BAB and BBJ and BEG (No.2)
[2002] FMCAfam 336
•10 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAB & BBJ & BEG (No. 2) | [2002] FMCAfam 336 |
| FAMILY LAW – Property settlement – death of party – long marriage. Family Law Act 1975, ss.79(8), 79(4) BAB & BBJ & BEG [2002] FMCAfam 177 |
| Applicant: | BAB & BJB |
| Respondent: | EGB |
| File No: | PAM2999 of 2001 |
| Delivered on: | 10 October 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 13 May & 6 August 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Both parties in person |
| Solicitors for the Respondent: | In person |
ORDERS
The Respondent is to deliver to the Applicants within seven (7) days the following:
(a)the gold Seiko wrist watch;
(b)the silver pocket watch; and
(c)the B family bible.
The Applicants are to deliver to the Respondent within seven (7) days the electric fan formerly located in the former matrimonial home, a Pinnock sewing machine and those items described in Annexure “B” of the husband’s Amended Application filed 10 September 2001 as “Entire contents of wife’s bedroom and craft room excluding stereo”.
The Respondent is declared the beneficial owner of the Holden Commodore motor car and all other items of furniture, furnishings, livestock and personal property currently in her possession, subject to Order 1 above.
The Applicants are declared to be entitled to possess and deal with according to the terms of the will of the husband the Mazda motor vehicle and all other items of furniture, furnishings, livestock and personal property not otherwise referred to in these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2999 of 2001
| BAB And BJB |
Executors of the Will of ARTHUR JAMES BELL
Applicants
And
| EGB |
Respondent
REASONS FOR JUDGMENT
This is an application by the husband for certain property orders, relating to a number of chattels and an interest in land, being a Permissive Occupancy. The husband died only a few days after the hearing and the two Applicants are the executors named in his will.
Background
The husband was born on 20th March 1928. He died on 18th May 2002. The wife was born on 11th May 1930, so she is now 72 years of age.
The parties were married on 17th January 1950 and separated on 26th August 2000. There are four children of the marriage, all adults, all living independently.
After the parties separated, the husband remained living in the former matrimonial home, which they rented from L and W Conservation (NSW) by means of a Permissive Occupancy. This property is situated at B S, near W, New South Wales. The wife moved into rented accommodation in the town of W.
It is common ground that the wife took a motor car and certain chattels with her when she left the former matrimonial home. The husband remained living in the home, and he retained a motor car, some household effects, some farming plant and two heifers.
The husband originally commenced proceedings in the Local Court of New South Wales at W by means of an application filed on 1st September 2000. In that application he sought certain injunctive orders against the wife, restraining her from removing any property from the former matrimonial home. In support of that application, he filed an affidavit in which he claimed that the wife had removed a significant amount of property from the premises and he believed that she intended to remove more property.
The Wife consulted Ms Jennifer Wong, solicitor, of the Community Legal Service for Western NSW inc., of D, who filed a Response and affidavit. The wife sought the Court’s permission to remove certain chattels from the property and sought that both parties should then be restrained from disposing of certain other items “before final property orders can be made in the Family Court.”[i]
The learned Magistrate in the Local Court took the view that the parties would benefit from counselling. The D Registry of the Family Court, however, advised the Local Court that their counselling mandate only extended to children’s issues.
The husband filed a property application, which was returnable at the W Local Court on 25th January 2001. By this time, he was legally represented by Mr Graham, solicitor, of W. In his application, the husband sought orders to the following effect:
a)that he be declared the beneficial owner of a list of items in Annexure “A” to the application;
b)that the wife be declared the beneficial owner of another list of items, being Annexure “B”;
c)that the wife return to him the contents of a third list of items, being Annexure “C”; and
d)certain incidental and procedural orders.
The wife had by this time instructed another solicitor to act for her, Mr Wilson, of the firm of Cheney and Wilson, of O. The wife filed a Response to the husband’s application, seeking that the proceedings should be transferred to the sittings of the Family Court of Australia at D, and that the parties should attend an Order 24 Conference. On 15th February 2001, the W Local Court made an order transferring the proceedings to the Family Court of Australia at P for inclusion on the D Circuit.
