Jensen & Jensen - [2022] FedCFamC2F 1190

Federal Circuit and Family Court of Australia
(DIVISION 2)
Jensen & Jensen [2022] FedCFamC2F 1190

File number: PAC 6951 of 2020

Judgment of: JUDGE TURNBULL

Date of judgment: 2 September 2022

Catchwords: FAMILY LAW – PROPERTY – s 79(8) – property settlement after the death of applicant wife – where partial settlement results in husband retaining significantly more assets than the wife – where remaining assets for distribution are jointly held funds and lease surrender proceeds in which the parties hold equal interests – discussion of jurisdiction under s 79(8) – discussion of s 75(2)(a) – need for party’s age and/or state of health to affect their financial circumstances – discussion of s.75(2)(g) – whether party’s standard of living impacted by payment of legal fees

Legislation: Family Law Act 1975 (Cth) ss 39(5)(a), 75(2), 79(1), 79(2), 79(4), 79(8)

Cases cited:
Abebe v Commonwealth (1999) 197 CLR 510

Beck & Beck (No 2) (1983) FLC 91-318

Clauson & Clauson (1995) FLC 92-595

Dovgan & Dovgan [2021] FamCA 306

Doyle & Doyle (deceased) (1989) FLC 92-027

Firm & Ruane [2014] FamCAFC 189

Fisher & Fisher (1986) FLC 91-701

Fisher & Fisher (No 2) (1986) 161 CLR 438

Flanagan & Sobek (deceased) [2014] FamCA 696

Goswami & Rapozo (No 2) [2020] FamCAFC 282

Grace & Grace [2012] NSWSC 976

Greval & Estate of the late Greval (1990) FLC 92-132

Grier & Malphas [2016] FamCAFC 84

Hickey & Hickey [2003] FamCA 395

Hutton & Hutton [2007] FamCA 1701

Jabour & Jabour [2019] FamCAFC 78

Jacobson & Jacobson (1989) FLC 92-003

Kowaliw & Kowaliw (1981) FLC 91-092

Lotta & Lotta [2017] FamCA 50

Mabb & Mabb [2020] FamCAFC 18

Mallet & Mallet (1984) 156 CLR 605

Mayhew & Fairweather [2021] FamCA 614

Meddow & Estate of the late Meddow [2015] FamCA 1182

Norman & Norman [2010] FamCAFC 66

Parshen & Parshen (1996) FLC 92-720

Pretswell (deceased) & Pretswell [2019] FamCA 395

Sigley & Cullen (No 3) [2015] FamCA 825

Stanford & Stanford (2012) 247 CLR 108

Strelys & Strelys (1988) FLC 91-961

Tallowfield & Tallowfield [2018] FamCAFC 172

Teal & Teal [2010] FamCAFC 120

Varnham & Moses [2021] FamCAFC 31

Waters & Jurek (1995) FLC 92-635

Whitehouse & Whitehouse [2009] FamCAFC 207

Wilson & Wilson (1989) FLC 92-033

Division: Division 2 Family Law

Number of paragraphs: 116

Date of hearing: 20-21 June 2022, 28 June 2022

Place: Heard in Parramatta and Hobart, delivered in Hobart

Counsel for the Applicant: Mr Kerrison

Solicitors for the Applicant: Kerrisons Legal Services

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: MCW Lawyers Pty Ltd
ORDERS

PAC 6951 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HOLLAND AS THE LEGAL PERSONAL REPRESENTATIVE FOR MS JENSEN (DECEASED)

Applicant

AND:
MR JENSEN

Respondent

order made by:

JUDGE TURNBULL

DATE OF ORDER:

2 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.unless already undertaken pursuant to the partial settlement order of 21 June 2022, pursuant to s 79(8)(b)(iii) of the Family Law Act 1975 (Cth) (‘the Act’), and within twenty-eight (28) days from the date of this order, MS JENSEN (through her legal personal representative, MR HOLLAND) (‘the Wife’s estate’) shall do all acts and things and sign all documents necessary to transfer to MR JENSEN (‘the Husband’) all right, title and interest held by the Wife’s estate in Room B, C Care Centre, D Street, Suburb E New South Wales (‘Room B’), including:
(a)the Refundable Accommodation Deposit associated with the Husband’s occupation of and residency in Room B;
(b)all rights and benefits that may have otherwise been granted, given or bestowed by C Care Centre Ltd, trading as C Care Centre, associated with the Husband’s occupation of and residency in Room B; and
(c)the balance in the trust account ledger held in the Husband’s name by C Care Centre;

2.pursuant to s 79(8)(b)(iii) of the Act, within fourteen (14) days of the date of this order, both parties do all acts and things, and sign all necessary documents, so as to ensure that the funds as held:
(a)in the Commonwealth Bank of Australia Pensioner Security Account no. …29, amounting to $500.00;
(b)in the Commonwealth Bank of Australia Term Deposit Account no. …65, amounting to $213,000.00; and
(c)by MCW Lawyers in their trust account, amounting to $304,310.18, being the surrender of lease proceeds from Unit F, G Retirement Village, H Street, Suburb J;

are divided between the parties so as to effect each party’s entitlement to assets worth 50% of the entire asset pool, with:
(d)$342,201.59 of the total funds at paragraph 2(a)–(c) to be paid to the Wife’s estate; and
(e)$175,608.59 of the total funds at paragraph 2(a)–(c) to be paid to the Husband;

3.any balance held in the accounts listed in paragraphs 2(a)–(c) which remains after the distribution of funds in accordance with paragraphs 2(d)–(e) shall be divided equally between the parties;
4.the parties shall, if they have not already done so in accordance with the partial settlement order of 28 June 2022, within seven (7) days of the date of this order, take all necessary steps and actions so as to close the Bank K Account no. …31, with the proceeds (if any) of such account to be divided equally between the parties;
5.subject to the preceding paragraphs, each party shall be solely liable for and indemnify the other against any liability:
(a)incurred in their name; or
(b)encumbering any item of property to which that party is entitled pursuant to this order; and

6.subject to the preceding paragraphs, the parties shall legally and beneficially retain all other items of property in their possession to which this order has not previously referred, including but not limited to all of their right, title and interest in and to:
(a)all cash at bank and monies invested by them in their sole name, or jointly with any other person;
(b)all furniture and household contents retained by them;
(c)all motor vehicles in their possession;
(d)any superannuation benefits to which they are, or may be in the future, entitled; and
(e)all insurance policies in relation to which they are the life insured, or in relation to the property to which they are entitled pursuant to this order;

7.the parties do all acts and things, and sign all necessary documents, so as to give effect to the terms of this order;
8.if either party refuses or neglects to sign or execute any documents, instruments or writing or comply with any part of this order after seven (7) days of being requested to do so by the other party in writing, then the Registrar of the Court shall be empowered pursuant to s 106A of the Act to sign and execute such documents, instruments or writings on behalf of either party as may be necessary to give full force and effect to the terms of this order;
9.all extant orders, save for this order, be discharged; and
10.all outstanding applications be dismissed;

With the Court noting that:
A.the parties agree that, pursuant to s 81 of the Act, this order is intended to operate to end their financial relationship, including spousal maintenance, and is an attempt to avoid further proceedings between them.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jensen & Jensen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview

