Somerton & Wells and Anor
[2014] FamCAFC 30
•3 March 2014
FAMILY COURT OF AUSTRALIA
| SOMERTON & WELLS AND ANOR | [2014] FamCAFC 30 |
| FAMILY LAW – APPLICATION FOR LEAVE TO APPEAL – ENFORCEMENT – ABATEMENT – Where first respondent died after the filing of the application for leave to appeal – Where a Notice of Contention was filed submitting that the proceedings abate – Where it was necessary to determine this as a preliminary issue – Where the Full Court treated this as an oral application to dismiss the Notice of Appeal – Where the Full Court held the proceedings do not abate – Oral application dismissed. |
| Family Law Act 1975 (Cth) - s 79, s 79(8), s 79A, s 79A(1A), s 79(1B), s 79A(1C), |
Barder v Caluori (1988) AC 20
Blood-Smyth v Carter (1965) 83 WN (Pt 1) (NSW) 96
Felton v Oser (1969) 72 SR (NSW) 24
Gilbert, CA v Estate of Gilbert, RG (1990) FLC 92-125
Harris v Walker (1969) 14 FLR 167
Kenny v Parker (1984) FLC 91-546
King v King (1973) 24 FLR 269
Pertsoulis & Pertsoulis (1979) FLC 90-613
Pollard v Pollard (1975) 25 FLR 125
Public Trustee v Grivas (1974) 2 NSWLR 316
Re Johnstone’s Estate (1973) 22 FLR 219
Ryan v Davis Bros Ltd (1921) CLR 257
Sims & Sims (1981) FLC 91-072
Vandyke v Vandyke (1976) Fam LR 11,469
| Vidzdamm - Jones v Vitzdamm-Jones (1981) 148 CLR 383; (1981) FLC 91-012 |
| APPELLANT: | Ms Somerton |
| FIRST RESPONDENT: | Ms Wells |
| SECOND RESPONDENT: | Mr Wells |
| FILE NUMBER: | PTW | 2339 | of | 2006 |
| APPEAL NUMBER: | WA | 7 | of | 2013 |
| DATE DELIVERED: | 3 March 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Strickland & Ainslie-Wallace JJ |
| HEARING DATE: | 31 October 2013 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 14 December 2012 |
| LOWER COURT MNC: | [2012] FCWA 121 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Berry |
| SOLICITOR FOR THE APPELLANT: | Clairs Keeley Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Dr Dickey QC |
| SOLICITOR FOR THE FIRST RESPONDENT: | Holden Barlow |
| SECOND RESPONDENT: | In person |
Orders
The oral application to dismiss the application for leave to appeal and the appeal made on behalf of the first respondent be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Somerton & Wells has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 7 of 2013
File Number: PTW 2339 of 2006
| Ms Somerton |
Appellant
And
| Ms Wells |
First Respondent
And
Mr Wells
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 6 June 2013 the appellant sought leave to appeal and, if leave is granted, to appeal against the orders for enforcement (including in relation to spousal maintenance) made by Chief Judge Thackray on 14 February 2013.
In early October 2013 the first respondent died, and by Notice of Contention filed on 28 October 2013 it is submitted on behalf of the first respondent that as a result the “appeal” has abated and should be dismissed. It is further submitted that if the “appeal” abates, then it cannot be revived (by for example the substitution of the legal personal representative of the deceased first respondent and the application of s 79(8) of the Family Law Act 1975 (Cth) (“the Act”)).
It is also asserted that if the appeal does not abate then it “will lack any true controversy as the only respondent to the appeal will then be the Second Respondent, who wholeheartedly supports the appellant and has at all times sought that his wife’s appeal be allowed”.
The application for leave to appeal and the appeal were listed before the Full Court on 31 October 2013, and after hearing argument it was determined that the issue of abatement be addressed as a preliminary matter. To do so effectively, in the absence of a formal written application, we propose to proceed on the basis that before us there is an oral application on behalf of the first respondent to dismiss the application for leave to appeal and the appeal. These reasons address that issue.
