Miklic & Miklic and Anor
[2010] FamCA 741
•23 August 2010
FAMILY COURT OF AUSTRALIA
| MIKLIC & MIKLIC AND ANOR | [2010] FamCA 741 |
| FAMILY LAW – PROPERTY – Future needs where one party to the marriage is deceased and the other has a seriously compromised life expectancy – Contribution by inherited funds |
| Family Law Act 1975 (Cth) Succession Act 2006 (NSW) |
| Bonnici & Bonnici (1992) FLC 92-272 T & D & Anor [2006] FamCA 1248 |
| APPLICANT: | Ms E Miklic |
| RESPONDENT: | Mr G Miklic |
| 2nd RESPONDENT: | Ms L Miklic |
| FILE NUMBER: | SYC | 2368 | of | 2007 |
| DATE DELIVERED: | 23 August 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 21 - 22 June 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Winfield |
| SOLICITOR FOR THE APPLICANT: | Livingstone & Company Lawyers |
| COUNSEL FOR THE RESPONDENTS: | Mr Grieve, SC |
| SOLICITOR FOR THE RESPONDENTS: | Argyle Lawyers Pty Ltd |
Orders
An order be made pursuant to s 79 Family Law Act in the terms of paragraphs 2 to 6 hereof.
The Respondents pay to the wife the sum of $1,327,909 within three (3) months.
Upon the payment referred to in paragraph 2, the Respondents be declared to have sole right, title and interest in the property at C and that the wife vacate that property.
In the event that the Respondents fail to make the payment referred to in order 2, the property situated at C in the State of New South Wales be forthwith listed for sale and sold with the proceeds of sale being distributed as follows and in the following order:-
4.1.In payment of any agent’s fees, selling costs and legal costs on sale;
4.2.In payment of 78 per centum of the balance to the wife; and
4.3.In payment of 22 per centum of the balance to the Respondents.
Except as otherwise provided in these orders the Respondents and wife are respectively entitled to the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equity, superannuation entitlements and personal effects currently in their possession or control of each of them.
Any party be at liberty to restore the matter on seven (7) days notice to make any application relating to the implementation of these orders.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
NOTATION:
I note the undertaking by the wife to the court that she will relinquish her interest under the Will and any claim in respect of the estate of the late J Miklic under the Family Provisions Act 1982 or the Succession Act 2006 (NSW).
IT IS NOTED that publication of this judgment under the pseudonym Miklic & Miklic and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2368 of 2007
| MS E MIKLIC |
Applicant
And
| MR G MIKLIC |
Respondent
And
| MS L MIKLIC |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The husband is dead. The wife’s life expectancy is seriously compromised. The adult children are fighting. As property cases go, this is a sad one.
The eldest daughter supports her mother. The two younger children are the executors of their late father’s estate, and the Respondents in these proceedings. They are also, along with the wife, the beneficiaries in his estate.
The wife filed an application for final property orders just two hours before the husband’s death.
The husband and wife had a long marriage of more than 30 years. The wife is now 67 years old. The parties were separated for at least nine years before the husband’s death, but lived in adjourning units and continued to interact with one another.
The husband inherited a significant amount of money after the separation. There is an argument as to whether or not I should take a global or asset by asset approach.
The younger children allege that their mother has wasted assets by gambling.
A significant issue arising in the proceedings is the way in which I should deal with prospective factors, given that only one of the parties to the marriage is still alive but has a short life expectancy.
SHORT HISTORY
The husband was born in 1926.
The wife was born in 1942.
The husband and wife married in 1962.
The eldest child H Miklic was born in 1963.
The middle child L Miklic was born in 1965.
The youngest child G Miklic was born in 1969.
Separation occurred in either 1993 (according to the Respondents) or 1998 (according to the wife).
The husband’s sister died intestate in November 1998 and the husband received assets from her estate.
The husband died in April 2007.
APPLICATIONS
Wife
The wife sought the following orders:
1. That the property situated at [C] in the State of New South Wales be forthwith listed for sale and sold with the proceeds of sale being distributed as follows and in the following order:-
a.In payment of any agents [sic] fees, selling costs and legal costs on sale;
b.In payment of 70% to the wife;
c.In payment of the balance to the husband.
2. That all other assets and financial resources held by the parties as at the date of these Orders including monies held in bank accounts in either party’s names, be divided as to 70% in the wife’s favour and as to the remaining 30% in the husband’s favour.
3. That in the event that either party should fail, neglect or refuse to sign or execute and deed, document or instrument required by or to give effect to these orders then pursuant to Section 106A Family Law Act that the Registrar of the Family Court of Australia, Parramatta Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
Respondents
The Respondents, representing the husband’s estate, filed the Response to an Application for Final Orders on 18 June 2007. At the hearing, the Respondents sought the following orders:
1. That the wife be permitted to continue to reside at [C] (“the [C] unit”).
2. That the First and Second Respondents pay by way of spousal maintenance to the wife the following expenses in relation to the wife’s occupancy of the [C] unit:
a. All water and council rates;
b. All electricity and gas bills;
c. The landline telephone rental accounts.
3. That the wife continue to receive ¾ of the income from the estate of the late [J Miklic], on a weekly basis.
4. That the wife pay the First and Second Respondents costs of and incidental to these proceedings.
The C units were registered in the name of the husband before he died and now the Respondents as executors of his estate are the legal owners of the C units. The Respondents only concede a life interest, to their mother, in one of the four C units. During the final day of the hearing the respondents were asked to clarify their position in relation to alteration of property interests, particularly in respect of whether or not they wanted an opportunity to attempt to retain all the C units. They indicated that they did, even if that involved attempting to raise an amount to payout their mother.
DOCUMENTS RELIED UPON
The wife relies on the following documents:
20.1.Wife’s Application for Final Orders filed 3 April 2007;
20.2.Response filed 18 June 2007;
20.3.Wife’s affidavit sworn 3 December 2009;
20.4.Wife’s financial statement filed 4 December 2009;
20.5.Affidavit of H Miklic sworn 13 June 2007;
20.6.Affidavit of Ms D sworn 13 June 2007;
20.7.Affidavit of L Miklic (2nd Respondent) sworn 25 May 2010;
20.8.Affidavit of G Miklic (1st Respondent) sworn 27 May 2010;
20.9.Affidavit of G Miklic sworn 15 June 2007; and
20.10.Affidavits of Ms M, both sworn 9 June 2010 with reports dated 2 December 2009 and 8 June 2010.
