GIORDANO and GIORDANO

[2024] FCWA 182

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GIORDANO and GIORDANO [2024] FCWA 182

CORAM: O'BRIEN J

HEARD: 2 SEPTEMBER 2024

DELIVERED : Ex tempore

FILE NO/S: 5609 of 2024

BETWEEN: MR GIORDANO

Applicant

AND

MS GIORDANO

Respondent

Catchwords:

PROPERTY - Application for consent orders in circumstances where the wife is a person under a disability - Where it is common ground that the marriage has not broken down and that the parties do not cohabit only because of the wife's need for full-time care - Where the evidence is insufficient to support a conclusion that it is just and equitable to make the orders jointly proposed - Turns on its own facts.

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Jebb
Respondent	:	Ms Bateman

Solicitors:

Applicant	:	Jebb Legal
Respondent	:	Public Trustee

Case(s) referred to in decision(s):

Stanford v Stanford (2012) 247 CLR 108

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Giordano and Giordano has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1 The matter before the Court is the joint application for consent orders filed by [Mr Giordano] ("the husband") and the Public Trustee on behalf of [Ms Giordano] ("the wife"). Apart from the necessary procedural step of appointing the Public Trustee as Case Guardian for the wife, the application seeks orders for alteration of property interests whereby the home at [Suburb A] ("the home") presently registered in the sole name of the wife will be transferred into the names of the parties as joint tenants, and the parties will "otherwise retain all right title and interest in all other assets owned in their respective names".

2 Rather than being considered by a Registrar in chambers, as is usual when a joint application for consent orders is filed, the matter was listed for hearing before me. That step was taken primarily because it is common ground that the parties are not separated, and their marriage remains intact. The question of whether the Court can be satisfied that it is just and equitable to make any order for alteration of property interests therefore squarely arises.

3 For the reasons that follow, on the evidence presently available I am not so satisfied.

The relevant legal principles

4 Section 79(2) of the Family Law Act 1975 (Cth) ("the Act") provides that the 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 which must be taken into account in considering what order (if any) should be made. The "requirements of the two subsections are not to be conflated".[1] The Court must not assume "that the parties' rights to or interests in marital property are or should be different from those that then exist",[2] nor can the question of whether making an order is just and equitable be determined "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)".[3]

[1] Stanford v Stanford (2012) 247 CLR 108, [35].

[2] Ibid [39].

[3] Ibid [40].

5 There can be no suggestion that the absence of a breakdown in the marital relationship means that the jurisdiction of the Court is not enlivened.

6 There can be circumstances other than "a voluntary separation of the parties marking the breakdown of their marital relationship" in which the Court is nevertheless satisfied that it is just and equitable to make an order for the alteration of property interests.[4] The circumstances which might lead to that conclusion are not in any sense prescribed.

The presently available evidence

[4] Ibid [45].

7 The presently available evidence is contained in an affidavit of [Mr Kelly], [a staff member of] the Public Trustee sworn on 11 July 2024, and the affidavits of Mr Kelly and of the husband which verify the information set out in the joint Application for Consent Orders. The facts set out below are drawn from those affidavits.

8 The husband was born in [redacted], and the wife was born in [redacted]. They began living together in [redacted] and were married in [redacted] 1981. As earlier noted, their relationship has not broken down; they are no longer living together in the home as the wife has moved into residential aged care. There are no children of the marriage.

9 The home was purchased in 1984 in the sole name of the wife for $45,000. The Public Trustee "is advised" that the purchase price was paid in full, without any borrowings being required, from the proceeds of "a superannuation payout when the wife ceased work". In the same affidavit, it is stated that the wife ceased paid employment shortly after the purchase of the home. The discrepancy is not explained. While the Court is not told just when in 1984 the property was purchased, the wife was either 48 or 49 years old at the time. The circumstances of the asserted superannuation payout are not explained.

10 Elsewhere, it is stated that the wife "owned a property at the commencement of the marriage", but no details are provided. It may or may not be that the purchase of the present home was funded in whole or in part from the sale of another property owned by the wife prior to the relationship.

11 There is no evidence as to why the home was purchased in the sole name of the wife. The evidence of Mr Kelly is simply to the effect that the husband has advised that he only recently became aware that he was not on the title.

12 On the husband's evidence, which is accepted by the Public Trustee, the husband "subsequently contributed around $137,000 to the marriage from compensation payments in later years".

13 The home is now worth approximately $640,000. The parties have minimal other assets and no superannuation. Both are reliant on aged pensions.

