Whitehouse & Whitehouse

Case [2009] FamCAFC 207

FAMILY COURT OF AUSTRALIA

WHITEHOUSE & WHITEHOUSE [2009] FamCAFC 207
FAMILY LAW - APPEAL – JURISDICTION – ACCRUED JURISDICTION – In an appeal from the Family Court of Australia – Whether property proceedings can continue after both parties to a marriage have died – Where both parties sought final orders in relation to property settlement – Where the husband died soon after – Where the wife’s application was amended and sought to invoke the accrued jurisdiction of the Court – Where the wife subsequently died – Whether the relief sought in the amended application should have been brought pursuant to section 78 – Discussion about section 78 and section 79 – As both parties were dead when the matter came before the judge, there was no dispute remaining about which the Court had federal jurisdiction – Therefore there was nothing to which accrued jurisdiction could attach – Appeal dismissed

Family Law Act 1975 (Cth) section 78; section 79(8)
Family Law Rules 2004
Bergman and Bergman (2009) FLC 93-395
Carlton and United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543
Duff and Duff (1977) FLC 90-217
Fisher v Fisher (No. 2)  (1986) 161 CLR 438; (1986) FLC 91-767
Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 257
Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261
Strelys and Strelys; Lukaitis (Executor) (1988) FLC 91-961
Valceski and Valceski (2007) FLC 93-312
APPELLANT: Ms Whitehouse (by her case guardian)
RESPONDENT: Mr Whitehouse (by the executrices of his estate)
FILE NUMBER: MLF 3248 of 2006
APPEAL NUMBER: SA 15 of 2009
DATE DELIVERED: 20 November 2009
PLACE DELIVERED: Brisbane
PLACE HEARD: Melbourne
JUDGMENT OF: May, O’Ryan &
Stevenson JJ
HEARING DATE: 13 July 2009
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 6 February 2009
LOWER COURT MNC: [2009] FamCA 68

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr North SC with Mr Pavone
SOLICITOR FOR THE APPELLANT: CE Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Pannam QC with Mr Thompson and Mr Moloney
SOLICITOR FOR THE RESPONDENT: Grice & Grice

Orders

  1. The appeal is dismissed.

  2. The respondent file written submissions in relation to costs of the appeal within 28 days. Upon receipt of those submissions the appellant file submissions in reply within 14 days. Upon receipt of those submissions the respondent file any submissions in reply within 14 days.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 15  of 2009
File Number: MLF 3248  of 2006

Ms Whitehouse
(by her case guardian)

Appellant

And

Mr Whitehouse
(by the executrices of his estate)

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This appeal is concerned with the continuation of property proceedings after both parties to a marriage have…

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AGLC
Whitehouse & Whitehouse [2009] FamCAFC 207
Case
[2009] FamCAFC 207
Decision Date

CaseChat Overview and Summary

In the case of Whitehouse & Whitehouse, the appeal was brought before the court following a decision regarding property settlement proceedings and the implications of a spouse's death on the jurisdiction of the Family Court to make orders concerning the property of the deceased spouse. The central issue revolved around whether the court's jurisdiction to make orders concerning property settlement, which was initially invoked under the Family Law Act, persisted despite the death of one party, particularly when the court had not yet made a final order at the time of the party's death.

The court considered whether the accrued jurisdiction to decide on the non-federal claims related to the property settlement continued after the death of the party, despite the federal jurisdiction having abated. The arguments hinged on the interpretation of section 79(8) of the Family Law Act and whether it allowed the court to make orders concerning the property of deceased parties if it was deemed appropriate. The court recognised that section 79(8) provides the Family Court with the power to continue and complete proceedings that were initiated during the marriage, even if one party dies before a final order is made. This section ensures that the moral obligations arising from the marital relationship are fulfilled, and it allows the court to address any unsatisfied claims related to the property of the deceased spouse.

The appeal was dismissed, with the court upholding the original decision that the jurisdiction to make property settlement orders remains intact under section 79(8) of the Family Law Act, even after the death of one party, provided it is still appropriate to make such orders. This decision underscores the importance of ensuring that the moral obligations arising from the marriage are fulfilled, and it reaffirms the court's power to address these obligations even after the death of a party to the marriage. The parties were directed to file written submissions regarding the costs of the appeal within specified timeframes.

Orders

Orders of the court

1.

The appeal is dismissed.

2.

The respondent file written submissions in relation to costs of the appeal within 28 days. Upon receipt of those submissions the appellant file submissions in reply within 14 days. Upon receipt of those submissions the respondent file any submissions in reply within 14 days.