The Respondents rely on the following documents:
21.1.Response to an Application for Final Orders filed on 18 June 2007;
21.2.Respondent’s Financial Questionnaire filed on 15 April 2008;
21.3.Affidavit as to Assets and Liabilities sworn on 15 June 2007;
21.4.Affidavit as to Assets and Liabilities sworn on 24 May 2010;
21.5.Affidavit of L Miklic sworn on 25 May 2010;
21.6.Affidavit of G Miklic sworn on 27 May 2010;
21.7.Affidavit of Mr B sworn 16 May 2010 (Valuer);
21.8.Undertaking as to Disclosure filed on 28 May 2010;
21.9.Orders dated 16 May 2007;
21.10.Orders dated 20 June 2007; and
21.11.Orders dated 1 February 2007.
CREDIT
I am unable to entirely accept the evidence of any of the witnesses who gave oral evidence (apart from Dr Y).
The evidence that the wife gave, when she was asked questions about monies withdrawn from her account and what she did with them, was less than satisfactory. Initially she indicated that she might spend up to $100 on what was a relatively short taxi ride to her doctor. She subsequently amended that evidence so that it included not only the fare, but the acquisition of pharmaceuticals as a result of prescriptions that had been written. It is common ground, however, that the wife is in receipt of a full pension and she was unable to indicate what monies might have been spent on prescriptions that were not otherwise substantially covered by subsided entitlements. The wife’s affidavit estimates her current weekly cost of pharmaceuticals to be $7.50.
L Miklic gave inconsistent evidence about the number of times the mother left the household after a fight with her father. Initially she gave the impression it was a regular thing throughout her life. When tested in terms of specifics, she said the first occasion occurred in her late adolescence during her secondary school education. She later said that she was a child when her mother left the home. When pressed, L said that her mother left in excess of ten times. This followed other more general statements about the mother leaving them alone with the father “quite a lot of occasions” and “on so many occasions”.
L’s case in relation to her mother’s absences was that the husband made large contributions to the children’s care and to housework, when the wife was present in the house and more so when she was absent. When questioned how the father could possibly have made such contributions at home given his work commitments, L disputed that he worked 7 days a week. She said he worked Monday to Friday, Friday nights and Saturday nights. She said that he worked until after midnight on Saturday nights (which means he technically did work 7 days a week), but that he did not sleep in on Sunday morning. Even so, it is disingenuous to minimise the wife’s homemaker and parental contributions when the agreed evidence is that the husband worked long hours, and when G was prepared to make concessions that even after the separation, the wife still undertook home duties for the husband and children.
L made inconsistent statements regarding the date of her parents’ separation in the current proceedings and in the proceedings before the Guardianship Tribunal in 2007. I deal with this matter in more detail later.
I was not impressed by the manner in which G Miklic gave his evidence overall. He was reluctant to respond when asked about his intentions with the block of flats.
Given I am unable to rely upon other parts of their evidence, I treat with some suspicion the firsthand hearsay statements made by both G and L about what their deceased father has said.
H Miklic told the Guardianship tribunal that she had never received financial assistance from the husband, but in these proceedings she claims the money she obtained in Lebanon was exactly that.
There is clearly a large amount of bad blood between G and L on the one hand and the wife and H on the other hand. On credit I would choose not to prefer any of their evidence and I would look to other objective evidence or a version of events which was more inherently likely.
CHRONOLOGY
The husband was born in Lebanon in 1926.
The wife was born in Lebanon in 1942, and is currently aged 67 years.
The husband migrated to Australia in 1948.
The parties met in Lebanon in 1962 and married in Lebanon in 1962.
The wife moved to Australia with the husband in September 1962. In this year four units at C were purchased in the husband’s name.
The parties’ first child, H Miklic was born in 1963. She is currently aged 46 years.
The parties’ second child, L Miklic was born in 1965. She is currently aged 44 years.
The parties’ third child, G Miklic was born in 1969. He is currently aged 41 years.
The wife says the husband retired in 1981. The Respondents concede the husband retired in the 1980s.
The Respondents assert that the parties separated on 14 May 1993 when the wife moved into an adjacent apartment after 31 years of cohabitation. The wife asserts that the parties separated in 1998 after 36 years of cohabitation. I discuss the issue about the date of separation below.
The wife says she obtained a Centrelink card in February 1994 and began receiving a disability pension.
In November 1998 the husband’s sister died. Letters of administration in relation to the estate were granted to the husband on 6 April 2000. The respondents claim the husband received an initial payment from the estate of $394,710.40 on 5 June 2000. The respondents say that between 19 June 2000 and 14 December 2001 the husband received eight further payments from the estate amounting to $689,892.54 and was entitled to an additional US $168,000. It is the respondent’s case that the husband asserted to the First Respondent that the eldest child H took US $168,000 from the husband’s inheritance, after travelling to Lebanon in 2001 to finalise the estate of the husband’s sister. The wife says that inheritance amounted to $400,000 only. I deal below with the issue of the amount the husband received from his sister’s estate.
The husband suffered his first stroke in 2002. The wife says that she continued to look after him following that stroke.
The husband took out an AVO against the wife in 2002 after the wife stabbed the husband with a pair of scissors. The wife says she did this in self defence.
The wife says the husband loaned to L US $35,000 and AUD $10,000.
The husband made his last Will and Testament on 26 April 2004.
The Respondents say that in November 2006 the husband gifted $100,000 to G. The wife asserts this was only a loan.
The husband suffered a further stroke in December 2006 and was admitted to Royal North Shore Hospital and then in early 2007 to W Hospital. The Respondents say that the wife and H had a solicitor attend W Hospital to try and get the husband to change his will.
On 13 February 2007 the husband was transferred to O Aged Care Facility. During February 2007, the Respondents say that the wife and H again had a solicitor attend N Aged Care Facility to try to have the husband’s will changed.
In February 2007 L says she discovered that the wife has diverted rental payments for the C units 1 and 2 to herself instead of the husband. L wrote to tenants to have the rental proceeds forwarded to the husband’s bank account.
On 1 March 2007 Orders were made by the Guardianship Tribunal, placing the husband’s estate under the ‘Protective Division’ and a financial manager was appointed.
On 16 March 2007 the wife says that she was locked out of unit 4, but she had the locks changed again.