Ms Jensen (‘the Wife’) and Mr Jensen (‘the Husband’) were married in Suburb L in 1983 and commenced cohabitation at that time. Both were 57 years of age when cohabitation commenced. The parties separated on or about 21 May 2019 — the Husband moved into a room at C Care Centre, D Street, Suburb E, an aged care facility, and the Wife remained at their unit at G Retirement Village, H Street, Suburb J.[1] Their marriage was one of 35 years and 7 months, there being no children of their marriage.
[1] The date of separation given by the Wife’s affidavit is 21 May 2019 and that given by the Husband’s affidavit is 23 February 2020. This makes for a difference of nine months in the context of a 35-year marriage — the Wife’s affidavit gives a duration of 35 years and 7 months, and the Husband’s affidavit gives a duration of 36 years and 4 months. The Husband ultimately conceded under cross-examination that separation occurred when he moved into the C Care Centre aged care residence in May 2019.
The Wife initiated property proceedings against the Husband on 22 December 2020 but, in 2021 and at 95 years of age, she passed away before her application was finally determined. The Wife’s eldest son, Mr Holland, is the substituted applicant as her legal personal representative.[2] Wherever these Reasons refer to ‘the Wife’ they refer to the position advanced by Mr Holland on her behalf. Any property adjustment order, if made, may be enforced by or against the Wife’s estate.[3]
[2] Order of Judge Newbrun dated 27 October 2021; Family Law Act 1975 (Cth) s 79(8). Mr Kerrison, on behalf of the Wife, relied upon the affidavit of Mr Holland filed 29 September 2021 to again establish the Wife’s death and the grant of probate, noting that this affidavit would have been before his Honour for the purposes of the substitution order of 27 October 2021.
[3] Ibid ss 79(1A), 79(8)(c).
The Husband, born in 1926, is currently 96 years of age and still resides at C Care Centre.
Upon initiating these proceedings the Wife sought various terms of order with respect to the parties’ property and financial resources under s 79 of the Family Law Act 1975 (Cth) (‘the Act’). A number of terms have since been agreed by the parties and proclaimed, with the parties’ consent, on 21 and 28 June 2022. The partial property settlement terms, in summary, provide that:
·the Husband will acquire the Wife’s interest in the C Care Centre room;
·the parties’ interest in the G Retirement Village, Suburb J unit will be sold and the proceeds split in accordance with this Court’s determination under s 79;
·the parties’ joint Bank K account be closed and the proceeds be split equally; and
·each party retain possessions and entitlements in their sole name.[4]
[4] Those interim orders also include, by consent, an indemnification by each party to the other with respect to liabilities incurred in their name or attaching to property to which the other is entitled, an order under s 106A of the Act, and a costs order against the Wife’s solicitor to pay the Husband’s solicitor a sum of $3,650.00.
The terms of order made by consent will be restated as necessary in the final order.
The parties also settled the asset pool (exhibit J1) on the second day of the trial showing assets with a value of $900,403.00. Exhibit J1 is extracted at paragraph 19 of these Reasons.
Upon final submissions, with the asset pool and the abovementioned terms of order agreed, the remaining issue was how this Court should divide the parties’ joint bank account funds and the G Retirement Village lease surrender proceeds. The parties’ joint funds, held in two accounts, amounts to $213,500.00.[5] Under the 21 June 2022 order the lease for the G Retirement Village unit was surrendered, with the lease surrender proceeds placed in the Husband’s solicitors’ trust account. The Husband’s solicitors have advised that the amount held in their trust account is $304,310.18, meaning that the total remaining funds available for distribution are $517,810.18. The net asset pool now totals $900,403.18.
[5] CBA Pensioner Security Account no. …29 (exhibit J1, item 4) and CBA Term Deposit Account no. …65 (exhibit J1, item 5). I note that the latter account number is shown in exhibit J1 as 5017 3765 but annex 8 to the Wife’s affidavit indicates that the correct account number is …65. The asset pool, extracted at paragraph 19 herein, therefore refers to the account as …65.
Both parties accept that, whatever the ultimate adjustment (if any) of their property interests, a just and equitable result can be achieved through distributing the joint bank account balances and the G Retirement Village surrender of lease proceeds. That determination necessarily concerns the nature and weight of each party’s contributions under s 79(4)(a)–(c) and the adjustments, if any, to be made under s 79(4)(d)–(g). The parties’ positions with respect to their contributions differ markedly and, naturally, so do their proposals.
Mr Kerrison, for the Wife substituted by Mr Holland, submitted that the parties’ property be divided on a 90/10 basis in the Wife’s favour. Ms Spain, for the Husband, sought a 45/55 division of the parties’ property in the Husband’s favour.
The proposal put forward on the Wife’s behalf, in monetary terms, means she would be entitled to $810,362.86 worth of assets from the total asset pool. Taking into account the $108,000.00 worth of assets already retained by her estate by virtue of the partial settlement, she would on her proposal be entitled to an additional $702,362.86 in assets. The Husband, under a 90/10 division of the parties’ entire assets, only be entitled to assets valued at $90,040.32. This is not possible by the parties’ own partial property settlement, through which the Husband retains or acquires assets with a total value of $274,593.00.
The Husband’s proposal, in monetary terms, results in the Husband receiving assets worth $495,221.75 and the Wife $405,181.43. Taking into account the $108,000.00 and $274,593.00 amounts to which the Wife and Husband are respectively entitled through the partial settlement, the Husband’s proposal entitles the Wife to a further $297,181.43 in assets and the Husband to a further $220,628.75, to be paid from the remaining funds for distribution.
It is clear from the parties’ proposals, and the figures above, that their perspectives differ greatly as to the weight to be afforded to their contributions.
Evidence
The Wife relied upon the initiating application filed 22 December 2020, her affidavit filed 24 May 2021, her financial statement filed 22 December 2020, and the affidavit of Mr Holland filed 29 September 2021. Mr Kerrison, for the Wife, also tendered updated terms of order sought (exhibit A1), a 52-page bundle of bank statements (exhibit A2), and a bundle of Commonwealth Bank of Australia documents (exhibit A3).
The Wife herself was, of course, unavailable for cross-examination. Her affidavit evidence (albeit untested), and the annexures thereto, provide approximate values of her properties as of cohabitation commencing and bank statements confirming amounts she held in term deposits. The Husband did not contest the approximate values of his property, as of cohabitation commencing, contained within the Wife’s affidavit. She also states that she did the lion’s share of the housework, with the Husband contributing to certain tasks such as mowing the lawn at the Suburb M property, putting out the bins, checking the mail, and in later years doing the household shopping.[6] The Husband was of course unable to challenge the Wife’s evidence in this respect, and his affidavit makes no reference to his contributions of this kind, nor was he cross-examined about the issue.
[6] Affidavit, Ms Jensen, 24 May 2021 (‘Affidavit (Wife)’), [56].
The Husband relied upon the response filed 15 January 2021, his affidavit filed 4 March 2021, and his financial statement filed 21 June 2022. Ms Spain of Counsel, for the Husband, also tendered updated terms of order sought (exhibit R1).
At trial the Husband, slightly hard of hearing, provided his evidence from a wheelchair situated at the bar table. Notwithstanding his age he gave clear and direct answers to the questions put to him under cross-examination. At times he could not recall specific details, particularly about his use of superannuation, long service leave monies, and proceeds from properties sold throughout the parties’ 37-year marriage. He was, however, clear that all such monies, together with all income earned, was placed into the parties’ joint account and used for the purpose of their relationship. I accept the Husband’s evidence in this respect, noting my discussion of this issue commencing at paragraph 27 of these Reasons.
As foreshadowed above the parties also tendered an agreed asset pool (exhibit J1), consent terms as to costs (exhibit A), and partial settlement terms by consent (exhibit B). The terms contained within exhibits A and B were pronounced in the course of the trial and shall be re-ordered on a final basis where applicable.
Asset pool
The agreed asset pool is set out below. I note that exhibit J1 also includes headings with respect to addbacks, superannuation, and financial resources, but that there is no value listed under these headings. I also note, with reference to paragraph 2 of the consent order dated 28 June 2022, that the parties agreed to close their Bank K account (item 6) and equally divide any funds therein. As a result I will not consider the value of item 6, nominal or minimal as it may be, to be included in the asset pool for the purposes of these Reasons.
Having regard to my calculations in paragraph 7 above, the asset pool as agreed amounts to $900,403.18 — a mere eighteen cents difference from the figure agreed below. Of the items below the Wife retains items 7, 8, and 10, and the Husband retains items 2, 9, and 11.

Ownership Description Applicant’s
value Respondent’s
value

ASSETS

1. J Unit F, G Retirement Village, H Street, Suburb J, equity:[7] $304,310 E $304,310

2. H Room B, C Care Centre, D Street, Suburb E, in Mr Jensen’s name Refundable Accommodation Deposit $250,000 E $250,000

3. J Furniture and household contents: $Nominal MIN

4. J CBA Pensioner Security Account no. …29 $500 E $500

5. J CBA Term Deposit Account
no. …65 $213,000 E $213,000

6. J Bank K Account
no. …31 $Nominal MIN

7. W CBA Pensioner Security Account no. …77 $7,500 E $7,500

8. W CBA Pensioner Security Account no. …80 $95,500 E $95,500

9. H CBA Pensioner Security Account no. …44 $19,093 E $19,093

10. W Shares in publicly listed companies (Company N and Company O) $5,000 E $5,000

11. H Shares in publicly listed companies (Company N and Company P) $5,500 E $5,500

Total $900,403 E $900,403

LIABILITIES

16. W CBA Visa Card $Nominal $Min

17. CBA Visa Card $Nominal

Total $ Nominal $ 0

[7] Now represented by the $304,310.18 held in the Husband’s solicitor’s trust account.
Facts

The Wife was born in City Q, Country R, arrived in Australia in 1957, and obtained Australian citizenship in 1964. The Husband was born in Sydney.
The Wife has five children from her first marriage — Mr Holland, the substituted applicant (75), Mr S (72), Ms T (71), Mr U (64), and Mr V (59). Her first husband, Mr W, passed away in 1975. They ran a business through X Pty Ltd until Mr Holland’s death and, in 1980, the Wife started a partnership (Company Y) with Mr Z, from whom the company leased its business premises. When the Wife married the Husband she was still a partner with a half-share in that business, owned real estate at Suburb AB and Town AC, and held various funds in term deposits.

