Where clients have made or are making an Enduring Power of Attorney ensure that both the client and the Attorney understand that the Attorney will be entitled to be automatically recognised as the client’s Case Guardian in any subsequent Family Court proceedings after the client no longer has capacity. • If parties are considering acquiring property, then ensure you give complete advice about the potential consequences of holding a property as joint tenants including the fact that unilateral severance is currently not available in Western Australia. • If parties already hold property as joint tenants, then consider giving advice about options to take steps to sever the joint tenancy, including the prospect of subsequent Family Court proceedings if the property continues to be held as joint tenants.

1. The Fate of Property Held as
Joint Tenants in a State
Without* Unilateral Severance
William Sloan TEP
13 November 2019
* readily accessible

2. William Sloan

3. Marriages last about 8 ½ years
(up from a couple of decades ago)
From: Australian Bureau of Statistics “3310.0 - Marriages and Divorces, Australia, 2015” <www.abs.gov.au>
7
7.2
7.4
7.6
7.8
8
8.2
8.4
8.6
8.8
9
1995 2005 2011 2012 2013 2014 2015
Duration - to separation (years)
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4. Outline
I. Family law basics
II. Recent cases
III. Reform
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5. William Sloan
From the report titled “Older Australia at a glance” published by the Australian Institute of Health and Welfare <https://www.aihw.gov.au/>

6. I. Family law basics
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7. Alteration of property:
1. Assets & liabilities
2. Contributions
3. Adjustment
4. Just & equitable
• Proceedings can be commenced
before death by Case Guardian
• Proceedings can be continued
following death by Legal
Personal Representative
• If proceedings not commenced
before death, then cause of
action dies with the deceased
• Order made before death may
be enforced by/against Estate
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8. Case Guardian: Appointment
• “Automatic”:
• Power of Attorney (granted by the party); or
• Plenary Administrator (appointed by SAT).
• Discretionary:
• “a person with a disability”
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9. Language used in (Cth) Rules doesn’t match/fit with (State) Act:
“manager of the affairs”
=
“trustee or guardian under a State law”
“guardian” ≠ “manager of the affairs”
“administrator” = “manager of the affairs”
“attorney” = “manager of the affairs”
(the one that is mentioned isn’t, the 2 that aren’t mentioned are)
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10. Tip:
• If advising on an EPA, ensure client understands that Attorney will
have the right (but not the obligation) to be recognised as Case
Guardian in the Family Court.
• This may influence the selection of the appropriate person to be appointed as
Attorney.
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11. There’s more in the paper than we’ve got time for in this session:
• who can seek the appointment of a CG?
• who can be the CG?
• supervision of CG’s: FCWA or SAT?
• how is a CG removed?
• etc
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12. II. Recent cases
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13. Fabrizi & Grasso (2019)
Facts:
• De facto relationship.
• “Husband” near to death.
• “Wife” concerned that she would not receive appropriate financial
provision upon his death.
• “Wife” filed Family Court application seeking property & maintenance.
• “Husband” died.
• “Husband’s” son in his capacity as Legal Personal Representative
substituted for “Husband”.
• LPR (in capacity as substitute) sought that “Wife’s” Application be
dismissed (on the basis that relationship had not ended).
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14. Issue:
• Whether a de facto relationship has to have ended before a party can
commence FCWA proceedings?
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15. 205ZB. Applications, and notifications to spouses
(1) A de facto partner whose de facto relationship has ended may
apply for an order under this Division in relation to the relationship
only if the application is made within 2 years (the application period)
after the relationship ended.
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16. 205ZJ. Duty of court to end financial relations of de facto partners
In considering what order to make in a proceeding under this Division,
other than under section 205ZA, a court must, as far as practicable,
make such orders as will finally determine the financial relationships
between de facto partners who are no longer in a de facto relationship
and avoid further proceedings between them.
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17. [68] …the State Act confers jurisdiction on the FCWA by reference to de
facto relationships and not a de facto financial cause.
[79] …a construction which places de facto couples in WA in the same
position as married couples in WA is to be preferred over a
construction that does not.
[81] There is no reference to a de facto relationship having ended or
broken down in s 205Z … which sets out the circumstances where the
Court may make an order [2 years duration, child of the relationship or
substantial contributions & injustice].
[82] …there is no requirement in the … Act for a de facto relationship
to have ended before a party can commence proceedings.
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18. The reported decision was dealing with an Application to dismiss the
proceedings on an interim basis.
Since the proceedings were allowed to remain on foot, the reported
decision leaves the substantive question to be determined at a later
stage (ie how much, if any, the “wife” should get by way of property
and/or maintenance).
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19. This particular case involved a death, but…
• What if, instead: both parties were still alive but “separated” only by
circumstances (eg one or both being in care) & the child of one of
them seeking certainty of ongoing funding for care?
• What if, instead: funding for care already secure, real motivation
being to “create” assets to be available for the child’s inheritance?
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20. Comments:
• Places de facto parties in WA in the same position as married parties:
no requirement for separation for either, albeit via different
pathways:
• For married parties: because of the definition of “matrimonial cause”:
Stanford [2012].
• For de facto parties: because there is no reference to a de facto relationship
having ended in Section 205Z.
• Potential for use of Family Court Act proceedings as an alternative to
pursuing a family provision claim?
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21. Layton (2019)
Nunc pro tunc
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?