On 19 March 2007, L says she found the wife living in the husband’s unit. The respondents say that on 22 March L and Mr N from the Office of Protective Commission attended the husband’s unit to find his safe broken into and the contents taken (Mr N did not give evidence). L asserts the contents were taken by the wife. The wife says the unit was ‘cleaned out’ on 22 March 2007 and the locks were changed again.
In April 2007 the husband died, aged 80 years. The wife filed an Application for Final Orders and Financial Statement on this day at 2.27pm, two hours before the husband died.
On 3 May 2007 probate of the husband’s estate was granted to the Respondents.
Interim consent orders were made on 16 May 2007, allowing the wife to live in Unit 3 and have her household expenses paid by the estate.
Further interim orders were made on 20 June 2007 allowing a payment of $50,000 to the wife as partial property settlement, and continued payments of wife’s household expenses.
Whilst it was not explicitly clear, I infer the wife was diagnosed with breast cancer in 2008. The wife had a mastectomy in October 2008.
The wife says she has not received any income from the husband’s estate since May 2009 and I accept that is substantially accurate.
A third set of Consent Orders was entered into on 1 February 2010, transferring another $50,000 to the wife as interim property settlement.
THE APPROACH TAKEN
In this matter, my task is to:
61.1.Identify and value the property, assets, financial resources and liabilities of the parties;
61.2.Identify relevant contributions and assess them;
61.3.Consider relevant matters referred to in s 79(4)(d) to s 79(4)(g) FLA; and
61.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.
BALANCE SHEET
Global or Asset-by-Asset Approach
It is agreed that there is $624,890 remaining in cash in the husband’s estate. Senior counsel for the Respondents submits that the source of these monies is the inheritance from the husband’s sister. Senior counsel for the Respondents submits that the inheritance monies should be dealt with as a separate pool to the balance of the assets and that an asset-by-asset approach should be adopted.
Senior Counsel for the Respondents also suggested that a significant portion of the inheritance money was spent by the husband up until his death and that the wife benefited from part of that expenditure. In those circumstances, it is submitted that the wife should not be entitled to make a claim, based upon contributions to any of the remaining cash held by the estate.
Counsel for the wife argues that there was significant blending of inheritance and non-inheritance funds and contends that it is uncertain as to how much the investment of inheritance funds remain after those funds were blended.
The High Court in Norbis v Norbis (1986) FLC 91-712 at page 75,168 said the following:
“The assessment of the parties’ entitlements before the making of an order is another question, quite distinct from the assessment of their contributions. As a matter of construction of sec. 79 Nygh J is right in saying that the section imposes no obligation on the Family Court to pursue in relation to this issue either the global approach or the asset-by-asset approach to the exclusion of the other. We do not understand the Full Court in the present case to suggest otherwise. What the Full Court asserts is that the global approach is the only “realistic”, that is, convenient, means of arriving at the entitlements of the parties. Again, it seems to us that it will depend on the circumstances of the particular case, though in the majority of cases the global approach will be the more convenient and for this reason the Full Court is entitled to prescribe its adoption as a guideline in the majority of cases. The Family Court has rightly criticised the practice of giving over-zealous attention to the ascertainment of the parties’ contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties’ financial contributions necessarily entails reference to particular assets in the manner already indicated.”
The Full Court in Lenehan & Lenehan (1987) FLC 91-814 at page 76,148, made the following observations:
“The judgments of the High Court in Norbis v Norbis (1986) FLC 91-712 demonstrate the very wide discretion which a trial judge has in the approach that he may adopt under sec. 79. In particular the judgments in that case discuss the “global” and the “asset by asset” approaches, and demonstrate that this is largely a matter for the trial judge to determine in the exercise of his discretion. However Norbis’ case is not carte blanche to adopt either view irrespective of the circumstances of the individual case. There are cases where one approach or the other is clearly appropriate and a failure by the trial judge to adopt that approach may demonstrate error.”
Senior counsel for the respondents sought to rely upon the minority decision of Guest J in Farmer & Bramley (2000) FLC 93-060 and made the following submission:
“While it is the court's invariable practice to identify and value the assets of the parties (or either of them) at the time of the hearing, rather than on the date of separation, it undertakes that task with the object of determining the extent of the contributions made by each of the parties "to the acquisition, conservation or improvement" of those assets within the terms of sub paragraphs (a) and (b) of section 79 (4). Although, in terms, contributions made by a party under paragraph (c) are not expressed to be referable to such "acquisition etc", the authorities recognise the invariable connection between such contributions and the parties' accumulation of material wealth. The present case provides a pristine example; the wife's contribution as a homemaker and parent enabled the husband to devote his energies to his remunerative employment. However there is simply no basis upon which to suggest the existence of any causal nexus between the wife's contribution under section 79 (4) during the subsistence of the marriage (i.e. until separation) and the husband's subsequent inheritance of an interest in his late sister's estate.”
Conversely, Finn J in Farmer & Bramley did not agree that a causal nexus needs to exist between the contribution during the marriage and the inheritance. She said:
[56] First an issue has arisen in this appeal as to whether an entitlement based on contributions made to the welfare of the family can only be satisfied out of property available to the parties at the time the contribution was made. In my view, there is nothing in s.79(4)(c) or indeed else in the Act, or in the authorities to date, which would justify such a limitation.
[57] Secondly, if it was to be determined that a majority of the community considered that one spouse should, as a general rule, have no entitlement to share in property either by good fortune or good management acquired after separation by the other spouse, then the Act would need to be amended to make this clear. As the Act currently stands, the jurisdiction conferred by s.79(1) to alter the interests of spouses in property extends without limitation to all the property which either spouse is entitled “whether in possession or reversion” (s.4).
Kay J agreed with Finn J on this point saying:
“….an assessment of contributions made under s 79(4)(a), (b) and (c) does not have to bear a direct relationship to the assets as they presently exist.”
I am bound by that majority view.
Senior counsel for the Respondents also referred to the case of Bonnici & Bonnici (1992) FLC 92-272 where an inheritance was received shortly before separation. In that case the court said that while a global approach was not precluded, an asset-by-asset approach created less difficulty and was more appropriate in the circumstances. They also noted that whether the inheritance assets are treated differently from the other marital assets will depend on the circumstances of the individual case.
A central issue in this matter relates to the amount the husband received from the estate of his sister.