The Husband does not have any children. At the time of marriage he was employed by Employer AD and owned real estate at Suburb M and Town AC. He inherited the Suburb M property in half-shares with his sister and, financed by a loan from the Commonwealth Bank, he acquired his sister’s half-interest in 1982.[8] He also held superannuation with Employer AD which was realised upon claiming a redundancy a few years after the marriage. Given the expanse of time since 1983 it is understandable that he could not, under cross-examination, recall precise values of or proceeds from his property as of cohabitation commencing.
[8] The Husband stated this in cross-examination to clarify that he did not require a loan from the Wife (purportedly of $6,000.00) to pay out his sister’s half-interest, although as found at 74 of these Reasons, the Husband conceded that the Wife contributed that amount to the mortgage on the Suburb M property.
Upon their marriage in 1983 the parties appear to have commenced cohabitation at the Wife’s Suburb AB property.[9] They lived there for a period in 1983 because the Husband’s Suburb M property was in a state of disrepair. The Wife’s affidavit states that, not wishing to adopt the Husband’s ‘spartan life’, she arranged for repairs and renovations to occur in the first half of 1984.[10] The Husband, on the other hand, said that the repair costs (particularly on the roof) were met from the joint account. The parties lived in the Suburb M property until 1985.
[9] The Husband agreed under cross-examination that the parties lived at the Suburb AB property for a time in 1983.
[10] Affidavit (Wife) (n 6) [35].
Upon commencing cohabitation the parties also established the first of their joint bank accounts. By final hearing, three joint accounts remained — the Bank K account (closed with the balance divided equally), the Commonwealth Bank pensioner security account (containing $500.00), and the Commonwealth Bank term deposit account (containing $213,000.00). Mr Kerrison did put to the Husband that the joint account contained funds originating from the Wife’s term deposits, although the Husband could not confirm the composition of that account, and the Wife’s term deposit funds were not traced as to demonstrate their placement in the joint account. The Husband agreed that the Wife contributed some of the funds in their joint account, since their pension entitlements and other income were deposited therein, but maintained that those funds were not primarily sourced from the Wife’s term deposits. The Husband also maintained, contrary to Mr Kerrison’s line of questioning, that at the time of the marriage he had savings which he contributed to the joint account, although he could not recall the amount.
The Wife retired in 1984 and gave her half-share in Company Y to Mr Z. The value of that business, at any relevant time, is unknown.
Also in 1984, either before or after the Wife’s retirement,[11] the parties purchased a vacant block in Suburb AE. The Husband continued to lease the Suburb M property until he sold it in 1989 and, for a period of one year, leased it to the Wife’s son Mr U. The Wife, in her affidavit, alleges that the Husband never revealed the fate of the Suburb M rental income to her, but ultimately concluded that it was most likely applied to their mortgage repayments.
[11] Affidavit, Mr Jensen, 4 March 2021 (‘Affidavit (Husband)’), [13]–[16]; Affidavit (Wife) (n 6) [31]. The Husband says that the Wife retired in 1985, after the Suburb AE home had been built, but the Wife’s affidavit states that she retired in 1984.
I note here that there were other points during the trial at which Mr Kerrison attempted to argue, based on the Wife’s allegations in her affidavit, that the Husband had withheld monies from the relationship or wasted funds withdrawn in cash from joint accounts. I will address the allegations at this point to deal with them relevantly and swiftly before continuing with the chronology.
I will first deal with the Wife’s allegations of funds being withheld from the relationship, including the Husband’s $200,000.00 retirement benefits and property sale proceeds from Suburb M and Town AC.[12] These arguments were ultimately abandoned for lack of evidence. With respect to the funds allegedly withheld from the relationship, the Wife did not displace the presumption set out in Parshen & Parshen. Namely, that a court is entitled to presume that monies received and used by the parties during a relationship were used for the benefit of that relationship unless and until contrary evidence displaces that presumption.[13] The Wife bore the evidentiary onus which was ultimately unsatisfied.[14] I will not, therefore, take the allegedly withheld funds into account in assessing the parties’ contributions to the marriage. I am satisfied that the Husband placed the Suburb M rental income, the $200,000.00 from Employer AD, and the Suburb M and Town AC sale proceeds into the parties’ joint account.
[12] Affidavit (Wife) (n 6) [35]–[36], [45], together with documents titled ‘cash withdrawals’ and ‘post office transactions’.
[13] Parshen & Parshen (1996) FLC 92-720, 83,665; Polonius & York [2010] FamCAFC 228, [77], cited with approval in Tallowfield & Tallowfield [2018] FamCAFC 172, [59] (Kent J), directly thereafter noting at [60] that ‘the worth of any capital contribution cannot legitimately be “carried forward” mathematically as the sole determinant in assessing contributions under s 79(4) … contributions of all kinds as identified in the subsections of s 79(4), including some incapable of being measured in monetary terms, fall into the holistic assessment of contributions in s 79 property settlement determinations’.
[14] Hutton & Hutton [2007] FamCA 1701, [338]–[339]. There was no compelling evidence adduced, or raised under evidence in chief nor cross-examination, to establish that the Husband’s income, sale proceeds, superannuation, or long service leave entitlements were not placed into one of the parties’ joint accounts to meet necessary expenses of the relationship.
With respect to the purportedly wasted funds — although the submissions were at times unclear as to whether it was a ‘waste’ argument as per Kowaliw & Kowaliw — there was also no evidence indicating that the amounts withdrawn had not been used in the course of the parties’ ‘economic partnership’ while they were married.[15] There was also no evidence that the Husband deliberately or recklessly caused a loss in expending those funds.[16] Mr Kerrison specifically referred to the following transactions, which were highlighted among several others in the documents titled ‘cash withdrawals’ and ‘post office transactions’:
[15] Kowaliw & Kowaliw (1981) FLC 91-092, 76,643–76,644.
[16] Mabb & Mabb [2020] FamCAFC 18, [76] (Ainslie-Wallace & Aldridge JJ).
·11 December 2003: debit (purportedly a transfer fee) of $31.00 at a post office;[17]
·20 July 2004: payment of $2,000.00 to the Visa account ending …72;[18]
·22 July 2004: withdrawal of $9,741.30 from the Visa account ending …72;[19]
·18 January 2010: charge of $26.50, for which no corresponding bank statement was adduced;
·22 January 2010: debit of $20,000.00 from the joint account ending …29;[20]
·17 January 2018: withdrawal of $3,000.00 from the joint account ending …29 from an ATM;[21]
·28 June 2018: withdrawal of $800.00 from the joint account ending …29 from an ATM;[22]
·15 August 2018: withdrawal of $800.00 from the joint account ending …29 from an ATM;[23]
·5 October 2018: withdrawal of $800.00 from the joint account ending …29 from an ATM;[24] and
·18 February 2020: withdrawal of $1,800.00 from the joint account ending …29 from a branch in Suburb AF.[25]
[17] Post office transactions, 28/1.
[18] Ibid 28/23.
[19] Ibid.
[20] Exhibit A2, 53.
[21] Ibid 29.
[22] Ibid 27.
[23] Ibid 26.
[24] Ibid 25.
[25] Ibid 23.
The Husband confirmed under cross-examination that he alone had access to the Visa card ending …72. He further confirmed that the parties paid for some of their household bills, their groceries, and other everyday expenses from their Visa cards. With respect to all transactions between 2003 and 2018 listed above the Husband either did not recollect the purpose of the transaction or suggested that the Wife could have withdrawn the funds. As for the 18 February 2020 cash withdrawal of $1,800.00, the Husband said that he could have been the one to withdraw those funds, but that he could not recollect whether this was actually true and, if true, how he would have spent those monies. That is the only post-separation transaction raised by Mr Kerrison. For all of those transactions the Wife did not demonstrate waste as set out in Kowaliw, nor could she displace the presumption in Parshen — she could not show that the Husband siphoned those funds or otherwise kept them from being applied to the marriage.
Returning now to the chronology — there was some disagreement concerning the parties’ contributions to purchasing the Suburb AE block in 1984 and the subsequent construction costs. The total of those costs, on the parties’ separate estimates, was likely around $180,000.00.
Mr Kerrison put to the Husband that the Wife used her own term deposit monies to meet all costs of purchasing the block and completing their home, with the exception of $400.00 contributed by the Husband for the taps in the home.[26] The term deposit referred to by Mr Kerrison to purchase the land appears to be the first mentioned account, held with the State Bank of New South Wales.[27] The annexed document, purportedly showing the term deposit balance after the Wife paid the 10% deposit and before settlement, is illegible.[28] No further evidence was adduced to corroborate the Wife’s claim that she used her own term deposit funds to meet the purchase price for the Suburb AE block. Further, in relation to the Wife’s statement that she wrote the 10% deposit cheque to be withdrawn from her term deposit on the boot of her car,[29] there was no evidence as to the co-signing requirements (or lack thereof) for the parties’ joint account. The Husband, in response, insisted that all of the Suburb AE costs were met from the parties’ joint accounts. He said under cross-examination that the parties only had one cheque book and, as such, the purchase price was met from their joint account despite the Wife’s assertion that she wrote the cheque to be drawn from one of her term deposits. I am therefore unconvinced that, based on the evidence provided, the Wife solely met the deposit or the total purchase price for the Suburb AE block.
[26] Affidavit (Wife) (n 6) [42].
[27] Ibid [30].
[28] Ibid annex 21.
[29] Ibid [40].
The Wife’s material also cannot corroborate that she alone met the construction costs for Suburb AE — only one receipt from the building company (for $1,000.00) refers to the Wife alone, and no other documentation refers to the account from which any monies were received.[30] With respect to the improvements (of which all but $400.00 was allegedly funded by the Wife), the Wife’s affidavit annexes a list of expenses purportedly paid by the Wife from ‘monies accumulated by [her] prior to the marriage’.[31] The list is hand-written by the Wife, purportedly 36 years ago, but is incapable of showing that she alone (whether through her term deposits and/or sale proceeds from her three properties sold in 1984) met the $177,408.00 of expenses listed therein. The Husband insisted under cross-examination that all costs for Suburb AE were paid from their joint account, although the composition of the joint account in 1984–1985 is unknown. The hand-written list does not state or in any way indicate that the Wife met those expenses from her own funds as she alleges in her affidavit.[32] Given the state of the evidence, and the Husband’s insistence under cross-examination, I cannot be satisfied of the Wife’s claim that she alone funded the expenses totalling $177,408.00. All other improvements to the Suburb AE property after this time were, in the Wife’s view, funded by the joint pension security account, for which she deposed she wrote the physical cheques.[33] Again, the Husband’s evidence was that all construction and improvement costs were met through their joint account. The Wife’s evidence, at its highest, indicates that she alone met $1,000.00 of the construction costs. I am satisfied that the rest was most likely met through joint funds.
[30] Ibid annex 24.
[31] Ibid [42].
[32] Ibid [40]–[42].
[33] Ibid [43], noting that the Wife does not mention any co-signing requirements for the cheques she said she wrote from the parties’ joint account.
The parties moved into their newly constructed home at Suburb AE in 1985.
The Husband retired from Employer AD in approximately 1986, receiving approximately $200,000.00 in long-service leave entitlements and superannuation. Given my remarks above I am satisfied that those funds were placed in the parties’ joint account.
Mr Kerrison also questioned the Husband about the period between his retirement from Employer AD and his eligibility for pension benefits in 1992. The Wife’s position was that, since she qualified for the Australian pension in 1987 and the Country R pension in 1991, she supported the Husband for four to five years until he became eligible for the aged pension. Both parties’ pensions, once available, were paid into their joint account. The Husband answered Mr Kerrison’s questions about this time by saying that he picked up part-time work as a clerk for approximately five days per week, at which he was employed for approximately four years. Mr Kerrison did not press this issue in final submissions and, as a result, I am satisfied that the Husband continued to contribute his income to the relationship between leaving Employer AD and becoming eligible for the pension in 1992.
The parties continued to live in the Suburb AE home until October 2018, at which time they moved into the G Retirement Village unit. They sold the Suburb AE property in February 2019 and applied part of the sale proceeds to the initial contribution on the G Retirement Village unit, with the balance thereof deposited into the parties’ joint account.
In February 2019 the Husband fell and fractured his hip. From May 2019 onwards he has resided in a room at C Care Centre, an aged care facility. The refundable accommodation deposit for that room was paid out of the parties’ joint term deposit account. This is the time at which the parties separated on a final basis, as conceded by the Husband. The Wife continued living at the G Retirement Village unit, and the parties lived separately until the Wife’s death. The Husband continues to reside at C Care Centre and currently suffers from a medical condition and heart issues for which he has had bypass surgery.
The Husband alleges that the Wife, between June and August 2019,[34] appropriated a total of $12,700.00 of their joint funds (in the account ending …29)[35] into her own bank account (account ending …80).[36] Ms Spain, during final submissions, pointed out several pages annexed to the Wife’s affidavit evidencing the following transactions:[37]
·25 June 2019: transfer of $900.00 from joint account ending …29 to the Wife’s account ending …80;
·25 July 2019: transfer of $900.00 from joint account ending …29 to the Wife’s account ending …80;
·9 August 2019: cash withdrawal of $10,000.00 from joint account ending …29 at a branch in Suburb AF, with a $10,000.00 cash deposit being received by the Wife’s account ending …80 on the same day at a branch in Suburb AF; and
·26 August 2019: transfer of $900.00 from joint account ending …29 to the Wife’s account ending …80.
[34] Affidavit (Husband) (n 11) [25], noting that the Husband does not particularise this allegation in his affidavit, but he does say that the Wife had closed their joint accounts and that their joint term deposit ending …65 had been frozen.
[35] Exhibit J1, item 4.
[36] Ibid item 8.
[37] Affidavit (Wife) (n 6) annex 7, 108, annex 11, 105–109, 130–134.
The Husband’s position was that up to $37,000.00 had been removed from their joint accounts. Ms Spain only referred to the transactions set out above to establish the date and quantum of each withdrawal or transfer.
Ms Spain did not seek that the funds taken by the Wife be added back to the asset pool — there was, in any event, no evidence of waste. Instead she sought that the $12,700.00 withdrawn by the Wife be taken into account as a contribution of the Husband to the Wife’s post-separation expenses pursuant to Grier & Malphas.[38] That case also concerned an unexplained use of funds post-separation, and is authority for the proposition that a trial judge may, in their discretion and if appropriate, express receipt of those funds as a contribution of the other party. In the words of Murphy and Kent JJ, ‘authority eschews “overly pernickety analysis” and s 90SM demands neither an audit nor an exercise in accounting’.[39] Mr Kerrison did not counter this submission.
[38] Grier & Malphas [2016] FamCAFC 84, [57] (Bryant CJ, Murphy and Kent JJ agreeing at [141]).
[39] Ibid [129], [131].
The difficulty with this submission is that the evidence only establishes that the $12,700.00 amount was placed into the Wife’s pension account as described at item 7 of the agreed asset pool. The Husband carries the onus of establishing the dissipation of those funds and, if they were dissipated, that they were spent in such a way to justify them being taken into account in some fashion. There is no evidence as to how, if at all, those monies were dissipated. As of 9 August 2019 (the last available date in August 2019 for the Wife’s account ending …80) the balance of the Wife’s account was $81,610.99. As of final hearing, as shown in the agreed asset pool, the Wife’s account ending …80 held a balance of $95,500.00. This means that, in all likelihood, the $12,700.00 proved to have been withdrawn from the joint account was at all times preserved in the Wife’s account ending …80. Ms Spain also referred to the withdrawal from the Wife’s account ending …80 on 24 February 2021 of $37,500.00, leaving a balance of $45,000.00.[40] Ms Spain submitted that this amount should also be recognised in accordance with Grier & Malphas. As with my remarks directly above, since the balance of the Wife’s account was $95,500.00 as of final hearing, I cannot be satisfied that those monies were dissipated. That amount therefore remains intact as part of the asset pool for distribution. The evidence does not establish either aspect of the Husband’s onus as to the funds withdrawn and purportedly used by the Wife. As such I will not take into account the amount of $12,700.00, or any higher amount alleged, under s 75(2)(o) or as a contribution in accordance with Grier & Malphas. There will be no assessment or adjustment in favour of the Husband by reason of the $12,700.00 being transferred from the joint account into the Wife’s pensioner security account, and/or the cash withdrawal of $37,500.00.
[40] Affidavit (Wife) (n 6) annex 11, 134.
Terms of order sought
By the end of trial a number of terms, as sought by both parties, were already subject to the orders dated 21 June 2022 or 28 June 2022. Since many terms sought are already accounted for by those partial settlements I will not extract the parties’ terms of order sought in full.[41]
[41] This includes terms concerning the transfer of all the Husband’s right, title, and interest in the Suburb J unit (an agreed position prior to the Wife’s death), the transfer of all the Wife’s right, title, and interest in the C Care Centre room (also an agreed position prior to the Wife’s death), terms formerly sought by the Wife to the effect that she retain all joint funds held with the Commonwealth Bank of Australia (from which Mr Kerrison departed) and formerly sought by the Husband for the closure of those account and the division of funds (from which Ms Spain departed), declarations as to the parties’ other personal property interests (now unnecessary), terms of indemnification, and terms pursuant to s 106A of the Family Law Act 1975.

