Whitehouse and Whitehouse - [2009] FamCA 68

FAMILY COURT OF AUSTRALIA

WHITEHOUSE & WHITEHOUSE

[2009] FamCA 68

FAMILY LAW – JURISDICTION – Accrued – Whether the Court has the jurisdiction to hear an application in reliance on the Court’s accrued jurisdiction, when a remedy is available to that party pursuant to s 78 of the Family Law Act 1975, and that remedy is not pursued – Fisher v Fisher (1986) 161 CLR 438 and Estate of MacKenzie (deceased) & Estate of MacKenzie (deceased) (2008) 39 Fam LR 253 applied

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Estate of MacKenzie (deceased) & Estate of MacKenzie (deceased) (2008) 39 Fam LR 253
Fencott v Muller (1983) 152 CLR 570
Fisher v Fisher (1986) 161 CLR 438
In the marriage of Collins (1977) 30 FLR 93
In the Marriage of Duff (1977) 29 FLR 46
In the marriage of Farr (1976) 29 FLR 70
Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 257
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261
Tansell v Tansell (1977) 19 SASR 165
Vergis and Vergis (1977) FLC 90-275
Warby v Warby (2001) FLC 93-091

APPLICANT:

Ms Whitehouse

RESPONDENT:

Mr Whitehouse

FILE NUMBER:

MLF

3248

2006

DATE DELIVERED:

6 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

20 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirkham QC
Mr Thompson
Mr Moloney

SOLICITOR FOR THE APPLICANT:

C E Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr North SC

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Grice & Grice

Orders

That paragraph 2 of the wife’s Amended Application for Final Orders filed 15 June 2007 be dismissed.
That all other applications be dismissed.
That liberty be reserved to both parties to apply for any order consequent upon these orders including any order for costs.
That the proceedings be removed from the list of cases awaiting hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3248 of 2006

MS WHITEHOUSE

Applicant

And

MR WHITEHOUSE

Respondent

REASONS FOR JUDGMENT

Introduction

The parties married in their later years, each of them for the second time. They both had children from their prior marriages. The wife was admitted to hospital and when discharged, went to live at her daughter's home. The daughter filed an application for alteration of property interests on behalf of her mother and also applied to be her mother's Case Guardian. In an affidavit supporting that application, the daughter alleged that the husband and the wife were separated and that the marriage had broken down.
A response to that application was filed on behalf of the husband seeking orders for alteration of property interests and alleging that the parties were not separated. The supporting affidavit relied on the alleged lack of…

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 Whitehouse and Whitehouse

Details

AGLC: Whitehouse and Whitehouse [2009] FamCA 68
Case: [2009] FamCA 68
Decision Date: 6 February 2009

CaseChat Overview and Summary

In *Whitehouse and Whitehouse*, heard by Mushin J, the proceedings concerned an application made by the wife (or her legal personal representatives) regarding property interests. The central dispute revolved around the validity of an "Accrued Application" made after the husband's death, and whether the court possessed the necessary jurisdiction to determine the relief sought under that application.

The primary legal issue before the court was whether the "Accrued Application," made after the death of one of the parties to the marriage, was a valid matrimonial cause that could be brought before the court. This required the court to consider the scope of its jurisdiction under section 78 of the relevant Act, which empowers the court to make declarations regarding property interests between parties to a marriage. The court had to determine if section 78 could be invoked by the legal personal representatives of a deceased party and if the relief sought in the Accrued Application was a matrimonial cause that could only be pursued under the Act.

Mushin J reasoned that section 78 of the Act, which deals with declarations of interests in property, applies to "parties to a marriage." The court found that at the time the Accrued Application was made, one party had died, but this did not preclude the application of section 78, drawing analogy from the principles in *Fisher's case*. The court held that the wife's legal personal representatives could have amended their application to seek a declaration under section 78, as the available relief and evidence would have been identical to that which could be sought in a State Court. Consequently, the court concluded that the Accrued Application, not having been brought under the Act, was void *ab initio* for want of jurisdiction.

Accordingly, Mushin J ordered the dismissal of paragraph 2 of the wife’s Amended Application for Final Orders filed 15 June 2007, and all other applications. Liberty was reserved to both parties to apply for any consequent orders, including costs, and the proceedings were removed from the list of cases awaiting hearing. The court noted that it was open to either party to commence proceedings in the Supreme Court of Victoria seeking relief under State legislation.

Orders

Orders of the court

That paragraph 2 of the wife’s Amended Application for Final Orders filed 15 June 2007 be dismissed.

That all other applications be dismissed.

That liberty be reserved to both parties to apply for any order consequent upon these orders including any order for costs.

That the proceedings be removed from the list of cases awaiting hearing.

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

Pursuant to s 78 of the Act, the Court has the power to make declarations with respect to the property of the parties to the marriage. To the extent that it is relevant, that section reads:Declaration of interests in property (1)In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property. [Emphasis added] Section 78 refers to "the parties to a marriage". At the time that the Accrued Application was made, one of the parties to the marriage, the husband, had died. There is nothing to suggest that the ratio of Fisher's case does not extend to an application under section 78 in the circumstances. No submission has been made to the contrary. Accordingly, I find that at the time of making the Accrued Application, the legal personal representatives of the wife could have amended the substantive application to seek an appropriate declaration which this Court had the jurisdiction to determine pursuant to that section. The evidence and submissions in support of the application would have been identical to those which could be advanced in a State Court in support of the relief sought in the Accrued Application. Likewise, the relief which the Court had jurisdiction to grant in an application pursuant to section 78 of the Act would have been identical to that which was available in the State Court as between the parties to the proceedings as they then were. It follows that had the legal personal representatives of the wife relied on section 78 rather than the Accrued Application, no prejudice would have been suffered by them with regard to the available relief. In summary:· Part VIII of the Act covers the field with regard to relevant matrimonial causes;· At the time that the Accrued Application was made, the proceedings before the Court constituted a matrimonial cause, notwithstanding that one of the parties to the marriage had died;· Accordingly, at that time, any relief which was a matrimonial cause could only be sought under the Act;· The relief sought in the Accrued Application was a matrimonial cause which could have been brought under section 78 and therefore could only be sought pursuant to that section; and· Because the relief sought in the Accrued Application was not sought under the Act, it was void ab initio for want of jurisdiction. Having found that the Accrued Application was void ab initio, paragraph 2 of the wife’s Amended Application for Final Orders filed 15 June 2007 must be dismissed. I will order accordingly. It is common ground that in the event that I dismiss the Accrued Application as I have determined, it is open to either party to commence proceedings in the Supreme Court of Victoria seeking relief under State legislation. Both parties will also be at liberty to apply for any order consequent upon my orders including any order for costs of this application.