The husband’s sister died in November 1998 and probate was granted on 6 April 2000. The respondents’ case is that over $1,145,277.10 was inherited by the husband, of which $624,890 presently remains. The wife’s case outline document puts the estimated value of the inheritance at $400,000. The part of the wife’s affidavit dealing with the inheritance value was not read but she summarised the husband’s bank accounts in 1998. These were in the sum of $860,000. It is the wife’s assertion that these accounts included both the husband’s savings up to the date of his retirement and the proceeds of the inheritance.
L has assessed the value of the husband’s inheritance based on a handwritten diary entry by the husband and receipts attached to the diary. She has taken the receipts, including receipt documents from a bank, indicating monies being put into term deposits and added them up to come to an aggregate figure which in my view is an unrealistic figure in relation to the amount of money that was actually received from the estate. The initial deposit of about $400,000 into the husband’s bank account is not recorded in his handwriting as being an amount referrable to his sister’s estate, rather, he records in his handwriting various deposits made into term deposits as being amounts coming to him via the estate referrable to the inheritance from his sister. It is unclear what happened to the monies in term deposits at the expiration of the term of the deposit. Some of them may have been reinvested. There is a serious risk of double counting.
I have difficulty in believing the hearsay evidence of the Respondents that the father claimed he inherited in excess of $1 million. The most objective evidence I have in relation to inheritance are the Letters of Administration, which values the inheritance at $1,235,151.50.
Given that the husband’s sister’s estate was intestate, I infer the rules of intestacy set out who was to receive this inheritance. The relevant legislation to apply is the Wills, Probate and Administration Act1898 (NSW) in its historical form, which is now known as the Probate and Administration Act1898 (NSW). The husband’s statutory declaration (annexed to the First Respondent’s affidavit of 27 May 2010) demonstrates that the husband’s sister had no spouse that survived her, no children, and no parents who survived her. Section 61B(6)(a) of the Act provides her siblings inherit her estate. Section 61B(6) requires that the recipients be living at the time the intestate died. The husband’s sister had three siblings including the husband. Her sister died long before herself in 1987. This left the husband and his brother. The husband’s brother died in August 1999, surviving the husband’s sister by over nine months. The husband’s brother was therefore eligible to receive a portion of his sister’s estate, and upon his death, his own estate would inherit that portion. The first respondent admitted in his affidavit that the husband’s brother shared in the estate.
So, the husband’s brother and the husband inherited their sister’s estate in equal shares. This would mean that the figure which the husband received from the estate, based upon the inventory which the husband lodged with the Letters of Administration (Exhibit A), was $617,575.75 ($1,235,151.50 ÷ 2).
The only way that the husband could have inherited more than his half share of his sister’s estate would be if he had not administered the estate according to law, with or without the permission of his brother’s estate. The husband’s brother had four adult children who stood to inherit his share of his sister’s estate. Had they not received their father’s portion, they could presumably be called by the respondents to give evidence of what the husband received. They were not called, and I have been given no explanation as to why not. In accordance with the rule in Jones v Dunkel (1959) 101 CLR 298 I infer that calling these witnesses would not have assisted the Respondents’ case. I make the finding that the husband inherited half of his sister’s estate, being the sum of $617,575.75.
There has however, on the Respondents’ case, been monies expended from monies that the husband has received, both whilst he was alive and by the estate in this litigation (which amount is otherwise included by agreement on the balance sheet).
A significant issue was the amount of money that H received from the estate when she travelled to Lebanon with her father.
This issue was not detailed in H’s affidavit. Exhibit J whilst in the Arabic language, was said by H to be a document which she recognises as being a receipt for a deposit into an account which was opened in her own name into which about US $58,000 was deposited from the estate of her aunt.
One irony in the way the case was presented before me, was that the Respondents ran their case on the basis that H had received US $168,000 and the wife ran her case on the basis that H had received US $58,000. The position taken by the Respondents advantages the wife’s argument and the position taken by the wife advantages the Respondents’ argument in terms of the balance inheritance received by the husband.
H gave evidence about her trip to Lebanon with her father. H (for the first time) said in the witness box that this transfer was a gift from her father to her. There is no other evidence that the US $58,000 was deposited in H’s account as a gift. There is conflicting evidence, in the Guardianship Tribunal decision of 2007 which states “[Ms H Miklic] advised that she had not derived any financial assistance from her father over the years.”
The other evidence I have about this from G and L, was that their father had told them that H had stolen this money. There is a diary entry of the husband to this effect, stating: “[H] took $10,000 USA in cash and she took $158,000 USA and she deposited in her name in Beirut @ the Bank of B.” There was some suggestion that the “1” in the entry “$158,000” was forged later, but I am unable to make any finding about that and there is a lack of any expert evidence about a forgery.
There are however other reasons for concluding H did not receive that much from her father’s money.
I take judicial notice (see s144(1)(a) Evidence Act 1995 (Cth)) of the historical US/AUD exchange rate (published by the RBA) on 20 July 2001, the date of payment on the deposit slip at Exhibit J. That rate was approximately 1.946 Australian dollars to the US dollar and would mean that H obtained either $112,868 (US $58,000) or $326,928 (US $168,000).
I note that the Inventory of Property dated 15 July 1999 annexed to the Letters of Administration, list the husband’s sister’s bank account in Lebanon as holding AUD $100,000. Taking notice of the RBA published exchange rate at that time of approximately 1.518 Australian dollars to the US dollar, the husband’s sister is reported to have had US $65,870 in her Lebanese account. By 2001, the date when H is to have obtained money in Lebanon, this US $65,870 will have been worth AUD $128,183 plus whatever interest had been earned on that amount. It is unlikely that H could have taken AUD $326,928 from an account holding AUD $128,183. I find it is far more likely that H acquired US $58,000 rather than US $168,000 and I accordingly accept H’s evidence about what she received.
I find, on balance, the amount that the husband received by way of inheritance after the amount taken by H is deducted was probably in the order of $500,000 (617,575 - 112,868 = $504,707).
The husband’s will, which was signed 2 April 2004, says at clause 6: “I forgive and release my daughter [H Miklic] from all sums of money whether for principle or interest which at my death may be owing by her to me.” The father does not in his will indicate that money was stolen from him nor that he had gifted money to H.
