Hullet & Benton (2022) FedCFamC1A 13

Hullet & Benton [2022] FedCFamC1A 13 is a case in which there was an unsuccessful application to appeal.

The wife sought leave to appeal and then to appeal orders made by a judge of the Family Court in June 2021.

The June orders were made by the primary judge in the course of reviewing orders earlier made by a registrar exercising delegated power.

The registrar dismissed an application made jointly by the spouses for property settlement orders. The primary judge discharged the registrar’s dismissal order and then made procedural orders for the proceeding’s orderly progression as an adversarial contest.

The wife contended the proceedings were correctly dismissed and incapable of revival.

The parties were able to reach an agreement and filed an Application for Consent Orders. The wife was designated as the applicant and the husband as respondent. The husband died in early 2021 before that application was determined. He had been diagnosed with cancer, but the wife knew nothing about that.

The wife notified the court upon hearing of his death and the deceased’s lawyers of her withdrawal of consent to the proposed Consent Order. The registrar then dismissed the Application for Consent Orders.

The husband’s executor filed an application in February 2021 to review the registrar’s decision and the wife sought to dismiss that.

The issue was really what if any proceedings remained on foot following the death of the husband and upon the wife withdrawing her consent to orders for property settlement that had been agreed prior to the husband’s death.

The executor argued that the filing of the application constituted the commencement of the proceedings. The judge accepted that. The wife contended the application was a quite different species of application to an adversarial application for a property settlement and had to be treated differently notwithstanding both types seek to invoke the court’s discretionary power.  The wife submitted the primary judge’s power was confined to the grant or dismissal of the Application for Consent Orders and since she had withdrawn her consent, there had been no option but to dismiss the application.

The primary judge said, I do not accept that the filing of an Initiating Application would commence new and distinct proceedings”.

There was discussion of the word “proceedings” and the parties considered the decision of Nygh J at page 76,964 in the Judgment of the marriage of Strelys [1988] FamCA 1.

The primary judge said:

I am satisfied that the proceedings in this case are the property proceedings as between the husband and the wife. Although prior to the husband’s death the husband and the wife were seeking to have the Court exercise its power pursuant to s 79 of the Act to make consent orders using the procedures provided for in the Rules for that purpose, following the husband’s death the Court is exercising the same powers albeit the process may be different. It is these proceedings pursuant to s 79 of the Act that the husband’s Executor seeks, acting as the husband’s personal legal representative, to continue.

The primary judge then said:

I am satisfied that the property proceedings were not discontinued as a consequence of the wife having withdrawn her consent to the orders.”

Leave to appeal was refused as it was understood “no appeal validly lies” because the orders made to that point were not the judgements required to found an appeal.

The Full Court said that the wife’s submissions tend to conflate the concept of proceedings and applications.

At paragraph 29, The Court is empowered under Pt VIII of the Act to make property settlement orders between spouses, but the power only derives from the existence of jurisdiction in a matrimonial cause, which jurisdiction does not necessarily exist simply because an application is filed”.

Section 39 sets out the jurisdiction in matrimonial causes and section 4 defines a matrimonial cause.

At paragraph 33, Once jurisdiction exists and is regularly invoked, as was the case here, the proceeding comprises the matrimonial cause and is not determined until discretionary power under Pt VIII of the Act is exhausted. The proceeding is not comprised of merely the application which initiates the cause, nor determined by merely the grant or dismissal of that particular application“.

We are reminded in this case that “the review conducted by the primary judge was a hearing de novo and by then the executor sought an order substituting himself for the deceased pursuant to the power reposing in s 79(8) of the Act so he could then prosecute an application for property settlement orders even if the wife by then had been content with no orders at all being made”.

The primary judge said at paragraph 60:

Of course, the property settlement orders ultimately made between the wife and the executor in the discretionary exercise of such power will certainly be influenced by the fact of the deceased’s death, but that is an entirely different issue.”

The court fixed the costs in the matter.