Paxton & Paxton

Case [2016] FCCA 1689


FEDERAL CIRCUIT COURT OF AUSTRALIA

PAXTON & PAXTON [2016] FCCA 1689

Catchwords:
FAMILY LAW – Property – Husband and wife married in 1983 and finally separated in 2000 – husband forming new relationship – husband commences property proceedings during his lifetime – husband died in (omitted) 2015 – husband’s brother substituted as applicant – former matrimonial home the sole asset – wife in very poor health – dependent adult children with intellectual and physical disabilities – husband and wife joint proprietors – wife financially destitute.

STANFORD v STANFORD – Principles discussed in detail – review of authorities – not just and equitable to divide assets.

COSTS – Ordered against applicant – unrealistic for applicant to have brought this proceeding.

PRECEDENT – Principle of stare decisis – single judges are bound by the High Court’s decision in Stanford v Stanford – single judges are not permitted to deviate from it.

Legislation:

Family Law Act 1975 (Cth), ss.79, 106(A)

Family Law Rules 2004 (Cth), r.6.15(3)
Transfer of Land Act 1958 (Vic), s.50

Cases cited:

AGC Guarantee Corporation Ltd v De Jager & Anor [1984] VR 483
Beatty v Australia and New Zealand Banking Group Ltd & Anor [1995] 2 VR 301
Bevan v Bevan [2013] FamCAFC 116
Dekker v Dekker [2014] FCWA 61
Erdem v Ozsoy (2012) 272 FLR 16
Jewel v Jewel [2013] FCWA 81
Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133
Mallett v Mallet (1984) 156 CLR 605
Perpetual Trustees Victoria Ltd v Xiao [2015] VSC 21
Pyramid Building Society (in liquidation) v Scorpion Hotels Pty Ltd [1998] 1 VR 188
Russo v Bendigo Bank Ltd [1999] 3 VR 376
Stanford v Stanford (2012) 247 CLR 108
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Tryam Pty Ltd v Grainco AustraliaLtd (2003) 142 IR 243
Wright v Gibbons (1949) 78 CLR 313

The Honourable Justice J D Heydon, ‘Judicial activism and the death of the rule of law’ (2003) 23 Aust Bar Rev 110
J Gava, ‘The Rise of the Hero Judge’ (2001) 24 UNSWLJ 747
The Honourable Sir A F Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Aust Bar Rev 93
L McCredie, Administration of the Estates of Deceased Persons in Victoria, 1979, Butterworths

Applicant: MR PAXTON AS EXECUTOR OF THE ESTATE OF MR A PAXTON (DECEASED)
Respondent: MS PAXTON
File Number: MLC 7138 of 2014
Judgment of: Judge Wilson
Hearing date: 24 February 2016
Date of Last Submission: 24 February 2016
Delivered at: Melbourne
Delivered on: 7 July 2016

REPRESENTATION

Counsel for the Applicant: Ms J Swann
Solicitors for the Applicant: Alpass and Associates
Counsel for the Respondent: Mr E Hall
Solicitors for the Respondent: Beaumont Lawyers

ORDERS

  1. The respondent Ms Paxton retain for her sole use and benefit the real property situate at and known as Property M being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the real property”).

  2. Within 7…

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AGLC
Paxton & Paxton [2016] FCCA 1689
Case
[2016] FCCA 1689
Decision Date

CaseChat Overview and Summary

This case concerned property proceedings initiated by a husband during his lifetime, following his separation from his wife in 2000. The husband died in 2015, and his brother was substituted as the applicant in his capacity as executor of the deceased husband's estate. The sole asset in dispute was the former matrimonial home, which was jointly owned by the parties. The wife was in very poor health and had dependent adult children with intellectual and physical disabilities, while the wife was financially destitute.

The primary legal issue before the court was whether it was just and equitable to divide the assets of the marriage, specifically the former matrimonial home, given the circumstances of the parties and the precedent set by the High Court in *Stanford v Stanford*. The court was also required to determine the appropriate costs order and consider the application of the principle of *stare decisis* in relation to the *Stanford* decision.

The court applied the principles discussed in *Stanford v Stanford*, which established that a property division is not automatically just and equitable simply because a marriage has ended. Judge Wilson noted that single judges are bound by the High Court's decision in *Stanford v Stanford* and are not permitted to deviate from it. In this instance, the court found that it was not just and equitable to divide the assets.

Consequently, the court ordered that the respondent wife retain the former matrimonial home for her sole use and benefit. The applicant, as executor of the deceased husband's estate, was ordered to withdraw the caveat lodged over the property at his expense. The court also ordered that each party be solely entitled to all other property in their possession, with specific provisions regarding bank accounts, superannuation, insurance policies, and liabilities. The applicant was ordered to pay the respondent's costs, and all extant applications were dismissed.

Orders

Orders of the court

1.

The respondent Ms Paxton retain for her sole use and benefit the real property situate at and known as Property M being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the real property”).

2.

Within 7 days of the date of this order, the applicant Mr Paxton as Executor of the Estate of Mr A Paxton (Deceased) withdraw, at his expense, the caveat lodged over the real property being caveat number (omitted) lodged by the applicant’s legal practitioners and provide to the respondent’s solicitors a copy of the Withdrawal of Caveat.

3.

Each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to s.106(A) of the Family Law Act 1975 (Cth) is authorised to sign any such document on behalf of the defaulting party.

4.

Unless otherwise specified in these orders and save for the purposes of enforcing monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders including all motor vehicles;

(b) monies standing to the credit of the parties are to remain the property of that party;

(c) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other party;

(d) insurance policies remain the sole property of the life insured named therein;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

5.

The applicant pay the respondent’s costs.

6.

All extant applications be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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