Once the amount that H received is taken into account, and some allowance is made for other payments the Respondents say were made by the inheritance, the amount left of the inheritance approaches what is contended by the wife.
I consequently conclude that it would be unsafe to assume that the whole of the amount of $624,890 (currently in the husband’s bank accounts) should be assumed to be monies the husband had as a result of his inheritance from his sister. The husband had a substantial working life. It is part of the Respondents’ case that he was a man who was frugal with his money. It is likely that he had cash savings at the time he inherited money from his sister. The existence of those cash savings is a logical conclusion from the analysis that I have set out above. I find that there was a substantial intermingling of the husband’s funds.
In those circumstances, it would not be appropriate to separate the sum of $624,890 into a separate pool and treat it purely as money received by the husband as a result of his inheritance.
In this case I will adopt a global approach and consider one pool of assets which will include the husband’s bank account.
The items on the balance sheet are largely uncontroversial. The balance sheet appears below:
| POOL 1 | ||||||
| Assets | ||||||
| Item no. | Title | Description | Respondents | Wife | Agreed/ Determined | Value |
| 1 | J | [C Units] | $1,700,000.00 | $1,700,000.00 | Agreed | $1,700,000.00 |
| 2 | R | Bank Accounts | $624,890.00 | $624,890.00 | Agreed | $624,890.00 |
| 3 | W | Bank Accounts | $33.00 | $33.00 | Agreed | $33.00 |
| 4 | W | Household Contents | $500.00 | $500.00 | Agreed | $500.00 |
| 5 | W | Partial Payment (inc legal fees) | $100,000.00 | $100,000.00 | Agreed | $100,000.00 |
| 6 | R | Legal Fees | $63,351.45 | $63,351.45 | Agreed | $63,351.45 |
| Total assets | $2,488,774.45 | |||||
| Liabilities | ||||||
| Item no. | Title | Description | Respondents | Wife | Agreed/ Determined | Value |
| 7 | R | Husband's estimated 2009 tax liability | $4,527.00 | $4,527.00 | Agreed | $4,527.00 |
| Total liabilities | $4,527.00 | |||||
| Total net assets | $2,484,247.45 | |||||
Item 1
The main asset is the block of units at C which is valued at $1.7 million. There was a procedural hearing before me in the week before the substantive hearing, where the wife sought (amongst other things) to have a new expert appointed to provide an updated valuation of that property. That application was refused for reasons given. The wife had, at a very late stage, asked the single expert to update his valuation. The single expert indicated he could not provide an updated valuation by the trial. The appointment of a new expert would have only created additional problems, given it was unlikely the experts would have been able to confer in a timely manner. The single expert would not have been able to check new comparable sales raised by an adversarial expert and the dates set for hearing would be jeopardised. The figure before the Court is that of the valuation of 7 August 2009 and I will adopt that value.
Item 2
The wife says that at separation, the husband had $860,000 in his various bank accounts. The First Respondent’s Affidavit of 15 June 2007, where it sets out the husband’s assets and liabilities similarly shows an amount of $800,967.16 in the husband’s accounts. This reduced to $624,890.66 by 24 May 2010. I do not have any clear evidence as to how the sum of about $175,000 was expended in that time but nobody agitated I should make an adjustment on the balance sheet for that amount. I will use the current sum at the time of the hearing as the amount I add to the balance sheet.
Items 3, 4 and 7
There was no issue with these items.
Item 5
The interim orders in June 2007 and February 2010 each provided the wife receive amounts of $50,000. Legal fees of $49,696 were expended from these funds paid to the wife’s previous lawyers. The wife did not argue that the remaining $50,000 should not be added back. Although it might be reasonable to infer some of these monies were spent on ordinary living expenses, given there were no submissions made about this, I will add the sum of $100,000 back to the balance sheet which is inclusive of the wife’s legal fees. The wife has received other monies which I have not added back (see discussion under the heading “Other possible add backs”).
Item 6
The legal fees paid by the respondents have been paid out of the husband’s estate. These fees should be added back onto the balance sheet. The sum given by the Respondents’ lawyers for legal fees paid is $63,351.45 (Exhibit K).
Other possible add backs
In 2007 the respondents discovered that the wife had been receiving rental income from two of the units instead of the husband. The respondents assert that when questioned in March 2007 the wife said to the respondents, “I’ve spent the rent money that I’ve received at the club, I don’t care”. Subsequently the respondents arranged with the tenants to have the rent forwarded to the husband’s bank account. The Respondents claimed that the amount of rent received by the wife was approximately $10,000 between November/December 2006 and March/April 2007. This figure was based on the letter from a tenant from one of the two units (see Exhibit H to the 2nd Respondent’s affidavit), where that tenant had paid an amount of $530 on ten occasions during that time (and presumably I am asked to assume the other tenant did the same). I do not accept the Respondents’ evidence about the wife’s statements as to how she expended this money. The wife claims monies received by her were spent on ordinary living expenses. In the circumstances I find that it is inappropriate to add back this amount against the wife, particularly given the lack of accounting by the Respondents to which I referred when discussing Item 2 and what I have said when discussing item 5.
The Respondents made allegations that the wife stole the contents of a safe in the husband’s apartment, consisting of jewellery, watches and cash of up to US $10,000. The wife denies these allegations, saying that she does not have the code for the safe. Nothing was said in oral submissions about this matter. There is no cogent evidence one way or the other and so I will not add back any amount against the wife for jewellery, watches or cash.
CONTRIBUTIONS
C Units
The units at C were purchased in 1962. The wife says these were financed by the husband’s sister, and that the rental income repaid the loans to the husband’s sister. The parties lived in one of the units and rented the other three. It is the Respondents’ case that the husband bought the units from his own savings. The wife says that at the time of marriage neither party had any savings. This evidence is inherently unlikely given the difference in ages at the time they married (the husband was 36; the wife was 20). I am unable however to say what capital the husband may have had when the parties married. I have no objective evidence either way for who supplied the funds to purchase the units. I am unable to adopt the Respondents’ version of the facts about something that happened before they are born. Although the initial contributions of this property may not have been equal, any contribution made by the husband was so long ago that I would place little weight on it, even if I knew what those contributions were, given the myriad of contributions both parties made since the date of cohabitation. Accordingly, I do not weigh contributions to the acquisition of the C units in the husband’s favour.
