DELL & NACHMAN
[2013] FMCAfam 37
•29 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DELL & NACHMAN | [2013] FMCAfam 37 |
| FAMILY LAW – Lengthy relationship – applicant asserted de facto relationship – respondent asserting friendship only – applicant dying after proceeding issued – substantial dispute as to contribution issues – consideration of matters arising from High Court decision in Stanford – de facto relationship proved – whether appropriate to make orders in favour of the deceased if deceased still alive – whether to make orders in favour of deceased now – orders made. |
| Family Law Act 1975, ss.79, 79(8), 90SM, 90SM(8) |
| Stanford v Stanford [2012] HCA 52 Erdem & Ozsoy [2012] FMCAfam 1323 |
| Applicant: | MR DELL |
| Respondent: | MR NACHMAN |
| File Number: | MLC 6002 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 27, 30 July, 9 August, 4 & 5 October and 27 November 2012 |
| Date of Last Submission: | 27 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 29 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Arnold |
| Solicitors for the Applicant: | Bailey Timms Hansen & Rossis |
| Counsel for the Respondent: | Ms Messer |
| Solicitors for the Respondent: | Hartleys Lawyers |
IT IS NOTED that publication of this judgment under the pseudonym Dell & Nachman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6002 of 2011
| MR DELL |
Applicant
And
| MR NACHMAN |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a claim in which the estate of Ms F is pursuing a just and equitable distribution as between Ms F’s property interests and those of the respondent.
The applicant, who is the son and personal representative of
Ms F, asserts that the late Ms F was in a de facto relationship with the respondent from about 1979 until 2010. Mr Nachman denies that there was ever a de facto relationship (notwithstanding that his then counsel expressly conceded such a relationship before the Court in November 2011) and says further that if the Court finds there was a de facto relationship, the whole of the available pool should remain vested in Mr Nachman.
For the reasons that follow, I find that Ms F and the respondent were in a de facto relationship from 1979 to 2010 and that a just and equitable division of the property pool should allot one third of the pool to the applicant.
The de facto issue
The affidavit evidence
Both parties proceeded on the footing that for the Court to entertain the matter at all it was necessary for the Court to establish whether or not the parties had been in a de facto relationship. Counsel for the respondent took the Court to a number of authorities to this effect but the proposition is not, in my opinion, controversial. This issue took up most of the time the parties spent in Court.
The proceedings were commenced on behalf of Ms F by State Trustees Limited, which body was appointed administrator of Ms F’s affairs by order of the Victorian Civil and Administrative Tribunal on 4 February 2010.
An affidavit of Ms W of State Trustees was filed with the initiating application, by which it was sought that the property at Property V, [S] be sold and that the net proceeds of sale relevantly be divided equally between the parties.
Ms W deposed, albeit on a self-evidently hearsay basis, that Ms F was born [in] 1940 and that she lived with her son (the present applicant) at [address omitted]. She was cared for by her son and a carer.
Ms W further deposed that the applicant was previously married in 1959 and gave birth to her only son, Mr Dell, in 1961.
At paragraphs 9-11 Ms W deposed:
“9. In 1968 the applicant’s parents died and left the property at Property N ([N] property) to the applicant and her brother,
Mr F. On the 23 August 1968 the applicant became the sole registered proprietor of the property. Now produced and shown to me at the time of swearing this affidavit and marked with the letters “SW2” is a copy of the title search to the [N] property.
10. In November 1976 the applicant sold the [N] property and purchased Property B ([B] property). Now produced and shown to me at the time of swearing this affidavit and marked with the letters “SW3” is a copy of the title search for the [B] property.
11. The respondent is currently residing at Property V.”
All of those paragraphs of Ms W’s affidavit were expressly admitted by the respondent’s affidavit filed on 12 August 2011.
It should also be noted that a careful study of exhibit SW2 shows not only that Ms F became the sole proprietor of the [N] property in 1968, but that it was unencumbered when it was sold.
A caveat lodged in 1974 and a mortgage registered also in 1974 were both discharged by no later than 23 April 1975. Accordingly, the property was unencumbered when it was sold in 1976.
Ms W’s affidavit went on to assert that the parties had been in a de facto relationship since about 1979. Ms W further deposed, once again on a hearsay basis, that the applicant was at the time of the commencement of the relationship in full-time employment at [omitted].
Ms W then went on to depose (something to which Mr Nachman’s affidavit did not in terms respond) that at the time of the commencement of the relationship, Ms F was the sole registered proprietor of a property at Property K, [K]. Exhibit SW4 is the title search of that property.
Study of exhibit SW3 shows that Ms F was registered as the proprietor of the [B] property on 19 November 1976. There were two mortgages registered in respect of the property. The first, contemporaneous with its purchase, was registered on 19 November 1976 and a second was registered on 18 August 1978. Both are recorded as discharged on 23 February 1979.
The date of 23 February 1979 was clearly, from exhibit SW3, the date upon which Ms F sold the property, and that is also the date upon which she became the sole registered owner of a property at Property K, [K] (see exhibit SW4).
It is clear from exhibit SW4 that on 11 October 1979, Mr Nachman was registered as a joint proprietor together with Ms F.
The [K] property was plainly bought with the assistance of a mortgage which was registered on 23 February 1979, but the date of discharge is not clear. It appears to have been discharged on 10 March, but the year is not clear. What is clear from exhibit SW4 is that the [K] property was sold on 10 May 1982.
There is an error in Ms W’s affidavit inasmuch as the reference to exhibit SW3 in paragraph 14 should read exhibit SW4, and the reference in paragraph 16 to a title search in respect of the [S] property is an error, and should read exhibit SW5, with the other exhibits also to be renumbered. The title to the [S] property was not in fact exhibited to the copy of the affidavit filed but was tendered as exhibit A4.
