TATE & HUNTER (DECEASED) - [2015] FamCA 1242

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

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…

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 TATE & HUNTER (DECEASED)

Details

AGLC: TATE & HUNTER (DECEASED) [2015] FamCA 1242
Case: [2015] FamCA 1242
Decision Date: 16 December 2015

CaseChat Overview and Summary

This matter concerned an application before Justice Macmillan in the Supreme Court of Victoria. The parties involved were Tate and Hunter (deceased). The precise nature of the dispute is not detailed in the provided text, beyond the fact that it was a matter requiring the court's attention.

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

The matter be adjourned for mention before Justice Macmillan at 9.00 am on 10 February 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.