Coyle and the Executors Of the Estate Of Simonds (deceased)

[2018] FCCA 1435

FEDERAL CIRCUIT COURT OF AUSTRALIA

COYLE & THE EXECUTORS OF THE ESTATE OF SIMONDS (DECEASED) [2018] FCCA 1435

Catchwords:
FAMILY LAW – Property adjustment – where the Applicant filed an application for de facto property adjustment orders after the standard application period without first obtaining leave to do so – where the Applicant sought leave to make application after the death of her former de facto – whether the death of former de facto disentitled her from making application – application for leave granted.

Legislation:

Family Law Act 1975, ss.4AA(1)(c), 4AA(2), 44(5), 44(6), 90SM

Applicant: MS COYLE

Respondent: MS BARNETT, MR B SIMONDS AND MR C SIMONDS AS EXECUTORS OF THE ESTATE OF MR A SIMONDS

File Number: BRC 4521 of 2017

Judgment of: Judge Egan

Hearing dates: 10 May 2018 and 1 June 2018

Date of Last Submission: 1 June 2018

Delivered at: Brisbane

Delivered on: 8 June 2018

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr McGregor

Solicitors for the Respondent: Hall Payne Lawyers

ORDERS

1. That, pursuant to Rule 1.09 of the Family Law Rules 2004, the Applicant be granted leave, nunc pro tunc, to make an application for Section 90SM property adjustment orders consequent upon the filing of her Initiating Application on 10 May 2017.

2. That the Applicant be granted leave, nunc pro tunc, to continue her Section 90SM application against the Respondents in their respective capacities as legal personal representatives of the deceased Mr A Simonds.

3. That the Applicant and the Respondent shall file and serve on or before 4.00pm on 22 June 2018 any further submissions on the questions of quantum, property pool, proposed property adjustment orders, costs and any other consequential orders respectively sought by them.

4. That each party have liberty to apply on the giving of three (3) days’ notice, each to the other.

5. That the matter be adjourned for mention at 9.30am on 26 September 2018 in the Federal Circuit Court of Australia at Brisbane. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 4521 of 2017

MS COYLE

Applicant

And

MS BARNETT, MR B SIMONDS AND MR C SIMONDS AS EXECUTORS OF THE ESTATE OF MR A SIMONDS

Respondent

REASONS FOR JUDGMENT

1. By an Initiating Application filed on 10 May 2017, the Applicant sought Orders for property adjustment as between her and one Mr A Simonds.

2. By a Response filed on 27 July 2017, Mr Simonds sought an Order that the Initiating Application be dismissed and that the Applicant pay his costs. The Response appears to have been signed by Mr Simonds’s lawyer on 25 July 2017. It would appear that the lawyer for Mr Simonds was unaware that when he signed the Response on 25 July 2017 that Mr A Simonds had died some four days earlier on 2017.

3. By reason of the death of Mr A Simonds, an Order substituting the personal representatives for Mr A Simonds as the Respondent to the proceeding was made by His Honour Judge Coates on 30 October 2017. The trial proceeded on the basis that the case advanced by the Applicant (she appeared as a self-represented litigant) was resisted by the Respondents (who were represented by Mr McGregor of Counsel and his instructing lawyer).

4. It is alleged by the Applicant, and accepted by all parties, that for at least 13 years, the Applicant and the said Mr A Simonds cohabited and were in a de facto relationship. In that regard, Section 44(5) of the Family Law Act 1975 (Cth) (“FLA”) provides as follows:

   44(5)  Subject to subsection (6), a party to a de facto relationship

   may apply for:

   (a)  an order under section 90SE, 90SG or 90SM; or

   (b)  a declaration under section 90SL;

   only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period).

5. Accordingly, because a two year time limit applied after the ending of the de facto relationship for the making of an Application for a property adjustment order, the date on which the de facto relationship ended is of course of significance. In this case, if the de facto relationship ended more than two years prior to the making of the Initiating Application on 10 May 2017, the Applicant would have been required to first seek leave to apply (for an Order under one of the sections referred to in s. 44(5)(a) of the FLA) pursuant to the provisions of s. 44(6) of the FLA. That section provides as follows:

   44(6)  The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

   (a)  hardship would be caused to the party or a child if leave were not granted; or

   (b)  in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

6. A relevant history of the parties relationship is as follows:

   a)2000 – parties commenced relationship;

   b)2002 – Property purchased at Property A;

   c)2003/2004 – Applicant sold her real estate assets and alleges that she gave the Respondent $77,500.00 as her contribution for a half interest in the Property A property;

   d)2004 – Respondent purchased a Vehicle for Applicant valued at approximately $60,000.00 and gave her shares valued at approximately $3,000.00;

   e)2004 – Respondent sold a rural property netting approximately $414,000.00;

   f)2005 – Respondent and Applicant become owners of a business called Business O registered in the Applicant’s name;

   g)2006 – Applicant injured in motor vehicle accident;

   h)2008 – Parties separated for at least a six month period;

   i)2009 – Sexual relationship between the parties ended;

   j)2010 – New neighbours moved next door to Property A property;

   k)2011 – Applicant received $201,990.00 from her personal injuries claim arising out of the motor vehicle accident;

   l)2012 – Applicant purchased Property C property in Property C for $240,000.00.  Applicant asserted that property was purchased from the proceeds of her personal injuries claim.