Both parties seek that the remaining funds, at a value of $517,810.18, be distributed between them. The proposals, as set out at paragraphs 9–11 above, seek markedly different distributions. The Husband also sought that I order the return of his camera, coin collection (together with the box in which the collection is kept), watch, and birth certificate from the Wife.[42] The issue was not mentioned during the evidence or in final submissions.
[42] Husband’s Case Outline, 21 June 2022 (‘Case Outline (Husband)’), 6 [4].
Further, and as relevant to my remarks below about terms of order expressed as declarations, I asked Mr Kerrison and Ms Spain during final submissions whether there was any contest to making the orders of 21 June 2022 in the form provided to the Court. Both were content with the form of the orders, notwithstanding that some paragraphs were expressed as declarations instead of the alteration terms effectively sought. I will therefore amend those paragraphs in the final order.
The law
Property proceedings under pt VIII and the approach in Hickey and Stanford
Part VIII of the Act governs the scope of the court’s power with respect to property and financial matters. The court’s powers under ss 79(1) and 79(8)(b) — as ‘very wide discretion[s]’ — must be exercised according to principled reason,[43] and are constrained by a number of factors to which the court must direct itself.[44] To this end a typical approach is that set out in Hickey & Hickey and Stanford & Stanford,[45] comprising four steps:
(1)identify the parties’ existing legal and equitable property interests, liabilities, and financial resources at the time of trial, and then determine whether it is just and equitable to adjust their interests pursuant to s 79(1);[46]
(2)consider the parties’ contributions under s 79(4)(a)–(c);
(3)consider the factors under s 79(4)(d)–(g) including, by virtue of s 79(4)(e), the ‘subjective considerations’ under s 75(2) insofar as they are relevant;[47] and then
(4)‘stand back’ to consider the justice and equity of the actual terms of order proposed to be made.[48]
[43] Stanford & Stanford (2012) 247 CLR 108, 122 [41].
[44] Mallet & Mallet (1984) 156 CLR 605, 608 (Gibbs CJ), noting that the ‘very wide discretion to make such order as [the court] thinks fit’ is conferred only ‘when [the court] is satisfied that it is just and equitable that an order should be made’, with his Honour further stating that ‘there are some broad principles to which the court is required to give effect, and some circumstances which it is required to take into account’ in making an order, and with Dawson J (at 647) referring to the just and equitable requirement as the ‘overriding requirement’.
[45] Hickey & Hickey [2003] FamCA 395, [39], noting the remarks of the Full Court in Norman & Norman [2010] FamCAFC 66, [60], at which their Honours state that ‘[i]t is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result’ and that ‘[f]or all its usefulness and merit [the four-step approach] merely illuminates the path to the ultimate result’. I also note the three ‘fundamental propositions’ set out in Stanford & Stanford (n 43) 120 [36], as alternative guidance for trial judges, ultimately towards the same objective as the approach in Hickey, namely to cover off on all necessary points and criteria in pt VIII.
[46] Stanford & Stanford (n 43) 120 [37], noting the explanatory remarks in Lotta & Lotta [2017] FamCA 50, [283]–[284], importantly that ‘[s]uch a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist’ and that ‘the Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act’.
[47] Lotta & Lotta (n 46) [289].
[48] Teal & Teal [2010] FamCAFC 120, [70], referring to Phillips & Phillips [2002] FamCA 350 in which, at [68], their Honours discuss the importance of considering the ‘real impact’ of an order to assess whether the result is just and equitable.
It is worth noting, at the outset, that the parties’ 37-year marriage does not entitle a court to adopt the ‘starting point’, or at any stage presume based on the parties’ substantial time together, that there should be an equal division of the parties’ property. That presumption is not expressly or impliedly included in pt VIII of the Act.[49] If the ultimate order does equally divide the parties’ property it will be in accordance with the principles in pt VIII and the authorities with respect to those principles.
[49] Mallet & Mallet (n 44) 609–610 (Gibbs CJ).
Section 79(8) — additional considerations and notes on jurisdiction
This case requires that, before addressing the four steps outlined above, I first address the two preconditions in s 79(8)(b). Where a litigant dies while property proceedings are on foot, a court cannot make any order as it considers appropriate with respect to the parties’ property without first being of the opinion that
(i)it would have made an order with respect to property if the deceased party had not died; and
(ii)it is still appropriate to make an order with respect to property;
The conditions in s 79(8)(b)(i) and (ii) are to be addressed and satisfied prior to the four-step inquiry since it is s 79(8) which enables the court to hear and determine the application notwithstanding one party’s death.[50] In essence s 79(8) preserves proceedings which a person cannot themselves continue, and which would otherwise have abated upon their death.
[50] Meddow & Estate of the late Meddow [2015] FamCA 1182, [465].
A legal personal representative may stand in a deceased party’s shoes without compromising the deceased party’s standing since, as explained by Nygh J in Fisher & Fisher,
… what can be enforced after the death of one of the parties is a right arising out of the marital relationship [and] that right may survive the marital relationship from which it has sprung.[51]
[51] Fisher & Fisher (1986) FLC 91-701, 75,074.
Section 79(8) therefore preserves those proceedings which fall within ‘matrimonial cause’ as defined in (ca) and, as explained in Greval & Estate of the late Greval, also necessarily preserves
any incidental proceedings [including] a proceeding which falls within para (f) of the definition [of matrimonial cause] where the appropriate relationship exists.[52]
[52] Greval & Estate of the late Greval (1990) FLC 92-132, 77,907, in which the Full Court concluded that proceedings with respect to post-nuptial and ante-nuptial settlements, at 77,906, ‘clearly [bore] the appropriate relationship to the … proceedings under sec 79’ as ancillary proceedings because they form ‘part of the process by which the Court can ascertain the property of the parties and appropriately adjust the interests of each of them in relation to it’.
In essence, if non-matrimonial-cause proceedings are sufficiently ‘attached to’ or ‘in aid of’ the property proceedings which are preserved under s 79(8) they will, so to speak, piggyback upon the matrimonial cause proceedings on the basis that those proceedings cannot continue without those non-matrimonial-cause proceedings.[53] The remarks of the Full Court in Whitehouse & Whitehouse, citing Fisher & Fisher(No 2), also state that it is ‘doubtful’ that proceedings on the basis of s 78 alone — being proceedings with respect to existing title or rights in respect of property — may continue after a party’s death.[54] Their Honours extract the following reasons of Brennan J (as he then was):
Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within par (ca) of the definition of ‘matrimonial cause’ in s 4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s 79(1). The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided ‘it is still appropriate to make an order with respect to property’: s 79(8)(b)(ii). That qualification on the power, coupled with par (ca)(i) of the definition of ‘matrimonial cause’, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied.
Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party's property or by any other devolution of that property on that party's death. That is a law which governs an incident of marriage in that it provides the machinery for enforcing the moral obligations with respect to property arising from a spouse's marital relationship. It is a law with respect to marriage.[55]
[53] Ibid.
[54] Whitehouse & Whitehouse [2009] FamCAFC 207, [55]; Fisher & Fisher (No 2) (1986) 161 CLR 438, 457–458 (Brennan J).
[55] Fisher & Fisher (No 2) (n 54) 457–458.
Section 79(8) allows proceedings to continue after one party’s death — it does not allow proceedings to sprout new appendages and evolve beyond what they were in that party’s lifetime, although this does not prevent new issues or cross-applications being raised within those proceedings.[56] To this end s 79(8), particularly in subs (b)(i), requires demonstration that the proceedings ‘[retain] the character they had when instituted’.[57] Insofar as Brennan J refers to ‘moral obligations’ and ‘moral claims’ above, the High Court in Stanford clarified that this is not to be understood as importing non-legal considerations with no foundation in the Act.[58] The overarching question to be asked (and complied with under s 79(2)) is whether it is just and equitable for the court to make an order with respect to the parties’ property and, if so, the form that order should take if an order is still appropriate. It is not a question of whether ‘moral claims’ have been left ‘unsatisfied’ or ‘moral obligations’ left ‘unfulfilled’.
[56] Strelys & Strelys (1988) FLC 91-961, 76,962 (Simpson J), 76,963 (Nygh J).
[57] Stanford & Stanford (n 43) 119 [30], citing Fisher & Fisher (No 2) (n 54) with approval; Fisher & Fisher (n 51) 75,074 (Nygh J), at which his Honour states that ‘the only right which the estate of the deceased wife can assert is one which … arises out of the marital relationship’.
[58] Stanford & Stanford (n 43) 125 [52].
I note here a point of interest with respect to the court’s jurisdiction in cases where s 79(8) is enlivened. Section 79(8) creates the jurisdiction in which the court may make an order after the death of one party and,[59] plainly, that power is conditioned upon satisfying s 79(8)(b)(i) and (ii), and the proceedings which survive (in which the court may exercise its jurisdiction) must be those described in Greval immediately above. Section 79(8) therefore appears to shrink, by further description, the jurisdiction conferred upon the court in matrimonial causes in s 39(5)(a). Section 39(5)(a), which confers jurisdiction ‘with respect to matters arising under this Act in respect of which matrimonial causes are instituted under this Act’, appears to do so not with respect to the matrimonial cause, but with respect to the matter.[60] Thackray and Strickland JJ in Firm & Ruane, writing separately, appear to accept the idea that
[s]elf-evidently, [s 39(5)(a)] brings within the jurisdiction of the court disputes which, in their own right are matters arising under the Act, provided they are matters in respect of which matrimonial causes are instituted.[61]
[59] Fisher & Fisher (No 2) (n 54) 457.
[60] Firm & Ruane [2014] FamCAFC 189, [85] (Thackray J), with Strickland J (at [206], [212]–[213], and [217]) also grounding the court’s jurisdiction, at first instance, in the identification of the ‘matter’ (or a ‘single justiciable controversy’) under which several interrelated proceedings may be included. Strickland J found no merit in the ground of appeal alleging that jurisdiction was improperly found and, while Thackray J bases his reasoning on the ‘self-evident’ words of s 31(1)(a) (now s 39(5)(a) for Division 2 of the Federal Circuit and Family Court), he ultimately wished for his views at [82]–[87] not to be taken as concluded.
[61] Ibid [78] (Thackray J).
As with ‘matters’ about which Parliament may make laws defining a federal court’s jurisdiction,[62] the ‘matters’ described in s 39(5) do not appear to provide an irreducible basis upon which a court may always exercise jurisdiction under the Act.[63] Therefore, again using equivalent constitutional terms, a ‘matter’ arising under the Act may be independent from, and significantly broader than, a ‘proceeding’ under the Act.[64] It follows from this reasoning that a ‘proceeding’ need not always cover the full ambit of that ‘matter’ under which it was instituted.
[62] Australian Constitution s 77(i).
[63] Abebe v Commonwealth (1999) 197 CLR 510, 525 [26] (Gleeson CJ and McHugh J), noting that Kirby J (at 588 [226]) and Callinan J (at 604 [277]) agreed with Gleeson CJ and McHugh J’s reasoning with respect to the meaning of ‘matters’ within s 77(i).
[64] Family Law Act 1975 (n 2) s 4(1) (definition of ‘proceedings’), noting that the definition does not confine the meaning of ‘proceedings’ to those under the Family Law Act.
This brings us again to the words of s 79(8) — the preservative effect of that subsection is stated to apply to ‘property settlement proceedings’. It departs from the more generalised language conferring jurisdiction ‘with respect to matters arising under this Act in respect of which matrimonial causes are instituted under this Act’ in s 39(5)(a). The words of s 79(8), together with the statements of principle in Greval and Fisher (No 2),[65] appear to further restrict the court’s authority to decide as a result of a litigant’s death.[66] The court’s ambit of operation is no longer described by reference to the matter but, as set out at paragraph 51 above, by reference to whether the proceeding is itself a ‘matrimonial cause’ or a proceeding incidental to the matrimonial cause proceeding/s. It is unclear whether, due to the use of ‘proceedings’ instead of ‘matters’, a trial judge should be alert to any disputes over which they had jurisdiction under s 39(5)(a) (as matters arising under the Act in respect of which a matrimonial cause has been instituted) but, by operation of s 79(8), lost jurisdiction on the basis that the proceeding was not sufficiently ‘incidental’ (either generally or under (f) of ‘matrimonial cause’). It may be that, even if the court’s jurisdiction shrinks in the manner described above, the actual questions before a trial judge would not change. Admittedly it may be rare that a proceeding sufficiently intertwined with a matrimonial cause, so as to be before the court by virtue of s 39(5)(a), would not also be considered incidental to, or have the ‘appropriate relationship’ with, the matrimonial cause proceedings which survive under s 79(8). Further, as stated by Nygh J in Strelys & Strelys, the use of the term ‘proceedings’ in s 79(8)
must be taken to refer to the process of litigation which will result in an adjustment of the interests of each of the parties in relation to the whole of their property which is just and equitable in the circumstances.[67]
[65] Greval & Estate of the late Greval (n 52) 77,907; Fisher & Fisher (No 2) (n 54) 457–458 (Brennan J).
[66] Abebe v Commonwealth (n 63) 524 [24] (Gleeson CJ and McHugh J).
[67] Strelys & Strelys (n 56) 76,964, cited in Bain & Bain (deceased) [2017] FamCAFC 80, [72].
Therefore, on Nygh J’s view extracted above, the distinction (if any) of whether a single ‘proceeding’ is still within the court’s jurisdiction by operation of s 79(8) may not be so consequential. This query (whether it be one of pure technicality or actual substance) does not come into play in this case, nor did Ms Spain object at any point on jurisdictional grounds. Before me was only one proceeding, comprising multiple proposals,[68] concerning how (if at all) the parties’ property interests should be adjusted. Any order ultimately made shall be drafted in accordance with s 79(8)(b)(iii), and will not ‘declare’ interests, as to clearly reflect the provision under which the court exercises power in these circumstances.
Section 79(8)(b)(i) and (ii) — would the court have made an order, and is it still appropriate to do so?
[68] Greval & Estate of the late Greval (n 52) 77,907, at which Nygh J states that ‘proceedings in s 79(8) are not limited to some particular application’.
Only upon both s 79(8)(b)(i) and (ii) being satisfied may I make an order pursuant to s 79(8)(b)(iii) ‘as I consider appropriate with respect to any of the property of the parties to the marriage or either of them’. Both Mr Kerrison and Ms Spain, during final submissions, agreed that s 79(8)(b) was satisfied. Neither advanced arguments that the court would not have made an order or that it was now inappropriate to do so. The words of the legislation do not on their face confine the court’s power to terms of order which adjust the parties’ property interests. If it is just and equitable to adjust those interests, however, that is what will occur.
Both limbs of the inquiry set out above are subject to s 79(2) — the court must not make an order unless satisfied that, in all the circumstances, it is just and equitable to do so.[69] As with the first step summarised at paragraph 46 above, if the court does not consider it ‘just and equitable’ to alter the parties’ existing legal and equitable property interests, the threshold in s 79(2) and Stanford is not met.
[69] Stanford & Stanford (n 43) 117 [24], 120 [35]; Pretswell (deceased) & Pretswell [2019] FamCA 395, [58], in which Harper J states that ‘[t]he issue of the justice and equity of any property adjustment orders thus also permeates the two separate inquiries required by s 79(8)(b)(i) and s 79(8)(b)(ii)’.
With respect to s 79(8)(b), and indeed s 79 generally, the expression ‘just and equitable’
qualitatively describes a conclusion reached after examination of a range of potentially competing considerations and cannot be exhaustively defined.[70]
[70] Mayhew & Fairweather [2021] FamCA 614, [17] (Wilson J), citing Mallet & Mallet (n 44) 608 and Stanford & Stanford (n 43) 120 [36].
That assessment requires that the parties’ existing legal and equitable interests first be ascertained. The agreed asset pool, amounting to $900,403.18 as calculated at paragraph 7, evidences those interests.
With respect to s 79(8)(b)(i) I must consider whether, had the Wife not died, it would have been just and equitable to make an order adjusting the parties’ property interests. This includes consideration of the parties’ contributions under s 79(4)(a)–(c) and any adjustments under s 79(4)(d)–(g).[71] Some authorities suggest this is a temporal inquiry, in which I must consider the circumstances as at 5 June 2021 and ‘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 deceased party’.[72] Other authorities suggest that the words ‘would have’ (operating alongside ‘still appropriate’ in s 79(8)(b)(ii)) suggest a hypothetical question of whether, if the deceased were alive for the final hearing, an order would have been made.[73]
[71] Meddow & Estate of the late Meddow (n 50) [467].
[72] Grace & Grace [2012] NSWSC 976, [242], at which Brereton J further states that ‘[i]n short, the court must be satisfied that at the time of the death one or other party had a good cause of action for an order under s 79 in respect of which the court’s jurisdiction had been regularly invoked’. Cited in Flanagan & Sobek (deceased) [2014] FamCA 696, [33]. See also Meddow & Estate of the late Meddow (n 50) [467].
[73] Doyle & Doyle (deceased) (1989) FLC 92-027, 77,397.