14 The husband presently lives in the home. In submissions on behalf of the Public Trustee it is said that the husband has "through lawyers… indicated a potential claim to [the home]" and that it is appropriate for the proposed orders to be made so that "the parties will not have to be involved in contested Family Court proceedings". Elsewhere, it is said that the "parties intend in the future to sell [the home] and downsize, which will provide [the husband] with a continuing residence". Again, no further detail is provided.

15 The Public Trustee was appointed as the plenary administrator of the wife's estate by order of the State Administrative Tribunal ("SAT") [in] 2024. That order was made on the application of [Helen Martin] lodged [in] 2023. No copy of the application or supporting documentation has been provided, and there is no evidence as to Ms Martin's relationship (if any) with either party. I was advised this morning that she is the wife's daughter from a previous relationship.

16 The appointment of the Public Trustee was made in the context of a declaration that the wife is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all of her estate and matters relating to her person and is in need of a guardian and administrator.

17 Notably, the order:

(a)directed the Public Trustee to secure the wife's interests in the home "including taking any action in relation to a transfer signed by [the wife] [in] January 2024 transferring a half interest in [the home] to [the husband]";

(b)noted an undertaking by the husband not to lodge that transfer "until the Public Trustee has made the decision about whether the transfer should be lodged"; and

(c)revoked an Enduring Power of Attorney dated [redacted] by which the wife apparently appointed [Helen Russo] to be her attorney.

18 The filed documents did not indicate whether Helen Russo and Helen Martin are the same person; I was told this morning that they are.

19 The Power of Attorney was executed during the marriage but did not appoint the husband. No explanation for that is proffered.

20 No mention is made in the affidavit material[5] of the execution of the transfer document by the wife [in] January 2024 in circumstances where Ms Martin had lodged her application to the State Administrative Tribunal [in] 2023. No evidence is given as to the circumstances in which that transfer was apparently executed, nor for that matter whether it purported to create a joint tenancy, or a tenancy in common.

[5] Other than by exhibiting the SAT order.

21 I am not told whether either party has a current Will. I am not told whether there is any other person who might purport to have a relevant claim, although it appears that in an earlier (rejected) version of the application reference was made in that regard to Ms Martin.

Disposition

22 The procedural step of appointing the Public Trustee as Case Guardian for the wife in the proceedings commenced by the application for consent orders is readily taken. The Public Trustee is the manager of the affairs of the wife in the relevant sense by virtue of the order made by the State Administrative Tribunal and has consented to the appointment.[6]

[6] Family Court Rules 2021 (WA) r 102.

23 For reasons which should be readily apparent from the summary just given, I cannot be satisfied on the available evidence that it is just and equitable to make any order for alteration of property interests, let alone that the orders presently proposed are just and equitable in all the circumstances.

24 I do not know whether the questions which emerge from the papers have been adequately considered by the Public Trustee in the exercise of his protective duties to the wife. I accept that they may well have been - but the evidence does not presently permit that conclusion to be drawn.

25 Apart from the matters already summarised, it is not at all clear that the parties have adequately considered the fact that there is but one exercise of the Court's power to alter property interests. While the marriage has not broken down, the wife's needs are apparently presently being met and the husband desires security of accommodation, the making of orders now would (subject only to the possible application of s 79A) preclude the making of further orders for alteration of property interests should the relationship end.

26 The matter was listed to today for directions. It was not overtly listed for hearing and determination. It would be procedurally unfair to dismiss the application today in those circumstances, and I would not do so in any event.

27 The appropriate course is to adjourn the matter to afford the parties the opportunity to consider the observations made, and to adduce further evidence in support of the joint application should they wish to do so. It may be that, on reflection, alternatives other than the making of orders in this Court are considered.

28 That said, the application should not simply be adjourned generally such that it remains on foot indefinitely. I propose, therefore, to give the parties a reasonable period in which to consider their options and to adduce further evidence should they wish to do so, failing which the application will be dismissed.

Orders

29 There will be the following orders:

1.The Public Trustee in and for the State of Western Australia is appointed as Case Guardian for the Respondent wife, MS GIORDANO.

2.The joint application for consent orders filed on 15 July 2024 stand adjourned generally, with liberty to either party to seek a relisting.

3.If no request for a relisting is received by 4.00 pm on 25 November 2024, the file is to be referred to the presiding judge in chambers at 8.00 am on 26 November 2024 for consideration to be given to the making of the following order without further notice to the parties:

(a)the joint application for consent orders filed on 15 July 2024 be and is hereby dismissed.

These reasons are the reasons for decision delivered on 2 September 2024, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

3 SEPTEMBER 2024