Arden and Arden

[2011] FamCA 447

FAMILY COURT OF AUSTRALIA

ARDEN & ARDEN [2011] FamCA 447

FAMILY LAW – PROPERTY SETTLEMENT – Death of party

Family Law Act 1975 (Cth)

APPLICANT: Ms Arden

RESPONDENT: Mr W (as executor of the estate of the late Mr Arden deceased)

FILE NUMBER: MLC 7528 of 2010

DATE DELIVERED: 4 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Matthews

SOLICITOR FOR THE APPLICANT: Moores Legal

SOLICITOR FOR THE RESPONDENT: Mr Waters, Waters Lawyers Pty Ltd

Orders

1. That there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the reason this day be transcribed and be placed on the court file.

3. That the solicitor for the wife engross the minutes, including the orders of 30 November 2010 and deliver them by electronic transmission to my Associate within 7 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 7528 of 2010

Ms Arden

Applicant

And

Mr W (as executor of the estate of the late Mr Arden deceased)

Respondent

REASONS FOR JUDGMENT

1. This is a matter in which proceedings were begun on 13 August 2010 by Ms Arden, to whom I shall refer as the wife.  The respondent to her application is Mr Arden, her husband of some 60 years.  The following day Mr Arden died.  The parties had been separated for the best part of two years at that point in time, and their only assets were the home in Town 1, which was worth about $400,000, and a retirement fund of about $236,000. 

2. It is common ground between the parties that had it not been for the death of Mr Arden, an order would have been made under Part VIII of the Family Law Act, and to that extent I am satisfied that the appropriate provisions of section 79(8) apply.

3. There is some tragic background to the separation, but it does not matter in this case, because I am satisfied that it is common ground between the parties that this is a long marriage where there are no contribution issues, and for the purposes of section 75 of the Family Law Act 1975 (Cth) (“the Act”), the wife would have been entitled to some adjustment, having regard to her age and the death of the husband.

4. Subsequent to the separation, the retirement funds were dissipated, leaving effectively the only asset as the home.  It is common ground between the parties that the wife should have that asset.  If one looked at the pool of assets as the equity in the home at Town 1, and added back the funds that were dissipated, and bear in mind I have no evidence as to exactly whether that was justified or not, one could conclude then a division in the vicinity of the wife receiving the home would have to be well within the range of probable outcomes. 

5. Neither party in this case argues that it is not, and I am satisfied in those circumstances that it is appropriate to say that it is just and equitable to make an order that the property be entirely transferred to the wife. 

6. In November 2010, Mr W was joined as a party to the proceedings, as the legal personal representative of the husband, he being the executor of the will.  Probate has now been granted, but has not yet been sealed.  Mr W has indicated that he will have the November order engrossed and this order again today should also be engrossed for the same reason.

7. In the matter of Arden, therefore, I will make orders in terms of the minute that I have amended for the parties’ benefit.  I will order that there be a transcription of the reasons.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 April 2011.

Associate: 

Date:  15 June 2011