Shortly after this, the wife again instructed another solicitor to act for her, this time, Messrs North and Badgery, solicitors of D. On 23rd August 2001, the parties were required to attend a Directions Hearing before a Registrar at the D Sub-registry of the Family Court. An Order 24 conference was not held. The Registrar transferred the proceedings to the Federal Magistrates Court.
On 10th September 2001, the husband filed an amended application and a financial statement. The matter was set down for mention at the sitting of the Federal Magistrates Court on 2nd October 2001. In his amended applications, the husband sought orders to the following effect:
a)that the wife be declared the beneficial owner of the items of property set out in Annexure “A” to the application;
b)that the husband make available to the wife the items of property set out in Annexure “B” to his application;
c)that the husband be declared beneficial owner to the extent that he could be declared beneficially entitled to occupy Permissive Occupancy (PO M) subject to his paying all rental, maintenance and outgoings and all conditions of the Permissive Occupancy;
d)that the wife return to the husband four items, being a gold Seiko wrist watch, a silver pocket watch, the family Bible of the B family, and the C Cup; and
e)that the parties otherwise be declared the beneficial owners of any other item of property in their possession.
On 17th September 2001, Messrs North and Badgery forwarded a notice to the Court, indicating that they were no longer acting for the wife. On 19th September, the husband’s solicitors sought an administrative adjournment of the matter until the next circuit sittings of the Court. Messrs Peacocke, Dickens & Price, solicitors of D, who by that stage had become the wife’s fourth solicitors in these proceedings, consented to the matter being adjourned to the sittings of the Court commencing on 4th February 2002.
The matter was mentioned before the Court at D on 4th February 2002. Both parties were legally represented. The Court directed the parties to file and serve any further affidavits by 26th April, and the application was listed for final hearing on Monday 13th May 2002.
On Monday 13th May 2002, the parties appeared before the Court. The husband was still represented by Mr Graham, solicitor of W. The wife was no longer legally represented. The following day, Messrs Peacocke, Dickens & Price filed a Notice indicating that they ceased to represent the wife. The husband was granted leave to file an up-dating affidavit in court.
The Court heard the application on the afternoon of Monday 13th May. Both the husband and wife gave oral evidence and were cross-examined. Judgment was reserved. The Court rose at 5.35 pm.
Early the following week, the wife telephoned the Court to advise that the husband had died. She said that he had been found deceased on Saturday 18th May.
On 27th June 2002, the Court delivered a decision indicating that it proposed to continue the proceedings, pursuant to the provisions of s.79(8) of the Family Law Act. The media-neutral citation for this decision is [2002] FMCAfam 177. The Court made orders adjourning the proceedings to 6th August 2002 and granting leave to the legal personal representative of the husband to file and serve an application to be substituted as a party to the proceedings.
On 6th August 2002 the present Applicants advised the Court that they were the executors of the Applicant’s will. An order was made substituted them as Applicants.
Issues
The issue to be decided is what order or order should the Court make by way of settlement of property, bearing in mind the fact that the husband died after the hearing.
Evidence
The husband gave evidence that the parties had lived at B S for twenty years, then they had moved to B. They lived in B for about another twenty years, and then returned to B S. The cross-examination by the wife dealt with a variety of issues, including challenges to the alleged value of various items.
The wife gave evidence about items of personal property, some of which had apparently come from her mother. Her evidence dealt mainly with a minute examination of lists of items of furniture, furnishings and other items. In cross-examination by Mr Graham, for the husband, the wife was asked what items she wanted, and what would satisfy her to resolve the matter completely. It did not appear that many of the items had anything other than sentimental value, if that. Each party gave evidence of health problems.