   m)2013 – Respondent paid Applicant at least $105,000.00 from proceeds of sale of Business O business.  Applicant asserted that at that time she discovered that her name was not on the title deed to the Property A property and that that discovery as well as poor relations with new neighbour at Property A placed a strain on their relationship.

   n)13 August 2013 – the Applicant sent an email to the Respondent saying:

   “…You can do and say what you like about me. You really make me angry with your imagination and trust issues. The problem is yours, not mine. But I just don’t care anymore. Except for settlement of property and getting a couple of my personal things, there doesn’t have to be any more contact.

   
   
   

   You either give me $300,000.00 or you put the house in my name only. If you don’t do anything about this by the end of the month, I will go to a solicitor.

   
   
   

   This is your doings that I have moved out, so I would like $10,000.00 to go towards having to replace furniture and household items etc.”

   o)22 September 2013 – the Applicant sent an email to the Respondent as follows:

   “I’m sorry I am making you so sad. I do wish you would stop all the drinking. You aren’t doing yourself or anyone else, any favours. You look like a little old man shuffling along. You were never like that. Your breath smells as you aren’t getting any food or nourishment in you. And your body odour is of stale alcohol. I feel embarrassed for you when I see you as you are a proud person and not this someone that you have become. As I said, I don’t know how I feel, and I hate living there now because of next door. But what you are becoming is something I certainly won’t go home for either. You have good friends that are trying to help you, but they can only help you if you will let them, and you have to help yourself.…

   
   
   

   Whilst you are sitting at home doing nothing, things will never get better. I know it hurts and that you don’t want to go anywhere, but you do need help.

   
   
   

   You have to start living again as at the moment you are existing – and you know that is no way to live.

   
   
   

   All of this is said to you as a friend, there is no sarcasm, no belittling or nastiness meant in any of this. So pull your finger out and start living again!”

   p)9 October 2013 – the Applicant sent an email to the Respondent which said:

   “Thanks for that Mr A Simonds. You can now say goodbye. I will get my stuff over the next few weeks.”

   q)Between October 2013 and October 2014 – Emails between the Applicant and the Respondent indicate a fondness toward each other more consistent with a friendship than an existing de facto relationship.

   r)31 October 2014 – the Applicant sent an email to the Respondent which said:

   “I still love you, but so many things have changed in the last 14 months. I’m enjoying living by myself and both lots of neighbours are fine. My stomach doesn’t churn when I come home wondering what the neighbours are going to do or say. It’s the first time in four years that I can really relax and enjoy being at home.…

   
   
   

   “I am grateful for everything that you have done for A and I – and continue to do. I think about you every day and hope that you are getting better. Each time I get in my car I thank you and realise that if it weren’t for you I wouldn’t be driving it. Same with my jewellery. Although I can’t understand why you keep asking for my ring back. What would you do with it, let it sit in a drawer just so that I can’t wear it ????”

   s)2014 – the Applicant sold the Property C property for $310,000.00 then used such funds to purchase a property at Property B for $375,000.00.  The Respondent contributed the sum of $100,000.00 toward the purchase of that property (paragraph 35 of the Applicant’s affidavit filed 10 may 2017).

7. During the course of the trial, I had the benefit of observing the Applicant whilst under cross examination. I generally found the Applicant to be vague about dates of relevance about which she was asked during cross examination, and I also found some of her answers to be evasive. Throughout her cross examination she adopted a stance which seemed to be based upon the proposition that she was entitled to a substantial property adjustment order in her favour because of the fact that she had once been in a de facto relationship with the said Mr A Simonds. She angrily asserted that Mr A Simonds had refused to register the Property A property in the joint names of himself and the Applicant, the Applicant so asserting notwithstanding that he had earlier promised to do so.

8. I am satisfied that the de facto relationship between the Applicant and the Respondent was at an end as early as 9 October 2013. I do not accept that after that date, in accordance with Section 4AA(1)(c) of the FLA, and having regard to all the circumstances of the relationship, that the Applicant and the Respondent were in a relationship as a couple living together on a genuine domestic basis. The emails sent by the Applicant to Mr A Simonds between 13 August 2013 and 31 October 2014 evidence the non-existence of any de facto relationship being in existence during such period of time. Nor does the correspondence between the parties after 31October 2014 evidence any meaningful resumption of any de facto relationship.

9. I do not consider that any of the factors referred to in Section 4AA(2) of the FLA assist the Applicant in that regard. The Applicant and the Respondent:

   a)Had ceased to live together in a harmonious atmosphere;

   b)Did not live under the same roof;

   c)Were not having sexual relations;

   d)Were no longer financially dependent upon the other or were otherwise interdependent in relation to arrangements for their respective ongoing financial support;

   e)Had ceased to own, use or acquire property together;

   f)Were living separate lives lacking in a mutual commitment to each other;

   g)Were not in a relationship which was registered under a prescribed law of estate of territory;

   h)Did not have the care and support of children;

   i)Were not publicly recognised as being in a subsisting de facto relationship.

