Anaya and Anaya

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANAYA & ANAYA

[2019] FCCA 1048

Catchwords:
FAMILY LAW – Property – 45 year marriage – elderly parties – significant inheritance – waste through high risk investments – death of the husband during proceedings

Legislation:

Family Law Act 1975, ss.75(2), 79(1), 79(2), 79(4), 79(8)

Cases cited:

Kowaliw and Kowaliw (1981) FLC 91-092

Applicant:

MR ANAYA as the legal personal representative of the Estate of MR B ANAYA

Respondent:

MS ANAYA

File Number:

CAC 1737 of 2015

Judgment of:

Judge Hughes

Hearing dates:

27 and 28 March 2017, 23 June 2017 and
6 April 2018

Date of Last Submission:

5 July 2018

Delivered at:

Canberra

Delivered on:

18 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms Curran

Solicitors for the Applicant:

Robinson McGuinness

Counsel for the Respondent:

Mr Howard

Solicitors for the Respondent:

Watts McCray

ORDERS

Within 28 days of the date of these orders the parties shall take all necessary steps to:
(a)transfer to the respondent wife at her expense the property at Property C in the State of Queensland, being the whole of the land contained in the Folio Identifier …;
(b)pay from the funds held on trust for the parties:
(i)the sum of $191,750 to the wife; and
(ii)the balance to the applicant.
(c)transfer to the wife at her expense the applicant’s interest in the Motor Vehicle D registration number ….
Within 7 days of the receipt by the respondent of the cash payable to her in accordance with order (1)(b) above, the wife shall pay the outstanding account to Removalists in the sum of $1,323.40 and provide evidence of the payment to the applicant’s solicitors within a further 7 days.
Within 28 days the wife shall provide to the applicant’s solicitors the two paintings by … and the painting by ….
Within 28 days, or such further time as agreed in writing, the wife shall deliver to the solicitors for the applicant all family photographs and slides in her possession for copying.
The applicant shall return the original photographs and slides to the solicitors for the wife within a further 28 days or such further time as agreed in writing.
Except as provided in these orders each party is declared to be the sole owner to the exclusion of the other of all items of property in their name or possession at the date of these orders.
All extant applications are hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Anaya & Anaya is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1737 of 2015

MR ANAYA as the legal personal representative of the Estate of MR B ANAYA

Applicant

And

MS ANAYA

Respondent

REASONS FOR JUDGMENT

Introduction

These are property proceedings after a marriage of almost 46 years. During the proceedings the husband, who had for some time been represented by a litigation guardian, died. The proceedings were continued by the legal personal representative of his Estate.
The main issues for determination were whether or not any adjustment in the property interests of the parties ought to be made at all and, if so, the weight to be accorded to the wife’s substantial inheritance 24 years prior to separation, the weight of the husband’s contribution to the support of the wife’s three children and the impact of the financial loss made by the wife on high risk investments post-separation.

Background

The wife was born on … 1933 and is now aged 86. The husband was born on … 1929. At the time of his death on … 2017 he was aged 85.
The parties married on … 1969 and separated on 24 April 2015. They had no children together. They did not divorce.
At the time of the marriage the husband was aged 40 and the wife 36. They had each been married before and each had three children. The husband’s three children lived with their mother but spent time with the parties on weekends and during school holiday periods. The wife’s eldest child was aged 12 the time of the marriage and her twin boys were nine. Those children lived with the parties throughout the marriage until they were aged 18, 22 and 25 respectively.
At the time of the marriage both parties were in paid employment. The husband was a professional. The wife worked in a company, Business, owned by her family, from which she received dividends in addition to her salary. The parties operated a joint account throughout their relationship into which they deposited their incomes and from which their general living expenses were paid. The husband paid child support to his former wife for his three children.
Both parties remained in paid employment until 2009 when they retired, the husband aged 80 and the wife 75.
The parties bought and sold various properties together over the course of their relationship. To purchase their first property in Suburb E, each party sold a property they owned prior to marriage and contributed the proceeds of sale to their joint account. The wife asserted the sale of the husband’s property generated almost no net proceeds but there is no independent evidence of the value of either contribution. This will have no impact on my determination of the property issues in light of the substantial contributions by both parties over the ensuing 45 years.
Both of the wife’s parents died in 1990. The wife received an inheritance from the estate of each which, together, comprised cash in the sum of $916,167 plus shares and debentures. In his written submissions, Counsel for the wife submitted his client had made a mathematical error and that the documentary evidence annexed to her trial affidavit indicates she understated the cash she received from her mother’s Estate by a little over $15,000. I have checked that evidence and do not agree. Nevertheless, the value of the shares and debentures received in addition to the cash means the total inheritance received by the wife in separate distributions in 1990 and 1991 was approximately one million dollars. The wife said she was unable to recall to what use the inherited funds were put, apart from the purchase of a motor vehicle in the husband’s name and a block of land in Town F on which the parties established a farm. The husband agreed the farm was bought and developed with funds from the inheritance. Both parties agreed the funds were used to provide a loan to one of the husband’s adult children which was repaid with interest. The farm was subsequently subdivided and sold. Apart from those specific expenditures, the wife said the inherited funds were used to pay for the general living expenses of the family. Counsel for the Estate submitted there was no evidence of that but there is also no evidence to the contrary and, on the evidence as a whole, I accept that is what occurred.
In 2005 the parties bought a property at Property C in Queensland for $1,100,000. They lived in that property until 2014. In these proceedings each party referred to that property as the former matrimonial home.
In 2011 the parties signed Wills which I will return to in detail in due course. In a general sense, however, each Will provided for the surviving spouse to have use of the joint assets during their lifetime and, effectively, for the combined estate to ultimately be divided equally amongst their six children.
The husband had begun to suffer ill-health from 1993 resulting in periods of hospitalisation. From about 2008 the wife became the husband’s full-time carer and received a carer’s allowance from Centrelink. The wife said the parties’ relationship began to deteriorate at that time which she attributed to mental health issues for the husband arising from cerebral episodes suffered by him and his frustration with his deteriorating physical health. At some point the husband moved from the former matrimonial home into a separate studio at the front of the block. The wife continued to carry out caring duties for him including providing meals and medication to him and attending to him as needed.
In mid-2014, while the wife was assisting the husband to walk down stairs, they both fell and the wife suffered a back injury for which she subsequently required an operation.
On 25 July 2014 the husband was admitted to Town G Hospital for emergency surgery for a bowel obstruction. It was intended that he would return to the former matrimonial home. However, as a result of his illness and surgery, the husband lost the use of his legs and, on 8 August 2014, was moved to … Rehabilitation Centre, near Town H. The husband did not recover sufficiently to return home and on 24 September 2014 moved in to a nursing home, in the Town H area. He remained wheelchair bound for the rest of his life.
The wife’s evidence was that she continued to care for the husband on a daily basis after he moved into the Rehabilitation Centre. She said she visited daily, did his washing, cleaned the windows in his room, took him treats and took him on outings to meet with friends or to visit the former matrimonial home. She bought two wheelchairs and an air conditioner for his room.
In late September and October 2014 the parties had a number of discussions about their financial circumstances. They engaged Financial Planner to prepare a financial plan for their future. A draft statement of advice dated 15 October 2014 was sent to the wife, her son, Mr J, and the husband’s son, Mr Anaya, on 24 October 2014. The wife gave a copy of the statement of advice in large print to the husband to make it easier for him to read. Both parties, the wife’s son, Mr J, and the husband’s son, Mr Anaya, attended a meeting with a financial planner from Financial Planner on 30 October 2014. After the discussion in which each attendee raised questions about the advice, the parties signed the statement of advice and authorised Financial Planner to act in accordance with it.
A copy of the statement of advice from Financial Planner is annexed to the wife’s affidavit filed on 16 March 2017. The advice was to sell the former matrimonial home and most of their shares, to pay a Refundable Accommodation Deposit (RAD) of approximately $280,000 for the husband’s accommodation in the nursing home, to purchase a unit for the wife to live in at a value of approximately $450,000, to purchase two funeral bonds of $12,000 each to cover the funeral expenses of each party, to commence an annuity in the husband’s name using cash of $150,000 to provide the husband a modest income each year to supplement the aged pension and which would then leave sufficient funds to generate a modest income for the wife.
The wife found a two bedroom unit at Town H, close to the husband’s nursing home for $423,500. The wife said the unit was less than ideal for a range of reasons including that it was accessible by way of steps which meant it could not be accessed by the husband. However she said that it was close enough to the nursing home that she could continue to visit the husband even if she was unable to drive in the future. She said the unit was cheaper than more attractive units but the lower cost enabled the payment of a RAD of more than $350,000 which was required for the husband to have a private room in the nursing home, which he wanted. The unit was purchased by the parties as tenants in common in equal shares.

