Simonds (Deceased) & Coyle

[2019] FamCAFC 47

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)
Federal Proceedings (Costs) Act 1981 (Cth) – s 9

Family Law Rules 2004 (Cth) – r 1.09
Federal Circuit Court Rules 2001 (Cth) – r 1.05

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 RESPONDENT In person

Orders

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simonds (Deceased) & Coyle 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 58 of 2018
File Number: BRC 4521 of 2017

Ms Barnett, Mr B Simonds & Mr C Simonds as executors of the estate of Mr A Simonds (Deceased)

Appellant

And

Ms Coyle

Respondent

REASONS FOR JUDGMENT

STRICKLAND J

Introduction

1. By way of Notice of Appeal filed on 5 July 2018, Ms Barnett, Mr B Simonds and Mr C Simonds as executors of the estate of Mr A Simonds (deceased) (“the appellants” or “the executors”) seek leave to appeal and, if leave is granted, appeal against orders made by Judge Egan on 8 June 2018 in the Federal Circuit Court of Australia.

2. The orders appealed against provide, inter alia, that pursuant to r 1.09 of the Family Law Rules 2004 (Cth) (“the Rules”) Ms Coyle (“the de facto wife”) be granted leave, nunc pro tunc, to make an application for s 90SM property adjustment orders consequent upon the filing of her Initiating Application on 10 May 2017 and that she be granted leave, nunc pro tunc, to continue that application against the appellants in their respective capacities as executors of the estate of Mr A Simonds (deceased) (“the de facto husband”).

3. The de facto wife opposes the appeal.

Relevant Background

1. The de facto wife is 53 years of age. The de facto husband died in late July 2017 at age 75.

2. The de facto wife and the de facto husband commenced cohabitation in 2000, and thereafter they lived in a de facto relationship. There was a dispute though as to the date that that relationship ended; the de facto wife saying that it was in 2015, and the de facto husband saying that it was in 2013.

3. On 10 May 2017, some two months prior to the de facto husband’s death, the de facto wife filed an Initiating Application seeking orders for property adjustment between her and the de facto husband. That application asserted that the spouses finally separated on 29 December 2015.

4. On 26 June 2017 Judge Coates made orders that the de facto husband file any Response to the Initiating Application by 10 July 2017. No Response was filed in accordance with that order.

5. The de facto husband passed away in late July 2017.

6. On 27 July 2017, the de facto husband’s solicitors filed a Response out of time, which was said to be signed by them on 25 July 2017. The Response sought orders that the application be dismissed, asserting that the relationship between the spouses ended in 2013 and thus, the application was not filed within two years after the end of the de facto relationship as required by s 44(5) of the Family Law Act 1975 (Cth) (“the Act”).

7. On 30 October 2017, Judge Coates made orders substituting the personal legal representatives for the de facto husband in the proceedings.

8. The trial commenced on 10 May 2018 before Judge Egan. His Honour heard the evidence and argument in relation to the date of separation, and his Honour then adjourned the hearing of the matter until 1 June 2018 so as to allow the de facto wife an opportunity to obtain legal advice and to file an Amended Initiating Application which included an application for leave to commence the proceedings out of time, if so advised.

9. The de facto wife filed that Amended Initiating Application, together with an affidavit in support, on 25 May 2018.

10. His Honour found that the relationship came to an end on 9 October 2013 [8], and thus the application filed on 10 May 2017 was out of time [10]. However, his Honour then made the orders which are the subject of the application for leave to appeal and the appeal.

Leave to appeal

1. Leave to appeal the orders made on 8 June 2018 is sought by the appellants in their Notice of Appeal, and neither party raised any issue about that, despite there being conflicting Full Court authorities as to whether leave to appeal is in fact required. Thus, I will not dwell on this issue, save and except to say, that the preponderance of authority favours the conclusion that leave to appeal is required where an application for leave to institute proceedings is granted, as here (see, eg, Emamy and Marino (1994) FLC 92-487).

2. The test to be applied when considering leave to appeal is currently whether, in all the circumstances, the decision below is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692, but see Lindsey & Christie [2016] FamCAFC 132 (per Strickland J at [1] – [9])).

3. In this case it seems that the appellants are relying on the success of their grounds of appeal to warrant the granting of leave to appeal, and accordingly I will address the appeal first.

The appeal

1. The principal issue in this case is whether the trial judge had jurisdiction to entertain the Amended Initiating Application that had been filed on 25 May 2018, amending the Initiating Application filed on 10 May 2017.