Exhibit A4 shows that Ms F and Mr Nachman were registered as joint proprietors of the property at Property S, [S] on 10 May 1982, at which time the property was encumbered by a mortgage in favour of the Commonwealth Savings Bank. That mortgage was discharged on 20 March 1986.
On 13 April 1987, Mr Nachman became the sole registered proprietor. Although Ms W asserts that this was by way of gift, the title does not record that.
Ms W asserted at paragraph 18:
“In 1991 the applicant ceased work at [omitted] and appears to have received a lump sum payout of $34,000. I have been unable to determine what happened to this money.”
Mr Nachman’s response in paragraph 8 of his affidavit filed 12 August 2011 says:
“I refer to paragraph 18 and say that I am not privy to the lump sum payout received by her received [omitted].”
From this response, it is proper for me to find that Ms F worked at [omitted] until 1991.
Ms W went on to depose as to the hearings before the Social Security Appeals Tribunal (a matter dealt with in other affidavits) and details of a personal injuries claim which is not now relevant.
Ms W deposed that on 18 June 2010, Mr Nachman sold the [S] property for $435,000 and used part of the proceeds of sale to purchase Property V, [S] for $393,500. These matters are admitted (see paragraph 13 of Mr Nachman’s affidavit). It is common cause between the parties that the only remaining assets of the estate, subject to some funds previously held by the Master of the Supreme Court on Ms F’s behalf to which I shall return, are the proceeds of the sale of the property in [S], now effectively constituted by the house in which
Mr Nachman lives.
Mr Nachman’s responding affidavit and response were filed on 12 August 2011. The response sought that the application made by Ms F’s litigation guardian be summarily dismissed for want of jurisdiction and that a declaration be made that there had never been a de facto relationship.
Mr Nachman’s affidavit confirmed (paragraph 4) that:
“… in or about 1979 I agreed to assist the Applicant in getting rid of her mortgage and credit card debts on the proviso that she provide me with an interest in half of the property situated and known as Property K, [K]. In 1979 I was 30 years of age. The Applicant was 39 years of age and was previously married but divorced and had one child. The whole purpose of moving in together and her transferring a one half interest in her property was to assist her in avoiding a bankruptcy. No relationship was entered into. I was not involved in any sexual relationship with her. This was done out of pure friendship.”
Mr Nachman’s affidavit conceded that at the time the parties commenced to live in the same house, Ms F was in full-time employment at [omitted].
Mr Nachman went on to say at paragraph 6 that:
“… I admit that I acquired an interest in Property K, [K] on the 11th October 1979 and that in 1982 the property was sold and that the Applicant and I purchased a property Property S, [S] as joint proprietors for $45,000.00.”
Mr Nachman went on to depose at paragraph 7:
“… on the 13th April 1987 that the Applicant transferred her interest in the [S] property to me. In consideration of the transfer I paid to her the sum of $45,000.00.”
Relevantly, he deposed at paragraphs 11 and 12 that:
“11. … at no stage throughout the course of the relationship did we combine our incomes and pensions to meet the day to day costs of the household. I say that we shared the household costs equally.
12. In reply to paragraph 22 I say that on the Applicant transferring Property S, [S] to me that I paid to her the sum of $45,000.00. The asset was then mine. As she had been compensated for her interest in the property I say that the proceeds of sale of Property S, [S] is not an asset of the relationship.”
He went on to depose at paragraphs 14 and 15 that:
“14. … I have retained all the proceeds of sale of Property S, [S] as the property belonged to me. I also retained the furniture in the property as the furniture and other property belonged to me. I deny having retained the Applicants jewellery.
15. The Applicant ceased residing with me in October 2010. She then commenced to reside with her son.”
Mr Nachman’s affidavit annexed as exhibit SN-1 an application made to the Social Security Appeals Tribunal in April 1997 in which
Ms F denied she was in a de facto relationship with him. He also annexed a decision of Judge Bowman dated 10 July 2009 as exhibit SN-2. In that Judgment his Honour stated at paragraph 5 that:
“The applicant shares her residence with Mr Nachman, although the two are not, and have not been, in any form of de facto relationship. I accept that Mr Nachman assisted the applicant in relation to such financial affairs as she had.”
That finding needs to be approached with some caution as the question of the nature of the relationship between the parties was not of any great significance, because the matter involved a personal injuries claim. Furthermore, there was no contradictor to challenge the assertions apparently made by Ms F and Mr Nachman as to the nature of their relationship.
Mr Nachman’s affidavit went on to say at paragraph 18 that:
“At all material times the Applicant and I did not reside in a de facto relationship. I am currently receiving Centrelink Disability payments as a single person since 1996. The prior decision of the Social Security Appeals Tribunal was set aside by the Tribunal by an application issued by the Applicant in these proceedings and referred to in paragraph 16 hereof. I do not have a copy of the decision.”
On 10 September 2011 Ms F died. On 9 November 2011 her son,
Mr Dell, swore an affidavit in support of his application to be substituted as the applicant, which application the Court acceded to.
Mr Dell’s affidavit relevantly deposed to funds held by State Trustees on his mother’s behalf and also funds administered by the Senior Master’s Office. He asserted that those latter funds were in the sum of approximately $22,000 to $24,000.
Mr Dell deposed that he was unable to find any Will made by his mother, and that he was applying for a grant of Letters of Administration.
It is uncontroversial that he is the only child of Ms F, and that her only living sibling is her brother, Mr F.
Mr Dell deposed that his mother commenced living with the respondent in or about 1978 to 1979, and that he had never lived with Mr Nachman. He deposed that when he left home (which took place in late 1978 when he married) he moved into a home three blocks away from the Property K, [K] property where Ms F and Mr Nachman lived. He deposed at paragraph 15:
“I kept in very regular contact with my mother I was extremely close to her. After I left home I would visit my mother on a daily basis and at times I would have meals at her place. After
Mr Nachman moved in and lived with my mother I still had dinner regularly but Mr Nachman became extremely jealous of my closeness to my mother and as a result my relationship with Mr Nachman deteriorated.”