The separation

The circumstances of separation in this case are tragic because they largely arose from a misunderstanding between the parties. The parties entered into a contract for sale of the former matrimonial home for $1,100,000 in February 2015. The sale settled in April 2015. The wife had instructed the conveyancer to place the proceeds of sale of the former matrimonial home into the parties’ joint Bank of Queensland account. When she received the settlement advice from the conveyancer, she discovered the husband had instructed the conveyancer to place half of the sale proceeds into an account in his sole name. She said she was shocked and very upset by that as neither party had had individual bank accounts for the entirety of their relationship. She also felt anxious about her own financial security and, in order to protect herself, instructed the conveyancer to deposit the other half of the sale proceeds into an account in her sole name. $524,799 was deposited into the account of each party.
On 24 April 2015 the wife visited the husband in the nursing home and asked him why he had arranged for half of the sale proceeds to be paid into an account in his sole name when they had obtained financial advice about a joint financial plan which would ensure each of their needs were met. She said the husband said he did not remember any financial advice and that he had given those instructions because half of the house was his. The wife said she told him she needed a financial settlement to ensure her own financial needs were met in those circumstances. She said the husband asked whether she was divorcing him. She said she told him she was not divorcing him but, because he had reneged on the agreement, she felt the need to separate their finances.
Although not explicitly stated, the husband may have formed the wrong impression about the state of the marriage from the wife’s choice of unit. Although the husband did not give oral evidence in the proceedings, the wife was asked in cross-examination why she purchased a unit which the husband would not be able to attend. The wife said the husband was aware the unit was accessed via stairs because they had both previously been to the unit of an acquaintance in the same block. She said they specifically discussed the issue before the husband co-signed the contract to purchase it.
The husband’s evidence about the separation was that the wife came to see him on 24 April 2015 and requested a divorce. He said he was stunned and did not say anything in response. He said he recalled feeling depressed at that time.
The wife stopped her daily visits to the husband. She said in evidence she was too upset with him to visit for a few weeks. She conceded in cross-examination that she did not visit him again. She said this was because about three weeks later, on 15 May 2015, she was told the husband was leaving Town H and moving to a nursing home in Town K on the Region L of New South Wales, close to his children. The wife said she was distressed at this news as, until then, she did not regard the marriage as over. She said she was also upset because she had only chosen that particular unit because it was close to the husband’s nursing home and, had she known he intended to move to Town K, she would have purchased a property closer to her own children. She said she had to complete the purchase to avoid forfeiting the deposit.
The settlement of the purchase of the Property C unit occurred on 1 June 2015. From the funds received from the sale of the former matrimonial home, the husband paid half of the cost of the Property C unit and $159,500 towards the RAD for the Town K Nursing Home. The wife paid half of the cost of the Property C unit. She paid an extra $29,000 for some modification to the bathroom to ensure it was safe for her. She said the husband had agreed to pay for half of that cost but did not do so.
After the husband relocated in late May 2015, the parties received a refund of the balance of the RAD paid to the Nursing Home in the sum of $87,852. It was paid by the nursing home into the parties’ joint account. That payment on 2 June 2015 brought the balance of the joint account at that date to $129,581. The account had been frozen in light of the parties’ dispute. The wife said she was unable to withdraw funds from it without the husband’s agreement and was forced to borrow money from her adult children.
The wife returned to Financial Planner for further financial advice in light of the changed circumstances. She was referred to another financial adviser, Financial Planners, presumably because Financial Planner had previously given advice to both parties and now the wife sought advice in relation to her own position separate to that of the husband. The wife said she was advised by Financial Planners that, given the relative life expectancy of each party, a 70/30 percent division of the parties’ assets in her favour was necessary to ensure both parties had sufficient funds to meet their living expenses. The advice addressed to the wife, dated 22 May 2015 was annexed to the wife’s affidavit of 16 March 2017.[1]
[1] Annexure F

