TATE & HUNTER (DECEASED)
[2015] FamCA 1242
•16 December 2015
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 born in 1968 and died in 2014. She was 46 at the time of her death.
The parties were married in 1998 and separated in September 2010. A divorce order was made by the Federal Circuit Court of Australia at Melbourne in 2013. There are two children of their marriage X who is 12 years of age and Y who is 10 years of age. The children have both lived with the father since their mother’s death and he has had and will continue to have sole responsibility for the children.
The husband commenced proceedings for property settlement in this Court in August 2013. Those proceedings were overtaken by the wife’s death in November 2014.
The wife appointed her mother Ms B Hunter and her brother Mr C Hunter as executors of her will dated 11 November 2014 and named the children of the marriage X and Y as the sole beneficiaries of her estate. This is the only known will of the wife. The husband disputes the validity of the will and lodged a caveat with the Registrar of Probate opposing the grant of probate on the grounds that the wife did not have testamentary capacity at the time she purported to execute that will.
If the husband’s objection to the validity of the will were to succeed, the wife, in the absence of any other will, would have died intestate. The children under the laws of intestacy would be the sole and equal beneficiaries of their mother’s estate, as they are pursuant to the disputed will and arguably the husband, as their surviving parent and the person entrusted with their care, would be considered an appropriate person to be appointed administrator of the wife’s estate.
The proceedings are further complicated by the fact that the wife’s mother asserts that she is owed approximately $200,000 by the wife’s estate as a result of payments made to the wife or for her benefit during the wife’s life and subsequent to her death. This alleged debt is disputed by the husband.
All the parties to these proceedings wished to avoid the necessity of an application to the Supreme Court for either a Grant of Probate or Letters of Administration and agreed that such application would be an unnecessary impost on the pool of assets which are ultimately intended to benefit the children of the marriage.
Whilst I have no concerns about the justice and equity of the proposed orders I do have concerns about the Court’s jurisdiction to make those orders when one of the parties to the proceedings has died following the initiation of those proceedings and her personal representative has not been substituted for the wife in the proceedings.
Discussion
Section 79(8) of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
Where, before property settlement proceedings are completed, a party to the marriage dies:
(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b) if the court is of the opinion:
(i) that it would have made an order with respect to property if the deceased party had not died; and
(ii) that it is still appropriate to make an order with respect to property;
the court may make such order as it considers appropriate with respect to:
(iii) any of the property of the parties to the marriage or either of them; or
(iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and
(c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
Counsel for the husband, whilst acknowledging those earlier authorities in which the Court found that the substitution of a deceased party’s legal personal representative was a necessary precondition to the continuance of proceedings following that party’s death, submitted, referring to and relying upon the decision of Benjamin J in Randle & Randle [2014] FamCA 248, that the Court can make final property orders notwithstanding a personal legal representative has not been substituted for the deceased party. Benjamin J said at paragraph 99 referring to s 79(8) said as follows:
It provides two parts, ss 79(8)(a), which provides a discretion to continue property proceedings in circumstances where a plaintiff dies and to appoint, in a discretionary way, a legal personal representative. That term is not defined under the Act. There is no overt interaction between ss (a) and ss (b) of s 79(8).
I note that in that case the proceedings had been heard by Benjamin J on 18 and 19 February 2014 and he had delivered reasons but that as the structure of the orders he proposed to make was quite complex the matter had been stood over until 5 March 2014 for him to make those orders giving the parties the opportunity to make submissions with respect to the structure of the orders in light of his Honour’s findings. On 2 March 2014 the husband died. In his orders made on 5 March 2014 Benjamin J ordered as follows:
1.These orders shall be binding upon the parties, their legal personal representatives; including any executor/s, administrator/s and/or assigns of one or other of the parties.