We observe that Dr Dickey QC, who had previously appeared for the first respondent, appeared before us on an amicus curiae basis in order to effectively argue the case on behalf of the first respondent. That was necessary because there is currently no application before this Court to substitute the legal personal representative of the deceased first respondent as a party to these proceedings, and plainly no order yet to that effect.
Factual Background
The second respondent and the first respondent married in the United Kingdom in 1994, and in 1998 they relocated to Perth.
The marriage broke down in late 2005, and the second respondent commenced a relationship with the appellant.
As between the first and second respondents, consent orders for property settlement and spousal maintenance were made on 4 May 2006.
Subsequently, the first respondent sought to enforce the consent orders, and the second respondent sought to have the property settlement orders set aside pursuant to s 79A of the Act. These applications came before Kaeser AM on
4 February 2011. His Honour determined that he lacked power to hear the application under s 79A but that he could hear the enforcement application, and he duly made orders for enforcement and the discharge of the order for spousal maintenance on 8 February 2011.
The proceedings came before Chief Judge Thackray on 15 August 2012 by way of an appeal brought by the first respondent against the orders made by Kaeser AM. The outstanding application for orders under s 79A was abandoned at the commencement of the hearing before Chief Judge Thackray.
On 14 February 2013 Chief Judge Thackray set aside the orders made by Kaeser AM and made alternative orders for enforcement including suspending the order for spousal maintenance.
To repeat, in early October 2013 the first respondent died. We were told at the hearing before us that the first respondent had left a will appointing her daughter as executor, but that an application for probate had not been made as yet.
Discussion
The general principle that courts have traditionally applied is that where proceedings are “personal” they abate on the death of one of the parties (Felton v Oser (1969) 72 SR (NSW) 24, Vandyke v Vandyke (1976) 2 Fam LR 11,469, Sims & Sims (1981) FLC 91-072, Vidzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383; (1981) FLC 91-012).
Statute can provide though that proceedings can be continued after the death of a party; for example see s 79(8) of the Act. Statute can also provide for proceedings to be instituted after the death of a party; for example see s 79(1A) and s 105(3) of the Act.
The apparent difficulty here is there is no specific provision in the Act allowing the continuation of an appeal where one party has died.
This was the primary submission of Dr Dickey QC, and in support of that submission we were specifically referred to the decision of the New South Wales Court of Appeal in VandykevVandyke. In that case the Court of Appeal proceeded on the basis that the death of a respondent effectively terminates matrimonial proceedings.
The reasoning in Vandyke v Vandyke relied on the Court of Appeal decision in Felton v Oser. However, those decisions cannot stand as a result of the Full Court decisions in Pertsoulis & Pertsoulis (1979) FLC 90-613 and Gilbert , CA v Estate of Gilbert, RG (1990) FLC 92-125, and the legislative amendments introduced into the Act by the Family Law Amendment Act 1983 (Cth).
Pertsoulis& Pertsoulis
In Pertsoulis the wife applied to the Family Court of Australia in November 1976 for leave to appeal out of time against property settlement and parenting orders made by the Supreme Court of New South Wales. The husband died in June 1977 whilst the application was still pending. The wife’s application was granted in February 1978. The executor of the husband’s estate appealed claiming that the wife’s application for leave to appeal out of time had abated on the death of the husband.
The Full Court (Asche, Watson and Wood SJJ) held that the application did not abate, and in so deciding expressed no doubt that if the appeal had in fact been instituted before the death of the husband then the appeal could have been continued. The Full Court said at 78,160:
If in the present case the wife had appealed within time or if her application for leave had been granted prior to the husband's death we do not doubt that the appeal could have continued. Does any different approach in principle arise because the leave application had not been dealt with? We think not. The regulations enable such an application to be made. It is part of the available appeal processes under the Act and regulations. We cannot see any valid distinctions in principle.
Interestingly, the Full Court relied on a decision of the High Court of Australia and a decision of the Court of Appeal in New South Wales where the causes of action the subject of the appeals would not have survived the death because of the personal character of those proceedings. In Ryan v DaviesBros. Ltd (1921) 29 CLR 527 the High Court considered a case concerning a verdict for libel – a tort clearly of a personal character; nevertheless the court held that the proceedings did not abate on the death of the plaintiff, and ordered that the executor may continue the appeal as the plaintiff’s representative. In Blood-Smyth v Carter (1965) 83 WN (Pt 1) (NSW) 96 the New South Wales Court of Appeal upheld the continuance of an appeal in tenancy proceedings after the death of the lessor.