The proceedings

The husband commenced proceedings on 5 November 2015. He sought final orders which would provide for an equal division of the combined assets of the parties. He sought interim orders for the payment by the wife of half of the RAD payable to the Retirement Trust for his accommodation at Nursing Home in Town K. The total of his RAD was $319,000 of which he had paid $159,500. He also sought orders for the parties to attend a private financial mediation at the equal joint expense of the parties.
On 1 March 2016 the parties entered into interim consent orders which provided for the parties to authorise and direct the Bank of Queensland to pay the balance of the funds in the parties’ joint account to the husband’s nursing home in Town K to meet the outstanding RAD for the husband. In the event the funds in the joint account were inadequate to meet the outstanding payment required, the wife was to pay the balance. The joint account was then to be closed by the parties. In the event there was any refund of the RAD by the Town K Nursing Home, it was to be paid into a controlled monies account of one of the solicitors acting for the parties.
The wife was required to file a response, affidavit and financial statement within 14 days. She did not do so until 9 May 2016. She sought orders for the sale of the Property C unit and for the net proceeds of sale to be paid to her. She also sought a transfer to her of the husband’s interest in the share portfolio and four of the husband’s five life insurance policies. She sought the funds in the joint account of the parties be divided between them and that the husband pay to her a sum close to $318,000. She proposed the husband take by way of property settlement the RAD paid to the Town K Nursing Home, any funds in bank accounts in his name, one of his life insurance policies, his car and any personal property in his possession or control.
On 31 May 2016 the proceedings were listed for final hearing for two days commencing 27 March 2016. Trial directions were made. The parties were required to participate in a private financial mediation by the end of September 2016.
On 6 February 2016 the husband’s son, Mr Anaya was appointed as litigation guardian for the husband with his costs to be paid from the income or property of the husband. The proceedings were adjourned to 16 February 2017 for mention. Amended trial directions were made that day.
The parties attended mediation on 7 March 2017 but were unable to reach a final resolution.
The $129,000 in the parties’ joint account was applied to the amount outstanding for the husband’s RAD. There was a shortfall of $25,506.02 which, in accordance with the orders of 1 March 2016, was payable by the wife. She did not make that payment. The husband paid that sum from his own funds in December 2016. He also paid an extra approximately $20,000 in daily fees which were required until the RAD was paid in full.

The hearing

The first two days of the trial occurred on 27 and 28 March 2017. The husband did not attend the hearing. Counsel for the wife wished to cross-examine him briefly and, because of his ill health and distance from the Court, an order was made for him to be available by telephone from his nursing home on day two of the trial. On that day the Court was advised the husband was too unwell to give evidence. The wife’s Counsel did not press the point, provided no point was taken against the wife about any failure to cross-examine.[2]
[2] Transcript 28 March 2017 at page 33

There were some minor factual disputes between the parties that were unable to be resolved or clarified through cross-examination of the husband. They were as follows:
a)The husband asserted he was the primary income earner throughout the relationship. He said the wife only worked part-time and only for a few years. The wife’s evidence was that she worked for as long as the husband throughout the marriage, both full-time and part-time. This dispute is not material in circumstances in which each party submitted that, in a general sense, their contributions throughout the marriage should be regarded as having equal weight. Counsel for the husband also conceded that the wife worked full-time and part-time and, when she was not working, she undertook a greater homemaking role than the husband.[3]
b)The husband said he contributed to the school fees of the wife’s children whereas the wife said they were paid by her and her mother. This dispute is not significant given the parties agree the husband contributed to the support of the wife’s children by virtue of them living with the parties. The period in which the children were minors was about six years for the eldest child and nine years for each of the twins. It included a period of about two years during which two of the children lived overseas with the parties. The wife had a legal obligation to support her children until they reached adulthood. The husband had no such obligation. Both parties agreed the husband’s support of the wife’s children was a matter to be taken into account in the property settlement. Whether the parties jointly paid the children’s school fees or they were paid separately by the wife and her mother is not significant in these circumstances.
c)The husband said he paid the premiums for his life insurance policies throughout the marriage and post separation. The wife said they were paid from joint funds throughout the relationship and from her own funds post separation. Counsel continued to argue about this in their written submissions. Given the parties maintained joint accounts for the whole of their relationship and that the funds each of them held post separation were joint funds, I find the life insurance premiums were paid from joint funds.
[3] Transcript 28 March 2017 at page 41
The lack of cross-examination on these issues had no impact on my determination.
The husband’s son, Mr Anaya, affirmed a brief affidavit on 31 January 2017 in support of the application that he be appointed litigation guardian for his father. Mr Anaya was not required for cross-examination. The wife gave evidence and was cross-examined. Her general practitioner, Dr M, was not required for cross-examination. Her psychiatrist, Dr N, was required for cross-examination but was not available on day two of the trial. On 28 March 2017 the trial was adjourned part-heard to 23 June 2017 and it was agreed Dr N would be cross-examined on that day.
On 23 June 2017 the Court was advised the husband had died and that probate had not yet been granted. The husband’s adult children, as executors of their father’s Estate, were joined as parties to the proceedings. Ex parte orders were made restraining the executors from selling, disposing of or encumbering any property including any benefits paid or payable under the husband’s life insurance policies. The executors were ordered to provide a copy of the husband’s Will to the wife’s solicitors within seven days. The proceedings were adjourned to 17 August 2017.
On 17 August 2017 the husband’s son, Mr Anaya, was substituted as the legal personal representative of the Estate of his father. The wife was ordered to file and serve any amended response and any further affidavit material she relied upon. The applicant was ordered to file any further material in reply within a further 28 days. The part-heard trial was then listed for one day on a date to be advised.
The proceedings next came before the Court on 6 April 2018. Dr N was cross-examined that day by telephone. There was discussion about the balance sheet and about procedural matters. Directions were made for the filing of written submissions to be completed by 22 June 2018. They were completed on 5 July 2018.
On 30 April 2018 further orders were made by consent permitting the executor to call in all Estate funds pursuant to probate which had been issued by that time. The orders provided for all proceeds to be placed into an interest bearing deposit and for the proceeds of the life insurance policies to be redeemed and placed in a separate interest bearing account operated by the solicitors for the Estate. The executors were thereafter restrained from withdrawing any funds from the two interest bearing accounts pending further order.
On 2 November 2018 further consent orders were made varying the orders of 30 April 2018 in circumstances in which the lawyers for the husband’s Estate were not prepared to operate a controlled monies account. The executor was permitted to transfer the amounts to a controlled monies account of Baker Deane & Nutt Solicitors. It was noted that the sum of $328,530.68 was released by the Town K Nursing Home to the husband’s Estate on 23 May 2018. That sum comprised the husband’s RAD and accrued interest. The consent orders also noted that the anticipated payment from the husband’s life insurance policies was $234,850 but, because of fees and mortgages on two of the policies, only an amount of $195,671.99 was released by … to the Estate.
The matter was otherwise adjourned for judgment on a date to be advised.
Two sets of documents which had been marked for identification were never formally tendered in evidence. The lack of tender of those documents is immaterial to my determination.

