceedings pursuant to that section for a declaration may continue after one party dies. Their Honours made reference to the decision of Fisher v Fisher (No. 2)[3] in the High Court of Australia, and made reference particularly to a passage by Brennan J as he then was, which read:

    Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage.  The proceedings to which it relates are proceedings commenced between the parties to the marriage with respect to the property of those parties or either of them, arising out of the matrimonial relationship or otherwise falling within par. (ca) of the definition of ‘matrimonial cause’ in s. 4(1) of the Act.  The proceedings must have been a matrimonial cause commenced pursuant to s. 79(1).  The death of a spouse will not always extinguish or satisfy the moral claims that surviving spouse and children to which effect would have been given if the proceedings had been complete.  Section 79(8) empowers the Family Court to give effect to moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided ‘it is still appropriate to do make an order with respect to property’:               s. 79(8)(b)(ii).

    [3] (1986) 161 CLR 438; (1986) FLC 91-767

12. His Honour went on to say that:

    Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition… .

13. I am satisfied that, whilst his Honour did not particularly mention s 78, it would be both illogical and, to my mind, capable of causing mischief if, whilst s 79 proceedings were terminated by the death of both parties, proceedings for relief under s 78 of the Act, coupled in this case with consequential orders, could survive the death of both parties.

14. In all the circumstances of this case, and whilst I have a degree of sympathy for those who are still involved in this ongoing litigation, and perhaps a desire, if I could, to assist them in bringing their dispute to an end, I have come to the conclusion that there is no federal issue left for determination following the death of both the husband and wife, and thus the Family Court of Australia has no power to continue to hear and entertain the matter, on the basis that there is no jurisdiction in the court to do so following the death of both of the parties.

15. I will therefore dismiss all applications and cross applications.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 7 December 2011.

Associate:     

Date:              7 December 2011

SCHEDULE OF PARTIES DOCUMENTS

Applicant Husband’s Estate
(a)	Application for Final Orders filed 17 September 2008
(b)	Amended Application in a Case filed 11 March 2009
(c)	Affidavit of Keith Ewart (his solicitor) sworn 4 November 2008 (filed in the Probate proceedings)
(d)	Financial Statement of himself filed 17 September 2009
(e)	Affidavit of Daphne Ann Dawson (Case Guardian) sworn and filed 17 September 2008
(f)	Affidavit of Beryl Smith sworn 11 February 2011 and filed 14 February 2011
(g)	Affidavit of Daphne Dawson (Case Guardian) sworn 11 February and filed 14 February 2011
(h)	Grant of Probate (Husband’s Estate) dated 13 November 2008
Respondent Wife’s Estate
1.	Application in a Case filed 15 December 2008
2.	Affidavit of the wife sworn 3 December 2008 and filed 15 December 2008
3.	Response to Initiating Application filed 22 May 2009
4.	Financial Statement filed 22 May 2009
5.	Affidavit of Margot Rosalind Drake affirmed 1 November 2010 and filed 4 February 2011
6.	Affidavit of Edward Charles Komocki affirmed 26 January 2011 and filed 4 February 2011
7.	Affidavit of Paul Anthony Denny affirmed 26 January 2011 and filed 4 February 2011
8.	Affidavit of Angela Taylor sworn 22 March 2011 and filed 4 April 2011
9.	Affidavit of Sarah Marie Price sworn 10 May 2011 and filed 16 May 2011
10.	Grant of Probate (Wife’s Estate) dated 5 August 2011