Shenoy and Biyani (deceased)

[2016] FamCA 682

FAMILY COURT OF AUSTRALIA

SHENOY & BIYANI (DECEASED) [2016] FamCA 682

FAMILY LAW – PRACTICE AND PROCEDURE – Death of a party to proceedings – Proceedings adjourned to a fixed date for directions

Family Law Act 1975 (Cth)

APPLICANT: Mr Shenoy

RESPONDENT: Ms Biyani (Deceased)

INDEPENDENT CHILDREN’S LAWYER: Ms Bedford

FILE NUMBER: SYC 7787 of 2015

DATE DELIVERED: 17 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 17 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Broomfield

SOLICITOR FOR THE APPLICANT: Mills Oakley

COUNSEL FOR THE RESPONDENT: No appearance (deceased)

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER

No Appearance

Watts McCray Lawyers

Orders

1. The property and parenting proceedings be adjourned for a directions hearing in Sydney at 4.00 pm on Thursday 8 September 2016.

IT IS DIRECTED

1. Within seven (7) days of the date of this Order the husband’s solicitor forward to Elizabeth Bedford of Watts McCray Lawyers, Pitt Street, Sydney (the Independent Children’s Lawyer); The Public Trustee and Guardian of New South Wales; Legal Aid New South Wales; and Mr D of E Lawyers (as lawyer for Ms B Biyani) the following documents :-

(a)       a copy of this order;
(b)       a copy of the reasons in respect of these orders;

(c)a copy of the orders of the Court namely the parenting order made 2 March 2016, order made 19 February 2016, order made 17 May 2016, and divorce order outcome sheet dated 8 March 2016;

(d)       Initiating Application filed 4 December 2015;
(e)       Financial Statement filed 4 December 2015;
(f)        Application for Divorce filed 7 February 2015;
(g)       Application in a Case filed 15 February 2016;
(h)       Affidavit of Mr C Shenoy file 15 February 2016;

(i)        Amended Initiating Application of husband filed 15 February 2016;
(j)        Notice of Child Abuse filed 15 February 2016;
(k)       Application in a Case filed 12 May 2016 by the wife’s sister;
(l)        Affidavit of Mr D filed 12 May 2016; and
(m)      Affidavit of husband filed 5 August 2016.

IT IS NOTED

1. On the next occasion the Court will consider:-

(a)the Application by the husband for leave to discontinue his case;

(b)the Application by the Independent Children’s Lawyer for leave to discontinue her involvement;

(c)whether a Case Guardian ought to be appointed for the children; and

(d)whether a legal person or representative of the deceased wife should be appointed pursuant to s 79(8) of the Family Law Act 1975 (Cth) and any other factors under s 79(8) of the Act to which the Court may be concerned including any interest the children may have in the property of the late wife.

IT IS FURTHER DIRECTED

1. A copy of these reasons be taken out urgently and forwarded in electronic form to the solicitors for the husband.

1. The husband file an affidavit of service of compliance of these directions noting that service should be by both ordinary prepaid post and electronically, if possible.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Shenoy & Biyani ( Deceased ) 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 SYDNEY

FILE NUMBER: SYC 7787 of 2015

Mr Shenoy

Applicant

And

Ms Biyani

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings between Mr Shenoy (‘the husband’) and Ms Biyani (‘the wife’).  Property proceedings were commenced by the husband in this Court by initiating application filed 4 December 2015.  An amended application was filed by the husband on 15 February 2016, which then included the husband seeking parenting orders.  Interlocutory parenting orders were made on the 19 February 2016.  The parenting orders related to the two children of the parties F, aged six and G, aged two.  In early 2016, the wife died and her death certificate has been produced to this Court. 

2. Subsequent to that time, an application was made in a case by Ms B Biyani, (‘the sister’), who was the sister of the wife.  In that application in a case she sought to be appointed a case guardian for the children and to be authorised to make inquiries into the financial aspects of the estate of the late wife. 