I consider s 79(8)(b)(i) to be satisfied on either interpretation — the parties lived separately as of May 2019 and, from that time, ceased sharing their joint property, financial and non-financial resources, time, and energy in the course of their life together as a married couple. The assets available for distribution as agreed have not, in any event, changed significantly since the Wife’s death, although no precise valuations were obtained. For current purposes I have disregarded the effect of the partial settlement by consent in the orders dated 21 and 28 June 2022 since, while those were made in the course of the final hearing, they alter the parties’ ‘current’ interests in the asset pool. Both parties contributed, financially and non-financially, to the acquisition, conservation, and improvement of property introduced, purchased, and held over the course of a long marriage. If the Wife was still alive and capable of residing independently at the G Retirement Village unit as of final hearing, it is likely each party would have transferred their interest in the other’s residence to the other party — both parties sought terms to that effect.[74] This would have resulted in the parties retaining property of unequal value. Therefore, whether assessed as at 5 June 2021 or at the commencement of trial on 20 June 2022, I consider that an order would have been made. The evidence indicates that the Husband and the Wife wished to retain their own residences (and have their interests adjusted accordingly) and each seeks a markedly different distribution of the remaining joint funds.[75]
[74] Application, 22 December 2020; Response, 15 January 2021.
[75] Lotta & Lotta (n 46) [286].
With respect to s 79(8)(b)(ii) I must consider whether, notwithstanding the Wife’s death, it is still appropriate to make an order.[76] Whether it is ‘still appropriate’ is a question a court must answer with no explicit guidance from the Act, with Lindenmayer J in Doyle & Doyle (deceased) stating the following:
The Act itself … apparently leaves the matter entirely to the discretion of the court. The criteria for the exercise of that discretion, namely that it is ‘appropriate’, is the same as that for the exercise of the discretion, under s 79(1), to make an order between living spouses or former spouses. Furthermore, s 79(2), which provides that the court shall not make an order ‘under this section’ unless it is satisfied that it is ‘just and equitable’ to make the order, also applies, since s 79(8) is part of ‘this section’. Likewise, it would seem that s 79(4), which provides that in considering what order (if any) should be made ‘under this section’, the court shall take into account the various matters referred to in paras (a) to (f) thereof inclusive, must also apply. However, as some of those matters, particularly many of the matters referred to in s 75(2) which are brought into account by s 79(4)(e), are apt to refer only to parties who are living, it is very difficult to apply them in a case where one of the parties is dead. This much is therefore clear, that the intention of the legislature was that the discretion of the court under s 79(8) should be no more fettered than its discretion under s 79(1) which, as Gibbs CJ said in Mallet v Mallet (1984) 9 Fam LR 449 at 451; [1984] FLC 91–507 at 79,111 , is ‘largely unfettered’. When the legislature gives the court an unfettered discretion, the court should not seek to limit that discretion by imposing upon itself rules for the exercise of it. All that the court is required to do in exercising the discretion is to act judicially, and not arbitrarily or capriciously.[77]
[76] Grace & Grace (n 72) [289], noting Brereton J’s remarks (as adopted in Flanagan & Sobek (deceased) (n 72) at [39] and Pretswell (deceased) & Pretswell (n 69) [96]) that ‘still’ does not refer to the appropriateness of making an order at this point in time, but refers to the appropriateness of an order notwithstanding the death.
[77] Doyle & Doyle (deceased) (n 73) 77,398.
In my view it is still appropriate for an order to be made. Importantly, and by virtue of the partial settlement already reached, the Wife retains assets valued at $108,000.00 and the Husband retains assets valued at $274,593.00. This means that, even though the parties hold equal interests in the remaining funds for distribution, an equal division of those funds would be very unlikely to result in a just and equitable outcome.
It is just and equitable, in my view, that the Husband retain the entirety of the interest in the C Care Centre room, since this is his continued residence. That aspect of the partial settlement requires that the remaining funds be subject to an order adjusting the parties’ property interests, since both parties appear to have made significant contributions to the acquisition, conservation and improvement of the existing property pool. They have agreed as to the allocation of some of that property pool, and they further agree that their joint accounts balances and the G Retirement Village surrender of lease proceeds should not be divided equally. It is clear that neither the Husband nor the Wife (nor Mr Holland as the substituted applicant) have a use for the G Retirement Village unit. As such the lease has been surrendered. There has been no post-separation work done on the unit for which either party incurred any cost, or which otherwise should be recognised, nor did either party substantially press any arguments on the basis of s 79(4)(d)–(g) factors.[78] It remains that the parties disagree as to their contributions during the marriage, but, as a result of the partial settlement and the retention of assets of different net values, they agree that the remaining funds should not be divided equally.
By reference to the parties’ existing legal and equitable property interests, is it just and equitable to make an order pursuant to s 79?
[78] Meddow & Estate of the late Meddow (n 50) [479], noting that this case is distinguishable because the Husband in this case did not argue that he has ‘significant future needs’, nor was any work done on the G Retirement Village unit by the Wife’s executor or other members of her family, but in any event it remains appropriate to make an order adjusting the parties property interests due to the evidence of their contributions during the marriage.
As foreshadowed above, the law requires that any interference with legal and equitable interests adheres to principled reason.[79] Justice and equity, with respect to property settlement in s 79(2), does not admit of exhaustive definition and it is ‘not possible to chart its metes and bounds’.[80] The principles contained within the Act also accommodate ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.[81] It is just and equitable, according to Stanford, for a court to make a property settlement order if such agreements or assumptions with respect to property interests during the marriage have been brought to an end, which usually occurs with the end of the marriage.
[79] Stanford & Stanford (n 43) 121 [41].
[80] Ibid 120 [36].
[81] Ibid 122 [41].
The parties agree that final separation occurred on or about 21 May 2019, at which time the Husband moved into C Care Centre and the Wife remained in their G Retirement Village unit. From that time until the Wife’s death the parties did not contribute to one another’s lives as a married couple and did not share commonly held property or resources. The parties agree that they will retain property currently in their possession or control. The values of such retained property significantly differ. The parties also hold monies in joint accounts but dispute how those monies should be divided. Given the disparity in the values of the property each party will retain and the parties' contributions (financial and non-financial, direct and indirect) over 37 years, it would not be just and equitable to divide those joint funds according to their equal interests therein. It is therefore just and equitable to make an order, pursuant to s 79(8)(b)(iii) of the Act, altering the parties' property interests.
Section 79(4)(a)–(c) — contributions
Section 79(4)(a) — direct financial contributions
Mr Kerrison, in the case outline and in final submissions, sought a 90/10 distribution of the asset pool in favour of the Wife. Ms Spain, for the Husband, submitted that a 90/10 split could not be just and equitable and that the net assets of the parties should instead be divided 55/45 in the Husband’s favour.
As for the Wife’s ‘initial contributions’, Mr Kerrison submitted that these amounted to 66.5% of the parties’ property as of commencing cohabitation,[82] which he submitted were valued at $756,000.00. Of that amount, Mr Kerrison submitted that the Wife contributed $502,500.00 and the Husband contributed $253,500.00.[83] Mr Kerrison submitted, on the basis of Pierce & Pierce [1998] FamCA 74, that the Wife’s significantly greater financial contributions (primarily through her Country R pension) entitle her to a ‘substantial credit’ of 15% because this ‘enabled the parties to lead a life in retirement of significantly greater quality than would otherwise have been the case’.[84] Her financial contributions, in his submission, entitle the Wife to a further 15% of the remaining assets for distribution. This, together with the 10% for the Wife’s homemaking contributions, and in addition to the 66.5% submitted as quantifying the Wife’s initial contributions, amount to the 90% proposed to be allocated to the Wife. Ms Spain maintained the Husband’s proposal of 55/45 division of the parties' net assets.
[82] Wife’s Case Outline, 28 June 2022 (‘Case Outline (Wife)’), 17.
[83] Noting that, in the calculations on behalf of the Wife, the Husband’s ‘initial contribution’ also includes his retirement benefits from Employer AD, stated in the Wife’s case outline to be $170,000.00.
[84] Case Outline (Wife) (n 82) 17.
Before I may address Mr Kerrison’s submission I must ascertain, if I can, whether the Wife’s account of her initial contributions are supported by the evidence. The Wife’s affidavit was more detailed than the Husband’s concerning the parties' initial contributions. It is, however, untested material.
Some of Wife’s evidence regarding her initial contributions is corroborated by documents annexed to her affidavit — a value of $60,000.00 for the Suburb AB property (subject to a ‘land swap’ in 1984 for a property in Suburb AG, which was sold in 1987 for $65,000.00),[85] $11,000.00 for her Town AC property (which she sold in 1984 for $17,500.00), and $90,000.00 for the ‘double block’ at Town AC, upon which the Wife built a house ‘shortly after’ purchasing the land in 1981.[86] I cannot, however, be certain of the Wife’s term deposit funds as at commencement of cohabitation. The Wife claims that she held $249,167.00 in term deposits at that time. During cross-examination, the Husband agreed that the Wife did have some term deposits at this time, but did not concede the amount. The list in the Wife’s affidavit reveals only five term deposit acknowledgement slips from before the marriage:
·$6,000.00 on 5 July 1983 for a term of one month;
·$6,000.00 on 14 July 1983 for a term of one month;
·$8,000.00 on 8 August 1983 for a term of one month;
·$6,055.00 on 14 September 1983 for a term of one month; and
·$3,000.00 on 10 October 1983 for a term of one month.[87]
[85] Affidavit (Wife) (n 6) [27].
[86] Ibid annex 16–19, noting that there is no evidence of the Suburb AB property being valued at $135,000.00, that the Town AC property’s value as of commencement of cohabitation was based on the purchase price of $11,000.00 in 1981, and that the value of the Town AC ‘double block’ is indicated by the sale price of $90,000.00 (as the Wife states at [29] that she built a house on one of the blocks prior to the marriage).
[87] Ibid [30].
I am prepared to accept that the Wife held $29,055.00 in her own term deposit accounts as of commencement of cohabitation. It is unclear whether the Wife re-deposited these funds, either partially or totally, as part of future term deposit monies. I am also cautious that property sale proceeds may have been put into one of the Wife’s term deposits, although I was not addressed about this issue. I particularly note here that the Town AC double block settled on 27 March 1984 for $90,000.00 and that the Wife put $80,338.00 into a term deposit on 3 April 1984 for a term of four months.[88] Again, it was not suggested by Ms Spain that to count both the Town AC double block and the 3 April 1984 term deposit would result in the same contribution being counted twice. I am, however, alive to that possibility, particularly since the double block was in the Wife’s sole name.[89] Absent any account or evidence to trace the Wife’s sale proceeds, or the amounts in term deposit accounts before cohabitation commenced, I am not prepared to accept that the Wife held $249,167.00 in term deposits as of cohabitation commencing. Doing the best that I can, and having regard to my remarks in this paragraph, I accept that the Wife held at least $29,055.00 in term deposits upon commencement of cohabitation but, again, I cannot discern an exact amount without risking accounting for the same monies twice. The Wife also asserts that at commencement of cohabitation she had a motor vehicle worth $5,000.00 and, since the Husband did not contest this value, I will accept it.
[88] I also note that the Wife’s other Town AC property settled on 6 April 1984 for a sale price of $17,500.00, and that within the following seven days she established two term deposit accounts: $13,000.00 on 12 April 1984 for a term of 4 months and $12,277.00 on 11 April 1984 for a term of three months.
[89] Affidavit (Wife) (n 6) annex 19.
The Wife also says that she gave the Husband $6,000.00 in 1982 to assist him in paying out his sister’s half-interest in the Suburb M property. This, in Mr Kerrison’s submission, means that her initial contribution of $6,000.00 created an equitable interest in that property. The Husband denied that the Wife had loaned him the $6,000.00 for this purpose, but qualified that he had a little trouble remembering, and ultimately answered that she contributed that amount to meet the balance of the mortgage because she did not wish to remain in debt. The Wife states in her affidavit that she provided this amount to the Husband by redeeming one of her term deposits (held with the State Bank at that time), although she does not annex any documents capable of corroborating the purported loan to the Husband, or her contribution to any mortgage payment or offset account.[90] Given the Husband’s answer during cross-examination, I accept that the Wife contributed $6,000.00 to the Suburb M property mortgage, but the evidence is insufficient to determine the time at which these monies were paid. Further, the evidence does not indicate whether the $6,000.00 was used to clear the Husband’s remaining debt, so as to discharge the mortgage, or whether the Wife directly gave that amount towards the purchase price as she alleged.
[90] Ibid annex 22.
Based on my remarks above, I find that the Wife’s assets as of cohabitation commencing amounted to at least a value of $195,055.00, including the properties at Suburb AB and Town AC, and her car.[91] I also include in this figure the $29,055.00 in term deposit funds from before the marriage, noting the undeterminable amount of funds held in the Wife’s term deposits after October 1983.
[91] Ibid [27]–[29].
As of cohabitation commencing the Husband owned the Suburb M property at a total value of $72,000.00. I note again that, in the Husband’s view, the Wife contributed $6,000.00 to his mortgage on that property because she did not wish to remain in debt. He does not say when she contributed this amount to his mortgage. It is therefore difficult to ascertain the value of his equity in the Suburb M property as of commencement of cohabitation. In these circumstances I will include the Suburb M property at a minimum value of $36,000.00 as an initial contribution, noting that his equity therein as of October 1983 could have been greater than the evidence can capably show. As of cohabitation commencing the Husband also held his Town AC property (then valued at $44,500.00, unencumbered) and his motor vehicle worth $3,000.00. This means that the Husband brought into the marriage at least $83,500.00 in assets — approximately half the value of the assets introduced by the Wife in 1983.
Doing the best that I can with the evidence provided, the Wife’s contributions at the outset of their relationship appear to have been much greater. I note again the nebulous state of the evidence with respect to the Wife’s term deposits after the date of the marriage and the Husband’s interest in the Suburb M property.
Having made the above remarks with respect to the parties’ initial contributions, the Husband only four years later (in 1987) contributed a substantial sum of $200,000.00 in retirement benefits. As stated earlier in these Reasons, I am satisfied that he placed these funds in the parties’ joint account. By 1983 he had, of course, already built up much of this entitlement. I have not counted his retirement benefits as an initial contribution since it did not vest until the parties had cohabited for four years.
Ultimately, as the authorities overwhelmingly indicate, any initial or substantial financial contribution is to be treated as but one of many myriad contributions made throughout a relationship.
In assessing the parties’ contributions I must ‘weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation’.[92] A trial judge must not disproportionately account for one contribution over and above the ‘myriad of other contributions’ made during the relationship.[93] This means that any contribution, whatever its size or significance, should not be weighed against the other ‘miscellany’ of contributions made, but instead should be assessed as one of those myriad contributions.[94] In essence, as expressed by Harper J in Dovgan & Dovgan, the introduction of property by one party to a long relationships must be assessed holistically:
all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.[95]
[92] Jabour & Jabour [2019] FamCAFC 78, [60].
[93] Ibid [43].
[94] Ibid [59], [73].
[95] Dovgan & Dovgan [2021] FamCA 306, [347].
As stated above I cannot, on the evidence before me, accept that the Wife initially contributed $502,500.00 worth of assets, nor that she alone funded almost all of the Suburb AE purchase, construction, and improvement costs.[96] Further, even if the evidence supported the purported quantum of her initial contributions, the authorities prevent me from assessing them in the manner submitted by Mr Kerrison.
[96] As addressed and found at [33] of these Reasons.
The Wife’s case in this respect relied upon the remarks in Jabour about the decision of Pierce.[97] The argument for the Wife, despite referring to Jabour, appears to incongruously apply the law. It calculates the quantum of the Wife’s initial contributions (purportedly 66.5% of the asset pool as of cohabitation commencing) and justifies at least a 65% ‘assessment of initial contributions’ on the basis that her initial financial contributions ‘are directly attributable to the whole of the matrimonial property as found in the Balance Sheet before the Court’.[98] Further, again referring to Jabour and Pierce, Mr Kerrison referred to an ‘adjustment of initial contributions having regard to the totality of all other contributions’ in which the rubric of all contributions (financial and non-financial) may be assessed according to whether they ‘compete’ or ‘compensate’ initial contributions.[99] This is not the approach set out in Jabour. Initial or substantial contributions are to be treated as one of the myriad of contributions made, not weighed against the ‘other’ myriad contributions.[100]
[97] Jabour & Jabour (n 92) [54]–[55].
[98] Case Outline (Wife) (n 82) 17.
[99] Ibid. Emphasis added.
[100] Jabour & Jabour (n 92) [73]. See also Goswami & Rapozo (No 2) [2020] FamCAFC 282, [57]–[58], at which Ryan J cites the approach in Jabour and the primary judge’s compliance with that approach, and notes the various contributions made in relation to one property owned by the husband at commencement of cohabitation, although heavily encumbered, upon which the parties in that case worked to increase the value of the property.

