27 Sep Do Family Court Proceedings Continue after the Death of a Party?

The Family Court of Australia has recently had to consider a case with a more unusual set of circumstances.

In the case of Neubert (Deceased) & Neubert and Anor (No.2)[2017] FamCA 829 the Wife had initiated proceedings for property settlement, however, Neubert was murdered by her husband, prior to the matter being finalised. The proceedings were continued by the Wife’s estate.

The Wife’s friend, who was also severely injured in the incident, was an intervenor in the proceedings. The friend had obtained a civil judgment against the Husband for in excess of $2.5M.

The Application before the Court was 35% to the late Wife and 65% to the Husband, with the Husband’s entitlement to be paid to the intervener whom he was liable for damages.

The Court was required to carefully consider the Application of s79(8). This section sets out the considerations the Court may look at when determining a property settlement where one party has died prior to its completion. It also establishes the appropriateness of making such an order.

It is important to note that these matters are discretionary and can be applied as the Court deems fit.

The considerations are as follows:

• The party representing the deceased party to the marriage must demonstrate that, at the time of the death of the party so represented, the court would have made an order in favour of that party. In so doing, the party is not limited to the state of evidence at the date of death;
• In reaching an opinion about that first prerequisite imposed by s 79(8)(b)(i) of the Act, the Court is not required to determine precisely what orders would have been made in that deceased party’s favour, just that an order would have been made in that party’s favour;
• To reach that opinion, the Court must embark upon the exercise in s 79(4) of the Act;
• Having determined that it would have made an order in the deceased party’s favour had he or she survived, the Court must then consider whether it is still appropriate to make an order;
• In that regard, the Court’s discretion should not be exercised lightly, and should only be exercised in limited circumstances, so as to satisfy moral obligations that remain unsatisfied;
• The deceased party to the marriage has a prima facie moral entitlement to his or her contributions based entitlements to matrimonial property;
• The size of the pool and the needs of the surviving spouse, including s 75(2) factors must be taken into account in formulating any orders.

Taking into account the above, the Court was satisfied that the representative had demonstrated that an Order would have been made in favour of the Wife and accordingly the Court permitted the continuation of the proceedings.

Having regard for s75(2) factors, the Court did not consider s75(2) factors for the Wife, in circumstances where she was now deceased.

The Court was also of the view that the Husband could not have the benefit of s75(2) as it would be “offensive to justice”. It was widely agreed that it would not be just or equitable for the Husband to be rewarded for his act in killing his Wife.

In any event, the Court noted that an adjustment would not have been made in the Husband’s favour in circumstances where the husband’s earning capacity is irrelevant, he was sentenced to a 28 year term of imprisonment and will be aged over 90 before he can be considered for parole. The Court made final Orders on the terms of the Wife’s Application.

This case demonstrates the application of sections of the Family Law Act that are not commonly used.

It also provides good discussion as to the appropriateness of making such an Order in the absence of one of the parties to the proceedings (as a result of death) together with the rights of creditors.

Call our office to book an appointment with Rachel Rowlands, Family Lawyer to get advice about your entitlements.