Zurlo & Manoury (Deceased) - [2024] FedCFamC2F 1807

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zurlo & Manoury (Deceased) [2024] FedCFamC2F 1807

File number(s): NCC 2283 of 2024

Judgment of: JUDGE BETTS

Date of judgment: 16 December 2024

Catchwords: FAMILY LAW – PROPERTY SETTLEMENT PROCEEDINGS – Applicant alleges breakdown of 23 year de facto relationship and files Initiating Application seeking property settlement orders – Respondent files Response seeking s 90RD declaration that there had been no de facto relationship – Respondent subsequently dies – Respondent’s legal personal representative files application for summary judgment on basis that the proceedings have abated as a result of the Respondent’s death – proper construction of s 90RD and s 90SM(8) of the Family Law Act - questions of jurisdiction considered – application for summary judgment dismissed

Legislation:
Family Law Act 1975 (Cth), Pt VIII and VIIIAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Cases cited:
Dimmick & Harrison (No 2) [2024] FedCFamC2F 29

Mandley & Debbins [2020] FCCA 523

Newett & Newett (No. 8) (2023) FLC 94-128

Norton & Locke (2013) FLC 93-567

Parker v Arcus & Castiglione (1981) FLC 91-581

Phillips and Phillips (1985) FLC 91-634

Radney & Radney [2022] FedCFamC2F 53

Rampling & Rampling (1988) FLC 91-902

Simonds (Deceased) & Coyle (2019) FLC 93-895

Sims & Sims (1981) FLC 91-072

Slater and Slater (1985) FLC 91-641

Division: Division 2 Family Law

Number of paragraphs: 58

Date of last submission/s: 29 November 2024

Date of hearing: 29 November 2024

Place: Newcastle

Counsel for the Applicant: Mr Kelly

Solicitor for the Applicant: Nash Allen Williams & Wotton

Counsel for the Respondent: Mr Kadar

Solicitor for the Respondent: Pjg Solicitors

ORDERS

NCC 2283 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ZURLO

Applicant

AND:
MR MANOURY AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE MS MANOURY

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

16 DECEMBER 2024

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 11 October 2024 is dismissed.
2.The proceedings are adjourned to 3.30pm on 3 February 2025 for consideration of Mr Zurlo’s application for costs and any other necessary directions to progress the matter to a final hearing.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act

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 Zurlo & Manoury (Deceased)

Details

AGLC: Zurlo & Manoury (Deceased) [2024] FedCFamC2F 1807
Case: [2024] FedCFamC2F 1807
Decision Date: 16 December 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr. Zurlo filed an application for property settlement against Ms. Manoury, asserting the existence of a 23-year de facto relationship which had subsequently broken down. Ms. Manoury responded by seeking a declaration under section 90RD of the Family Law Act that no de facto relationship existed. Unfortunately, Ms. Manoury passed away during the pendency of the proceedings, leading to the filing of an application for summary judgment by her legal personal representative on the basis that the proceedings should abate due to her death. The court was required to interpret sections 90RD and 90SM(8) of the Family Law Act to determine the appropriate course of action, specifically whether the death of one party resulted in the automatic cessation of the proceedings.

The court examined the relevant sections of the Family Law Act to determine if the death of a party resulted in the proceedings abating. The court found that section 90RD did not automatically terminate proceedings upon the death of one party, and section 90SM(8) allowed the court to proceed with the matter in the absence of the deceased party if it was just and equitable to do so. The court determined that it had jurisdiction to continue the proceedings and dismissed the application for summary judgment. The court further considered the appropriate next steps and ordered the matter be adjourned to allow for the consideration of costs and other necessary directions to progress the matter to a final hearing.

The court dismissed the application for summary judgment and ordered the proceedings be adjourned for further consideration. The court's decision highlights the importance of interpreting statutory provisions accurately in family law proceedings, particularly in cases where the death of a party occurs during the litigation. The court maintained its jurisdiction to continue the proceedings in the absence of the deceased party, ensuring that the applicant's rights were protected and the matter could progress appropriately. The court's orders provide a clear direction for the next steps in the litigation, including consideration of costs and necessary directions for the final hearing.

Orders

Orders of the court

NCC 2283 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ZURLO

Applicant

AND:

MR MANOURY AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE MS MANOURY

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

16 DECEMBER 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 11 October 2024 is dismissed.

2. The proceedings are adjourned to 3.30pm on 3 February 2025 for consideration of Mr Zurlo’s application for costs and any other necessary directions to progress the matter to a final hearing.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Full text does not contain this section.

File number(s):	NCC 2283 of 2024
Judgment of:	JUDGE BETTS
Date of judgment:	16 December 2024
Catchwords:	FAMILY LAW – PROPERTY SETTLEMENT PROCEEDINGS – Applicant alleges breakdown of 23 year de facto relationship and files Initiating Application seeking property settlement orders – Respondent files Response seeking s 90RD declaration that there had been no de facto relationship – Respondent subsequently dies – Respondent’s legal personal representative files application for summary judgment on basis that the proceedings have abated as a result of the Respondent’s death – proper construction of s 90RD and s 90SM(8) of the Family Law Act - questions of jurisdiction considered – application for summary judgment dismissed
Legislation:	Family Law Act 1975 (Cth), Pt VIII and VIIIAB Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited:	Dimmick & Harrison (No 2) [2024] FedCFamC2F 29 Mandley & Debbins [2020] FCCA 523 Newett & Newett (No. 8) (2023) FLC 94-128 Norton & Locke (2013) FLC 93-567 Parker v Arcus & Castiglione (1981) FLC 91-581 Phillips and Phillips (1985) FLC 91-634 Radney & Radney [2022] FedCFamC2F 53 Rampling & Rampling (1988) FLC 91-902 Simonds (Deceased) & Coyle (2019) FLC 93-895 Sims & Sims (1981) FLC 91-072 Slater and Slater (1985) FLC 91-641
Division:	Division 2 Family Law
Number of paragraphs:	58
Date of last submission/s:	29 November 2024
Date of hearing:	29 November 2024
Place:	Newcastle
Counsel for the Applicant:	Mr Kelly
Solicitor for the Applicant:	Nash Allen Williams & Wotton
Counsel for the Respondent:	Mr Kadar
Solicitor for the Respondent:	Pjg Solicitors

NCC 2283 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ZURLO Applicant
AND:	MR MANOURY AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE MS MANOURY Respondent

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	16 DECEMBER 2024