Principles to be applied
When dealing with applications to vary property interests, courts exercising jurisdiction under the Family Law Act must not make an order under the provisions of section 79 unless satisfied that, in all the circumstances, it is just and equitable to make the order[ii]. Subsection 79(4) sets out a number of matters the court must take into account. They include:
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties of the marriage or either of them;[iii]
b)the contribution (other than a financial contribution) made directly or indirectly or on behalf of a party to the marriage or a child of the marriage;[iv]
c)the contribution made by a party to the welfare of the family, including any contribution made in the capacity of homemaker or parent;[v]
d)the effect of any proposed order upon the earning capacity of either party to the marriage;[vi]
e)any relevant matters referred to in subsection 75(2);[vii]
f)any other order made under the Family Law Act affecting a party or a child of the marriage;[viii] and
g)any child support under the Child Support (Assessment) Act 1989.[ix]
In dealing with applications under Section 79 of the Family Law Act, the Full Court of the Family Court has made it clear that there are three steps to be followed by a court, whether it is the Federal Magistrates Court or any other court. First, the Court must identify the property of the parties and ascertain its net value.
Second, the court must look at the contributions of the parties, following the principles set out in section 79(4).
Third, the court then considers the relevant factors as set out in sub-section 75(2). This may involve an adjustment in favour of one or other of the parties. This approach has been laid down in cases such as Ferraro and Ferraro (1993) FLC 92-335 and McLay and McLay (1996) FLC 92-667.
The Matrimonial Assets
No valuations were provided of any of the assets. There were lengthy lists of all sorts of items of indeterminate value, such as “craft boxes”, two separate jars of buttons, “all crystal ware”, belt buckles, ‘box of books’, and similar items.
I find that the matrimonial assets consisted of a 1982 Mazda motor car, a 1980 Holden Commodore, some livestock, some furniture, furnishings and items of personal effects.
I am not satisfied that the right to occupy the premises pursuant to the Permissive Occupancy can be said to have any financial value. From the evidence, it appears that the right to occupy the premises from this permissive occupancy was a right personal to the husband, and, now that he is deceased, it has no value, nor can it be dealt with by means of any order of this Court.
The contributions of the parties – section 79(4)
The Court is required to take into account three different types of contributions made by or any behalf of a party to the marriage. Sub-section 79(4)(a) requires the Court to consider the financial contribution made directly or indirectly to the “acquisition, conservation or improvement of any of the property”. Sub-section 79(4)(b) requires the Court to consider the contribution other than a financial contribution to the “acquisition, conservation or improvement of any of the property”. Sub-section 79(4)(c), on the other hand, requires an examination of the contributions made by the parties to the welfare of the family, “including any contribution made in the capacity of homemaker and parent.”
The High Court of Australia has expressly approved contributions to the welfare of the children since separation as being a contribution under section 79(4)(c), in the case of Williams and Williams, (1985) FLC 91-628. In this case, however, the parties’ children have all long since become adults and left home.
The marriage was a long marriage, extending from January 1950 to August 2000. I am of the view that the contributions by the parties would be regarded as equal after such a long period of time. There is, in fact, no evidence to allow any other inference to be drawn.
Section 75(2) Factors
Sub-section 79(4)(e) requires the Court to take into account “the matters referred to in sub-section 75(2) so far as they are relevant”. I propose to consider them in order.
Sub-section 75(2)(a) requires the Court to take into account the age and state of health of the parties.
The husband was 74 years of age when he died. The wife is 72 years of age. She deposed in her affidavit sworn 11th January 2001 to a variety of health problems, including severe back pain, arthritis in her legs and feet, and deafness in her left ear.
Sub-section 75(2)(b) requires the Court to consider the income, property and financial resources of each of the parties and their physical and mental capacity for gainful employment.
The wife says that she receives the age pension and rent assistance. She has no financial resources.
An important factor to be considered is that set out in sub-section 75(2)(c), whether either party has the care and control of a child of the marriage who has not attained the age of 18 years.
There are no children of the marriage under the age of 18 years.
Sub-section 75(2)(d) states that the Court must consider the commitments of each of the parties that are necessary to enable that party to support both himself and herself and also a child or another person that the party has a duty to maintain.
