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FERANTI [2010] – What happens when a party to a case dies?

The case

This was a case that had been in the Family Court of Australia for a considerable length of time, during which several interim orders had been made. When it was brought before the Court to prepare for trial, it came to light that the mother (one of the parties to the case) had died 3 months earlier. Despite this fact, the father (a self-represented litigant) continues to pursue his application for parenting orders. The mother’s previous solicitor appeared in Court, as did the Independent Children’s Lawyer and the father.

The issue

The main issue to be decided was: –

  1. Whether the father could continue to legally pursue his application for parenting orders, or whether the case ended by the mother’s death?


The Court swiftly dismissed the father’s application for parenting orders.

Referencing common law principles, the Court held that a case abates when one of the parties dies. In particular, the Court referred to the High Court ruling of Vitzdamm-Brown [1981], a case where a 3rd party “intervener” wished to be joined to proceedings involving a custody battle between a (deceased) father and mother. The Court held that since the father had died, the case was effectively over. The intervener could not be joined to a case that did not exist.


While the death of a party during a case is a less than usual occurrence, it does happen. Its practical effect is that the material before the Court (and hence the case) ceases to exist upon the death of the party.

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