The Full Court in Pertsoulis also examined a number of earlier cases, and primarily those dealing with the issue of abatement under the Matrimonial Causes Act 1959 (Cth). The question in many of those cases was not whether an appeal abated on the death of a party, but whether an order for property settlement abated such that it could not be enforced. Although not all of these cases were ad idem on this question, it is plain that the majority of the cases held that the order did not abate (see Harris v Walker (1969) 14 FLR 167, Re Johnstone’s Estate (1973) 22 FLR 219, Public Trusteev Grivas (1974) 2 NSWLR 316, and Pollard v Pollard (1975) 25 FLR 125).
After considering these cases and identifying relevant sections of the Act then in force, the Full Court in Pertsoulis said at 78,158-9:
Having regard to the provisions of the Family Law Act previously referred and the general weight of authority we are of the opinion that the death of the husband on 13 June, 1977 did not cause the order as to property made by Carmichael J. on 21 September, 1976 to abate. Notwithstanding the unusual practice followed in the making of the various decrees on that day we proceed on the basis that they were validly made. But for the application for leave to appeal made by the wife on 3 November, 1976 the husband's legal personal representative would have been competent to apply for enforcement of the order as in the cases of Harris v. Walker, and Johnstone’s Estate and Public Trustee v. Grivas.
Pertsoulis of course was concerned with appeal proceedings, and in our view is clear authority for the proposition that the application and the appeal in this case can be continued and does not abate.
Sims & Sims
The decision in Sims was relied upon by Dr Dickey QC for the first respondent and is referred to in a number of cases. This decision though is not directly on point as the case did not involve an appeal.
In that case the husband and wife were married in 1947 and the marriage was dissolved in 1978. Prior to the granting of the decree nisi, both parties advanced claims for property settlement under the Act, and the matter was heard in March 1979. The husband died on 15 July 1979 prior to judgment being delivered. By special case stated under s 94A of the Act the Full Court considered whether the “…claims of the husband and wife for settlement of property abated by reason of the husband’s death”.
The Full Court held that the proceedings abated because the Act does not contemplate the continuance of proceedings or the making of orders after the death of one of the parties.
The Full Court referred to the decision in Pertsoulis, but because that case was not concerned with an appeal the Full Court indicated (at 76,534) that it did not “intend to pronounce upon one of central questions which arose in Pertsoulis”, namely
whether after the death of one of the parties to the marriage, an appeal can be instituted or continued by or against the personal representative of the deceased on the assumption that the order appealed from does not abate or cease to have effect by reason of the death.
Thus, Pertsoulis still stands as authority for the proposition referred to above at [23] in relation to appeals.
Further, we consider the decision in Sims itself is no longer authoritative because to overcome the difficulties identified in that case which were said to prevent the court from finding that the proceedings did not abate upon death of a party, amendments were made to the Act by the Family Law Amendment Act 1983 (Cth), namely the introduction of s 79(8) and s 79(1A), as well as the introduction of s 79A(1B), and s 79A(1C), and the amendment of ss 4(2) and (3).
Importantly, s 79(8) allows for uncompleted property settlement proceedings to be continued, when a party to the marriage dies, by or against the legal personal representative of the deceased party, and for an order made by the court to be enforced on behalf of or against the estate of the deceased party. Section 79(1A) provides for an order for property settlement to be enforced after the death of a party to the marriage on behalf of or against the estate of the deceased party.
It would seem that the introduction of s 79(1A) was because, as we observed above, in some of the earlier cases it was suggested that orders, such as orders for property settlement, abated on the death of one of the parties and could not be enforced (see for example King v King (1973) 24 FLR 269).
Kenny v Parker (1984) FLC 91-546
This case was also cited to us by Dr Dickey QC, and it is a decision which has been referred to in a number of cases when discussing Pertsoulis and Sims. The first thing to note though is that the decision in Kenny v Parker was that of a single judge (Nygh J).