The wife’s investment losses

The wife said that in about July or August 2015 she spoke to an acquaintance, a former stockbroker with a Bank, in a social setting. She said he spoke positively about a particular form of international binary option investment. The wife subsequently received emails from three brokers and decided to invest with one of them. She said she was contacted by Westpac in February 2016 in relation to suspicious activity on her account. The wife said she did not recall that contact but believed she would have told Westpac that the transactions were legitimate as she believed that was so at that time. The wife conceded during cross-examination that the first time she had contact from the bank about the activity on her account was January 2016.
The wife did not advise the husband she was making the investments even though she was using joint funds and there were Court proceedings on foot. When she filed her documents on 9 May 2016, she failed to declare the investments.
The wife was able to make the investments as at the time she had $320,000 in an account in her sole name from the proceeds of sale of the former matrimonial home. Those funds were rapidly drained from her account. The wife said her initial investment was through a particular broker but he quickly became uncontactable. She said she was then contacted by another broker who persuaded her the first investment was a fraud but that he would help her recover the funds. She ultimately came to understand that both were frauds.
In April and May 2016 the wife became concerned about the frequency of deductions from her accounts but, because she also received occasional credits from the investments, she hoped they would ultimately lead to some financial gain. The wife’s bank statements came into evidence as exhibit “A” accompanied by an aide memoir prepared by the husband’s legal representatives which analysed the transactions. There was some small disagreement between the parties in relation to the analysis but both agreed the net loss to the wife was in the order of $360,000.[4]
[4] Applicant’s submissions at paragraph 51
In June 2016 the wife borrowed $35,000 from an acquaintance, Mr O, in order to pay the balance of the husband’s RAD in accordance with the orders of 1 March 2016 and some legal fees. She said that, before she could pay the RAD, further funds were withdrawn from her account leaving her with insufficient funds to comply with the order. The wife said she was feeling increasingly desperate about her situation and had received a number of requests from her solicitor seeking instructions in relation to providing discovery, updating her financial statement and preparing a joint balance sheet. She said she had not told anyone at that stage, including her solicitor, about the investments. On 1 September 2016 she told her son, Mr J, about the investments and showed him her bank statements. Despite her protests that she still hoped the investments would come good, Mr J insisted on contacting Westpac and getting the bank to immediately close the wife’s accounts. The wife said she gradually came to accept that she had been the victim of a scam and had made her financial situation far worse than it had been. She said she became angry and depressed. She was referred by her general practitioner to a psychiatrist who prescribed medication to manage her depression.
The wife made a number of attempts to recover her funds and notified Westpac of a “fraud event”. She achieved some modest repayment from Westpac.
The impression gained from the wife’s affidavit evidence is that there were a series of automatic and unauthorised deductions from her bank account. During cross-examination, however, the wife conceded she had provided separate signed authorities for many of the transactions. She agreed the documents she signed contained warnings about the risks of the investment which she read but failed to heed.
The wife agreed she was asked for copies of bank statements and other financial documents by way of disclosure by the husband’s solicitors which she did not immediately provide. She agreed the first the husband knew of the dissipation of the funds was her solicitors’ letter to his solicitors of 12 September 2016 advising she had been a victim of a fraud.[5]
[5] Transcript 28 March 2017 at page 81
Between February and August 2016 there were 144 transactions involving the transfer of funds from the wife’s account to the high risk investments. Most funds were transferred online by the wife, but occasionally she went into a branch to transfer the funds.
The wife had a number of opportunities to avoid the loss of the funds. They were as follows:
i)The wife had advice from Financial Planner in October 2014 about the importance, given the parties’ stage of life, of investing in safe options rather than in options with a potentially higher rate of return but which were accompanied by high risk;
ii)The bank sent a message to the wife in late January 2016 to alert her to suspicious dealings on her account. This appears to refer to activity in preparation for the transactions which followed. The wife reassured the bank she had authorised the dealings;
iii)The wife had to type in specific authorisation codes for the internet banking transactions she made. She received each code by text message to her phone and consciously typed it in, giving her an opportunity to pause and reconsider;
iv)The wife signed two documents providing written authority for certain automatic deductions from her account. The documents also contained a warning about the risk of the investment; and
v)As early as 3 March 2016 a sum of $1,449.54 was credited to the wife’s account and labelled “Fraud Refund Event”. The wife agreed it rang alarm bells for her but she did not stop her investments because she was convinced her second broker was honest and she was still desperate to turn around her dire financial situation.
It seems likely the wife would have continued to invest but for the intervention of her son who acted contrary to her instructions and shut down the account.
The wife agreed that, had she simply left the proceeds of sale of the former matrimonial home in her account, she would have earned interest on them rather than incur the significant financial loss.
The wife agreed in cross-examination that the first transfers of funds by her to the investments occurred on 23 February 2016.[6] She did not advise the husband of the investments despite there being family law property proceedings on foot. When asked about that, the wife said her understanding was that, because the husband owned half of the Property C unit and had his RAD paid almost in full, any funds left were hers to do with as she pleased.
[6] Transcript 28 March 2017 at page 80
When the wife filed her response, affidavit and financial statement on 9 May 2016 she made no reference to the investments and the losses she had made to that date. When asked why she failed to disclose the loss, the wife said she thought she had to only disclose what she had in her bank account at the time. However she made no reference to the investments which were in existence at that time, nor to the disposal of funds since separation, both of which were required. During further cross-examination the wife reiterated that she considered the money in her account was hers because the husband had his RAD paid from joint funds and he owned half of the unit in which the wife lived.[7] However she, too, owned half of the unit and had a half interest in the RAD. The money the wife was using for the investment comprised joint funds which would otherwise have been available to form part of the property distribution between the parties.
[7] Transcript at page 80
The wife relied on a report by Dr N, consultant psychiatrist, in relation to her state of mental health at the time she made the investments. The report, dated 2 December 2016 was annexed to an affidavit of Dr N filed on 22 March 2017. Counsel for the husband objected to the report on the basis that it was more than three months old but filed only five days before the hearing began which gave the husband’s legal representatives no opportunity to obtain a second opinion. Until the affidavit was filed they were unaware the wife intended to rely on evidence of impaired decision making at the time of the investments. The wife’s solicitors had written to Dr N on 9 March 2017 requesting a report. They received instead a copy of a reporting letter sent by Dr N to the wife’s general practitioner following his referral of the wife to the psychiatrist in late 2016. The report was admitted into evidence and the husband’s legal representatives were given the opportunity to have the proceedings adjourned in order to have the wife independently assessed. They chose not to take that course.
Dr N was cross-examined on 6 April 2018 by telephone. He did not have his file with him and was unable to consult any notes he took.
Dr N said he had seen the wife only once, on 24 November 2016, for an hour. In his report he said the wife reported feeling depressed over the previous six months and possibly as far back as the previous 18 months because of the stress of the breakdown of the marriage and the complications that followed. Dr N said the wife reported some past depressive symptoms and a nervous breakdown at the age of 32 which were possibly precipitated by the breakdown of her first marriage. He hypothesised that the wife may have suffered some depression at that time. He concluded as follows:
She does not appear to be lacking capacity at the moment but most likely in the past her depressive disorder, anxiety disorder and stress have contributed to making impaired decisions.
Her impaired decisions would most likely be related to anxiety and depression rather than a cognitive impairment.[8]
[8] Report of Dr N, 2 December 2016 at page 3
During cross-examination Dr N confirmed he assessed the wife to determine her mental state at the time he saw her, November 2016. He confirmed that at the time she was not showing signs of any cognitive impairment. He said that when she discussed her history she described a marital separation instigated by the husband which caused her to be emotionally upset. He said he formed the impression she most likely developed a depressive disorder or adjustment disorder with depressive features at the time which impacted her health and for which she was prescribed antidepressants.[9] He said her decision making at the time was likely to have been affected by her depression rather than by cognitive impairment.[10]
[9] Transcript 6 April 2018 at page 26
[10] Transcript 6 April 2018 at page 29
Counsel for the wife submitted Dr N’s opinion should be taken into account when assessing the implications of the wife’s actions in investing in high risk options.
I place little weight on Dr N’s evidence as he made it clear he conducted a mental health assessment of the wife as at the time he saw her in November 2016 and not retrospectively for the period when she made the investments between February and August 2016. His comments about the earlier period were speculative and qualified. Because the wife responded well to antidepressant medication, Dr N opined that she had earlier suffered from a disorder with depressive features. However, the wife’s evidence suggests she saw her GP and was prescribed antidepressants after she became aware she had been defrauded. If so her decision making could not have been effected by the disorder at the time of the investments. It may be that she was also suffering a depressive disorder following the separation and prior to the investments which had some impact on her decision making. However, the state of the evidence does not allow me to make such a finding. If impaired decision making was to be seriously argued I would expect to see a careful forensic report where the expert had been given the all relevant information and had had an opportunity to test the wife’s narrative. That did not occur in this case.
Counsel for the husband submitted that the wife lacked credibility about the losses she made on her investments and was less than frank about what occurred at that time. For instance, the wife said in her affidavit evidence that she borrowed $35,000 from Mr O to pay the RAD balance but it was immediately lost before she could make that payment. Copies of statements for the wife’s bank account came into evidence and showed that $20,000 was deposited into the wife’s account by Mr O on 14 July 2016 and $15,000 on 18 July 2016. The wife made some purchases and paid bills between 14 July 2016 and 26 July 2016 when the funds in her account fell below $25,000. She had, therefore, approximately two weeks in which to pay the amount owing on the RAD. When asked in cross-examination why she did not make the payment during that period she said “Perhaps I was away”.[11] This was not compelling given the wife’s payment of other bills and a transfer of $5,000 from the account into which the money was paid to another account in her name on 25 July 2016. Significantly, the wife conceded in cross-examination that at the time the orders were made on 1 March 2016 she had more than $250,000 in her account and could have comfortably paid the balance owing on the RAD.[12]
[11] Transcript 28 March 2018 at page 19
[12] Transcript 28 March 2017 at page 71
As a result of the transfers, the wife’s account was overdrawn by $10,581 and she failed to pay the body corporate fees and rates in relation to the Property C unit. The body corporate took legal action against the parties. The resulting costs against the parties of $25,889.31 were paid by drawing on funds from the joint shares.
I am satisfied the investment losses should be taken into account in the property settlement between the parties and I will return to that issue shortly.

