FAMILY COURT OF AUSTRALIA
| TATE & HUNTER (DECEASED) | [2015] FamCA 1242 |
| FAMILY LAW – PROPERTY – Death of party before completion of proceedings under s 79(1) – where no legal personal representative has been substituted for the deceased party – consideration of s 79(8) and whether final property orders can be made notwithstanding no substitution has been made for the deceased party – principle of abatement – held that the court has no power to make final property orders where no legal personal representative has been substituted for the deceased party. |
| Bailey & Bailey (1987) FLC 91-803 Fisher & Fisher (1986) 161 CLR 438 Fisher & Fisher & Ors (1986) FLC 91-701; (1986) 10 Fam LR 734 Randle & Randle [2014] FamCA 248 |
| APPLICANT: | Mr Tate |
| FIRST RESPONDENT: | Ms Hunter (deceased) |
| PROPOSED SECOND RESPONDENT: | Ms B Hunter |
| FILE NUMBER: | MLC | 6009 | of | 2013 |
| DATE DELIVERED: | 16 December 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 28 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wraith |
| SOLICITOR FOR THE APPLICANT: | Ryan Carlisle Thomas |
| THE FIRST RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | N/A |
| COUNSEL FOR THE INTERVENOR: | Ms Barbayannis |
| SOLICITOR FOR THE INTERVENOR: | Barbayannis Lawyers |
Orders
IT IS ORDERED THAT
The matter be adjourned for mention before Justice Macmillan at 9.00 am on 10 February 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tate & Hunter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6009 of 2013
| Mr Tate |
Applicant
And
| Ms Hunter (deceased) |
First Respondent
And
Ms B Hunter
Proposed Second Respondent
REASONS FOR JUDGMENT
This matter was first listed for mention before me on 28 September 2015 for the purposes of making final orders by consent finalising the proceedings commenced by the husband on 29 August 2013.
On that date the husband and the wife’s mother, Ms B Hunter, made submissions that the Court should substitute Mr D, solicitor, as the wife’s legal personal representative. Although it was also proposed on that day that the wife’s mother be joined as a party to the proceedings, no such order was made and she remains a proposed respondent. The husband and the wife’s mother also sought orders by consent finalising the property proceedings commenced by the husband prior to the wife’s death. Having heard the parties’ submissions I reserved the matter for judgment.
Having had time to consider those submissions the matter was relisted for further mention on 22 October 2015 at which time it was conceded that although this Court could not substitute Mr D as the wife’s legal personal representative. However it was submitted that the court could and should make orders for property settlement by consent notwithstanding that no legal personal representative had been substituted for the wife.
Background
The husband in this case was born in 1969 and is now 46 years of age. The wife was…
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- AGLC
- TATE & HUNTER (DECEASED) [2015] FamCA 1242
- Case
- [2015] FamCA 1242
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate next steps for the case. The limited information available suggests a procedural matter rather than a substantive determination of rights or liabilities.
Justice Macmillan ordered that the matter be adjourned for mention before him on 10 February 2016. This indicates that the court did not make final orders but rather scheduled a further hearing to address the case.
Orders
Orders of the court
IT IS ORDERED THAT
1.
The matter be adjourned for mention before Justice Macmillan at 9.00 am on 10 February 2016.
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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