2. In the Amended Initiating Application the de facto wife sought leave pursuant to s 44(6) of the Act to institute proceedings for property settlement, and an order for property settlement.

3. As can be seen, that application was filed after the death of the de facto husband in late July 2017, and at that date there was no valid or competent proceedings for property settlement before the Court. As referred to above, there had been an Initiating Application filed by the de facto wife on 10 May 2017 seeking an order for property settlement, but that application was void and of no effect because leave to file that application had not been given by the Court pursuant to s 44(6) of the Act.

4. Pursuant to s 39B(1) of the Act, jurisdiction is conferred on the Federal Circuit Court of Australia “with respect to matters arising under [the] Act in respect of which de facto financial causes are instituted under [the] Act”.

5. Here, no de facto financial cause had been instituted prior to the death of the de facto husband, and none could be instituted after that death, even though there are legal personal representatives of the deceased de facto husband, namely the appellants.

6. As was said in 1981 by the Full Court in Sims and Sims (1981) FLC 91-072 (“Sims and Sims”) at 76,534:

   The jurisdiction of this Court is based entirely on statute. Save as expressly provided, this statute does not confer any general power on this Court to entertain proceedings against or by the legal personal representative of a deceased party…

7. There is no express provision providing for proceedings such as these to be instituted after the death of the de facto husband, and any right to seek a property settlement abated upon the occurrence of that event (Sims and Sims, Phillips and Phillips (1985) FLC 91-634, Parker v Arcus and Castiglione (1984) FLC 91‑581).

8. There is of course s 90SM(8) which allows for property settlement proceedings that are not completed at the date of death to be continued in certain circumstances by or against the legal personal representative of the deceased party, but that subsection does not apply here because there were no property settlement proceedings before the Court as at the date of the death of the de facto husband. To repeat, the necessary leave had not been given to institute such proceedings.

9. I say again, his Honour did not have jurisdiction under s 39B(1) of the Act to entertain the Amended Initiating Application filed by the de facto wife on 25 May 2018, because there was no financial de facto cause instituted. The relevant definition of de facto financial cause in s 4 of the Act is as follows:

   …(c)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them;

   …

10. Plainly, there were no such proceedings here.

11. His Honour, in his brief reasons for judgment, failed to deal at all with the question of whether he had jurisdiction. Without addressing that issue his Honour simply proceeded on the basis that despite the death of the de facto husband, he could grant leave to the de facto wife to institute proceedings for property settlement nunc pro tunc pursuant to r 1.09 of the Rules, and grant leave nunc pro tunc for her to continue those proceedings against the legal personal representatives of the deceased de facto husband.

12. First, it is a mystery as to why his Honour applied a family law rule in a Federal Circuit Court of Australia matter, but more relevantly, it is not at all apparent how his Honour used that rule and certainly in this respect there is a lack of adequate reasons. Rule 1.09 provides:

    If the court is satisfied that:

    (a)a legislative provision does not provide a practice or procedure; or

    (b)a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;

    it may make such orders as it considers necessary.

13. Here, there is no mention by his Honour of any legislative provision which does not provide a practice or procedure, and there is no difficulty or doubt in relation to a matter of practice or procedure.

14. His Honour has also sought to grant leave “nunc pro tunc”. That is a rule of practice and procedure to regularise the records of the court, and it cannot create jurisdiction where there is none. In other words, if there was no jurisdiction to entertain the application filed on 25 May 2018, the court still did not have jurisdiction at the time his Honour made the orders.

15. That disposes of the appeal. There is no doubt that his Honour erred in law in making the orders that he did. He had no jurisdiction to entertain the application, and referring to r 1.09 and purporting to grant leave to institute proceedings, and to continue them after the death of the de facto husband, by making orders nunc pro tunc, was ineffective.

16. Thus, there being merit in the appeal, leave to appeal should be granted and the appeal allowed. As a consequence the orders made by his Honour must be set aside, and the applications filed by the de facto wife on 10 May 2017 and 25 May 2018 should be dismissed.

Costs

1. At the conclusion of the hearing we received submissions as to the question of costs depending on the result.

2. If leave to appeal was granted and the appeal allowed, the appellants sought an order for costs, but in the alternative sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

3. The de facto wife opposed any order for costs on the basis of her financial circumstances. She did not seek a costs certificate because she had no legal costs or disbursements.

