Tadman & Tadman
[2023] FedCFamC2F 796
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tadman & Tadman [2023] FedCFamC2F 796
File number(s): ADC 873 of 2022 Judgment of: JUDGE MCGINN Date of judgment: 29 June 2023 Catchwords: FAMILY LAW – property settlement – party deceased – substitution of a “legal personal representative” – role of South Australian law – order for substitution made Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Midhurst (Deceased) & Midhurst [2008] FamCA 393 Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 29 June 2023 Place: Adelaide Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Southern Vales Legal Respondent: Deceased Counsel for the Proposed Intervenor: Mr Bogatec Solicitor for the Proposed Intervenor: Wadlaw Solicitors Counsel for the Proposed Executor of the Estate of the Deceased Respondent: Mr Bulloch Solicitor for the Proposed Executor of the Estate of the Deceased Respondent: PGC Legal ORDERS
ADC 873 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TADMAN
Applicant
AND: MR TADMAN
Respondent
MS B TADMAN
Proposed Intervenor
MR REMEIKA
Proposed Executor of the Estate of the Deceased Respondent
order made by:
JUDGE MCGINN
DATE OF ORDER:
IT IS ORDERED:
1.That pursuant to section 79(8)(a) of the Family Law Act 1975 Mr Remeika as the legal personal representative of late respondent husband Mr Tadman be substituted for the late respondent.
2.That the Application in a Proceeding dated 3 April 2023 do otherwise stand dismissed.
BY CONSENT IT IS FURTHER ORDERED:
3.That the time provided for in Order 8 of 9 May 2023 as to filing and exchange of material for mediation be extended to 28 July 2023.
4.That the application of the proposed intervenor Ms B Tadman to intervene in the proceedings filed 3 March 2023 do stand dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tadman & Tadman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MCGINN
The substantive proceedings before the Court comprise competing applications for property settlement orders pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) commenced by an Initiating Application filed on behalf of the applicant wife on 2 March 2022.
The respondent husband filed a Response to Initiating Application also seeking final orders for property settlement on 22 April 2022.
There was no dispute as to the Court’s jurisdiction to entertain the parties’ respective applications for property settlement.
Those competing applications have not been resolved and remain pending before the Court.
Amongst other orders that have been made in these proceedings, interim orders for property settlement were made on 28 September 2022 following the parties’ attendance at a financial conciliation conference on 9 September 2022. The question of what, if any, final orders with respect to property settlement should be made remains pending before the Court.
On 30 January 2023 orders were made, amongst other things, listing this matter for a compliance and readiness hearing on 18 April 2023.
The conduct of the proceedings has been disrupted by the respondent husband’s death.
By an Application in a Proceeding filed on 3 April 2023 an order is sought by a Mr Remeika in his capacity as the legal personal representative of the deceased respondent husband to be substituted for the husband pursuant to section 79(8) of the Act. At the time of the filing of final application no grant of probate in respect of the deceased husband’s estate was before the Court.
An affidavit of a solicitor acting for the estate of the deceased husband sealed 23 May 2023 deposes to the applicant Mr Remeika being the sole executor of that estate and annexes a true copy of the grant of probate to that effect issued out of the Supreme Court of South Australia.
Section 79(8)(a) provides that where property settlement proceedings are pending and a party to the marriage has died that the proceedings may be continued by or against the legal personal representative of the deceased party and that the Rules of Court may make provision in relation to the substitution of that representative as a party to the proceedings. The subsection separately provides at section 79(8)(b) the circumstances under which the Court may proceed to make an order with respect to property.
The present application is only concerned with section 79(8)(a) of the Act.
Rule 3.19 (3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provides that the Court can order that the legal personal representative of the deceased person be substituted for the deceased in relation to a property proceeding. The definition of a “property proceeding” includes proceedings in which orders are sought (other than consent orders) relating to the property of the parties to a marriage.
“Legal personal representative” is not defined in the Act or the Rules but authority has held that the term is to be given its usual meaning and that the status of such a representative can only be recognised by but not granted by a Court exercising jurisdiction under the Act.[1] In other words, a Court exercising jurisdiction under section 79(8)(a) of the Act only substitutes the legal personal representative for a deceased party and does not appoint a person as the legal personal representative. In the present case the appointment has been effected under South Australian law by the Supreme Court in that state.
[1] Midhurst (Deceased) & Midhurst [2008] FamCA 393 [43] – [56]
I am satisfied upon reading the affidavit of the solicitor of 23 May 2023 that the applicant is the legal personal representative of the deceased husband’s estate and that as the competing applications for property settlement are unresolved it is appropriate to substitute Mr Remeika for the deceased husband in these proceedings so that the proceedings may be continued by or against that representative.
There will be orders in that regard as set out at the beginning of these reasons.
The Court has already made orders with the knowledge of and without opposition from Mr Remeika for the conduct of a further financial conciliation conference and a subsequent attendance at a compliance and readiness hearing. No further orders or directions are made in anticipation that the parties and Mr Remeika will give effect to those orders other than to extend the time in which to permit compliance with orders to produce material to facilitate mediation and to dismiss the Application in a Proceeding of the proposed intervenor Ms B Tadman which application is no longer necessary in light of the other orders made this day. That dismissal was sought by counsel appearing for the proposed intervenor and not opposed. The order for extension of time was not opposed by any party.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 29 June 2023
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