At paragraph 16, Mr Dell continued:
“At this time my mother was working as a kitchen hand at the hospital, Mr Nachman was not working. Although my relationship with Mr Nachman had deteriorated somewhat I still made regular visits to my mother at Property B and later at Property K, [K]. It wasn’t until my mother and Mr Nachman purchased Property S, [S] that my attendance ceased.”
Mr Dell set out the history of property purchases and sales already referred to and relevantly asserted at paragraphs 31 and 32:
“31. During the time from 1979 to 1982 I noticed that the properties that my mother and Mr Nachman resided in had one main bedroom consisting of a double bed. My mother did all of Mr Nachman’s cooking and the majority of the cleaning and the domestic work at the house. I had no doubt that my mother and Mr Nachman were living in a domestic relationship as husband and wife and sharing a double bed.
32. Mr Nachman was a very domineering man and always gave the impression that he was the boss. My mother was a very vulnerable woman and would run after Mr Nachman all day long if he asked her to do so. She was virtually his slave but liked doing so as she appeared to like pleasing Mr Nachman.”
The affidavit makes a number of hearsay assertions and assertions of violence by Mr Nachman on Ms F, to which of course I can give no weight because they are all hearsay. I do note that Mr Dell alleges in his affidavit that on one occasion at the hospital, Mr Nachman assaulted him personally, a matter not the subject of challenge in cross-examination.
Mr Dell also annexed various hospital records relating to his mother.
Mr F, the surviving brother of Ms F, filed an affidavit in support of
Mr Dell’s application on 9 November 2011. As with Mr Dell’s affidavit, it is to an extant objectionable because the evidence given is hearsay.
For these purposes it should be noted that Mr F deposes that the property in [N] left to him and his sister in 1968 was unencumbered.
Mr F also deposed at paragraphs 13 and 14 that:
“13. I have kept in regular contact with Ms F throughout her time with Mr Nachman, and I can categorically say that both her and Mr Nachman have been living in a domestic relationship for the period of time they resided together from approximately 1979 until 2010, when Ms F left the property at Property S, [S].
14. Over the years I have attended numerous social functions where both Mr Nachman and Ms F have attended and they have always held themselves out to be a married couple. I had attended their premises over many many occasions and have always noticed that they have lived as husband and wife and have shared a matrimonial bed. Later on in their relationship they had separate beds in separate bedrooms. I first noticed this in about 2005, but prior to this they always had one double bed.”
At paragraph 16, Mr F deposed:
“There were occasions when my wife, Ms F, Mr Nachman and myself discussed the issue of having children. Mr Nachman had said that he wanted children and both Mr Nachman and Ms F indicated that they were trying to have kids. Mr Nachman had made the comment on a number of occasions that he would never give Ms F his surname until she gave him a child.”
Mr F annexed, as exhibit GF1, a number of photographs taken of Ms F and Mr Nachman at various weddings and similar family celebrations. He also deposed coming across a tape, which appears ultimately to have been put into evidence.
The other affidavits filed are essentially facultative affidavits. Ms W filed an affidavit on 7 August 2012 in which relevantly she exhibited, as exhibit SW2, information received from Centrelink Social Security, being a file in relation to the affairs of Mr Nachman and Ms F.
Mr H filed an affidavit, also on 7 August 2012, in which he relevantly exhibited medical records from the [omitted] Hospital and [omitted] Health relating to Ms F.
It should also be noted that in his latter affidavit filed on 4 July 2012, Mr Dell annexed, as exhibit MD4, bank records showing withdrawals by Mr Nachman from Ms F’s bank account after the power of attorney previously issued to Mr Nachman by Ms F in 2006 had been superseded by VCAT order. The total of the withdrawal is $2,100 although Mr Dell alleged withdrawals of $6,000-$9,000.
Mr Dell also confirmed the payment to him of $13,548.74 from the Senior Master’s Office, being the balance of his mother’s funds. He referred also to other payments alleged to have been made to his mother, but it is sufficient to say that there is no evidence that enables the Court to arrive at any conclusions about this aspect of the dispute.
The oral evidence
Mr Dell was called and adopted his affidavits. He also put into evidence the DVDs that have become exhibits A1 and A2.
Mr Dell in cross-examination confirmed that Mr Nachman had lived next door to his mother but moved in with her after some six or twelve months of acquaintance. He was, in my view, evasive in his responses under cross-examination about the extent to which he had visited his mother thereafter. He was clear that he saw her “on and off” after 1982, and he confirmed that the application to VCAT for Letters of Administration had been made by a social worker at the hospital. It would appear that his own health is precarious and he has suffered two heart attacks and lives on a pension.
Mr F was called and confirmed that he was very close to his sister. It nonetheless emerged that the photographs annexed to his affidavit were taken many years ago (as is obvious from their content). He confirmed that he had been given a copy of exhibits A1 and A2 by Mr Nachman.
Mr Dell, when recalled, was confronted by exhibit R2, being an affidavit sworn by him in the Supreme Court of Victoria on 8 February 2012. That affidavit confirms that at the time of her death, the deceased did not have a domestic partner living with her, and calibrates the quantity of her claim in this proceeding at about $123,000.
In my view nothing turns on this, because on any view Ms F had moved out from Mr Nachman in 2010 and therefore did not have a domestic partner at the time she died. The quantum of the claim was clearly chosen by Mr Dell’s advisers.
I should say of Mr F’s evidence that it was given with some measure of conviction, but it is quite apparent that his relationship with his sister suffered from the time that her relationship with Mr Nachman became more embedded. Mr Nachman did not get along at all with any of the [F] family, and the relationship between Mr F and his sister must have necessarily significantly declined when she started living with him.