The legal principles

Section 79(1) of the Family Law Act1975 empowers the Court to make orders altering the property interests of the parties to a marriage but the Court must not make such an order unless it is satisfied that, in the circumstances of the case, it is just and equitable to do so.[13] Where a party to the marriage dies prior to the proceedings being completed, section 79(8) of the Act requires the Court to be satisfied that it would have made an order altering the property interests of the parties if the deceased party had not died and that an adjustment in those interests is still appropriate.
[13] Section 79(2) of the Family Law Act 1975

In this case I am satisfied the requirements of section 79(8) are met. Most of the parties’ property was jointly owned and their separation meant they no longer enjoyed the common use of it. Each party sought an adjustment of the property interests and, had the husband not died, that is what would have happened. Following the death of the husband, I am satisfied that an adjustment to the property interests is still appropriate, not least because the wife and the legal personal representative of the husband’s estate both sought specific orders for that to occur.
In determining what orders, if any, should be made, the Court must have regard to the following:
a)First, the contributions of the parties to the acquisition, conservation or improvement of the property and to the welfare of the family as provided in subsections 79(4)(a),(b) and (c) of the Act; and
b)Second, the matters set out in the remaining subsections of 79(4) which incorporate section 75(2) of the Act. Those matters broadly require a consideration of the financial position and resources of the parties; their age and state of health; their necessary commitments in supporting themselves or any other person; the duration of the marriage and the extent to which it has affected the earning capacity of either party; the effect of any proposed order on the earning capacity of either party and any other fact or circumstance which the justice of the case requires to be taken into account.

The property interests

At the trial the value of the property available for distribution between the parties was largely agreed. The value of the Property C unit was agreed to be $530,000. The refund of the RAD from the Town K nursing home was held on trust and had a value at the end of the trial of $328,631. The cash from the share portfolio had a value of almost $62,000. The small sums in various accounts was agreed as was the value of the motor vehicle, jewellery, furniture and chattels. The contentious issues were whether or not the sums lost through the wife’s investments and the proceeds of the life insurance policies of the husband should be notionally added back to the pool of property available for distribution.