Ms Spain submitted, and I agree, that s 79 does not call for a mathematical approach. Ms Spain also referred to Waters & Jurek, in particular the statement that
[w]hen [a] marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed.[101]
[101] Waters & Jurek (1995) FLC 92-635, 82,379.
That statement, although it is more relevant to adjustments under s 79(4)(d)–(g), also supports a holistic assessment of contributions (whether direct, indirect, financial, non-financial, or as homemaker) so as to avoid an artificial dissection of what each party added to the relationship. In this case it is particularly difficult to undertake anything but a holistic assessment of the parties’ contributions, especially with respect to their contributions between 1983 and 1987. Given the parties’ ages at the time of their marriage, and their transition to retirement shortly thereafter, they both introduced and contributed significant and valuable assets early in their marriage. They then dealt with a number of assets in a variety of ways in setting up and continuing their lives together. By 1987 the parties had contributed, in a real sense, the most significant items of property introduced to the relationship, by which time those contributions were altogether of similar value. In making this assessment I again note the lack of clarity in the evidence and, as a result, my reduced capacity to determine the exact nature and quantity of the assets contributed by each party at the commencement of their relationship.
With respect to income contributions, I accept that the Wife benefitted from a Country R aged pension and that she contributed those funds to the marriage. She started receiving the Country R pension in 1991 upon attaining 65 years of age, and estimated an average payment throughout the marriage of $155.00 per week.[102] The Husband did not challenge that figure. The parties also each received the Australian aged pension — the Wife from 1987 and the Husband from 1992 — which the Wife states (again unchallenged) that the basic couple rate as of May 2019 was $322.00 per week. They both contributed their Australian aged pensions to the relationship. The Husband accepted that the Wife received her Australian pension earlier, at 61 years of age, and that in respect of their pensions the Wife received considerably higher payments overall. Mr Kerrison submitted that the Wife’s total pension earnings during the marriage exceeded those of the Husband by approximately $248,000.00. The calculations reach this figure are set out in the Wife’s affidavit.[103] These calculations relied on purported exchange rates and other assumptions which are not corroborated by admissible evidence. Whether the calculation is accurate is unclear. I am, however, prepared to accept that the Wife received two pensions post her retirement whilst the Husband received one. Her contributions from her two pensions were, therefore, higher than the Husband’s contribution from his sole pension.
[102] Affidavit (Wife) (n 6) [52].
[103] Ibid [53].
While the Wife contributed more pension income, the Husband continued earning income from Employer AD whilst employed there, although the precise income from this position is unclear. I also take into account that the Husband took up part-time work between receiving his retirement benefits in 1987 and his eligibility for the Australian aged pension in 1992, noting that there was no evidence of the Husband’s income from this job either. I am nevertheless prepared to accept that the Husband contributed his earnings and entitlements from his employment to the marriage.
The evidence does not establish whether there was a significant discrepancy between the parties’ incomes from employment and pensions over the entirety of their marriage. I do not accept that, because the Wife received a Country R pension, I should conclude that she earned more than the Husband throughout the marriage. The Husband received income from employment for nine years following cohabitation. The Wife’s income from paid employment ended upon her retirement in 1984. Whether the Husband’s income from employment and his pension was greater or less than the Wife’s income from her two pensions throughout the entirety of the relationship is not established on the evidence. I do find, however, that both parties made significant financial contributions from their incomes, whether from employment or pensions, during their long marriage.
Section 79(4)(b) — direct and indirect non-financial contributions to property
The parties both concede that their contributions in this regard were equal.
Section 79(4)(c) — contributions to the welfare of the family, including contributions as homemaker or parent
Mr Kerrison argued that the Wife did almost all of the housework and that this contribution justifies 10% of the asset pool being given to the Wife. The Husband was not questioned about the Wife’s homemaker contributions and did not raise the matter in his affidavit or in his evidence at trial. I accept that it was not possible for the Husband to challenge the Wife in this regard under cross-examination. The Wife said that the Husband was largely responsible for the garden and outdoor maintenance, and that he also undertook most of the grocery shopping in the final few years of their marriage. He also allegedly spent time in his workshop pursuing various interests.[104] The Husband was again not cross-examined about this claim and, while the Wife’s affidavit evidence remains unchallenged, I am not bound to accept unchallenged evidence, particularly since the Wife cannot be cross-examined. The Full Court in Scott & Scott explains, with some qualification and exploration of authorities, that there exists no rule of law in Australia that a primary judge must accept unchallenged evidence.[105]
[104] Ibid [57].
[105] Scott & Scott (1994) FLC 92-457, 80,728–80,729. Their Honours qualify that if an appellate court determines that such evidence was in the circumstances of the case wrongly, unreasonably or perversely rejected it may overturn the primary decision on an error of fact. Their Honours explain the basis of this principle in the rule in Browne v Dunn, specifically the aspect therein relating to the weight to be afforded to evidence unchallenged in cross-examination. Their Honours further explain that the existence or otherwise of an error of fact depends on the circumstances of the case and whether the primary Judge gave reasons for rejecting the evidence in question (e.g. whether the evidence is inherently credible or incredible).
Ms Spain submitted that some of the homemaking contributions purportedly made by the Wife occurred while the Husband continued in paid employment between 1985 and 1992, prior to full-time retirement. Ms Spain further submitted that the Husband contributed through his outdoor maintenance and grocery shopping. The Husband’s affidavit did not mention homemaking contributions, and there was no further evidence received in this respect at trial.
On the evidence I find that, in essence, both parties contributed as homemakers but in different ways. The evidence does not totally persuade me as to either party’s position — the Wife could not be cross-examined about her affidavit evidence, the Husband did not give further evidence either in chief, nor was he questioned about this issue during cross-examination. There is insufficient evidence for me to assess the true nature and quality of the parties’ homemaking contributions over 37 years of marriage. As such, I cannot determine whether one party made greater contributions than the other in this regard.
Conclusion regarding the parties’ contributions
Taking into account all the contributions under s 79(4)(a)–(c), I find that both parties made a myriad of financial and non-financial contributions over 37 years of marriage. The parties benefited from the property, including term deposits, which the Wife introduced at the commencement of the relationship. They again financially benefited in 1987 when the Husband’s superannuation policy vested. The acquired property together and gave each other support and companionship. I therefore find that their contributions were equal.
This outcome, translated to the net asset pool, results in each party being entitled to assets valued at $450,201.59, including the assets covered by the partial settlement orders of 21 and 28 June 2022. Factoring out the value of assets already settled, an equal arrangement entitles the Wife to a further $342,201.59 and the Husband to a further $175,608.59, with such monies to be received from the monies held in the joint accounts and by MCW Lawyers.
Section 79(4)(d)–(g), including s 75(2) — other factors
Section 79(4)(d) — the effect of any proposed order upon the earning capacity of either party to the marriage
Neither Mr Kerrison nor Ms Spain submitted with respect to the parties’ earning capacity. The parties spent almost all of their marriage as retirees and there was no argument that I should consider the Husband’s capacity to obtain income to sustain himself.[106]
[106] Beck & Beck (No 2) (1983) FLC 91-318, 78,166, at which ‘earning capacity’ is defined with respect to s 75(2)(k) as ‘a capacity to obtain income which could be used to provide maintenance … and not merely as current income from personal exertion or from the use of personal skills’.
Section 79(4)(e) — the matters referred to in subsection 75(2) so far as they are relevant
The only relevant s 75(2) factors are those at sub-paragraphs (a), (b), (d), and (g).
Section 75(2)(a) — the age and state of health of each of the parties
The Husband, 96, appears to be in good health for a man of his years. Ms Spain argued that his poor health justifies an adjustment under s 75(2)(a) but, while I note his age, there is no evidence specifying the state of his health. Importantly, there is no evidence of any specific expenses for medication, equipment, or treatment for my consideration under this section.
A party’s ill health does not, in itself, justify an adjustment under s 75(2)(a). It is not the task of a court with jurisdiction under pt VIII to engage in social engineering under s 79(4)(d)–(g) — that is, to serve any ‘moral’ or ‘charitable’ (but non-legal) ends outside the bounds of s 79.[107] The Full Court in Beck & Beck (No 2) explained that
[i]t is the financial consequences of all of the relevant matters that are to be taken into account and the section is so drafted to effect this purpose while excluding matters of conduct in a moral or non-financial sense.[108]
[107] Clauson & Clauson (1995) FLC 92-595, 81,912.
[108] Beck & Beck (No 2) (n 106) 78,167–78,168.
Whether in relation to maintenance or property settlement, the court cannot assess or account for the s 75(2) (or s 90SF(3)) factors without satisfying itself that it bears upon a party’s financial circumstances.[109]
[109] Jacobson & Jacobson (1989) FLC 92-003, 77,178, at which Nygh J remarks that there ‘cannot be any doubling up as between the adjustment in capital position of the parties, which is implicit in sec 75(2) factors [in the context of s 79], and making provision for the periodic needs of a party who suffers from an inability to support [themselves] pursuant to sec 72 of the Act’. Both assessments, on his Honour’s remarks, require an assessment of the financial consequences of the factors considered. See also Sigley & Cullen (No 3) [2015] FamCA 825, [42], [105], as an example, in which Cronin J discusses the wife’s health as it affected her academic studies, which in turn may have affected her employment prospects.
There being no evidence of how the Husband’s health affects his financial circumstances, I cannot take it into account for the purpose of any adjustment under s 75(2)(a).
Section 75(2)(b) — the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
As stated above, the parties’ earning capacities were not in issue in this case.[110] The Husband continues to receive the aged pension at $322.00 per week. At the time of trial, as shown at item 8 of the agreed asset pool, he had $19,093.00 available to him in his own bank account.
[110] Clauson & Clauson (n 107) 81,911, at which the Full Court remarks that ‘[i]t has long been recognised that in most cases the most valuable ‘asset’ which a party can take out of the marriage is a substantial, reliable, income-earning capacity’.
Ms Spain submitted that, on the Wife’s proposal, the Husband would be left with no capital with which to meet necessary expenses. There was no evidence adduced in this respect and as a result I make no finding. In any event, and as stated earlier in these Reasons, a 90/10 overall result is impossible by operation of the partial settlement by consent.
Section 75(2)(d) — commitments of each of the parties necessary to enable them to support themselves and a child or another person that the party has a duty to maintain
There is no evidence of the Husband’s financial needs. Regardless of the outcome of these proceedings, he will have sufficient funds to meet his ongoing needs.
Section 75(2)(g) — a standard of living that in all the circumstances is reasonable
Each party’s reasonable standard of living, as it concerns maintenance claims, has been described as the standard which can be provided by one party and that which is necessary or otherwise appropriate for the other party. Kay J in Wilson & Wilson stated the following as to the meaning of this factor:
… there are almost invariably post-separation inadequate resources available to maintain two households in the manner to which one household has become accustomed. None the less the words of Fogarty J in Gamble & Gamble (1978) FLC 90–452 … may well be appropriate in determining what the meaning of sec 75(2)(g) is. His Honour there said:
“The Magistrate was entitled to have regard to the reasonably high standard of living at which the parties had lived prior to separation. Although the actual evidence of this was relatively scanty, it is nevertheless I think clear from the whole of the evidence. In my view it is a matter which the Court is clearly entitled and indeed obliged to take into account in assessing maintenance under sec 72. Section 75(2)(g) required the Court to take into account ‘where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable.’ That does not necessarily mean the standard of living to which the parties were accustomed during the time that they were living together, since, as Mr Abraham pointed out, obviously a situation where there are now two households rather than one, makes it in most cases, impossible to sustain the previously existing standard of living in both of those new households, and, in any event there may be other reasons why this is so. But within that limitation it is in my view significant to have regard to what the Act refers to as a standard of living that in all the circumstances is reasonable. In this case, as in many others, attention is generally focused on the question of ‘need’ under sec 72. It seems sometimes to be thought that there is some absolute level beyond which an applicant's need would not go, that is that once it is shown that his or her income from other sources has reached some designated level that there would no longer be any ‘need’ for maintenance under sec 72. Whilst that may be broadly true of what might be described as the general run of cases, the measure of need is a variable factor which must take into account a variety of circumstances, not the least of which is the appropriate standard of living of the parties. Where the capacity of the husband is such that he is able to provide maintenance for the wife at a level which enables both of them to continue to enjoy a standard of living equivalent to that which they enjoyed for some time prior to the separation or which enables the wife to enjoy a standard of living which may be higher than the average in the community it may be proper to make an order which broadly achieves that result, …”
The question that confronted the Court in this case was whether it was proper to effect a reduction in the standard of living of the wife pending the disposal of the proceedings where there were more than ample funds to sustain that standard of living without the slightest hardship to the husband, irrespective of how extravagant the standard of living may have been compared to the standard of living of other members of the community. In particular, is it proper to reduce the wife's standard of living whilst the husband continues to maintain a standard of living of the highest order?[111]
[111] Wilson & Wilson (1989) FLC 92-033, 77,446–77,447.
The question with respect to property adjustment proceedings appears to be similar in that there must be evidence of a financial need, lest a party’s standard of living become unreasonable in all the circumstances. Ms Spain submitted that the Husband’s standard of living will be impacted by the payment of his legal fees from his entitlements. Those costs were, on Ms Spain’s estimation, approximately $40,000.00, and as such she submitted that I should take them into account under s 75(2)(g) or (o).
The Husband has lived at C Care Centre since May 2019, and he will continue to live there. There was no evidence that his living situation, given his outstanding legal fees or other expenses, was at risk of becoming ‘unreasonable’ in all the circumstances. The ultimate order will not change his living situation, nor will it change the standard of living he experiences. I also note that the Wife’s estate will incur legal fees but Mr Kerrison, naturally, did not submit on the basis that the payment of her legal fees would affect her standard of living.
Section 75(2)(n) — the terms of any order made or proposed to be made under section 79 in relation to the property of the parties
The effect of the partial settlement, contained within the orders of 21 and 28 June 2022, is that the Husband obtains the full interest in the C Care Centre room ($250,000.00). He also retains the funds held in his own bank account (of $19,093.00) and his shareholding ($5,500.00). Those assets total at a value of $274,593.00. The Wife’s estate retains the balance of her two bank accounts (totalling $103,000.00) and her shareholding ($5,000.00), totalling $108,000.00, under the partial settlement.
As a result of my conclusion at paragraphs 92–93 the Husband is entitled to a further $175,608.59 of the assets and the Wife’s estate to $342,201.59, to be paid from the remaining funds for distribution.
I have assessed the parties’ contributions as being equal. The terms to this effect would not result in the Husband being unable to support himself and do not, on the evidence, give rise to any basis for further adjustment.[112]
Section 79(4)(f) — any order made under this Act affecting a party to the marriage or a child of the marriage
[112] Varnham & Moses [2021] FamCAFC 31, [47]–[50].
I have already addressed the effect of the partial settlement at paragraphs 4 and 43 above.
Section 79(4)(g) — any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
This factor is irrelevant. The parties did not have any children together.
Conclusion regarding the matters referred to in s 79(4)(d)–(g)
I find that there should not be any adjustment on the basis of s 79(4)(d)–(g). The evidence shows that the Husband can comfortably support himself if there is an equal division of the parties' net assets, in line with my assessment of their contributions throughout their 37-year marriage, noting that the Husband will continue to receive his aged care pension.
Final assessment: a just and equitable exercise of discretion?