Mr Nachman was called and in cross-examination confirmed that he had met Ms F in 1979. He said he moved in with her because she had no money. He said (P-47) that he paid $28,000. He went on to say (P-48) that the house cost $28,000 and he gave her half. He was unable to explain why this important figure was not in his affidavit. I note that at P-49 he confirmed that he left Ms F’s bed in the house for its new owner, in circumstances where on any view it would seem clear that the bed did not belong to him.
At P-59, Mr Nachman said that in 1986 he paid Ms F $45,000 for her half share of the property in [S] and that this was paid by cheque. He asserted that he had no records of the cheque because his papers had been stolen, and at P-62, he appeared to confirm that this theft had taken place before his affidavit sworn on 12 August 2011, although the theft was not mentioned in the affidavit.
At P-70, Mr Nachman said he was unaware whether Ms F was having sexual relations with anyone else during the time he lived with her and said that he never met any gentleman friend of hers.
He confirmed that the date on the DVD of 14 May 2006 was correct.
At P-79, when cross-examined about an aspect of the DVD, he said that he woke Ms F up on this occasion because a social worker came to see her, and that the social worker had been with her for the whole four minutes of the time that this incident occupied on the DVD. Having seen the DVD, I do not accept this evidence. The social worker would undoubtedly said something if they were there that long.
Mr Nachman was a very difficult witness. He was rude, aggressive, unresponsive and, quite frankly, largely unbelievable.
During the currency of his cross-examination, Mr Nachman tendered two alleged rent books, which became exhibit R1.
The exhibits
Exhibit R1 purports to be rent receipts received from Ms F. They are largely contemporaneous but not quite wholly so. There are two books, both of which appear to commence on 20 October 1995. One of them purports to show rental of $80 per fortnight, ultimately increasing to $84. The other one purports to show $80 per fortnight, all the way from 20 October 1995 to 5 August 1999. The period of the other book is 20 October 1995 to 12 August 1999. The records appear in every other respect to be largely identical. It is impossible to know what to make of these documents, save that Ms F cannot have been paying both. For reasons to which I shall come, I have no doubt that they were created with a view to exercising a fraud upon social security.
This brings us to the extraordinary exhibits A1, A2 and A3. A1 and A2 are DVDs acknowledged to have been prepared by Mr Nachman himself. Exhibit A3 is an agreed translation of the document. The Court watched both the DVDs in the presence of the parties and an interpreter, and they are certainly bizarre. Much of the delay in hearing this matter arose from the difficulty in getting a translation, given the very broad dialect in which Mr Nachman and Ms F spoke.
In part the material appears to be prepared to protect Mr Nachman’s rights (see for example the time 09:30:19 – the times are not the actual times but the times of translation).
In large part they also involve extensive abuse by Mr Nachman in respect of the [F] family.
In large part they involve lengthy monologues by Mr Nachman, at least one of which involved self-serving assertions as to the reason why
Ms F “sold the house to me in 1987” (see 09:52:00).
At 10:02:58 he asserts that the material should be aired when he dies.
It is clear from the material as a whole that Mr Nachman has a feeling which can only be described as hatred for Ms F’s family. There are multiple accusations, inter alia, of incest and child abuse.
Much of the time, Ms F is shown looking listless and sad, and on numerous occasions she is made to repeat remarks by Mr Nachman, many involving insults of her own son and family. I note that at 12:12:20, in response to a question from Mr Nachman “Did I tell you I would get married?”, Ms F says “Yes”; and in response to a further question immediately after that: “And you would still live with me, didn’t I?” “Yes.” At 12:12:28, Ms F says “Mr Nachman promised that I would live with him till I die. Even if he gets married, I will always live with him.”
All of these answers were clearly coached.
Others may yet have to look at this material, but what I get from it is that it is clear beyond doubt that the assertions made as to
Mr Nachman’s domineering character are wholly correct. It is clear that Ms F was wholly in his thrall. The startling assertion made by Mr Dell that she was Mr Nachman’s “slave” seems to me to be all too correct. No-one, save one in both ill health and subject to complete domination, would have put up with the tirades exhibited by Mr Nachman.
Although it is true, as counsel for Mr Nachman submits, that there is a want of any kind of affection for Ms F, particularly in the scene where she appears to return from being somewhere else (said to have been a hospital), nonetheless the nature of this material suggests to me very strongly that the parties were indeed in a domestic relationship.
It should be noted that Mr Nachman expressly asserted that he denied a de facto relationship not only recently, but at all times. Accordingly, if I fail to believe him in part, it seems to me I fail to believe him in whole.
At this point I should refer to the material obtained under Freedom of Information from Social Security and the various hospitals. There has been no objection as to the admissibility of those documents, which I assume are conceded to be business records.
The Social Security papers
It is clear that during the 1990s, the relevant officers had considerable reservations about the nature of the relationship between Ms F and
Mr Nachman, who were both obtaining separate benefits at this time.
On 31 July 1995, [Mr G], an authorised review officer, recorded the following (page 5 of exhibit SW2 to the affidavit of Ms W filed 7 August 2012):
“I used the following facts/findings to make up my mind (he decided that they were a couple).
· you have shared a home with Ms F at 2 different addresses over at least the past 15 years.
· bills are shared as are expenses such as food and household items.
· Ms F provides care for you as you are ill.
· Ms F cooks most of the meals and you and Ms F usually eat together.
· Ms F does most of the household chores due to your health.
· Ms F also assists with some personal care of you.
· you and Ms F go out socially together.
· you and Ms F have mutual friends.
· you have separate bedrooms.
· you do not have a sexual relationship.
· you jointly owned a house with Ms F in [K], where you resided together.
· you and Ms F then jointly purchased the house you are both currently living in at [S].
· you stated on 31 July 1995 that you had previously advised the department that Ms F had sold her half share in the house to you for $42,000, but that actually she gifted her half of the house to you in 1988, in exchange for her being left all of the house in the event of your death.
· On 3 October 1995, both yourself and Ms F advised the department that in fact she sold her share of the house to you for $30,000.