The wife has the obligation of looking after herself. In her financial statement filed at W Local Court on 9th February 2001 (she did not file a more up-to-date financial statement) she said that she paid rent of $110.00 per week.
Sub-section 75(2)(e) requires the Court to consider the responsibilities of either party to support any other person. Neither party had the responsibility of looking after any other person.
Sub-section 75(2)(f) refers to the eligibility of either party for a pension, allowance or benefit.
Each party deposed to being eligible to receive a benefit from Centrelink.
Sub-section 75(2)(g) requires the court to take into account a standard of living that in all the circumstances is reasonable. The wife complained in her affidavit that she wanted more of the items from the former matrimonial home, including an electric fan, to make herself more comfortable.
Sub-sections 75(2)(h), (j), (k) and (l) refer to matters which are not relevant to the proceeding before this Court, except to say that the orders proposed would be unlikely to have any effect on the earning capacity of the wife.
Sub-section 75(2)(m) requires the court to consider, in the case where either party is cohabiting with another person, the financial circumstances relating to the cohabitation.
The wife, on the evidence before the Court, resides by herself.
An order made or proposed to be made under section 79 is referred to in sub-section 75(2)(n). As these are property proceedings, the Court will be making such an order once all relevant matters are considered.
Sub-section 75(2)(na) refers the court to any child support under the Child Support (Assessment) Act 1989. This aspect is also referred to in sub-section 79(4)(g), in identical terms. It is not relevant in this case.
Sub-section 75(2)(o) refers the Court to any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account. There do not appear to be any facts or circumstances that need to be taken into account, other than those already referred to.
The wife’s age and state of health, together with her lack of financial resources, are matters that should be taken into account in her favour.
Conclusions
In my decision of 27th June 2002, I stated:
“A number of different considerations will now apply, including the fact that the deceased will no longer have any s.75(2) considerations, whilst the surviving Respondent may well have. The court should not be influenced by the identity of the beneficiaries, especially as there are no children under the age of 18 years.”[x]
The orders to be made now are, in some respects, different from the orders that the Court would have made had the husband not passed away. No order will be made about the Permissive Occupancy, and it does not appear that the Court has the power to make any order in the circumstances. It is up to the Minister for Lands to decide who may occupy the land after the death of the tenant.
I am of the belief that the gold Seiko wrist watch, the silver pocket watch and the B family bible are all items that should be returned to the Applicants, for them to deal with according to the terms of the husband’s will. The evidence about the ownership of the C cup was inconclusive, and I propose to order that the Respondent may retain it. It would also appear that the electric fan that was in the possession of the husband should go to the Respondent for her comfort, as summer is approaching.
The Applicants or the Respondent, depending on in whose possession they are at the date of this decision should retain all other items.
It is most regrettable that this matter took such a length of time to get to court. It is also regrettable that the last years of the husband’s life, after 50 years of marriage, should have been occupied with an unfortunate squabble over items of so little value. This is a matter that should have settled. There are many items, which the husband was apparently prepared to transfer to the wife, even as late as the date of the hearing, but she refused to commit herself. I noted that at the hearing the wife was arguing about items of no apparent value, including cane baskets. The time has now passed, and it would be almost impossible for the present applicants to identify many of those items which the husband had so painstakingly listed. Apart from a few obvious items, such as a sewing machine and items described as “entire contents of wife’s bedroom and craft room”, I do not propose to burden the Applicants with the task of attempting to identify what those other items were. The parties were advised by the Court, at the conclusion of the hearing, that Courts make orders when parties cannot agree to resolve matters themselves, but the parties may not like the orders the Court makes.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 3 October 2002
[i] Wife’s Response filed 12 September 2000
[ii] Section 79(2)
[iii] Subsection 79(4)(a)
[iv] Subsection 79(4)(b)
[v] Subsection 79(4)(c)
[vi] Subsection 79(4)(d)
[vii] Subsection 79(4)(e)
[viii] Subsection 79(4)(f)
[ix] Subsection 79(4)(g)
[x] at paragraph 21 of the decision
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