25 August 2017

It's not over yet

Family Law
Federal

Asked

Property settlement - Continuing proceedings on the death of a party

Can the deceased's estate continue a FCC property application if the applicant dies before resolution? Are costs recoverable?

Answered

Thank you for the question.

Proceedings may be continued by the legal personal representative of the deceased party. In relation to costs, the general principle that each party pay their own costs will still apply and any costs would be treated like any other debt of the deceased.

The following are extracts from our Property Settlement commentary:

Continuing proceedings on the death of a party

Section 79(8) of the Family Law Act 1975 provides that proceedings may be continued by the legal personal representative of the deceased party.

Similar provisions apply to s 79A proceedings, de facto property proceedings, proceedings to set aside de facto property settlement orders and proceedings to set aside financial agreements which are on foot when a party dies. See ss 79A(1C), 90SM(8), 90SN(5), 90K(5) and 90UM(8).

Rule 6.15 of the Family Law Rules 2004 sets out the procedure for substituting the legal personal representative in the Family Court.

The procedure in the Federal Circuit Court is covered by the general rule contained in r 11.01 of the Federal Circuit Court Rules 2001 regarding the inclusion of persons as parties to the proceedings as may be necessary for the court to finally determine the matter.

Until the legal personal representative of the deceased party is substituted as a party to the proceedings, the proceedings are effectively suspended. No further steps can be taken in the case except for the application for substitution of the legal personal representative and the making of procedural orders.

Costs in family law proceedings

There is a general principle in Family Law matters that each party pay their own costs – s 117(1) Family Law Act 1975. For this reason, costs orders for the whole of proceedings are rare. Even where a party has made an offer and the final orders are more favourable to that party than the offer, the Court’s discretion often means a costs order will not be made.

Costs orders in relation to interlocutory matters, for example failing to comply with directions for filing documents, are however routinely made.

The matters the court may consider on the question of costs are set out in s 117(2A) as below. Any application for costs or response to an application for costs should address each of these factors that are relevant to the case noting the very general matters that might fit into s 117(2A)(g) ...

Section 117(2A)(f) provides that the Court may have regard to settlement offers that have been made by the parties at any time during the proceedings. Offers made under r 10.06 Compulsory offer to settle Family Law Rules 2004 will be relevant.

Regards

Mentor