· you have presented Ms F as your de-facto wife to a medical specialist.
· you are each a beneficiary of the other’s will.
· your relationship is stable and long-standing and you appear likely to remain in the current situation indefinitely.”
The basis of those facts and statements is set out on the next page.
These findings should be approached with caution as I am informed that the Social Security Appeals Tribunal ultimately came to a different conclusion, although the decision is not before me.
What is before me as part of this exhibit (page 10), however, is a statement signed by Mr Nachman on 3 October 1995 which says (albeit that he is not the author):
“I wish to restate to the department that when I transferred the title at the above address into my name and Ms F’s name was removed from the title I did in fact pay her $30,000 for her share in the above address. It was not gifted to me as previously stated on the 31 July 1995 to [name omitted]. The reason why I made an incorrect statement to the department was to be consistent with Ms F’s version of the details. I am not too sure of the date or year, however I will provide a copy of the title to the above address. I had the $30,000 at home this was saved over a period of nearly twenty years. $15,000 of this money was inherited from Italy when my father passed away.”
The next page shows that this document had been translated to
Mr Nachman and he understood it.
The version of events there set out, clearly far closer to the relevant events than now, is not mentioned in Mr Nachman’s affidavit.
Also revealed as part of this documentation, and I suspect relied upon by [Mr G], is an extract from a letter about Mr Nachman written by
Dr P at some undated time (page 12 of the exhibit) which refers to “his de facto wife, Ms F, performs the majority of domestic and community activities of daily living.”
A document numbered, I think, 18 in the same exhibit dated 13 June 1996 records “Client: Mr Nachman “and Partner”: Ms F.”
A claim for sickness allowance, undated as far as I can see but probably from 1995, records at page 22 Mr Nachman as the applicant and as partner under the heading “Your partner is your wife or husband or de facto”, Ms F’s name.
On 3 March 1997, Ms K, an officer of the Department of Social Security, made record (the second appearing page 21 of the exhibit) in relation to Ms F. I note that it is disclosed amongst other things that:
“Mr Nachman also advised they lied about Ms F paying $40 per week for board and lodgings.”
I note that Ms K interviewed Ms F on 2 December 1996 (page 22 of the exhibit) and that the following is noted:
“I asked client [Ms F] if she did everything as a married couple except sleep in the same room and she replied “Yes”.”
On 2 December 1996, on page 27, Ms K made a file note about an interview she had had with Ms F that day. Relevantly, the note records:
“Client advised she does everything as a married couple except sleep in the same room with Mr Nachman. She advised they go out together, attending family functions, funerals, doctors appointments, she does all the washing, cleaning, cooking and ironing for him also, she states that as Mr Nachman is ill that is why she does all the above, however, she is also ill and on the Disability Pension.”
It should be noted that in another part of Ms K’ report on
3 March 1997 (page 22), it seems that Dr P’s note earlier referred to was from the [omitted] Hospital on 19 August 1996.
The medical records (annexed to the affidavit of Mr H filed 7 August 2012)
On 16 February 2011, there is a record from the [omitted] Hospital Emergency Department which relevantly reads in respect of Ms F:
“70 y/o female, lives with carer husband and son.”
While I note this was after Ms F moved out from Mr Nachman, nonetheless she could not have been referring to anyone other than
Mr Nachman.
On 13 October 2009, the hospital records state:
“Patient and husband keen to go home.”
On 28 April 2008, the [omitted] Hospital Emergency Department records, under Ms F’s name, the next of kin as Mr Nachman.
It is also clear from the medical records annexed to Mr Dell’s affidavit sworn 9 November 2011 that Ms F was in the early 1980s representing to the [omitted] Hospital both that she was married and seeking to get pregnant. A record dated 23 April 1980 refers to a second marriage.
It is clear from the records, without being unduly repetitive, that she was seeking to get pregnant for quite some time in the early 1980s. On 30 April 1980 [name omitted], Senior RMO, recorded:
“Today she presented desirous of a further pregnancy after 12 months unprotected intercourse in her second marriage.”
Conclusion on the de facto issue
The weight of the materials taken as a whole is overwhelming. It is quite clear that Ms F and Mr Nachman were in a de facto relationship in the early 1980s. It is clear that Ms F was trying to get pregnant, and it is clear that she was referring to a second marriage.
It is equally clear that the person with whom this relationship was being entertained was Mr Nachman. His suggestion, to which he was driven in cross-examination, that it was possible in some fashion that Ms F was having a relationship with someone else while he was living with her, of whom he knew nothing whatever, is just self-evidently unsound.
The various documents to which I have referred are just some of those that indicate that from time to time Ms F clearly held herself out as being in a relationship with Mr Nachman.
The, albeit somewhat older, photographs exhibited by Mr F strongly suggest a couple in my view, and this impression is only further strengthened by the extraordinary DVDs to which I have referred.
I have no doubt that to the extent Ms F sought to mislead the Department of Social Security, it would have been at the behest and urging of Mr Nachman. The DVD shows his dominance of her, and shows the force of his vituperation in her presence.
The evidence, albeit limited, from Mr Dell and Mr F, while it must be approached with caution in the light of their extreme personal hostility to Mr Nachman, likewise leads to the same conclusion.
I repeat, taken as a whole, it is clear that Mr Nachman and Ms F were in a de facto relationship at the start of their relationship, and it seems equally clear to me that they remained in one until she left him in October 2010.
Having seen Mr Nachman give his evidence, I would have little doubt that he is a man given to violent anger, a quality scarcely curbed even in Court, and I fear it is all too likely that he may have assaulted Ms F from time to time.
The pool
It is common cause that the pool, for these purposes, is the property in [S] in which Mr Nachman lives.
It appears that Mr Nachman may have drawn down funds from Ms F’s account after he was no longer entitled to do so and in my view, these should also be included in the pool. They amount, however, to only $2,200.00.