The wife’s investment losses

Counsel for the Estate argued that the investment funds lost by the wife should be added back to the property pool and treated as an advance on her property settlement. Counsel for the wife argued that the losses were a matter which the justice of the case required to be taken into account generally pursuant to section 75(2)(o) of the Act but not be added back to the property pool as that was likely to result in hardship to the wife.
In Kowaliw and Kowaliw[14] Baker J set out the principles for dealing with the issue of financial loss during a relationship. Those principles have been repeatedly endorsed by the Full Court of the Family Court and remain guiding principles for trial courts. In that case his Honour said as follows:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provision of sec. 79.[15]
[14] (1981) FLC 91-092
[15] At page 76,644
I am satisfied on the evidence of the wife and that of Dr N that the wife was likely depressed at the time she made a decision to enter into the high risk investments. She was also angry at the husband for the separation and the position it put her in. She commented in her oral evidence that, throughout the marriage, the husband had thwarted her attempts to invest in various ways and that she regarded this as her opportunity to make her own investment decisions. This implies a level of consciousness about what she was doing.
Despite her evident emotional and likely psychological distress, I am satisfied the wife’s conduct was reckless and comes within the second category of behaviour contemplated by Baker J in Kowaliw. Most of the transfers of funds for the investments were undertaken at a time when there were legal proceedings on foot and when the wife was legally represented. Parties have a particular duty not to do anything to dissipate or diminish the value of joint assets within their control. It is clear from the wife’s evidence that she had been advised by her solicitors about the duty of disclosure and that her solicitors were pressing her at that time for an appointment to complete her documents, which she resisted. This, too, indicates an awareness that what she was doing would not have been approved of by her solicitors.
Although it is appropriate to either notionally add back the sum wasted or take it into account generally under section 75(2)(o), in my view the preferable course is to add it back. This is because the sum is clearly identifiable and is more cleanly taken into account through an add back.

The life insurance policies

At the commencement of the proceedings the husband included in his statement of assets and liabilities the life insurance policies in his name which he owned prior to the relationship. It is common ground that, until December 2015, the husband was both the owner and the named beneficiary of the policies, so any payment as a result of his death would form part of his Estate. In December 2015, after he had commenced property proceedings, the husband transferred ownership of each of the policies to his three children who were then also named as beneficiaries. This was done without any reference to the wife. She became aware of it after the death of the husband.
Upon the death of the husband the life insurance policies vested in the beneficiaries. Prima facie the transfer of the policies was an attempt to remove those assets from the pool of assets which would be subject to my determination and would therefore be captured by section 106B of the Act. An application to set aside the transactions was foreshadowed but not ultimately pressed by the wife who argued instead that the funds paid out under the policies should be notionally added back to the property pool. Counsel for the applicant argued that the funds were no longer the property of either party and that the Court should simply have regard to the proceeds when addressing the justice and equity of the orders proposed by the parties.[16] I reject that argument. Although the policies were owned by the husband prior to the commencement of the relationship, it seems to be agreed that they were of low value at that time.[17] The premiums were paid from joint resources throughout the parties’ long relationship and post separation. The policies clearly formed part of the parties’ assets which the husband had a duty to preserve. His children are the beneficiaries of his whole estate and the Estate is now a party to the proceedings. I am satisfied that the funds paid under the policies should be notionally added back to the property pool.
[16] Submissions of behalf of the applicant filed 25 May 2018 at paragraph 50
[17] Transcript 6 April 2018 at page 8
The husband and, subsequently, his executors took out loans secured by mortgage against two of the life insurance policies in order to pay legal fees. The funds held on trust therefore do not represent the full amount paid out under the policies. For the sake of clarity I intend to add back the full $330,890 paid pursuant to the life insurance policies. The legal fees paid from joint funds by each party needs also to be brought into account. However, given the value of the life insurance payment has fallen because of the mortgage, the legal fees added back need to be reduced by a similar amount. At the time of the trial, the husband and his Estate had paid legal fees from joint funds of $106,688. $48,000 of those payments were made by way of loan secured by the mortgage. Only the balance of the legal fees of $58,688 will be notionally added back to the property pool. The wife agreed with this approach.
The wife paid legal fees from joint funds in the sum of $19,113. That, too, will be notionally added back to the property pool by agreement.

Other add backs

The Estate argued that the balance of the RAD payable by the wife in accordance with the orders of 1 March 2016, being a sum of $25,506 should be notionally added back to the property pool because, by virtue of her failure to pay that sum, she achieved, in effect, a notional property distribution of that sum. I do not agree. Both the RAD and the Property C unit were purchased using joint funds. Some of the joint funds from the sale proceeds of the former matrimonial home were held by the husband, some were held by the wife and some remained in the parties’ joint account. The fact that the extra $25,000 for the RAD was paid from the joint funds held the husband rather than the wife makes no difference as all of the assets held by the parties will be taken into account in the current proceedings.
In June 2017 the body corporate of the Property C unit took legal action against the parties in the Queensland Magistrates Court for unpaid body corporate fees and interest. In March 2018 the wife transferred from the Shares Investment Policy to the body corporate to meet those fees and levies.[18]
[18] Exhibit W3
The applicant sought the sum of $25,889 taken from the Shares Investment to pay body corporate fees and levies for the Property C unit be added back to the property pool. I do not intend to do so because the Property C property was jointly owned and I accept the wife had no other funds from which she could meet those expenses.
The husband’s Estate conceded that a loan to Mr Anaya, one of the beneficiaries, needs to be added back.
The wife set out in her financial statement various costs for which she sought a 50 percent reimbursement from the husband’s Estate. These included the cost of the renovations to the Property C unit, the cost of the body corporate fees and rates for the Property C property, registration and insurance of a golf cart, registration of the car and the cost of removing the husband’s belongings from the Property C property. These were all joint expenses paid by the wife from joint funds and there is no reason for the husband’s Estate to pay half to the wife or for them to be added back to the property pool.