In Kenny v Parker orders for property settlement and spousal maintenance were made on 22 December 1983. The husband died on 31 March 1984 and on 4 April 1984 the wife filed an application for an extension of time to appeal the earlier orders.
The question posed by the trial judge was whether he had jurisdiction to entertain the wife’s application. His Honour referred to Pertsoulis and Sims, stating at 79,415, “[t]he Full Court of this Court in Sims and Sims … appears to have cast some doubt on the continuing correctness of Pertsoulis.” We have already indicated that Sims should not be followed, however the trial judge also sought to rely on remarks made by members of the High Court in Vitzdamm-Jones v Vitzdamm-Jones.
In Vitzdamm-Jones there were in fact two appeals, only one of which is relevant to the issue here. In that appeal the Family Court had earlier granted the husband and his first wife joint custody of the child of their marriage. The husband subsequently died and his second wife sought to bring custody proceedings in the Family Court against the first wife, and to intervene.
We suggest that Vitzdamm-Jones is not a relevant authority in relation to the issue in this case. Not only did it precede the legislative amendments introduced in 1983 as referred to above, but there has never been any doubt that in custody proceedings neither of the parties to the marriage can have a transmissible interest and such proceedings must come to an end with the death of one of the parties. We are satisfied that the decision in Vitzdamm-Jones does not affect the authority of Pertsoulis.
Returning to Kenny v Parker, a central issue in that case was whether the proceedings were “completed” or not for the purposes of s 79(8) of the Act. If they were “completed” then it was said that s 79(8) did not apply, but if the proceedings were not “completed” then s 79(8) may be used to continue those proceedings. In this regard the trial judge held that because the application had been filed after the death of the husband, the property settlement proceedings were “completed”. The trial judge indicated that if the application had been filed before the death then he would have found the proceedings had not been completed. The trial judge (Nygh J) said at 79,417:
If an application is made prior to death, as was the case in Pertsoulis, then the potentiality of extension of time is real — indeed, it can be said that at the time of death the jurisdiction of the Court has been invoked, and the proceedings can be said to have continued and therefore not yet completed, before the application is determined. But, in my view, if no application was made prior to the death of the deceased, it cannot be said that the proceedings are not yet completed merely for the reason that theoretically they can be revived at any time. That would lead to the proposition that proceedings in fact are never completed because in theory leave to appeal can be granted out of time at any time during the lifetime of the potential appellant. That to my mind is an absurd proposition.
As will be explained shortly, this aspect of Kenny v Parker has been overruled by the Full Court in decision in Gilbert.
Gilbert , CA v Estate of Gilbert, RG
Both counsel for the appellant and Dr Dickey QC referred us to this decision. The facts in Gilbert involved consent orders made in September 1988 for the division of property between the husband and the wife. In November 1988 the husband committed suicide. In March 1989 the wife commenced proceedings against the executor of the husband’s will to have the consent orders set aside pursuant to s 79A of the Act, or alternatively the wife sought and extension of time in which to appeal against those consent orders. Cook J stated a special case under s 94A of the Act for determination for the Full Court and one of the questions asked was as follows (at 77,826):
Does the Family Court have jurisdiction to determine an appeal from a party against orders made under sec. 79 where the other party has died after the date the orders were made?
The answer given by the Full Court (Lindenmayer, Strauss and Baker JJ) to this question was “yes”.
The Full Court referred to the decisions in Pertsoulis and Sims and to the legislative amendments in 1983 and then said at 77,833:
The result of these amendments is that there is now a much wider general jurisdiction to deal with property matters after the death of one of the parties to the marriage. The substituted meaning of a reference to a party to a marriage in sec. 4(2) of the Act should be treated as a legislative approval of the view expressed in Pertsoulis' case that the death of one of the parties does not necessarily cause an abatement of property proceedings, and that whether there is to be any abatement of particular proceedings will depend on the nature of the proceedings and the relevant legislation.
The Full Court also quoted extensively from the decision of the House of Lords in Barder v Caluori (1988) AC 20 stating at 77,836, “[t]he reasons and conclusions in Barder v Caluori (supra) are very much in line with the decision in Pertsoulis’ case”.