The suggestion by counsel for Mr Nachman that the funds received by Mr Dell from the Senior Master should be included in the pool is, I think, utterly misconceived. On any view, these were funds belonging wholly to Ms F as the result of her personal injury action. They were always held on trust for her alone. Indeed, it is noteworthy that the application to include these as an add-back can only proceed on the footing that there was a de facto relationship in any event.
Contributions
As I find, Ms F had an unencumbered property when she met
Mr Nachman. For the reasons I have given in relation to the de facto issue, I have no doubt that the account given by Mr Nachman is untruthful. He has given various differing explanations of how it came to be that he advanced funds to Ms F. His assertion that she was in financial difficulties when they first met and that he, therefore, advanced her moneys to obtain a half interest in the property in which she then lived stands wholly at odds with the objectively known facts. Ms F had a full-time job (even if not particularly well-paid) and had a house which was unencumbered. Mr Nachman has offered no insight or indication as to how it could be that she would have been in financial difficulties sufficient to make her give him half her property as a result of his assistance.
Likewise, various different figures have been advanced in various different stories from time to time as to how it was that Mr Nachman came to obtain the totality of the property.
Having seen the DVDs and having seen Mr Nachman in Court, I have no doubt that he simply badgered Ms F into making over her share of the property to him. That this was so, at a stage when she was also looking after him, only goes to show the extent of dominance he had over her.
Accordingly, and bearing in mind the very lengthy period of the relationship (over 20 years), there would ordinarily be a loading in
Ms F’s favour. Nonetheless, the evaluation of the obviously enormous initial contribution would need to be taken against the long history of cohabitation between the parties and more particularly, the fact that it seems clear beyond doubt that in later years, at least, Mr Nachman was Ms F’s carer. The DVD in 2006 shows that Ms F was frail and unwell, and although it does not actually show Mr Nachman caring for her (but rather generally abusing her), I accept that there must have been some measure of care provided.
In all the circumstances, I would ordinarily have awarded a 20 per cent loading in Ms F’s favour.
Future needs
Ms F has no future needs for the obvious reason that she is unfortunately now deceased.
Mr Nachman has had health problems for a considerable period of time. It should be noted that although his appearance is frail, his demeanour is not. He was extremely vigorous in the witness box and well-able to insult not only the [F] family but as I understood it, counsel and possibly the Court as well.
Nonetheless, Mr Nachman is of advancing years, being now 63 years old, living on a pension and so far as the materials reveal the matter, not with any other close family to assist him.
If Ms F was still alive I would have made no adjustment for future needs.
In the circumstances now obtaining, I would ordinarily provide a loading in Mr Nachman’s favour of 30 per cent.
The High Court’s Decision in Stanford v Stanford [2012] HCA 52
These Reasons for Judgment up to this point were all dictated prior to the handing down of the decision of the High Court in Stanford v Stanford [2012] HCA 52 on 15 November 2012. As this decision turns directly on the operation, inter alia, of s.79(8), I caused the matter to be re-listed for further oral submissions about the effects of this decision on 27 November 2012.
I will come to the submissions made by counsel shortly, but since neither of them directly responded to the matters that I raised, I should set out my own observations about this decision at this stage. I would interpolate and say that it is highly probable that guidance will be required from the Full Court of the Family Court before a settled appreciation of the law in this area emerges.
As this case involves a de facto relationship rather than a marriage, it is necessary to consider the terms of s.90SM, but it should be noted that these are relevantly identical to those in s.79 of the Act.
The case Stanford involved a very unusual set of facts. Towards the end of a very lengthy marriage, the wife suffered a stroke and developed dementia and, as a result, had to be placed into residential care. Throughout all of this, the husband continued to provide for her, as the High Court found (see Stanford at [7]).
The wife’s daughter, as a case guardian, applied to the Family Court of Western Australia for orders to sell the matrimonial home and divide the proceeds, and it was the success of that application that ultimately led to the appeal to the High Court.
Not all of what the High Court had to say in Stanford is directly relevant to this proceeding. Some of the argument concerned what was described as an intact marriage which clearly does not apply here. The Court did, however, consider s.79(8) (identical relevantly to s.90SM(8)) and at [24], the Court said:
“Section 79(8)(b) thus requires a court considering an application for a property settlement order which is continued by or against the legal personal representative of a deceased party to determine first, whether it would have made an order with respect to property if the deceased party had not died and second, whether, despite the death, it is still appropriate to make an order. Both of those inquiries require consideration of
s 79(2) and its direction that the court not make an order unless “satisfied that, in all the circumstances, it is just and equitable” to do so. It follows that, in such cases where s 79(8) applies, a court must consider whether, had the party not died, it would have been just and equitable to make an order and whether, the party having died, it is still just and equitable to make an order.”
The Court further noted at [29], having found that there was a proceeding arising out of the marital relationship, that:
“… when the wife died, the claim that was continued by her legal personal representatives was the claim that had been instituted on behalf of the wife, not some new or different claim. It remained a claim arising out of the marital relationship of the parties.”
At paragraphs [35]-[38], under the heading “The operation of s 79”, the Court said:
“35. It will be recalled s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36. The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interest of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage and the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
“The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down”.”
The Court continued at [39]-[40]:
“39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered.
40. Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.”
At [41]-[43], the Court relevantly continued:
“41. … But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
43. By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just.”
On the particular and very unusual facts of that case, the Court went on to find that it was not just and equitable to have any order adjusting the property interests of the parties.
The question is what this Court should make in this instance of the guidance of the High Court in that case, bearing in mind that I have already set out the first three steps of the conventional four step methodology used in property cases.
The submissions of the parties
Counsel for the applicant submitted that Stanford was very much a case on its own facts. He submitted that in this case there was a separation and that therefore this case proceeded on a different basis.
Counsel referred the Court to s.90SM(8) and emphasised the importance of the just and equitable component described in s.79(2) and submitted that it was appropriate to make an order in his client’s favour.