Contributions during cohabitation
Initially it appeared that the parties were in agreement that the husband was the sole income earner while the wife was responsible for the major contribution towards homemaker and the childrearing duties. The Respondents suggested that contributions made during the period of cohabitation should be assessed as equal.
The first Respondent’s evidence differs from this view however, explaining that the wife was in paid employment intermittently from 1979 to 1985, and that the husband had primary care of the children at times when the wife left the home after various arguments. The first Respondent also said the husband would do the grocery shopping, take the children to and from sport, teach the children how to drive and attend teacher interviews. The husband was also responsible for the upkeep of the units and grounds at the C property.
The wife says she worked for three weeks in the mid 1970s only and was otherwise dedicated to running the household and bringing up the children. At paragraph 23 of her affidavit she gives a detailed list of the work she undertook in this role. The wife’s absence from the home after arguments is denied by the wife, and the inconsistency of L’s evidence in this regard is outlined earlier. Even if the mother had left the home in excess of 10 occasions, this only occurred in L’s teen years, and for short periods. This does not undermine what would otherwise be a large contribution by the wife to the home and family.
Given even L’s version of her father’s level of working, it must have meant, particularly when they were little, the mother made substantial contributions in the role of homemaker and parent.
I comfortably find that the contributions during the cohabitation were equal.
Date of Separation and contributions after that date
There is no doubt that the parties had a somewhat tempestuous relationship throughout their marriage and that there were a significant number of verbal fights.
L and G both gave evidence that their mother moved from unit 4 (which she shared with the husband) into unit 3 (which had previously been shared by L and G) in 1993. L said that she got married and moved out of unit 3 in April 1993. Following this, L says she observed the mother had moved into unit 3. She asserted that her parents had separated from that time.
There was an incidence of violence in 1993, where on the wife’s evidence she was taken into a headlock by the husband and as a result she stabbed him with a pair of scissors. The Respondents deny ever witnessing violence by the husband to the wife, however, I note that they were living in separate units to their parents for some time.
L’s evidence regarding her parents’ separation is inconsistent with the evidence she gave before the Guardianship Tribunal in 2007, where she said that the parties had separated ten years earlier. This places the date of separation at 1997, far closer to the 1998 separation alleged by the wife than the 1993 separation alleged by L and G. L said that she had given an approximate ten year period that could have meant 15 years. I am not particularly satisfied with that evidence. L was dating her memory of her parents’ separation from the time that L got married. To misjudge the period of her parents’ separation and therefore of her own marriage by 5 years is unlikely. I cannot accept that L can simply shrug off making a statement like that to the Guardianship Board on the basis that it was only an approximation.
The wife maintains that she assisted the husband after separation (and especially after his first stroke) with cooking, cleaning, ironing and other domestic tasks. Both respondents agree with the wife’s evidence that although separated, she continued to be involved in the husband’s life and he in hers. L and G conceded that the husband continued to financially support the wife after separation, the husband and wife continued to attend family events together, and that the wife sometimes cooked for the husband. G made the concession that even after the separation, his mother still cooked for the husband about two times a week but it was unclear as to what period of time he was actually referring to.
The Guardianship Tribunal decision stated that the Respondents had reported that “despite the fact their mother and father lived separate lives in separate apartments, their mother had provided ongoing care for [the husband] and…they had an interdependent relationship”.
I am reasonably satisfied that between 1993 and 1998 even if the husband and wife had separated and the wife moved into a separate unit, the parties continued to have meals together and the wife continued to provide household services to the husband.
I am also reasonably satisfied that even after the 1998 separation that the wife claims, the parties continued to live in a co-dependent relationship. The husband who controlled the family finances gave money to the wife from time to time. The wife in turn provided household services to the husband, including cooking.
It is of little concern then whether the parties separated in 1993 or 1998.
Gambling
Senior counsel for the Respondents suggested that the adjustment made in the wife’s favour, based upon contributions, should be reduced by 10 percent because of the wife’s alleged waste throughout the marriage as a result of gambling.
The wife stated that she regularly played bingo at the Leagues Club 2 to 3 times a week, where she would purchase two books of tickets for $2 each. The wife said she would occasionally spend $10 to $20 on raffle tickets. The wife conceded that she sometimes played the pokies, usually spending $5 to $10 on the 1c machines, not for the purpose of winning money but for a social interaction with friends who also played the pokies. She said the main intention in going to the club was to socialise with friends, not to gamble.
The wife’s explanation of her gambling behaviour is corroborated by her friend, Ms D. She did not observe behaviour in the wife which would lead her to believe the wife had a ‘gambling addiction’ saying the wife would attend the club almost daily for bingo, but would seldom be seen on the pokies, and never brought large amounts of cash with her. She reported that the husband was always at the club immediately after bingo finished to collect the wife, so she had no opportunity to gamble.
On the other hand, G and L gave evidence that the wife was absent from the home most of her days. They told the Court that the husband said to them the wife was always at the club and that sometimes they went to pick her up. There is a question as to what inference could be drawn from that evidence. The wife admitted that she was regularly at the club and her friend said she was there almost daily. This does not mean the wife was gambling large sums of money.
Counsel for the respondents tendered an aide memoir of the wife’s bank records (Exhibit C) which are suspicious on their face. They show large withdrawals, often of $1,000 which total to $52,331. The records are consistent with a gambling pattern. However when these withdrawals are analysed, we see that they occur over a three year period (although 8 months is unaccounted for) which averages to approximately $300 per week. The wife says money was used to pay for doctors’ appointments, medication and taxis. She referred to one significant lump sum payment, a $4,000 graduation gift to her granddaughter. The wife’s Financial Statement puts her weekly expenses at $676 a week. Although the withdrawals seem suspicious on their face, the wife’s legitimate expenses may well explain the withdrawals and there is no cogent evidence to convince me one way or the other that the withdrawals relate to wasteful gambling.
I also note G’s statement that his father was very frugal. Given that all the accounts and properties were in the husband’s name, I have no doubt that the husband whilst he was alive distributed his money very carefully to the wife.
I am confident there was no significant wastage by the wife that necessitates an adjustment against the wife.
Inheritance
In relation to the inheritance of the husband’s sister, the Respondents say that the wife did not contribute in any way. Senior counsel for the Respondents submit that the wife made no contribution "to the acquisition, conservation or improvement" of the inheritance between the date of separation and the hearing.