3. The husband sought to have final property orders made on an undefended basis today and disclosed in his affidavit the property of the parties by way of a balance sheet.  That property comprises of:-

   (a)a home in Suburb H, which was owned by the parties as joint tenants and presumably has now vested wholly in the husband; 

   (b)a property in Suburb I, Queensland, which also said to be a joint tenancy which would have vested in the husband; 

   (c)some funds in the bank in the husband’s name; and

   (d)two motor vehicles of modest value owned by the wife.

4. The husband discloses that the property at Suburb H is subject to a mortgage of some $283,000, approximately, and the property in Suburb I is subject to a mortgage of $265,000, approximately.  The husband also discloses personal loans, credit card liabilities and other liabilities in his name totalling about $160,000.  Finally, the husband discloses that he has a superannuation accumulation fund of about $48,000.  At the time of her death there is evidence before me that the wife had an insurance policy in her name with Citibank.  That policy has a value of about $1 million. 

5. The evidence of the husband is that the wife died intestate, and in submissions today I was told that he had not applied, at this stage, for administration of the intestate estate of his late wife. 

6. The parties are divorced; an order having been made earlier this year. The divorce was listed for hearing on 8 March 2016 and the husband deposes that the parties were divorced on 8 March 2016.  However, that order had not become absolute on that date as far as I am aware.  The Court record seems to show that the divorce became effective on 9 April 2016, which was after the wife passed away.

7. There is an interesting legal question as to whether the wife was married at the date of her death or was divorced at the date of her death.  This would have profound implications in relation to the administration of her estate and may have profound implications in terms of the husband’s property application on the basis that if the evidence he puts before the Court is that the insurance policy is to go to the next of kin of the mother if he is divorced that $1 million would presumably go to the children.  If the husband is not divorced that $1 million may go either wholly or substantially to him.

8. There is also the question of the children’s rights or the administrator of the Estate’s rights in relation to the property which is the subject of these proceedings.  That will of course depend upon the status of the wife at the time of her death on the basis that if the property of the wife was $1 million plus a half share in the matrimonial property and that vested in the husband by survivorship, or alternatively that vested in the children by survivorship there could be some interesting issues which this Court has to address.

9. The husband has filed a notice of discontinuance, but given the rules which provide that it is not possible to discontinue without leave of the Court.  I have not at this stage given the husband that leave.  What I intend to do is have these reasons, and the questions that I have raised arising out of those reasons, forwarded to a number of people by the solicitor for the husband and to allow the husband to reflect on his position given these circumstances. 

10. It seems to me that a copy of these reasons, the Court orders and the adjournment and the documents on the file ought to be forwarded to Legal Aid New South Wales to see whether they wish to be heard on whether an independent representative should be appointed for the children under section 68L of the Family Law Act 1975 (Cth) given that it provides that the section applies to proceedings under this Act in which the children’s best interests are, or the child’s welfare is, the paramount, or a relevant, consideration. I note that the section refers to proceedings under the Act rather than proceedings under the Division to see whether Legal Aid think it is appropriate to intervene.

11. I will also direct that a copy of that material be sent to the Public Trustee and Guardian to see whether they wish to intervene either through an independent children’s lawyer or as a case guardian.  It would also seem to me that given the circumstances and the facts now before me a copy of all of the material, these reasons and the directions ought to be forwarded to the sister and the solicitor acting for her to see whether she wishes to remain involved in these proceedings.

12. I thank the solicitor for the husband, and note that Elizabeth Bedford of Watts McCray has been appointed as the independent children's lawyer in this matter.  She did not seek leave to withdraw, and so her notice of discontinuance is in all of the circumstances not effective, and needs the leave of the Court.  Accordingly, I will adjourn the proceedings, and I will make the orders set out at the commencement of these reasons. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 17 August 2016.

Associate:     

Date:              17 August 2016