Counsel for the respondent submitted that the applicant had not shown it would be just and equitable to make an order if the applicant was still alive. Her submission was founded on the proposition that there was never a de facto relationship between them (an assumption which of course I have rejected).
Counsel submitted in the alternative that even if there was a de facto relationship, the separation was involuntary because Ms F was taken to hospital and that this was given as the separation date. It was submitted that the applicant was already under the control of State Trustees at the time the application was brought.
Counsel submitted that, in accordance with what was said by the High Court in Stanford at [43], and this being an involuntary separation, there was no work for s.79(2) to do at all.
Counsel further submitted that it was not appropriate to make any order in Ms F’s case because she had other funds that were coming to her at the time of her death. This was a reference to the approximately $35,000 held at one time by the Senior Master. It was submitted that there was no need therefore for a property settlement, and that there was no evidence that anybody else was supporting her.
Counsel also submitted that the Court would have to take into account the certain effects of the orders sought by the applicant on
Mr Nachman, who would clearly have to sell his home in the event that orders were made.
This paraphrase I hope does not do injustice to counsel. I repeat that I did not receive any assistance in response to my query as to what matters might be such as to make it appropriate to make an order under s.90SM(8) now, bearing in mind that the applicant has died.
The decision of Federal Magistrate Walters in Erdem & Ozsoy [2012] FMCAfam 1323
Since receiving the submissions of the parties referred to above, I have been made aware of the decision of Federal Magistrate Walters (as his Honour then was) in Erdem & Ozsoy. His Honour dealt in detail with the operation of the decision of the High Court in Stanford at paragraphs [110]-[116] and further at paragraphs [117]-[133]. These are lengthy extracts which it is not appropriate to set out in full but I adopt them and incorporate them by reference as part of my Judgment as I agree with his Honour’s remarks.
Relevantly for these purposes, his Honour recapitulated and summarized his findings at [116], where his Honour said:
“It is arguable that the effect of the High Court’s decision in Stanford is that the first step in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property. The second step involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in any marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the Court that it is just and equitable to make orders altering the parties’ interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps – namely:
a) assess the extent of each party’s contributions under the various sub-headings described in section 79(4); and
b) thereafter, consider the financial resources, means and needs of the parties and the other matters set out in section 75(2) so far as they are relevant,
and in the process adjust the amount due to each party by way of contribution by reference to the relevant section 75(2) factors.”
The decision of Federal Magistrate Walters continued by dealing with the continuation of property settlement proceedings after the death of a party. As I think I have already indicated, the High Court was of the view that s.79(8) requires the Court to consider first, whether it would have made a property order in favour of the deceased if they had not died and also to consider whether it is still appropriate to make an order given that they have died.
It is also important to remember, as his Honour pointed out in Erdem & Ozsoy at [120], that the claim that continues is the same property settlement claim that has been instituted by the deceased party, not a new or different claim. At paragraph [127], his Honour said:
“In my opinion, the answer to the question of whether, the wife having died, it is still just and equitable to make property settlement orders lies in the application of the three fundamental propositions summarised in paragraph 113 above. These propositions (which the High Court also describes as principles) -
(… recognise) the force of the stated and understated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The three fundamental propositions require that the Court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or understated assumptions and agreements about property interests during the continuance of the marriage.”
His Honour continued at paragraphs [129] and following:
“but as to whether, the wife having died, it is still just and equitable to make property settlement orders, the Court is unable to obtain clear guidance from the majority decision in Stanford. The majority concluded that:
“129. It was not shown that, had the wife not died, it would have been just and equitable to make a property settlement order. It follows that it was not open to the Full Court to find that it was still appropriate to make an order with respect to property.
130. In other words, the wife’s legal personal representatives failed at the first hurdle. The majority therefore saw no need to consider criteria that may apply and in endeavouring to determine whether, the wife having died, it was still appropriate to make a property settlement order. Nor is assistance to be found in a minority judgment of Hayden J; his Honour also found that it would not have been just and equitable to have made an order with respect of property if the wife had not died.
131. The majority of the High Court in Stanford left no doubt that they were unwilling to provide guidance as to the application of the “just and equitable” test in the case before them, or in any other case:
“… nothing in these reasons should be understood as attempting to chart the metes and bounds of what is “just and equitable”. Nor is anything that is said in these reasons intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of this particular case, is just and equitable”.”
At paragraph [133], his Honour said:
“A number of other principles apply or must be borne in mind when considering provisions of section 79(8). Put shortly, they are:
a) When considering whether the Court would have made an order with respect of property if the deceased party had not died, it is necessary to –
… have regard to the substantive circumstances, relevant to the exercise of the jurisdiction invoked by the initiating application, which existed immediately before the death of (the party). However, that does not mean that the Court is obliged to answer that question as if the substantive proceedings so initiated had actually come before the Court for determination on the day before, or on the day of (or “just before”) the death…
(Instead, the Court must) be satisfied that, at the time of the death, the deceased spouse had a good cause of action for an order under (the relevant section), in respect of which he or she had regularly invoked the Court’s jurisdiction before his or her death. (Footnote added).
b) It is not necessary for the Court to work out the precise order that it would have made if the party had not died; it is sufficient if the Court is of the opinion that it would have made an order with respect to the property if the death had not occurred.
c) In relation to section 79(8)(b)(2), the onus of establishing that it is still appropriate to make a property order rests on the party who is seeking the order. (Footnote added).
d) Factors that may be relevant in considering whether it is still appropriate to make a property order include –
(i) any consequence of the death of the party on the financial position of the surviving party; and
(ii) the fact that the deceased party has no continuing maintenance needs.
e) Section 79(8)(b)(ii) requires the Court to be of the opinion that it is still appropriate to make an order with respect to property. There is no requirement that the Court be of the opinion that it is still appropriate to make the order that it would have made if the party had not died;
f) The Court must ignore the claims of the beneficiaries of the deceased parties (sic) estate.”