After assessing contributions and other factors this Court must consider whether, in light of those assessments and the actual property to be divided, the proposed exercise of the discretion under s 79 is just and equitable. In Clauson & Clauson, the Full Court said the following:
… that exercise is not done in isolation; it is done against the background of conclusions already arrived at on contributions, the consequence of which will be in some cases to intrude into the s 75(2) exercise because of the dimension of the former conclusion and the total pool.
It is largely for that reason that it is ultimately necessary to stand back from the process and reach a conclusion which appears overall to be a just and equitable exercise of the discretion.[113]
[113] Clauson & Clauson (n 107) 81,911–81,912.
As stated earlier in these Reasons, Mr Kerrison and Ms Spain agreed that a just and equitable outcome could be achieved by dividing the $517,810.18 balance of funds not already covered under the partial settlement, given that the parties have agreed upon how the remainder of their assets are allocated.
The Husband will solely own the interest in the room at C Care Centre, in which he currently resides, along with his personal possessions and some of the joint funds, totalling 50% of the total asset pool. That 50% entitlement equals $450,201.59. Excluding the value of the C Care Centre room, his bank account, and his shareholding, he is entitled to a further $175,608.59 from the available joint funds. With those monies, even after paying his legal fees, the Husband will be able to support himself in his current circumstances.
The Wife’s estate will also receive 50% of the total assets in the form of her accounts, shareholding, and her proportion of the remaining funds so as to make up her entitlement. That entitlement also amounts to $450,201.59. To achieve that sum she will receive $342,201.59 from the joint funds available for distribution. As part of her estate, her entitlement will be distributed by her executor/s according to the terms of her will.
Standing back, in light of the parties’ contributions as assessed and the nature of their property, I am satisfied that the ultimate order adjusting the parties’ property interests is just and equitable.