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

On this point, counsel for the husband argued that if the Court had acquired accrued jurisdiction to declare the existence of an implied or constructive trust against the property vested in the executrices of the husband’s estate, such accrued jurisdiction was “extinguished when the jurisdiction to make orders under section 79 of the Act abated on the death of the deceased wife”. Counsel referred to the decision of the High Court in Carlton and United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543, where the Court, in considering the decision in Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 observed at 553:It clearly appears from this judgment, and is indeed obvious, there can be no accrued jurisdiction unless there are federal issues which the Court has jurisdiction to entertain.(emphasis added) Counsel submitted that:29.Once it becomes clear that the federal jurisdiction was not, or was no longer, properly invoked, there can be no accrued jurisdiction remaining in the Court to consider and determine the claim for a declaration or [sic] implied, resulting or constructive trust. The principle that, once attracted or attached, the accrued jurisdiction to … determine the non-federal claim is not lost by the rejection, dismissal or abandonment of the primary federal claim which provided the source of the federal jurisdiction over the non-federal claim, does not extend to cases such as this one, where before the hearing and determination of the case, there is no longer any primary federal jurisdiction vested in the Court to determine the federal claim, it having abated by operation of law prior to the hearing and determination.(footnotes omitted) We accept this submission. And further to the extent that there are discretionary elements for our consideration it was submitted by counsel for the respondent:35.This case is one that plainly is out of the ordinary and exceptional. The circumstances are such that the Court should decline to entertain the accrued claim pressed by the Appellant. In this regard, it must be kept in mind that what remains of this proceedings is in substance one being prosecuted by [the wife’s daughter] as both an executrix and a beneficiary under the deceased wife’s will seeking declaratory relief against or out of the estate of the deceased husband solely and completely for her own benefit or for the benefit of herself and any other beneficiaries of the deceased wife’s estate. Accordingly it is a misuse of the jurisdiction, powers and procedures of the court to allow such proceeding to continue devoid as it is of any subsisting moral or legal nexus with the marriage relationship between the deceased husband and the deceased wife. To the extent that there is an element of discretion in such matters we find this argument attractive. The extent to which the discretion may be exercised in refusing to decline to exercise accrued jurisdiction was carefully analysed by Brereton J in Valceski and Valceski (2007) FLC 93-312. The following paragraph from that decision is of assistance in this case:59.Accordingly, the Family Court has accrued jurisdiction, just as does the Federal Court and the High Court, to determine the whole of a justiciable controversy, even though some aspects of it may involve State and not federal law. So long as the controversy arises under the Family Law Act, it need not be limited to it. Once seized of jurisdiction in respect of a matter arising under the Family Law Act – pursuant to Family Law Act s 31(1)(a) – the jurisdiction of the court extends to the whole of the matter, that is to say, the justiciable controversy, even though its determination requires the application of State law. While there may be a discretion to decline to exercise accrued jurisdiction, it will be an exceptional case in which that discretion can properly be exercised so that the whole of a justiciable controversy is not resolved in the one court.

Ratio Decidendi

Legal Principle Established

Counsel submitted that section 79(8) was the relevant provision of the Act to which the trial judge should have made reference. It is useful to also refer to part of section 79(1), especially to note the difference in wording between section 79(1) and section 78(1):Section 79Alteration of property interests(1)[Orders] In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to a marriage or either of them – altering the interests of the parties to the marriage in the property; ……(8)[Death of a party] Where, before property settlement proceedings are completed, a party to the marriage dies:(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;(b)if the court is of the opinion:(i)that it would have made an order with respect to property if the deceased party had not died; and(ii)that it is still appropriate to make an order with respect to property; the court may make such order as it considers appropriate with respect to:(iii)any of the property of the parties to the marriage or either of them; or(iv)any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and(c)an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. It is obvious that the provisions of section 79(8) are contained within section 79 and that in section 78 the reference to proceedings are “between the parties”. For completeness, we would add that the definition of ‘matrimonial cause’ as found in section 4(1) includes:(ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:(i)arising out of the marital relationship; … The constitutional validity of section 79(8) was upheld by the High Court in Fisher v Fisher (No. 2) (1986) 161 CLR 438; (1986) FLC 91-767, where the Court determined that the provision was within the scope of the marriage power conferred by section 51(xxi) of the Constitution. Brennan J stated at 457-458:Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within par. (ca) of the definition of ‘matrimonial cause’ in s. 4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s. 79(1). The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been complete. Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided ‘it is still appropriate to make an order with respect to property’: s.79(8)(b)(ii). That qualification on the power, coupled with par. (ca)(i) of the definition of ‘matrimonial cause’, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remains unsatisfied.Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition to that party’s property or by any other devolution of that property on that party’s death. That is a law which governs an incident of marriage in that it provides the machinery for enforcing the moral obligation with respect to property arising from a spouse’s marital relationship. It is a law with respect to marriage. (emphasis added)