The orders made by Benjamin J were otherwise directed to the husband, albeit his Honour gave leave to “each party and/or the legal personal representative of the husband to apply in relation to the arithmetic and/or mechanics of this order and/or the procedural orders sought pursuant to Rule 6.15 of the Family Law Rules 2004, such leave to be available up to 1 October 2014 or such other period as is otherwise ordered”. Although there are cases in which a legal personal representative is substituted for a party prior to either a grant of probate or letters of administration that is usually in circumstances where there is no dispute with respect to either the will or who is likely to be granted letters of administration. In any event his Honour did not do so in this case. There is a reference in his Honour’s reasons to his intention to give leave to either the husband’s sons and/or his putative executors to apply if they wished to be appointed the legal personal representative of the husband however it is not otherwise clear from his reasons whether there was in fact a will, who the executors of that will might be or whether there was any dispute in relation to that will or who the husband’s legal personal representative might be.
Counsel for the husband submitted relying upon the decision of Benjamin J in Randle & Randle (supra) that s 79(8)(a) is in the nature of an enabling provision authorising the substitution of a legal personal representative where necessary and not a condition that must be satisfied before the Court can continue a case and make orders for property settlement after the death of one of the parties to those proceedings.
In my view Benjamin J’s decision does not necessarily stand for the general proposition that this Court has the jurisdiction to make orders for property settlement after the death of one of the parties irrespective of whether a legal personal representative has been substituted as a party to those proceedings. If I am wrong about what his Honour intended then with the greatest respect I would not agree. Even if s 79(8) is not expressed as being subject to or conditional upon the substitution of the deceased party’s legal personal representative, the principle of abatement, which is premised upon the common law maxim action personalis moritur cum persona, i.e. that a personal action dies with the person, is a fundamental principle. As Fogarty and Nygh JJ said in Fisher & Fisher & Ors (1986) FLC 91-701; (1986) 10 Fam LR 734 (at 75,065) “[s]ection 79 continues a proceeding which would otherwise abate and can therefore be described as a law with respect to survival of at least a particular class of action”.
In Fisher & Fisher (1986) 161 CLR 438, the High Court considered the validity of s 79(8) and whether this Court has jurisdiction to entertain proceedings arising out of a marital relationship when one of the parties to the proceedings dies after those proceedings have been initiated but before they have been concluded. Gibbs CJ with whom Wilson J agreed said at 448 as follows:
[i]t is true that s. 79(8) provides for the creation of new proprietary rights after a marriage has been terminated by death. However, those rights may be created only if proceedings with respect to the property of the parties to the marriage or either of them had been commenced while the marriage was subsisting and only if the proceedings are continued by or against the legal personal representative of the deceased spouse. (emphasis added)
In Bailey & Bailey (1987) FLC 91-803 Nygh J referring to both the judgment of Gibbs CJ in Fisher & Fisher (supra) and the decision of the High Court in Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383 pointed out that in circumstances where but for the provisions of s 79(8) proceedings would abate upon the death of a party to those proceedings it “…makes it essential that the procedure laid down by subsec. (8) by way of exception to that general and fundamental principle be followed. That provides that the proceedings may be continued against the legal personal representative of the deceased party and following the provisions in relation to substitution of the legal personal representative as a party to the proceedings”. As Nygh J observed in Bailey & Bailey (supra) in the context of the appointment of an administrator ad litem, the estate of a deceased party has no legal personality other than through the legal personal representative. In those circumstances absent the substitution of the deceased party’s legal personal representative there is no person or legal entity against whom any orders may be enforced.
Although I have some sympathy for the parties in this case and their desire to avoid the necessity of proceedings in the Supreme Court, in my view the proceedings instituted by the wife abate upon her death unless continued by her legal personal representative and in those circumstances as no application has been made for substitution of the wife’s legal personal representative I do not have the power to make the orders the husband and the wife’s mother seek.
However although the Court does not have the power to make those orders, the position would arguably be different if there had been either a Grant of Probate or Letters of Administration. On that basis I propose to adjourn the matter for further mention before me to allow the parties to clarify the position in relation to the wife’s estate.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 December 2015
Associate:
Date: 16 December 2015
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