Vessey and Vessey - [2012] FamCA 386

FAMILY COURT OF AUSTRALIA

VESSEY & VESSEY

[2012] FamCA 386

FAMILY LAW – JURISDICTION - Property proceedings commenced but both parties subsequently die - No jurisdiction to anything other than strike out the applications.

Family Law Act 1975 (Cth)
Survival of Actions Act 1942 (Vic) s 2(1) (now s 29 of Administration and Probate Act 1958 (Vic))

Fisher & Fisher (No 2) (1986) 161 CLR 438
Kawacki & McInnes & Anor [2007] FamCA 882
Lotter v Salmon Street Ltd [2006] VSC 495
Pellarin & Pellarin [2011] FamCA 983
Whitehouse & Whitehouse [2009] FamCAFC 207
WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34

APPLICANT:

Ms Vesey (Deceased) (“The Wife”)

RESPONDENT:

The proponents for the will of Mr K Vesey (“The Husband”)

FILE NUMBER:

MLC

11486

2010

DATE DELIVERED:

22 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Melilli

SOLICITOR FOR THE APPLICANT:

Kenna Teasdale Lawyers

COUNSEL FOR THE

PROPONENTS FOR PROBATE OF THE

WILL OF MR K VESSEY:

Mr Moloney

SOLICITOR FOR THE

PROPONENTS FOR PROBATE OF THE

WILL OF MR K VESSEY:

Ms Katherine Moorhouse-Perks

Orders

That the application filed 13 December 2010 and the response thereto filed 4 March 2011 are both struck out for want of jurisdiction.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vesey & Vesey 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 11486 of 2010

Ms Vesey (Deceased) (“The Wife”)

Applicant

And

The proponents for probate of the will of Mr K Vessey (“The Husband”)

Respondent

REASONS FOR JUDGMENT

The matter before me concerns the jurisdiction of the Court to make orders relating to the division of property where both the applicant husband and the respondent wife have died subsequent to the proceedings commencing.
In my view, there is no jurisdiction in this Court to make any orders under Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The only order that can be made is for the proceedings to be struck out.
The strike out application was made by the Legal Personal Representatives of the deceased wife even though the wife had been the respondent in the substantive proceedings. The respondents to this strike out application were the proponents for probate of the will of Mr K Vessey the deceased husband.
For the purposes of these proceedings and meaning no disrespect to either of the deceased, I shall refer to them throughout as husband and wife for my convenience.
The parties married in 1962.
The husband was born in 1920 and the wife in 1927. Thus, the marriage was long and the parties were elderly when the proceedings began.
The husband had filed the application for final property orders on 13 December 2010. The wife filed a response on 4 March 2011 seeking a dismissal of the application on…

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 Vessey and Vessey

Details

AGLC: Vessey and Vessey [2012] FamCA 386
Case: [2012] FamCA 386
Decision Date

CaseChat Overview and Summary

The matter before the Family Court of Australia concerned property proceedings initiated by the husband, who subsequently died. The wife, who had filed a response seeking dismissal of the application, also died before the proceedings were completed. The legal personal representatives of the wife sought to strike out the application, and the proponents for the will of the deceased husband did not oppose this.

The primary legal issue was whether the Court retained jurisdiction to make property orders under the *Family Law Act 1975* (Cth) when both parties to the marriage had died after the commencement of proceedings. Specifically, the Court had to consider the application and scope of section 79(8) of the Act, which allows for the continuation of property proceedings if one party dies before completion.

The Court reasoned that section 79(8) of the *Family Law Act* only contemplates the situation where one party to a marriage dies during property proceedings, not both. This interpretation was supported by Full Court authority in *Whitehouse & Whitehouse* and obiter dicta from the High Court in *Fisher & Fisher (No 2)*, which indicated that the phrase "either of the parties" in the context of section 79(8) refers to one of two parties. The Court also noted that the common law principle of *actio personalis moritur cum persona* (a personal action dies with the person) generally applies to personal actions, and absent a specific statutory exception, the personal cause of action to alter property interests between spouses dies with the second spouse. The Court found that the *Family Law Act* is silent on the scenario where both parties are deceased, and therefore, there was no express legislative provision preserving jurisdiction.

Consequently, the Court concluded that it had no jurisdiction to make any orders relating to the division of property in these circumstances. The application filed by the husband and the response filed by the wife were both struck out for want of jurisdiction.

Orders