Whilst it cannot be said the wife made any direct contribution towards the husband’s acquisition of the inheritance monies from his sister, they were received at a time shortly after the separation and in circumstances where according to evidence given by both L and G to the Guardianship Tribunal (referred to above), the wife provided ongoing assistance to the husband in a housewife capacity. I have already mentioned I am bound to accept Finn and Kay JJ’s reasoning in Farmer & Bramley that a casual nexus need not exist between the marital contributions and the inheritance.
As set out above, I have found the husband was entitled to receive his sister’s estate the sum of $617,575.75. That was reduced by monies H received whilst she was overseas with her father (US $58,000 or AUD $112,868) and monies expended by him whilst he was alive.
Conclusion on contributions
After a long marriage where the wife contributed primarily to the household and the husband to providing household income, and taking into account an inheritance retained by the husband of about $500,000 I assess that a reasonable division of assets between the Respondents and the wife as to 57.5 percent to the Respondents and 42.5 percent to the wife.
SECTION 79(4)(d) - (g) MATTERS
The husband’s death
Past cases have considered how the death of a party should be taken into account when assessing the availability of an adjustment under s 79(4) in relation to future needs. Clearly, the husband has no future needs of the kind referred to in parts of s 75(2) FLA. On the other hand, some care should be taken not to nullify the deceased party’s contributions due to his lack of future needs (see T & D & Anor (2006) FamCA 1248).
In Menzies and Evans (1988) FLC 91-969 Smithers J said (at 77,010):
“The only significant difference in the analysis of the case arising out of the death of the deceased, is…the deceased no longer has sec. 75(2) needs for the future”
But that:
“it would in my view be wholly inappropriate that the deceased should be deprived of the benefits of her contributions over so many years. That is to say that it is still appropriate, following the death of the deceased, that the outcome of the case should depend, largely, upon the extensive contributions of the parties over so many years”.
Tasmanian Trustees Limited and Gleeson (1990) FLC 92-156 considered the extent to which a lack of future needs of the deceased party should be taken into account. It was considered that a larger adjustment would be appropriate where the future needs of the surviving party were high, and where the estate was small so a higher adjustment was required to satisfy future needs. The important question in this case turns around an analysis of what are the wife’s future needs.
Wife’s health and life expectancy
The wife is in poor health. She suffers from breast cancer, type II diabetes, high blood pressure, high cholesterol, underactive thyroid, osteoarthritis and is overweight. The wife takes a variety of medications for these ailments. She has received both radiotherapy and chemotherapy for her cancer and will continue on endocrine therapy for a minimum of five years.
The wife acknowledged that she does not stringently attend to the taking of her medication. She estimates that she forgets to take her medication about once a week. The wife conceded that in April 2008 she ceased taking her diabetes medication for 2 weeks which resulted in a blood sugar level of 23. This is in the dangerous range where a diabetic coma is possible.
Dr Y is the wife’s oncologist. She gave evidence about the wife’s life expectancy and referred to an ‘adjuvant online package’ that predicts survival rates over a ten year period. In cross examination Dr Y explained the ‘online package’ was a collation of multiple international trials that, when the particulars of the cancer are provided in addition to the patient’s medical history and age, a ten year survival rate can be predicted. She described this program as the ‘best tool’ available to predict life expectancy. The results, outlined in Exhibit L, show a 3.8% chance that the wife would be alive in 10 years if she had no therapy. With no therapy, there is a 45.8% chance the wife will die of the cancer and a 50.4% chance the wife will die of other causes. With combined chemotherapy and hormonal therapy, the chance the wife will be alive in 10 years increases to just over 10 percent.
Dr Y was pressed to put an approximation on the chances of the wife’s 5 year survival. The Doctor did not appear to be comfortable when asked to do this. She said the Adjuvant package was an approximation tool that was based only on a 10 year span. She indicated that giving an alternative personal assessment of 5 years is “probably not something [she] can do”. She did say that the chance of the wife having a recurrence in the next three years is reduced due to the last two years being ‘without any problems’ but that this did not affect the 10 year estimate. If a relapse was to occur, the doctor said the median survival for metastatic breast cancer was 18 to 24 months.
Pressed further by senior counsel for the Respondents, Dr Y agreed that the wife’s life expectancy was “significantly less than 10 years”. She also agreed that the wife’s poor control over her diabetes could ‘certainly’ reduce her life expectancy further.
I accept the submission by Senior counsel for the respondents that Dr Y’s evidence reasonably leads to the conclusion that the wife’s life expectancy is most probably less that ten years.
The case law in relation to diminished life expectancy demonstrates that such circumstances are relevant for an adjustment relating to ‘future needs’ under s 79(4). It is however important to assess life expectancy on clear facts, and to assess the intricacies of the facts of each case. Where evidence is provided, it is relevant to consider not only the lower life expectancy, but the increased costs associated with terminal illnesses (see T & D & Anor [2006] FamCA 1248). I have little evidence about the cost to the wife of any potential future treatment and care.
In Lawrie & Lawrie (1981) FLC 91-102 a six month life expectancy of the husband resulted in a 15% adjustment to the wife. Fogarty J said in that case that:
“It is appropriate and, in my view, necessary to consider the relative future needs of the parties in determining what is a just and equitable order under sec. 79…where in any case it is clearly established that the future financial needs of a party will terminate (or perhaps significantly diminish) upon the happening of a definite future event, it is proper to take that into account.”
Fogarty J notes that the reduced life expectancy must be “clear and not in controversy and related to an early future date.” The evidence of wife’s reduced life expectancy in the current proceedings fulfils those requirements.
In S & P (unreported decision of Fogarty, Lindenmayer and Finn JJ delivered 29 April 1997) a 5% adjustment was made to the wife on the basis that the husband had a life expectancy of five years. The Court in this case reiterated the appropriateness of considering reduced life expectancy in regards to ongoing and superior future needs of the other party, but that “each case must ultimately be decided on its own particular facts and the conclusion is ultimately an exercise of discretion”. The Court again emphasised that the evidence in relation to reduced life expectancy must be clear.
In S & P the Court noted that although the increased need of the husband for medical expenses in his final years was brought to the attention of the husband’s lawyers as being a relevant issue, no evidence was provided to the Court. They noted that general judicial notice could be taken of the increased needs during times of illness, but it could not be the basis for specific conclusions, where these matters vary considerably on an individual basis.
