Wife Opposes Orders for Substitution of Executor
Hullet & Benton [2022] FedCFamC1A 13 (11 February 2022)
The primary judge, on review, made orders substituting the executor for the deceased husband and for the proceedings to progress as an adversarial contest between the wife and the executor. The wife seeks leave to appeal from those orders. The Court, in determining whether or not to grant the appeal,
Facts:
The spouses separated in 2018. The spouses reached a compromise over the division of their property and, in December 2020, an application was filed with the Court for consent orders to ratify their agreement. The wife was designated as the applicant and the husband as the respondent. The husband died in early 2021, just before the application was determined.
He was diagnosed with cancer about six months before, about which the wife knew nothing. Upon learning of his death, the wife notified the Court and the deceased’s lawyers of her withdrawal of consent to the proposed consent orders. As a consequence, on 18 January 2021, the registrar dismissed the application for consent orders. The deceased’s executor (“the executor”) filed an application in February 2021 to review the registrar’s decision and the wife responded in March 2021 seeking the dismissal of the review application.
The primary judge characterised the gist of the dispute in relation to what if any proceedings remain on foot following the death of the husband and the wife withdrawing her consent to the orders for property settlement agreed upon by the husband and wife prior to his death.
The executor contended the filing of the application for consent orders by the spouses constituted the commencement of proceedings, which same proceedings could then be pursued in a different form upon either or both of the deceased’s death and the withdrawal of the wife’s consent, which contention the primary judge accepted to be correct.
The Executor of the husband’s estate seeks both an order appointing him as the husband’s legal personal representative and orders with respect to the future conduct of the proceedings. The wife contended the application for consent orders was a quite different species of application to an adversarial application for property settlement and had to be treated differently, notwithstanding both types of application seek to invoke the Court’s discretionary power under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
In determining the review application, the wife submitted that the primary judge’s power was confined to either the grant or the dismissal of the application for consent orders and, since she had withdrawn her consent to the consent orders, there was no option but to dismiss the application, as the registrar had already correctly done.
Issue:
Whether or not the court should grant the appeal.
Applicable law:
Family Law Act 1975 (Cth) Pt VIII, ss 4, 39, 79, 79A - provides for the Court's power to make such orders in property settlement proceedings as it considers appropriate.
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 5, Pt 4, Div 2 - provides that the proceeding is not invalidated by any formal defect or irregularity.
Family Law Rules 2004 (Cth) ch 4, rr 10.15 - where proceedings for Consent Orders and proceedings for final property division under Chapter 4 both fall within the rubric of "property settlement proceedings".
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.22, 10.26, 10.27, 12.17 - provides that the only consequence of either party choosing not do so is that the original proceeding might then be concluded on an undefended basis.
Greval v Estate of the late Greval; Sandalwood Lodge Pty Ltd (Intervener) (1990) FLC 92-132; [1990] FamCA 31 - relied upon in holding that the wife’s submissions also offend the commentary of the Full Court to similar effect in other more recent cases.
In the Marriage of Strelys (1988) FLC 91-961; [1988] FamCA 1 - provides that the word “proceedings” is defined in s 4(1) of the Act as: “A proceeding in a court, whether between parties or not, and includes cross proceedings or an incidental proceeding in the course of or in connection with a proceeding.”
Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 1277 - relied upon in holding that the grounds misunderstand the effective intent of the orders, the meaning of which must be construed objectively.
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 - provides that satisfaction of those conditions was necessary to enable the invocation of s 79(8) of the Act.
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4 - provides that a “judgment” does not include a mere ruling on a question of law which is not decisive of the parties’ rights in the justiciable dispute, even if it is expressed in the form of an order.
Analysis:
None of the orders amount to a “judgment” since none is decisive of the parties’ rights under Pt VIII of the Act.
The orders do no more than achieve the continuity of the proceedings.
The primary judge simply ruled on the question of law concerning the continuing competency of the proceedings, once the wife had withdrawn her consent to the original orders and the executor (after his substitution for the deceased) foreshadowed an intention to prosecute an application for property settlement orders in one form or another. There would be no point in substituting the executor for the husband in the pending proceeding, as the wife admitted could occur, if the Court was then bound to simply dismiss the original application for consent orders, as the wife asserted must occur.
The executor could only be substituted for the deceased pursuant to s 79(8) of the Act if, despite the deceased’s death, it would still be just and equitable to make some form of property settlement order. If, as the wife contended, there was no option but to dismiss the proceeding then the provisions of s 79(8) were not validly engaged.
The proceeding for property settlement under Pt VIII of the Act, commenced by the wife filing the application for consent orders, was capable of being prosecuted in an adversarial form once she withdrew her consent to orders being made in the form originally proposed and the executor was substituted for the deceased. In any event, the primary judge only had to apply the law correctly; not give reasons why the settled law is correct.
The Court is bound by reason of Sch 5, Pt 4, Div 2 of the Transition Act to apply the provisions of the FCFCA Act, in which case s 66 of the FCFCA Act provides the proceeding is not invalidated by any formal defect or irregularity.
So the defective application form is of no consequence and an appeal on this ground is futile. Rather than seeking to compel the institution of fresh proceedings, as the wife thought, the orders only sought to ensure that the parties file, in a timely way, documents setting out the fresh suites of orders for which they now apply – it being accepted that the wife certainly does not want property settlement orders in the form the spouses originally proposed and the executor’s revised proposal is yet to be revealed.
Conclusion:
The Court dismissed the Application in an Appeal filed on 18 October 2021. The Response to the Application in an Appeal filed on 31 January 2022 is dismissed. Leave to appeal is refused and the Amended Notice of Appeal filed on 8 October 2021 is dismissed. The applicant shall pay the respondent’s costs of and incidental to the appeal in the fixed sum of $15,000.
