Watson & Ling

[2013] FamCA 57

FAMILY COURT OF AUSTRALIA

WATSON & LING [2013] FamCA 57

FAMILY LAW – PROPERTY – de facto relationship – where one of the parties to the de facto relationship has died – where the proceedings have continued in the name of the estate – where the estate seeks orders pursuant to s 90SM of the Family Law Act 1975 (Cth) – consideration of Stanford v Stanford (2012) 293 ALR 70 – where it is necessary to determine whether an order would have been made if the deceased had not died – whether it would have been just and equitable in the circumstances to make an order if the deceased had not died – where the “pool” comprised primarily of the respondent’s property – where the deceased made minimal contributions to the respondent’s property – where the deceased had limited property at the time of his death – where it would not be just and equitable to make orders altering the existing legal and equitable interests of the parties – where application dismissed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Legal Profession Act 2007 (Qld)

Family Law Rules 2004 (Cth)

Antmann & Antmann (1980) FLC 90-908
Browne & Green (1999) FLC 92-873
Cerini & Cerini [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204
Davut & Raif (1994) FLC 92-503
Fisher v Fisher (1986) 161 CLR 438
Grace v Grace [2012] NSWSC 976
Kowaliw & Kowaliw (1981) FLC 91-092)
Mallett v Mallett (1984) 156 CLR 605
Omacini & Omacini (2005) FLC 93-218
Stanford v Stanford (2012) 293 ALR 70
Townsend & Townsend (1995) FLC 92-569
Turner v Dunne [1996] QCA 272

APPLICANT: Ms Watson on behalf of the Estate of Mr Watson

RESPONDENT: Ms Ling

FILE NUMBER: BRC 9409 of 2010

DATE DELIVERED: 12 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 29 January 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cooper Of Charles Cooper Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Wright of Wrightway Legal

Orders

1. The Initiating Application filed on 7 October 2010 be dismissed.

2. The Response filed on 30 November 2010 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson & Ling 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 BRISBANE

FILE NUMBER: BRC9409 of 2010

Ms Watson on behalf of the Estate of Mr Watson

Applicant

And

Ms Ling

Respondent

REASONS FOR JUDGMENT

1. Mr Watson died in January 2011. He had commenced proceedings in the Federal Magistrates Court seeking relief pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) about three months prior to his death. The proceedings are continued in the name of his estate against Ms Ling, his former de facto partner. The personal representative of the estate is Ms Watson. She is Mr Watson’s former wife; their divorce became effective on 20 November 2005.

2. The existence of a…