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…