Liabilities

The wife claimed a number of liabilities. The first was her debt to Mr O in the sum of $35,000. This debt was acquired post separation and will not be taken into account in assessing the net assets of the parties. One of the wife’s accounts went into overdraft as a result of her investments. Again, this was post separation and will not be taken into account. The parties jointly owed Removalists the sum of $1,323 remaining after payment for the wife’s move from the former matrimonial home to the Property C unit. It was agreed this debt should be taken into account.
The property of the parties therefore is as follows:

ASSETS:	Owner	Value
Property C Qld	Joint	$530,000
Refundable Accommodation Deposit IRT Town K	Estate	328,631
Investments Share Portfolio acct …	Joint	61,626
Bendigo Bank acct	Estate	897
Westpac acct …	Wife	79
Westpac acct …	Wife	1,350
Combined payment under life insurance policies	Estate	330,890
Motor Vehicle D	Joint	5,000
Jewellery	Wife	15,000
Furniture and chattels	Joint	10,000
Loan to Mr Anaya	Estate	20,000
Add back investment losses	Wife	360,000
Add back paid legal fees	Wife	19,113
Add back paid legal fees	E + H	58,688
TOTAL ASSETS	$1,741,274
LIABILITIES
Debt to Removalists	Estate	1,323
NET ASSETS	$1,739,951

Contributions

The parties agreed that, in a broad-brush sense, the contributions by each party throughout their long relationship should be regarded as having equal weight.
Additional contributions were made on the part of the wife in the form of the inheritances she received in 1990 and 1991. The total inheritance was close to $1million, a significant sum, especially at that time. It represents almost 60 percent of the value of the current property pool including add backs. Counsel for the wife submitted the funds enabled the purchase of various properties over the years and, ultimately, the former matrimonial home which was the parties’ major asset. There is no specific evidence of the use to which the inherited funds were put, apart from the purchase of the Town F farming land and the construction of a house on it. I accept however it is likely the funds assisted in the purchase of the parties’ various properties including, ultimately, the former matrimonial home, and were otherwise used to meet general living expenses which included travel for the parties. The husband said the parties suffered significant financial loss in a property development investment in Suburb P in Sydney and during the Global Financial Crisis in 2008. No specifics of those losses were provided. I accept, however, that some loss did occur through the Suburb P investment and the Global Financial Crisis, both of which seemed to be acknowledged in the evidence of the wife.
Counsel for the wife submitted the inheritance warrants an adjustment in the wife’s favour of 20 percent of the current asset pool (which he argued should exclude an add back for the funds lost by the wife through investments). If that approach was adopted the value of the adjustment to the wife would be approximately $276,000. Counsel for the applicant argued the inheritances would warrant an adjustment to the wife of 5 to 10 per cent of the current asset pool which she argued should include the add-back for the monies lost by the wife. That would equate to a sum of between $87,000 and $174,000 in round terms.
The inheritances represent a significant additional contribution by the wife. However, the weight of that contribution is offset to some extent by the weight of the following:
a)the husband’s substantial contributions over more than 45 years of their relationship;
b)the support by the husband of the wife’s three children during their minority which for the eldest child was six years and for the twins nine years; and
c)the unspecified losses incurred by the parties through their Suburb P investment and during the Global Financial Crisis.
In my view, the appropriate adjustment to the wife is 15 percent of the current asset pool as assessed earlier. This equates to a sum of $260,993.

The section 75(2) factors

The applicant husband, being deceased, has no future needs to take into account.
The wife is aged 86. Shortly before the trial in March 2017 she filed an updated financial statement in which she declared her total weekly income to be $455. This comprised $439 from the Australian Government aged pension and $16 from a US social security pension. She estimated her fixed expenditure was $475 a week consisting of health insurance, home insurance, car insurance, car registration and a visa card payment of $7 a week. She declared other personal expenditure of $590 a week for food, utilities and other discretionary expenditure. She declared a debt to Mr O of $35,000, a visa card of a little under $4,300 and an overdraft of $10,518 on her Westpac account arising from her post-separation investments. These amounted to total liabilities of just under $50,000. She said she had other unpaid legal fees.
The wife relied on a medical report prepared by her general practitioner, Dr M, dated 10 March 2017 and annexed to an affidavit filed on 22 March 2017. He has been the wife’s general practitioner since 2005. He said she attended his practice on average 6 to 10 times a year, the most recent prior to his report being 28 September 2016. Dr M said the wife was in good health for her age, that she had no major disability and no diagnosis associated with a reduced life expectancy. He said she currently suffered from mild depression related to the family law dispute, hypertension for which she was treated, paroxysmal atrial fibrillation, osteoarthritis of spine and knees, stage III chronic kidney disease and distant low-grade bladder cancer. He said her mobility was reasonable but limited to some extent by moderate knee osteoarthritis and a spine condition for which she underwent an operation two years earlier. He said she had full ability and capacity to live independently.
At the time Dr M prepared his report the wife was aged 84. He said that, although the most recent figures for life expectancy prepared by the Australian Institute of Health and Welfare suggest the wife’s life expectancy was 88.9 years, based on his own knowledge of the wife’s health, he expected her to exceed the average. He said in his opinion there was every chance she would live beyond 90 and possibly to 95 years of age.
I accept the wife is generally in good health and may well exceed the statistical average life expectancy for a woman of her age.
In her trial affidavit filed on 16 March 2017 the wife said although she had planned to continue living in the Property C unit, she had come to accept that, in order for her to meet her outstanding liabilities, she would need to sell it. She said she had no particular plan at that stage as to where she would live in the future because she did not know how much cash she would receive by way of property settlement. She said she was very concerned about the security of her accommodation. She said she hoped not to rent on the open market because it would make her vulnerable to having to move against her will. She said she had considered purchasing a smaller, cheaper unit in the Town H district or purchasing a unit in a retirement village on the Region L where housing is cheaper but where she knew few people. She said she could purchase a unit in a retirement village in Suburb Q where she knows some people but that would likely be very expensive. She also considered renting a unit owned by one of her children or their families, possibly in Sydney. If she did that, she said she would be required to pay commercial rent but would have greater security of tenure. She expressed concern about her capacity to afford these options given her only income was in the form of her pension and her only assets are what she will receive by way of property settlement.
Counsel for the applicant sought orders which effectively gave a life interest to the wife in the unit at Property C and that, upon her ceasing to reside in that property, the property be sold with 50 percent of its value being paid to the husband’s Estate and 50 percent to the wife or her Estate. In my view such orders are undesirable. The wife seeks autonomy to make her own financial decisions including deciding whether to keep or sell the home in which she lives as she sees fit without reference to the husband’s children. I agree it is better to sever the financial relationship between the parties in order to provide a “clean break” for both.
I am satisfied on the evidence that, had there been no adjustment to the wife for contributions, she would not be able to meet her reasonable expenditure and pay her liabilities without selling the Property C unit and utilising some of the capital. The adjustment to the wife on account of contributions means she will take property to a value of a little over $1.1 million. Although close to $400,000 of that is notional property comprising the add backs of the investment losses and her legal fees, she should still have sufficient resources to pay her current debts and leave some cash funds.

