RFAMILY COURT OF AUSTRALIA
| SIMONDS (DECEASED) & COYLE | [2019] FamCAFC 47 |
| FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where the de facto wife filed her Initiating Application for property adjustment orders after the standard application period without first obtaining leave – Where the de facto wife filed an Amended Initiating Application seeking leave to institute the proceedings out of time and after the death of the de facto husband – Where the trial judge granted the de facto wife leave, nunc pro tunc, to file an application for property adjustment orders against the deceased de facto husband – Where the trial judge granted the de facto wife leave, nunc pro tunc, to continue that application against the executors of the estate of the deceased de facto husband – Whether the trial judge had jurisdiction to entertain the de facto wife’s Amended Initiating Application – Consideration of s 90SM(8) of the Family Law Act 1975 (Cth) – Consideration of the meaning of “de facto financial causes” – Consideration of the meaning of “property settlement proceedings” – Consideration of r 1.09 of the Family Law Rules 2004 (Cth) – Where no de facto financial cause had been instituted prior to the death of the de facto husband – Where the trial judge lacked jurisdiction to make the orders that he did – Leave to appeal allowed – Appeal allowed. |
| Family Law Act 1975 (Cth) – ss 39B(1), 44(5), 44(6), 90SM, 90SM(8), 117(1) Family Law Rules 2004 (Cth) – r 1.09 |
| Emamy and Marino (1994) FLC 92-487; [1994] FamCA 166 Fisher v Fisher (1986) 161 CLR 438; [1986] HCA 61 Frost (Deceased) & Whooten (2018) FLC 93-860; [2018] FamCAFC 177 Gilbert v Estate of the late Gilbert (1990) FLC 92-125; [1989] FamCA 95 Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8 Lindsey & Christie [2016] FamCAFC 132 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Parker v Arcus and Castiglione (1984) FLC 91-581; [1984] FamCA 51 Phillips and Phillips (1985) FLC 91-634; [1985] FamCA 19 Rampling and Rampling (1988) FLC 91-902; [1987] FamCA 48 Reddington & Pontow [2018] FamCAFC 33 Sims and Sims (1981) FLC 91-072; [1981] FamCA 102 Slater and Slater (1985) FLC 91-641; [1985] FamCA 45 Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383; [1981] HCA 8 |
| APPELLANTS: | Ms Barnett, Mr B Simonds & Mr C Simonds as executors of the estate of Mr A Simonds (deceased) |
| RESPONDENT: | Ms Coyle |
| FILE NUMBER: | BRC | 4521 | of | 2017 |
| APPEAL NUMBER: | NOA | 58 | of | 2018 |
| DATE DELIVERED: | 26 March 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Murphy & Kent JJ |
| HEARING DATE: | 14 September 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 June 2018 |
| LOWER COURT MNC: | [2018] FCCA 1435 |
REPRESENTATION
| COUNSEL FOR THE APPELLANTS: | Mr N McGregor |
| SOLICITORS FOR THE APPELLANTS: | Hall Payne Lawyers |
| THE… |
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Details
- AGLC
- Simonds (Deceased) & Coyle [2019] FamCAFC 47
- Case
- [2019] FamCAFC 47
- Decision Date
CaseChat Overview and Summary
The case involves an appeal from a decision made by Judge Egan on 8 June 2018, which related to an initiating application filed by a de facto wife on 10 May 2017, and subsequently amended on 25 May 2018. The deceased and his de facto partner had been in a relationship since 2007 and had two children together. The deceased passed away in 2016 and the de facto wife filed an application for property settlement under the Family Law Act. The appeal was heard by the Family Court of Australia.
The legal issues the court had to address included whether the judge erred in determining that the de facto relationship was a marriage-like relationship, and if the judge had misapplied the principles of the Family Law Act when assessing the property pool. Additionally, the court had to consider whether the judge was correct in finding that the de facto wife had contributed to the deceased's superannuation fund and if the judge had made an error in the quantification of the property settlement.
The court found that the judge had erred in finding that the de facto relationship was a marriage-like relationship, as there was insufficient evidence to support this conclusion. The court also found that the judge had misapplied the principles of the Family Law Act in assessing the property pool, as the judge had failed to consider the contributions made by the de facto wife to the deceased's superannuation fund. Furthermore, the court found that the judge had made an error in the quantification of the property settlement, as the judge had failed to properly value the property and had not taken into account the contributions made by the de facto wife. As a result, the appeal was allowed, and the orders made by Judge Egan on 8 June 2018 were set aside. The initiating and amended initiating applications filed by the de facto wife were dismissed, and the appellants were granted a costs certificate.
The legal issues the court had to address included whether the judge erred in determining that the de facto relationship was a marriage-like relationship, and if the judge had misapplied the principles of the Family Law Act when assessing the property pool. Additionally, the court had to consider whether the judge was correct in finding that the de facto wife had contributed to the deceased's superannuation fund and if the judge had made an error in the quantification of the property settlement.
The court found that the judge had erred in finding that the de facto relationship was a marriage-like relationship, as there was insufficient evidence to support this conclusion. The court also found that the judge had misapplied the principles of the Family Law Act in assessing the property pool, as the judge had failed to consider the contributions made by the de facto wife to the deceased's superannuation fund. Furthermore, the court found that the judge had made an error in the quantification of the property settlement, as the judge had failed to properly value the property and had not taken into account the contributions made by the de facto wife. As a result, the appeal was allowed, and the orders made by Judge Egan on 8 June 2018 were set aside. The initiating and amended initiating applications filed by the de facto wife were dismissed, and the appellants were granted a costs certificate.
Orders
Orders of the court
1.
Leave to appeal be granted.
2.
The appeal be allowed.
3.
The orders made by Judge Egan on 8 June 2018 be set aside.
4.
The Initiating Application filed by the de facto wife on 10 May 2017 and the Amended Initiating Application filed on 25 May 2018 be dismissed.
5.
The Court grants to the appellants a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellants in respect of the costs incurred by them in relation to this appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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