WETHERALL (DECEASED) & WETHERALL

[2011] FamCA 114

FAMILY COURT OF AUSTRALIA

WETHERALL (DECEASED) & WETHERALL [2011] FamCA 114

FAMILY LAW - CHILDREN – with whom a child lives
FAMILY LAW - PROPERTY – party deceased

APPLICANT: Ms Wetherall (Deceased)

RESPONDENT: Mr Wetherall

FILE NUMBER: BRC 6395 of 2009

DATE DELIVERED: 21 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 21 February 2011

REPRESENTATION

FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Shoebridge

SOLICITOR FOR THE RESPONDENT: Peter Chappel

Orders

1. The Application filed on 22 July 2009 be dismissed.

2. The Applicant have sole parental responsibility for the child J born … January 1996.

3. Order 1 of the Orders of the Honourable Justice O’Reilly on 6 December 2010 be discharged.

4. All outstanding applications be dismissed and the matter removed from the Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Wetherall (Deceased) & Wetherall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6395 of 2009

Ms Wetherall (Deceased)

Applicant

And

Mr Wetherall

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Wetherall, “the father”, for various orders, if I may encapsulate at present:  (1) a parenting order, and (2) a property order wherein he seeks, inter alia, the dismissal of the applicant wife’s, Ms Wetherall, now deceased, application for a property settlement. 

2. I have had the opportunity of in‑depth and very satisfying submissions presented to me by Mr Shoebridge of counsel on behalf of the applicant father.  He has set out in that document the documents to be relied upon, the orders sought and his summary of argument, which, as I have said, is in depth and particularly helpful.  Whilst it is a very sad case, it is a matter which I do not think should be entered into in any depth, other than to say I accept the summary of argument by Mr Shoebridge as contained in page (unnumbered) of his document, and that it is obviously persuasive. 

3. Initially, I will look at the question of the child.  The child is not the biological child of the applicant, Mr Wetherall, but is of the mother, Ms Wetherall.  She is now about 15 years of age.  During cohabitation, the child and the father appear, on the report of Ms M filed 17 February 2011, to have been reasonably close, notwithstanding that the applicant did for a period of about six months absent himself from the child for reasons which I believe he has adequately explained.

4. The mother died in July 2010 and the parties had separated when the child was 13 years old.  It is quite clear from the material put before me, particularly in the report of Ms M, that the child has a close, warm and loving relationship with the applicant, and that it is her desire that, not only has she acknowledged the applicant as her Dad, but she believes that he is, in fact, her Dad in all particulars.  The address of the biological father of the child is unknown.  I refer in particular to paragraphs 86 to 91 of the family report and, in my view, that, together with the other matters that are set out in the report, make it quite clear that the interests of the child will be best put into force and effect by the child being put into the sole parental responsibility of the applicant.

5. Since the mother is dead, it may be said that the presumption does not apply.  However, if it does apply and how it could apply, I have no idea, I am more than satisfied that the circumstances of this case require me to reject the presumption, and I am satisfied that the child’s welfare will be best advanced by being in the possession of the applicant and order accordingly.

6. I note that I have, of course, to take into consideration the provisions of section 60CC, and I consider that they all been adequately answered in the report of Ms M.  Insofar as Rosa is concerned, I am also to take into consideration if it is the case whether any contact would be significant and substantial, and whether it was reasonably practicable.  In this case, there can be no order for contact in relation to any other person since the mother is dead, and there does not appear, other than from Mr C, who is the maternal grandparent, who has appeared out of courtesy today, and I compliment him for that, any other person with an interest in the child.

7. It is quite clear on the material before me that the applicant will ensure that the child maintain the relationship with Mr C and the maternal aunt.  I am quite satisfied that, she being an intelligent child, and with the assistance of the applicant, they will ensure that the relationship remains, which is the desire of Mr C.  Mr C is an important partitioner in this case, in that, in the application for property settlement it is sought by Mr Shoebridge of counsel on behalf of the applicant that, in fact, the wife’s application for property settlement be dismissed.

8. I refer to and incorporate in these, my reasons for judgment, the summary of argument as set out by Mr Shoebridge on, once again, an unnumbered page under the subheading Summary of Argument Dismissal of Wife’s Application for Property Orders.  This matter had appeared before O’Reilly J, who transferred it to me in order that certain matters could be done.  She expressed concern as to what would be the effect of dismissal of the deceased mother’s application for a property settlement.  It appears she died intestate.  As a result of that the Succession Act will apply and, if anything, it would mean that the applicant husband would receive $150,000 as a first charge, in effect, of the estate and one half thereafter, and the balance would, of course, be paid to the child. 

9. It appears that, as a result of the husband’s bankruptcy, that there would be little or nothing left of the joint estate of the parties and, in all probability, with the best case scenario, as has fallen from Mr Shoebridge of counsel, it would amount to no more than gross $186,656 and that is, of course, hedged around with many ifs, buts and what‑fors, and the best case scenario would be that the wife’s estate would receive an amount of $140,000 rounded off.  As I have said before, $150,000 of the estate would, first of all, go to the then husband.  Consequently, all of the estate would go to him as a result of the death of the wife. 

10. I do not think, taking into consideration those matters which have been set out by Mr Shoebridge, in particular at paragraphs 39 to 73, convince me that, in fact, any application persevered with would be doomed to failure.  But I have to take into consideration the fact that she is dead, that there is no person, as has fallen from Mr Shoebridge of counsel, and this is supported, who is willing to act on behalf of the mother’s estate, which perhaps is understandable.  In those circumstances, I would consider that it would be a farce for the application to continue on all fours.

11. Mr C, to whom I have referred and have already complimented on his coming here, has assured me that he, as being the next‑of‑kin of the deceased mother, taking into consideration all things, is not persevering with any application, and that he has had an opportunity of reading the orders as sought by the applicant husband, and he is in agreement with it and does not raise any difficulties.  In those circumstances, I order in accordance with the application.

RECORDED:   NOT TRANSCRIBED

1. O’Reilly J, out of a super abundance of caution, gave certain injunctive relief.  I think it is quite clear as a result of the decisions I have made in relation to the property that, in fact, that should be discharged.  And I order in accordance with 1, 2 and 3 of the orders sought by the husband on the first page of the summary.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 21 February 2011.

Associate:     

Date:              28 February 2010