I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.
Associate:
Dated: 2 September 2022

File number:	PAC 6951 of 2020
Judgment of:	JUDGE TURNBULL
Date of judgment:	2 September 2022
Catchwords:	FAMILY LAW – PROPERTY – s 79(8) – property settlement after the death of applicant wife – where partial settlement results in husband retaining significantly more assets than the wife – where remaining assets for distribution are jointly held funds and lease surrender proceeds in which the parties hold equal interests – discussion of jurisdiction under s 79(8) – discussion of s 75(2)(a) – need for party’s age and/or state of health to affect their financial circumstances – discussion of s.75(2)(g) – whether party’s standard of living impacted by payment of legal fees
Legislation:	Family Law Act 1975 (Cth) ss 39(5)(a), 75(2), 79(1), 79(2), 79(4), 79(8)
Cases cited:	Abebe v Commonwealth (1999) 197 CLR 510 Beck & Beck (No 2) (1983) FLC 91-318 Clauson & Clauson (1995) FLC 92-595 Dovgan & Dovgan [2021] FamCA 306 Doyle & Doyle (deceased) (1989) FLC 92-027 Firm & Ruane [2014] FamCAFC 189 Fisher & Fisher (1986) FLC 91-701 Fisher & Fisher (No 2) (1986) 161 CLR 438 Flanagan & Sobek (deceased) [2014] FamCA 696 Goswami & Rapozo (No 2) [2020] FamCAFC 282 Grace & Grace [2012] NSWSC 976 Greval & Estate of the late Greval (1990) FLC 92-132 Grier & Malphas [2016] FamCAFC 84 Hickey & Hickey [2003] FamCA 395 Hutton & Hutton [2007] FamCA 1701 Jabour & Jabour [2019] FamCAFC 78 Jacobson & Jacobson (1989) FLC 92-003 Kowaliw & Kowaliw (1981) FLC 91-092 Lotta & Lotta [2017] FamCA 50 Mabb & Mabb [2020] FamCAFC 18 Mallet & Mallet (1984) 156 CLR 605 Mayhew & Fairweather [2021] FamCA 614 Meddow & Estate of the late Meddow [2015] FamCA 1182 Norman & Norman [2010] FamCAFC 66 Parshen & Parshen (1996) FLC 92-720 Pretswell (deceased) & Pretswell [2019] FamCA 395 Sigley & Cullen (No 3) [2015] FamCA 825 Stanford & Stanford (2012) 247 CLR 108 Strelys & Strelys (1988) FLC 91-961 Tallowfield & Tallowfield [2018] FamCAFC 172 Teal & Teal [2010] FamCAFC 120 Varnham & Moses [2021] FamCAFC 31 Waters & Jurek (1995) FLC 92-635 Whitehouse & Whitehouse [2009] FamCAFC 207 Wilson & Wilson (1989) FLC 92-033
Division:	Division 2 Family Law
Number of paragraphs:	116
Date of hearing:	20-21 June 2022, 28 June 2022
Place:	Heard in Parramatta and Hobart, delivered in Hobart
Counsel for the Applicant:	Mr Kerrison
Solicitors for the Applicant:	Kerrisons Legal Services
Counsel for the Respondent:	Ms Spain
Solicitors for the Respondent:	MCW Lawyers Pty Ltd

PAC 6951 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HOLLAND AS THE LEGAL PERSONAL REPRESENTATIVE FOR MS JENSEN (DECEASED) Applicant
AND:	MR JENSEN Respondent

order made by:	JUDGE TURNBULL
DATE OF ORDER:	2 SEPTEMBER 2022

Ownership		Description	Applicant’s value		Respondent’s value
ASSETS
1.	J	Unit F, G Retirement Village, H Street, Suburb J, equity:[7]	$304,310		E $304,310
2.	H	Room B, C Care Centre, D Street, Suburb E, in Mr Jensen’s name Refundable Accommodation Deposit	$250,000		E $250,000
3.	J	Furniture and household contents:	$Nominal		MIN
4.	J	CBA Pensioner Security Account no. …29	$500		E $500
5.	J	CBA Term Deposit Account no. …65	$213,000		E $213,000
6.	J	Bank K Account no. …31	$Nominal		MIN
7.	W	CBA Pensioner Security Account no. …77	$7,500		E $7,500
8.	W	CBA Pensioner Security Account no. …80	$95,500		E $95,500
9.	H	CBA Pensioner Security Account no. …44	$19,093		E $19,093
10.	W	Shares in publicly listed companies (Company N and Company O)	$5,000		E $5,000
11.	H	Shares in publicly listed companies (Company N and Company P)	$5,500		E $5,500
Total		$900,403		E $900,403
LIABILITIES
16.	W	CBA Visa Card	$Nominal		$Min
17.	CBA Visa Card	$Nominal
Total		$	Nominal	$	0