4. Despite the success of the appeal, I am not disposed to make an order for costs, and each party should bear their own costs pursuant to s 117(1) of the Act. However, it is appropriate that the appellants have a costs certificate for the appeal, it is being allowed on an error of law and no costs have been ordered.

MURPHY J

1. On 10 May 2017 Ms Coyle, who for convenience I will respectfully call the de facto wife, issued proceedings seeking a property adjustment order arising out of a de facto relationship with Mr A Simonds which is admitted to have commenced in 2000. Mr A Simonds was ordered to file a Response to the application by 10 July 2017 but did not do so. In late July 2017, he died. I will for convenience refer to him respectfully as the deceased. 

2. The deceased’s personal representatives filed a Response on 27 July 2017 asserting the de facto relationship ended on 9 October 2013. The de facto wife asserted it ended in 2015. 

3. During the proceedings before Judge Egan, his Honour canvassed the need for leave pursuant to s 44(6) of the Act if he found contrary to the de facto wife’s contention. His Honour made no such finding at that time and adjourned the proceedings.[1] The de facto wife took advice and, on 25 May 2018, filed an Amended Initiating Application seeking leave to proceed pursuant to s 44(6) of the Act.

   [1] Transcript, 10 May 2018, p.74 line 32 to p.76 line 41.

4. The proceedings before his Honour resumed and, by an order made on 8 June 2018, his Honour purported to grant that leave “nunc pro tunc” referencing r 1.09 of the Rules. The personal representatives of the deceased seek leave to appeal that order.[2] 

   [2] As to the need for leave to appeal in an application for leave pursuant to s 44(6) of the Act, see Reddington & Pontow [2018] FamCAFC 33 at [2].

The trial judge’s reference to r 1.09

1. In so far as the provisions of any Rules of Court were relevant at all, the relevant rules were in fact the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). There is no equivalent of r 1.09 of the Family Law Rules in the FCC Rules. Rule 1.05 of the FCC Rules provides for the application of the Family Law Rules in that event.

2. Those issues aside, r 1.09 did not in any event avail the de facto wife. The rule refers to hiatuses in “practice or procedure”. The terms of the rule reflect the limits of what can properly be achieved through rules:[3]

   … if the rule goes beyond the provision of the means by which substantive rights are to be enforced or protected, the decision-maker will be entitled to conclude that what has been done, under the guise of a procedural rule, is, in fact, impermissibly to alter substantive rights. By law, that is forbidden to the rule-maker. It is reserved to those with the power to alter substantive rights. This means principally a legislature, the Executive acting under delegated power clearly conferred or judges acting in the time-honoured fashion of the common law. It is not to be done in a quasi-legislative way by rule-making. 

   (Footnotes omitted)

   [3] Harrington v Lowe (1996) 190 CLR 311 at 342 per Kirby J. See also the broader discussion in Frost (Deceased) & Whooten (2018) FLC 93-860.

3. The question of whether s 44(6) leave should be granted depended relevantly upon his Honour having jurisdiction to grant relief pursuant to s 44(6) in circumstances where the de facto wife’s application for leave was filed after the deceased’s death. His Honour made no reference to the question of jurisdiction.

4. The sole question on this appeal is whether his Honour erred because he did not have jurisdiction to make the order which he did. If error is established by reason of want of jurisdiction, leave to appeal must axiomatically be given.

Was there jurisdiction to make the order?

1. Section 39B(1)(b) of the Act confers upon the Federal Circuit Court of Australia jurisdiction “with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act”. “De facto financial cause” is defined to include relevantly:

   (g)any other proceedings … in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.

2. The “preceding paragraphs” there referred to include, relevantly:

   (c)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them.

3. The proceedings referred to in that sub-paragraph are those governed by s 90SM of the Act. It is the power given to the Court by s 90SM which was invoked by the de facto wife in her Initiating Application, filed when the deceased was alive. Section 90SM empowers the Court relevantly to make such orders as it considers appropriate with respect to the property of the parties to the de facto relationship or either of them.

4. However, s 44(5) provides that the Court does not have the power to make a s 90SM order unless, relevantly, the application was made within the period of two years after the end of the de facto relationship. His Honour’s finding as to the latter meant that the de facto wife could apply as of right for a s 90SM order “only if”[4] she did so by 8 October 2015. She did not. The de facto wife’s Initiating Application could only be effective to institute s 90SM proceedings if she first obtained leave to proceed pursuant to s 44(6) of the Act.

   [4] The Act, s 44(5).