10. I accordingly find that the filing by the Applicant of her Initiating Application on 10 May 2017 was after the end of the two year standard application period as provided for in Section 44(5) of the FLA.

11. By paragraph 35 of her affidavit filed on 29 August 2017, the Applicant gave notice of her intention to seek leave to file her application out of time, presumably pursuant to Section 44(6) of the FLA if it was held that the Initiating Application had not been filed before the end of the standard application period.

12. Mr McGregor of Counsel submitted that the Court has no jurisdiction to make any such order granting an application for leave to apply for a Section 90SM property adjustment order after the end of the two year period because of what he submits is the proper construction of Section 90SM(8) of the FLA. That section provides as follows:

    90SM(8)  If a party to the de facto relationship dies after the breakdown of the de facto relationship, but before property settlement proceedings are completed:

    (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; and

    (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 de facto relationship or either of them; or

    (iv)  any of the vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship; 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.

13. The argument put by Mr McGregor is that because the Initiating Application was filed after the standard application period, such application was incompetent because leave to so apply had not first been granted. He submitted that only in circumstances where an application for property adjustment had been validly filed/brought pursuant to Section 90SM of the FLA, could proceedings be continued against a legal personal representative. He submitted that proceedings must have been on foot prior to the death of a party before any such proceedings could be continued by or against the legal personal representative of the deceased party. In that regard, he pointed to the words “are completed” in the introduction to Section 90SM(8) and to the words “may be continued” in Section 90SM(8)(a). His submission was that such words, when properly construed, can only refer to competent proceedings which were on foot, and therefore able to be continued, at the time of any such death.  His submission was that because no application for leave to apply had been granted before the death of Mr A Simonds, there were no proceedings which had either been completed or were able to be continued by or against his legal personal representative/s, and that the Court therefore had no jurisdiction to make any such order. 

14. In my view, leave to apply able to be sought pursuant to Section 44(6) of the FLA clearly contemplates the seeking of such leave in respect of a Section 90SM application such as the one filed by the Applicant in these proceedings. What necessarily flows from Mr McGregor’s submission is that the Applicant was not entitled to make a Section 44(6) application, or otherwise proceed with her filed proceedings, by reason of the death of Mr A Simonds.

15. Those submissions, in my view, would give rise to unjust outcomes if applied as a matter of principle.  For example, if:

    a)A client had instructed their lawyer two weeks before the end of the standard application period to make application pursuant to Section 90SM;

    b)The lawyer had failed to make application before the end of the standard application period.

    c)The proposed Respondent to such application had died one week after the end of the standard application period;

    d)An application pursuant to Section 44(6) of the FLA had been filed one week and two days after the end of the standard application period;

    then on Mr McGregor’s argument, the client would have no right of action against their former de facto partner. That would be so, notwithstanding that had the lawyer sought and obtained leave to apply two days after the end of the standard application period, then a valid Section 90SM application could have been made, and later continued against the Respondent’s legal personal representative/s, if the Respondent had died one day later, all in circumstances where no real prejudice would be suffered by the deceased or their estate if leave was in fact able to be granted in such circumstances.

16. In circumstances such as the present, where again no real prejudice has been demonstrated, I consider that it is appropriate that, pursuant to Rule1.09 of the Family Law Rules 2004, it is ordered that the Applicant be granted leave, nunc pro tunc, to make application for Section 90SM property adjustment orders consequent upon the filing of her Initiating Application on 10 May 2017.

17. I further order that the Applicant be granted leave, nunc pro tunc, to continue her Section 90SM application against the Respondents in their respective capacities as legal personal representatives of the deceased Mr A Simonds. That order is complimentary to the Oder of His Honour Judge Coates made on 30 October 2017 for the joinder of the personal representatives as a Respondent to the proceeding.

18. In doing so, pursuant to S44(6)(a) of the FLA, I have had regard to considerations of hardship which would be caused to the Applicant if leave was not granted. The de facto relationship lasted at least some 13 years. The Applicant asserts that she provided domestic assistance to Mr A Simonds prior to his death, but after the end of the de facto relationship. In my opinion, she needs to be given an opportunity to not only assert an entitlement based upon her actual financial contributions during the course of the relationship, but also in respect of non-financial contributions alleged by her to have been provided both during and after the end of the de facto relationship.

19. I accordingly direct that the Applicant and the Respondents file and serve, on or before 4.00pm on 22 June 2018, further submissions on the questions of quantum, property pool, proposed property adjustment orders, costs, and any other consequential orders respectively sought by them. 

20. I further grant leave to each party to apply on the giving of three days’ notice, each to the other.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 11 June 2018

CORRECTIONS

Judgment Delivery Date changed from 11 June 2018 to 8 June 2018