In following Barder v Caluori, the Full Court provided a positive answer to another of the questions asked, namely, whether the court has jurisdiction to entertain an application for an extension of time in which to appeal even though one of the parties to the original proceedings has died.
Relevantly, in Gilbert the Full Court were referred by counsel to the High Court decision in Vitzdamm-Jones and to the Full Court decision in Sims. However the Full Court in effect doubted their relevance saying at 77,836:
The case of Vitzdamm-Jones was concerned with questions of custody and both it and Sims were decided before the 1983 amendments were made.
Counsel in Gilbert also relied on the decision of Kenny v Parker in promoting the trial judge’s opinion in that case as to the applicability of s 79(8) of the Act. In relation to this, the Full Court concluded as follows (at 77,837):
In our view both the context and the wording of sec. 79(8) make it clear that the phrase ``before proceedings with respect to the property of the parties or either of them are completed'' refers to proceedings commenced under sec. 79(1) in which no order has been made before one of the parties to the marriage has died. If an order is made under sec. 79(1) the proceedings are completed. Section 79(8) does not refer to further proceedings such as an appeal or an application for an extension of time in which to appeal. Section 79(8) does not limit the right of parties or other persons to take proceedings which are within the definition (f) of matrimonial cause in sec. 4 of the Act. The introduction in 1983 of sec. 79(1A) confers an express right of enforcement of an existing order by or against the estate of a deceased party to the marriage. Elementary considerations of justice seem to us to require that where there are rights of enforcement there should also be all the rights of and relating to an appeal including the right to make application for an order extending the period of time in which to appeal. In the result we do not agree with a decision in Kenney v. Parker. We consider the reasoning and conclusions in Barder v. Caluori highly persuasive and appropriate to the provisions of the Family Law Act 1975. We are of the view that in the present case the court has jurisdiction to entertain an application for an extension of time in which to appeal even though one of the parties to the original proceedings has died.
Finally, as referred to above, Dr Dickey QC supported the submission that the “appeal” did abate by emphasising that if it did not abate there would be no “true controversy” given the stance taken by the second respondent in relation to the appeal. We make two comments about that. First, if the “appeal” does not abate then we would expect there to be an application to substitute the legal personal representative of the deceased first respondent as a party, and if substitution is ordered there would then clearly be a “true controversy” between the appellant and the substituted party. However, if there was no such application and thus no substituted party, despite the position of the second respondent, the appellant would still need to establish error by Chief Judge Thackray to succeed. Secondly, there is no discretion to permit abatement or not, the proceedings either abate or they do not as a matter of law. Thus, even if the effect of the “appeal” not abating was no true controversy, that could not be a circumstance which could lead this court to find that abatement did not occur. To repeat, the proceedings either abate or they do not as a matter of law.
Conclusion
It can be seen that the cases of Pertsoulis and Gilbert clearly support the argument that in this case the application for leave to appeal and the appeal do not abate and can be continued against the legal personal representative of the first respondent (once substituted if that is to occur) or generally if substitution does not occur.
There would also appear to be no doubt that an order for property settlement does not abate on the death of one of the parties. This was decided by the Full Court in Pertsoulis, but that outcome is now put beyond doubt by the presence of s 79(1A) in the Act allowing enforcement of an order for property settlement after the death of a party.
We observe that the Full Court in Gilbert found that where there are rights of enforcement justice would require that there also be “all the rights of and relating to an appeal” (at 77,837). It must be remembered though that here we do not have an “appeal” against a property settlement order. The property settlement order was made in 2006 and since then further orders have been made for the enforcement of those property settlement orders. Before us is an application for leave to appeal and an appeal against the enforcement orders made by Chief Judge Thackray, and it is only following the institution of those proceedings that the first respondent has died.
In our view, given that circumstance, the argument is even stronger that the application for leave to appeal and the appeal do not abate. In this regard we note what the Full Court said in Gilbert at 77,837 quoted above at paragraph [44].
Accordingly, we propose to dismiss the oral application that we are treating as before us.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 3 March 2014.
Associate:
Date: 3 March 2014
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