1. The deceased died after the date of the breakdown of the relationship, as found by his Honour, and before the property settlement proceedings commenced by the de facto wife were completed.[5] Those facts, stated in that manner, prima facie avail the de facto wife of s 90SM(8) of the Act such that the property settlement proceedings may be continued against the deceased’s legal personal representative.[6] However, crucial to the issue on this appeal, the “property settlement proceedings” must meet the relevant statutory definitions. The terms of s 90SM make it clear that the Court’s power under that section can only arise in the defined “property settlement proceedings”:[7]

   [5] As to the proceedings not being “completed”, see analogously Gilbert v Estate of the late Gilbert (1990) FLC 92-125.

   [6] The statements by the Full Court in Sims and Sims (1981) FLC 91-072 and Parker v Arcus and Castiglione (1984) FLC 91-581 must be seen in light of the fact that s 79(8) was inserted into the Act by the 1983 amending legislation and, s 90SM(8) by amendments in 2008.

   [7] The Act, s 4. The definition was inserted by 2008 amendments to the Act which also introduced Part VIIIA dealing with “Financial Matters Relating to De Facto Relationships”.

2. That expression is defined in s 4 of the Act as (again relevantly):

   property settlement proceedings means:

   …

   (b)in relation to the parties to a de facto relationship - proceedings with   respect to:

   (i)       the property of the parties or either of them …

3. “Proceedings” is defined separately to “property settlement proceedings” in s 4 and, relevantly, “means a proceeding in a court … and includes … an incidental proceeding in the course of or in connexion with a proceeding”.

4. Taken together, those provisions might be seen to permit of an argument that an application for leave pursuant to s 44(6) constitutes “an incidental proceeding” which is “in connexion with” s 90SM proceedings and is “with respect to” the property of the parties or either of them. (Further, a party to a de facto relationship includes a person who “has lived” in a de facto relationship).[8] 

   [8] Definition of “party to a de facto relationship”, the Act s 4.

5. In Slater and Slater,[9] just such an argument was raised in respect of the analogous s 79(8) applicable to marriages. In rejecting that argument, Ellis J said:[10]

   Adopting a broad and liberal interpretation, it cannot, however, be said that proceedings brought pursuant to sec. 44(3) for leave to institute proceedings of a kind referred to in para. (ca) of the definition of “matrimonial cause” in sec. 4(1) are proceedings with respect to the property of the parties to a marriage. Such proceedings are proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them.

   [9] (1985) FLC 91-641 (“Slater”).

   [10]Slater at 80,173.

6. Slater was followed in Phillips and Phillips[11] and Rampling and Rampling.[12]

   [11] (1985) FLC 91-634 per Elliott J.

   [12] (1988) FLC 91-902 per Mullane J.

7. There is no material difference between the principle there set out and that which is applicable to s 90SM(8). Indeed, the separate definition of “property settlement proceedings” to which reference has earlier been made, which is directly referable to the s 90SM power, might be seen to reinforce that principle.

8. The Amended Initiating Application, filed by the de facto wife after the death of the deceased, instituted proceedings different to the s 90SM proceedings commenced by her Initiating Application; that Amended Initiating Application instituted “proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them”. The Court’s jurisdiction depends upon the terms of any legislative grant of jurisdiction. There is no statutory grant of jurisdiction which provides for an application for leave to institute proceedings to be excluded from the principle that the deceased’s death prevented those proceedings being instituted.[13]  

   [13] See Fisher v Fisher (1986) 161 CLR 438; Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383.

9. Without that specific grant of jurisdiction and power, an application invoking s 44(6) after the death of the deceased could not be made. Without that application and an order accordingly pursuant to s 44(6), the application for a s 90SM order could not be made; the Court had no such power unless and until a s 44(6) order was made.

10. His Honour did not have the jurisdiction to make the order which he did. The application for leave to appeal must be granted, the appeal allowed and the order set aside.

Costs of the appeal

1. In the particular circumstances of this case, involving an error by the trial judge not contributed to by any conduct of the parties and notwithstanding the de facto wife being “wholly unsuccessful” on the appeal, each party should bear their own costs of and incidental to the appeal. 

2. The error is one of law. It is appropriate that certificates issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

KENT J

1. I agree, for the reasons given by Murphy J, that the trial judge did not have jurisdiction to make the order the subject of this appeal. I agree with the orders proposed by Strickland and Murphy JJ.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Kent JJ) delivered on 26 March 2019.

Legal Associate: 

Date:  26 March 2019