Simonds (deceased) & Coyle  FamCAFC 47 (26 March 2019)
- The principal issue in this case is whether the trial judge had jurisdiction to entertain the Amended Initiating Application that had been filed on 25 May 2018, amending the Initiating Application filed on 10 May 2017.
- In the Amended Initiating Application the de facto wife sought leave pursuant to s 44(6) of the Act to institute proceedings for property settlement, and an order for property settlement.
- As can be seen, that application was filed after the death of the de facto husband in late July 2017, and at that date there was no valid or competent proceedings for property settlement before the Court. As referred to above, there had been an Initiating Application filed by the de facto wife on 10 May 2017 seeking an order for property settlement, but that application was void and of no effect because leave to file that application had not been given by the Court pursuant to s 44(6) of the Act.
- Pursuant to s 39B(1) of the Act, jurisdiction is conferred on the Federal Circuit Court of Australia “with respect to matters arising under [the] Act in respect of which de facto financial causes are instituted under [the] Act”.
- Here, no de facto financial cause had been instituted prior to the death of the de facto husband, and none could be instituted after that death, even though there are legal personal representatives of the deceased de facto husband, namely the appellants.
- As was said in 1981 by the Full Court in Sims and Sims (1981) FLC 91-072 (“Sims and Sims”) at 76,534:
The jurisdiction of this Court is based entirely on statute. Save as expressly provided, this statute does not confer any general power on this Court to entertain proceedings against or by the legal personal representative of a deceased party…
- There is no express provision providing for proceedings such as these to be instituted after the death of the de facto husband, and any right to seek a property settlement abated upon the occurrence of that event (Sims and Sims, Phillips and Phillips  FamCA 19; (1985) FLC 91-634, Parker v Arcus and Castiglione(1984) FLC 91581).
- There is of course s 90SM(8) which allows for property settlement proceedings that are not completed at the date of death to be continued in certain circumstances by or against the legal personal representative of the deceased party, but that subsection does not apply here because there were no property settlement proceedings before the Court as at the date of the death of the de facto husband. To repeat, the necessary leave had not been given to institute such proceedings.
- I say again, his Honour did not have jurisdiction under s 39B(1) of the Act to entertain the Amended Initiating Application filed by the de facto wife on 25 May 2018, because there was no financial de facto cause instituted. The relevant definition of de facto financial cause in s 4 of the Act is as follows:
…(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them;
- Plainly, there were no such proceedings here.
- His Honour, in his brief reasons for judgment, failed to deal at all with the question of whether he had jurisdiction. Without addressing that issue his Honour simply proceeded on the basis that despite the death of the de facto husband, he could grant leave to the de facto wife to institute proceedings for property settlement nunc pro tunc pursuant to r 1.09 of the Rules, and grant leave nunc pro tunc for her to continue those proceedings against the legal personal representatives of the deceased de facto husband.
- First, it is a mystery as to why his Honour applied a family law rule in a Federal Circuit Court of Australia matter, but more relevantly, it is not at all apparent how his Honour used that rule and certainly in this respect there is a lack of adequate reasons. Rule 1.09 provides:
If the court is satisfied that:
(a) a legislative provision does not provide a practice or procedure; or
(b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
- Here, there is no mention by his Honour of any legislative provision which does not provide a practice or procedure, and there is no difficulty or doubt in relation to a matter of practice or procedure.
- His Honour has also sought to grant leave “nunc pro tunc”. That is a rule of practice and procedure to regularise the records of the court, and it cannot create jurisdiction where there is none. In other words, if there was no jurisdiction to entertain the application filed on 25 May 2018, the court still did not have jurisdiction at the time his Honour made the orders.
- That disposes of the appeal. There is no doubt that his Honour erred in law in making the orders that he did. He had no jurisdiction to entertain the application, and referring to r 1.09 and purporting to grant leave to institute proceedings, and to continue them after the death of the de facto husband, by making orders nunc pro tunc, was ineffective.
- Thus, there being merit in the appeal, leave to appeal should be granted and the appeal allowed. As a consequence the orders made by his Honour must be set aside, and the applications filed by the de facto wife on 10 May 2017 and 25 May 2018 should be dismissed.
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