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)
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Jensen & Jensen [2022] FedCFamC2F 1190
Case
[2022] FedCFamC2F 1190
Decision Date
CaseChat Overview and Summary
This case concerned a property settlement between the parties, Mr Jensen and Ms Jensen, after the death of Ms Jensen. Ms Jensen initiated proceedings under the Family Law Act 1975 (Cth) and passed away before her application was finally determined. The court had to decide on the distribution of the remaining joint funds and the G Retirement Village lease surrender proceeds. The court found that the parties' contributions were equal and that the proposed exercise of discretion under s 79 of the Act was just and equitable. The court ordered that the remaining joint funds and G Retirement Village lease surrender proceeds be divided equally between the parties, with each receiving 50% of the total asset pool. The court also ordered that the parties retain possession of their personal properties and entitlements in their sole name.