JEANES & JEANES

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.