Of course, in this case, the wife’s reduced life expectancy has to be considered in the factual context that the husband himself is deceased. The wife’s reduced life expectancy ameliorates the amount of the adjustment that she might have otherwise expected given that the husband’s estate cannot point to any of the usual 79(2) factors that a spouse might rely upon if they were alive.
Money alleged to be wasted by estate - s 75(2)(o)
Counsel for the wife wanted the court to find that the Respondents in their capacity as trustee for the estate of the husband, had mismanaged the estate in a way that had meant that monies that would otherwise have been generated by the estate had not been generated, particularly in the last nine months. It was suggested that the estate could use some of its cash reserves to renovate the property and to place the property in a state that would mean that income could be more easily earned from it by way of rents. I have insufficient evidence to conclude that the Respondents had wasted property in the estate. I have no evidence, apart from G’s assessment that it would cost $120,000 to do such a thing, to allow me to conclude how much it would cost to bring the property into a state which would make it an easy letting proposition. G’s evidence was that the $120,000 was simply costs to get to compliance stage. It didn’t fundamentally improve the utility of the property.
Counsel for the wife suggested renovations and repairs could substantially increase the value of the property. Again, the money needed to effect any renovations would have to come from the property pool, and that there is no evidence to suggest that expenditure would increase the value of the property by a value equal to or more than the expenditure.
My conclusion is that there is insufficient evidence for me to reach any adverse conclusion about waste by the estate.
Undertaking with respect to C Units under the husband’s Will
Counsel for the wife sought to adduce evidence to show that the Respondents were not paying to the wife income from the C units as prescribed in the husband’s will. Counsel for the wife sought to use this evidence to demonstrate the heightened future needs of the wife, who was unlikely to receive income under the will.
A discussion ensued as to how I could finalise the financial relationship between the parties. The wife has existing rights under the will that the respondents as executors must honour. Smith & Smith (1986) 66 ALR 1 precludes jurisdiction to finalise the financial position of the parties through a s79 order. In order to avoid arguments and doubt, the Respondents invited the Applicant wife to give an undertaking that she would not pursue any further claim under the will. The Applicant wife was prepared to give that undertaking, and I note they have done so in the following terms:
“That the Applicant provide an undertaking to the Court to relinquish her interest under the Will and any claim in respect of the Estate of the late [husband] under the Family Provision Act or the Succession Act.”
I take this undertaking into consideration when I assess the future needs of the wife, noting that she will not receive any rental income from the units and will no longer have a life interest in them. I note that the ‘life interest’ would be unlikely to exist for an extended period of time given the wife’s health. If I multiply the rental income for a conservative 10 year life expectancy, the wife’s 75% claim would amount to $132,600 ($340 x 520 x 0.75). This amounts to 5.3 percent of the total assets. This calculation assumes the wife will receive the full rental income without expenses of the units being paid. Presently, the units are operating at a loss.
Wife’s income and financial resources
The wife is on a disability pension of $336 a week, which is her sole income. She will not receive any income from the C units. She receives assistance from her daughter H where required, and to a lesser extent, has received assistance from her granddaughter. I am not satisfied that the wife could expect any assistance from the Respondents in the future. The wife has almost non-existent savings. She is unable to obtain employment.
I also take into account the amount of funds that the wife will receive, based on my contribution finding (42.5 percent of the overall assets).
Conclusion on s 79(4)(d) - (g) matters
Taking into account the matters that are discussed pursuant to s 79(4)(d)-(g) FLA, it is my view that the wife should be entitled to an adjustment of 15 percent in respect of s 79(4)(d)-(g) matters.
JUST AND EQUITABLE
The result of my findings in relation to contributions and s 79(4)(d)-(g) matters results in an adjustment of 57.5 percent of the assets to the wife and 42.5 percent of the assets to the Respondents. That distribution can be achieved in the following way:
Respondents get 42.5% Assets Item No. Description Percentage Value 1 C property 100% $1,700,000 2 Bank Accounts 100% $624,890 6 Legal Fees 100% $63,351 Liabilities Item No. Description Percentage Value 7 Husband's estimated 2009 tax liability 100% $4,527 Respondents pay Wife $1,327,909 Net Assets to Respondents $1,055,805 Wife gets 57.5% Assets Item No. Description Percentage Value 3 Bank Accounts 100% $33 4 Household Contents 100% $500 5 Partial Payment (inc legal fees) 100% $100,000 Wife receives $1,327,909 Net Assets to Wife $1,428,442
As can be seen, the estate would need to pay $1,327,909 to the wife and the wife would retain her bank accounts, household contents and the partial payment that she has already received.
The amount of $1,327,909 represents approximately 78 percent of the value of the property at C (1,327,909/1,700,000).
It is appropriate that the estate be given an opportunity, should they so desire, to retain the whole of the interest in that property by the payment of appropriate sum of money and the respondents made clear on the last day of the trial that they wanted that opportunity. Three months is an appropriate period for them to be able to explore whether or not they can raise the finance to achieve that happening. After that time there would be a default sale.
Ruling on MFI 3
Senior counsel for the respondents at the end of the case wished to tender statements that had been prepared in association with the Guardianship Tribunal proceedings by various witnesses from the retirement home in which the deceased husband was placed. He wished to tender those documents on the basis that they were business records. I questioned whether the business record exception applied given the provisions of s69(3)(a) of the Evidence Act 1995. I invited senior counsel for the Respondents to make further submissions.
An email produced by voice recognition software was received on 24 June 2010 withdrawing that tender. Senior counsel for the Respondents stated:
“I am bound to concede that the tender of the documents produced by the Guardianship Tribunal is effectively barred by section 69 (3) of the Evidence Act. The expression "Australia or overseas proceeding" is defined in the Dictionary to mean "a proceeding (however described) in an Australian court or a foreign court". "Australian court" is defined to mean, among other things, "A person or body authorised by an Australian law…… to hear, receive and examine evidence". Division 2 of Part 6 of the Guardianship Act 1987 (NSW) is entitled "proceedings before the Tribunal". It includes provision (in section 59) for the calling and examination of witnesses by a party, for cross examination etc.. The Tribunal is, therefore, an "Australian court" and proceeding as any consequently power (sic) within the ambit of section 69 (3) (a)”
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 23 August 2010.
Associate:
Date: 23.8.2010
Key Legal Topics
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Family Law
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Property Law
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Equity & Trusts
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Injunction
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Standing
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