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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tadman & Tadman

Details

AGLC: Tadman & Tadman [2023] FedCFamC2F 796
Case: [2023] FedCFamC2F 796
Decision Date

CaseChat Overview and Summary

The case of Tadman & Tadman involved property settlement proceedings under the Family Law Act 1975 (Cth) between Ms Tadman and Mr Tadman. The proceedings were disrupted by the death of Mr Tadman, leading to a subsequent application by Mr Remeika, who was the legal personal representative of Mr Tadman's estate, to be substituted for Mr Tadman in the ongoing property settlement proceedings. The application was made pursuant to section 79(8)(a) of the Act, which allows for the substitution of a legal personal representative where property settlement proceedings are pending and a party to the marriage has died.

The legal issues before the court included whether Mr Remeika, as the legal personal representative, could be substituted for Mr Tadman in the proceedings and whether such a substitution could be ordered under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court needed to consider the role of South Australian law in the appointment of a legal personal representative and the effect of such an appointment on the ongoing proceedings.

Judge McGinn determined that Mr Remeika was indeed the legal personal representative of Mr Tadman's estate, as evidenced by the affidavit and the grant of probate issued by the Supreme Court of South Australia. The court noted that it could not grant the status of legal personal representative but could only recognise it. The court concluded that it was appropriate to substitute Mr Remeika for Mr Tadman to continue the proceedings for property settlement. The court further ordered that the Application in a Proceeding by the proposed intervenor Ms B Tadman be dismissed as it was no longer necessary. Additionally, the court extended the time for filing and exchanging material for mediation, a decision that was not opposed by any party.

The final orders included the substitution of Mr Remeika for Mr Tadman, the dismissal of the proposed intervenor's application, and the extension of time for mediation material exchange. These orders ensure that the property settlement proceedings can continue with the legal personal representative in place of the deceased party.

Orders