JEANES & JEANES - [2015] FamCA 385

FAMILY COURT OF AUSTRALIA

JEANES & JEANES

[2015] FamCA 385

FAMILY LAW – PROPERTY – SPOUSAL MAINTENANCE– Undefended Hearing – Where the husband did not appear before the Court or file any evidence in respect of the wife’s application – Where the husband had confirmed receipt of and responded to correspondence from the wife’s solicitors – Where the husband proffered no explanation for his decision not to participate in proceedings – Where it is considered to be just and equitable to make the orders sought by the wife – Wife’s application proceeds as an undefended hearing – Orders made as sought by the wife.

Bevan & Bevan (1995) FLC 92-600
Bevan & Bevan (2013) FLC 93-545
Black and Kellner (1992) 15 FamLR 343
Chapman & Chapman (2014) FLC 93-592
David & David [2007] FamCA 88
DJM v JLM (1998) FLC 92 - 816
Ferraro and Ferraro (1993) FLC 92-335
Herold & Herold (2015) FLC 93-628
Hickey and Hickey (2003) FLC 93-143
In the Marriage of S Wife and Wife Husband Weir (1992) 16 Family LR 154
McLay and McLay (1996) FLC 92-667
Rand & Rand (2010) FLC 93-444
Stanford & Stanford (2012) FLC 93-518
Taylor v Taylor (1979) FLC 90-674
Vautin v Vautin (1998) FLC 92-827
Zane & Allan (2008) FLC 93-378
Zhao & Xie [2008] FamCAFC 187

Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 81
Family Law Rules 2004 (Cth), rules 11.01, 11.02, 11.04

APPLICANT:

Ms Jeanes

RESPONDENT:

Mr Jeanes

FILE NUMBER:

SYC

3625

2014

DATE DELIVERED:

14 May 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

23 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Gordon & Barry Lawyers

COUNSEL FOR THE RESPONDENT:

Not Present

SOLICITOR FOR THE RESPONDENT:

Not Present

Orders

Delivered 23 February 2015:

I make orders as sought in the Initiating Application filed by the wife on 13 June 2014 with the exception of paragraphs 4, 8 10.3 and 26 as sought therein and no longer pressed in the hearing today.
I direct that the solicitor for the wife provide to my associate by email and in Word document form a typescript of the orders made today.
I accept the evidence filed by the wife that the husband has been served with the Initiating Application filed by her on 13 June 2014 as required by the Family Law Rules.
I find that the orders sought by the wife are appropriate to made pursuant to s 79 and s 72 of the Family Law Act.
Reasons for the making of these orders will be provided in the event of a request in writing being made to my associate by email (address).
It is noted that the application proceeded as an undefended hearing before the court today.
I accept that the husband has communicated with the wife’s solicitors by email following 13 June 2014.
I direct that the husband be served by email with a scanned copy of the orders made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JEANES & JEANES

Details

AGLC: JEANES & JEANES [2015] FamCA 385
Case: [2015] FamCA 385
Decision Date: 14 May 2015

CaseChat Overview and Summary

In *Jeanes & Jeanes*, Le Poer Trench J of the Family Court of Australia considered an application by the wife for property settlement orders. The husband had been served with the initiating application, and the wife sought orders pursuant to sections 79 and 72 of the *Family Law Act 1975* (Cth).

The central legal issue before the court was whether it was just and equitable to make the property settlement orders sought by the wife, and how this determination should be approached in light of sections 79(2) and 79(4) of the *Family Law Act*. The court was required to consider the existing legal and equitable interests of the parties in the property and to exercise its broad power to alter those interests in accordance with established legal principles, rather than by unguided discretion or assumption.

Le Poer Trench J emphasised that the requirements of section 79(2) (the "just and equitable" threshold) and section 79(4) (matters to be taken into account) are distinct and should not be conflated. The court must first identify the parties' existing legal and equitable interests in the property. It then must be satisfied that, having regard to these interests and all other circumstances, it is just and equitable to make an order. This determination is not to be made by assuming a right to property division or by commencing from the assumption that parties' interests should be different from their existing legal and equitable titles. The court's power is broad but must be exercised according to legal principles, not "palm tree justice," and community of ownership arising from marriage has no place in common law principles governing property rights.

The court made orders as sought by the wife, with the exception of certain paragraphs no longer pressed. The court found that the orders were appropriate to be made pursuant to sections 79 and 72 of the *Family Law Act*, accepting the wife's evidence of service on the husband. Reasons for the orders were to be provided upon written request.

Orders

Orders of the court

Delivered 23 February 2015:

I make orders as sought in the Initiating Application filed by the wife on 13 June 2014 with the exception of paragraphs 4, 8 10.3 and 26 as sought therein and no longer pressed in the hearing today.

I direct that the solicitor for the wife provide to my associate by email and in Word document form a typescript of the orders made today.

I accept the evidence filed by the wife that the husband has been served with the Initiating Application filed by her on 13 June 2014 as required by the Family Law Rules.

I find that the orders sought by the wife are appropriate to made pursuant to s 79 and s 72 of the Family Law Act.

Reasons for the making of these orders will be provided in the event of a request in writing being made to my associate by email (address).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In Stanford the High Court warned against "conflating" the requirements of s 79(4) and s 79(2): The operation of s 7935. It will be recalled that 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 interests 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 in 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 judicial 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 father and mother 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". 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 father and mother 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. (references removed)