I respectfully agree with all of his Honour’s remarks set out above and as referred to previously. I entirely share his Honour’s difficulty with the lack of guidance from the High Court in Stanford as to how the Court is to deal with the second limb of the consideration as to whether it is still appropriate to make an order when someone has died.
I will return to this matter later. For the moment, I will embark upon the pathway indicated by the High Court as analysed by Federal Magistrate Walters in Erdem & Ozsoy.
The parties’ legal and equitable interests
In this case, the matter is very readily addressed. The applicant is deceased and at the time of her death had no legal interest in the property owned by Mr Nachman at Property V, [S].
One of the curious aspects of the evidence in this case is that while it seems to be common cause that Mr Nachman signed a contract of sale of the Property S, [S] property on 18 June 2010 (see exhibit SW-5) and that the date of settlement for the Property V property was 15 October 2010 (see SW-6) and that Ms F ceased to live with Mr Nachman in October 2010, it is not clear where, if anywhere, they may have lived in between those two properties.
It seems to be common cause that following her living with
Mr Nachman, Ms F lived with her son (see paragraph 15,
Mr Nachman’s affidavit).
It seems to be common cause likewise that the application ultimately granted by VCAT in favour of State Trustees on 4 February 2010 arose because of an initiative taken by a social worker at a hospital where
Ms F had been previously admitted.
Given that Ms F’s mental state was such that she was not apparently able to make decisions on her own behalf, the question as to why separation took place is slightly problematic. No evidence as to exactly how she came finally to leave Mr Nachman in October 2010 has been given to the Court.
Nonetheless, I am prepared to, and will, treat Mr Nachman’s assertion that Ms F ceased to live with him in October 2010 and lived thereafter with her son as a concession against interest. It does seem fairly clear from the tenor of the evidence as a whole, and doing the best I can given its paucity, that Ms F did indeed leave Mr Nachman and lived the remainder of her life with her son, who must in the circumstances have provided some assistance, bearing in mind that she was looked after by him and a carer.
In these circumstances, which differ dramatically from those in Stanford, not least because Mr Nachman clearly provided nothing to Ms F after she ceased to reside with him, it is clear that there has not been an involuntary separation of the sort that the High Court identified in Stanford.
Nor, as a matter of fact, is it the case that her needs were being met in the sense that arose in Stanford. Mr Nachman was providing nothing to her. The funds potentially available held by the Senior Master do not properly meet the characterisation advanced by counsel for
Mr Nachman. They were funds, I would infer, held in trust on her behalf in the ordinary way. Whether they were sufficient for her needs is wholly untested by any evidence.
I repeat, this case is materially and radically different from Stanford.
Would it have been appropriate to make an order in
Ms F’s case if she was still alive?
This, of course, is the first step identified by the High Court to be taken in circumstances where there is a matrimonial property case before the Court.
In my view, and I refer back to the earlier three-step methodology, it is quite clear that the Court would ordinarily have made an order in
Ms F’s case if she were still alive. She had made a very substantial contribution to the assets of the relationship and it would clearly have been appropriate to award her the majority of the asset pool.
Is it still appropriate to make an order in Ms F’s favour?
It needs to be remembered that there is no new claim before the Court, as the High Court pointed out in Stanford. The claim is still Ms F’s claim.
In the light of Walters FM’s decision in Erdem & Ozsoy, the practical reality of Mr Dell’s circumstances and difficulties are rendered irrelevant. Nonetheless, the fact is that if I make an order in the estate’s favour, he will obtain the funds.
For these purposes, it seems to me that the net effect of s.79(8) and therefore, s.90SM(8), which is relevantly identical in terms, is that the Court should consider anew whether it is just and equitable in all the circumstances to make an order in Ms F’s favour. Here, the most obvious consideration is the fact that Ms F has no future needs.
A further and highly relevant consideration is that as a matter of practical politics, any order made in Ms F’s favour will mean that
Mr Nachman has to sell the home in which he lives and will be seriously and materially disadvantaged.
The reality is, however, that in almost every case of this sort involving a deceased person, there will always be an absence of future maintenance needs on the part of the deceased and there may often be a significant impact upon the survivor in the event that any claim is granted. Unless s.79(8) and s.90SM(8) are to be rendered completely ineffectual, some sort of criteria will need to be developed.
If one returns to the three fundamental principles described by the High Court in Stanford, I would find the following:
a)I have already identified, according to ordinary common law and equitable principles, existing legal and equitable interests of the parties in the relevant property pool;
b)The power to alter the parties’ property interests is not a power to be exercised according to unguided judicial discretion. The question is whether the rights and interests should be varied;
c)The consideration of the various factors in s.79(4) does not automatically give rise to a right on the part of one of the parties to have the property divided by reference to those factors. The just and equitable requirement in s.79(2) must also be considered and applied.
However, in my view, it is still appropriate, just and equitable to make an order in Ms F’s favour. She contributed in a very significant way over a long time to Mr Nachman’s wellbeing and, as I find, the entirety of the former matrimonial home was, in effect, hers to begin with and ultimately given away for nothing to Mr Nachman. In these circumstances, to allow Mr Nachman to reap the benefits of his conduct over the years to Ms F would plainly be unjust and inequitable.
In what proportions should the property be divided?
Here, I can refer back to and incorporate by reference my earlier methodology. The applicant has sought one third of the property pool.
Absent Ms F’s ill health and death, she would have obtained 70 per cent of the property pool. In my view, a claim for only 33 1/3 per cent is in the circumstances, including Mr Nachman’s difficulties in the event of any award in the estate’s favour, entirely just and equitable. For these reasons, I propose to make orders in favour of the estate as to 33 1/3 per cent of the value of the pool.
I will hear from counsel as to what precise form of orders should be made.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 29 January 2013
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