22. William Sloan

23. Facts:
• Each party had children from previous relationships.
• Parties married.
• Parties purchased property as joint tenants. [Presumably W had no other
significant assets besides her JT interest.]
• Wife moved to full time residential care.
• Wife made a Will & executed EPA in favour of her son.
• Wife’s CG (son) commenced proceedings, seeking:
“The property … currently registered in the joint names of the parties as joint tenants,
be registered in the joint names of the parties as tenants in common (rather than joint
tenants), to facilitate each party being able to deal with their share severally from the
other.”
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24. • Wife died.
• Wife’s CG (son) sought:
• To be appointed as CG with respect to the period before the wife’s death; and
• To be appointed as wife’s LPR with respect to the period after the wife’s
death.
• Husband sought that proceedings be dismissed (leaving joint tenancy
to operate).
• By the time of the FCWA Hearing, no grant of Probate had been
sought. [Basis for presumption]
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25. • Wife died.
• Wife’s CG (son) sought:
• To be appointed as CG with respect to the period before the wife’s death; and
• To be appointed as wife’s LPR with respect to the period after the wife’s
death.
• Husband sought that proceedings be dismissed (leaving joint tenancy
to operate).
• By the time of the FCWA Hearing, no grant of Probate had been
sought. [Basis for presumption]
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Nunc pro tunc

26. Issues:
• Can CG be appointed “now for then”?
• Is the son (named as executor) an appropriate person to be appointed
as LPR?
• Can the proceedings be continued following the wife’s death?
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27. 6.08 Conducting a case by case guardian
(1) A … person with a disability [?] may start … a case only by a
case guardian.
[45] An application for appointment of a case guardian can be made at
the same time and within the same document as the commencement
of substantive proceedings.
[57] …the order for the appointment of the wife’s case guardian can be
made nunc pro tunc [retrospectively]. (emphasis added)
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28. 79 Alteration of property interests
(8) Where, before property settlement proceedings are completed, a party
to the marriage dies:
(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;
[68] …the Court may proceed to treat an executor as the … legal personal
representative, notwithstanding that a Grant of Probate has not been
obtained.
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29. [99] …declaratory relief does not subsist beyond the death of a party to
the marriage.
[102] The question is whether the orders sought are for an alteration of
property interests, or a declaration?
[106] …the Application validly invoked jurisdiction seeking orders with
respect to property and the orders sought fall within the description of
a matrimonial cause.
[107] …the Applicant’s claim seeking orders by way of alteration of
property interests remains before the Court.
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30. But…
[107] That should not be read as in any way predetermining the issues.
The Court will ultimately need to determine whether, had the wife not
died, it would have been just and equitable to make an order with
respect to property and whether, in light of the wife’s death, it is still
just and equitable to make an order.
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31. How long? [L]
Separation (care) April 2017
Application April 2018
Death April 2018
Hearing March 2019
Decision (preliminary) June 2019
Decision (final): allow 2+ years 2021
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3+ years

32. III. Reform
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33. Why?
“The objects of [ STEP(WA) ] are to … make representations to
Government to improve the law…” [3 (a) (vi)]
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34. Unilateral severance
1994 Law Reform Commission of WA: survey of position in the other
States
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35. William Sloan 1980

36. William Sloan 1980
1994

37. William Sloan 1980
1994
1998

38. William Sloan 1980
1994
1998
?

39. 1994 Law Reform Commission of WA: recommendations: fix it:
• WA should introduce a scheme to allow for unilateral severance
2002 Law Reform Commission of WA review: still broken:
• no legislative action taken to implement the 1994 recommendations
• the 1994 recommendations remain current and worthwhile
implementing
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40. Queensland model
59 Severing joint tenancy
(1) A registered owner of a lot subject to a
joint tenancy may unilaterally sever the
joint tenancy by registration of a
transfer executed by the registered
owner.
WA modifications
• Registrar discretion to dispense with
production of duplicate certificate of title
• written notice to the other joint tenant(s)
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41. William Sloan
Parties purchased
property as joint
tenants … W had no
other significant assets
besides her JT interest
Would any application to FCWA have been needed
in Layton if unilateral severance was available?

42. William Sloan

43. William Sloan

44. William Sloan TEP
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