Counsel for the wife argued the wife should the wife should take another 20 percent of the value of the current assets to account for her future needs but in light of the adjustment on contributions I am not persuaded there should be any further adjustment to her. I also bear in mind that the wife will take the Property C unit which is an appreciating asset unlike the remaining assets.

Justice and equity considerations

Counsel for the Estate argued that, in a global sense, each party should take 50 percent of the value of the combined property pool as that was asserted to be the intention of the parties when they executed their Wills in 2011. However that was before the parties separated and is not what their Wills provided in any event. In their Wills in 2011, each party appointed the other and one of their adult children to be their executor and trustee. Each bequeathed their interest in the former matrimonial home to their trustees to be held on trust for the other spouse for their use, provided the surviving spouse paid the rates and outgoings on the property. The property was not to be sold by the trustees without the consent in writing of the surviving spouse. At the written request of the surviving spouse the trustees were to sell the former matrimonial home to enable the purchase of another property to which the same provisions would apply. Any extra cash generated from the sale of the original property was to be held on trust and invested with the net income from the investment being provided to the surviving spouse. If necessary, the capital sum could be drawn upon to pay medical, holiday or other expenses for the comfort or wellbeing of the surviving spouse. Any residual balance in cash from the sale of the former matrimonial home and the purchase of the deceased’s share of the new property was to pass to the children of the testator. This meant that the children of the husband and the children of the wife would each ultimately take an equal share of the value of the real property and other assets of the parties.
Slightly different provisions applied to the husband’s life insurance policies under his 2011 Will. The amounts payable on the husband’s death under those policies were to be paid to the husband’s trustees to invest with the net income from that investment to be paid to the wife and, in the event the income was insufficient to provide for her comfort or wellbeing, the trustees were directed to raise funds out of the capital to address her needs. The remaining capital was to form part of the husband’s residuary estate, half of which was to be paid to his children and half to the wife’s children.
It is clear therefore, that, upon the death of the first spouse, the surviving spouse would have their needs met from the joint resources of the parties and it was only the residual estate of each of them following the death of the surviving spouse that was to be divided equally between the children of both parties. The Wills provided for the surviving spouse to use the capital resources to pay for expenses for their welfare and comfort and which specifically included holiday expenses. There was no guarantee therefore that the value of the deceased spouse’s half interest in the combined assets would retain its value until the death of the surviving spouse. In any event, the parties separated four years after executing their Wills and each prepared a new Will. My task must be undertaken in accordance with the Act as set out earlier. The application of those provisions has resulted in an adjustment to the wife on contributions.
For the wife to take 65 percent of the value of the parties’ property she will take property to a value of $1,130,968. The Estate’s 35 percent has a value of $608,983. To achieve the adjustment the wife will take the Property C unit, the car, jewellery, chattels and small sums in her bank accounts at the date of the trial. She has already had the benefit of resources used to pay some of her legal fees and her post separation investments. She will be required to pay the joint debt to Removalists. Collectively the net value to the wife from such a distribution has a value of $939,219. To achieve the required settlement, a cash payment will need to be made to her in the sum of $191,749 which I will round up to $191,750. This amount can be paid from the RAD refund held on trust for the parties. The applicant will take the balance of the RAD, the payment pursuant to the life insurance policies, the funds from the Shares Investment, the small sums held in any Bank accounts of the husband and the loan owed to the Estate by Mr Anaya. The applicant has already had the benefit of legal fees of $58,688 paid from joint resources. Together these items have a value of $800,732. If the amount of $191,570 is paid from those cash resources, the balance to the Estate is $608,932 plus any interest earned on the cash sums while the judgment has been reserved.
The distribution to each party is set out in the following table:

Husband’s Estate Value

Combined payment under life insurance policies $330,890

Refundable accommodation deposit 328,631

Share Portfolio 61,626

Bendigo Bank account 897

Loan to Mr Anaya 20,000

Add back paid legal fees 58,688

Subtotal $800,732

Less cash payable to wife $191,750

Net $608,982

Wife Value

Property C property $530,000

Bank account … 79

Westpac account … 1,350

Motor Vehicle D 5,000

Jewellery 15,000

Furniture and chattels 10,000

Add back investment losses 360,000

Add back paid legal fees 19,113

Subtotal of assets $940,542

Liabilities

Less debt to Removalists $1,323

Net $939,219

Plus cash $191,750

Total $1,131,969

The husband sought particular paintings owned by the parties during the relationship be transferred to him. He sought two paintings. The wife said she was happy for him to have them.[19] He also sought two paintings by …. The wife said she knew of only one which was in the possession of her son, Mr R interstate. She said she would have it returned to the husband if he still wanted it. The wife said there was another painting painted by …, not …. She did not agree to the husband taking that it. She said she accepted the husband had an emotional attachment to the … painting because he knew the artist, but not the … painting.[20] The wife pointed out that, prior to the sale of the former matrimonial home, all six of the children of the parties were invited to take items from the home as they could not all fit in the wife’s unit. She said, for instance, that one of the husband’s children took a piano owned by her and which had great sentimental value for her.
[19] Transcript 28 March 2017 at page 58
[20] Transcript 28 March 2017 at pages 72 to 73
Following the death of the husband there was no formal change in the position of the parties in relation to the paintings and Counsel made it clear on 6 April 2018 that the Estate pursued the application for those paintings. Given the concession by the wife, I will order the two … paintings and the painting by … be taken by the Estate.
The applicant also sought an order to facilitate copying of family photographs and slides in the wife’s possession. I will make that order.
I am satisfied that the distribution represents a just and equitable property division in the particular circumstances of this case.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date: 18 April 2019

[2019] FCCA 1048

18 April 2019

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Costs

Injunction

Husband’s Estate	Value
Combined payment under life insurance policies	$330,890
Refundable accommodation deposit	328,631
Share Portfolio	61,626
Bendigo Bank account	897
Loan to Mr Anaya	20,000
Add back paid legal fees	58,688
Subtotal	$800,732
Less cash payable to wife	$191,750
Net	$608,982
Wife	Value
Property C property	$530,000
Bank account …	79
Westpac account …	1,350
Motor Vehicle D	5,000
Jewellery	15,000
Furniture and chattels	10,000
Add back investment losses	360,000
Add back paid legal fees	19,113
Subtotal of assets	$940,542
Liabilities
Less debt to Removalists	$1,323
Net	$939,219
Plus cash	$191,750
Total	$1,131,969