S: by her Case Guardian R and by his Case Guardian S

[2010] FCWAM 15

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150

TERRACE ROAD

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : S: by her Case Guardian R and by his Case Guardian S [2010] FCWAM 15

CORAM : DUNCANSON M

HEARD : 7 & 8 JULY 2010

DELIVERED : 9 JULY 2010

FILE NO/S : PTW 4187 of 2009

BETWEEN : S by her Case Guardian R Applicant

AND

S his Case Guardian S Respondent

Catchwords:

Jurisdiction of Family Court of Western Australia - to make property orders where parties not separated - incapacity of a party - case guardian

Legislation:

Family Law Act 1975, s79, s75(2), s4(1)(ca)

Category: Not Reportable

Representation:

Counsel:

Applicant : Ms H Athanasiou
Respondent : Mr P Dowding

Solicitors:

Applicant : Ferrier Athanasiou & Kakulas
Respondent : Carr & Co

Case(s) referred to in judgment(s):

Jennings v Jennings (1997) FLC 92-773
Neale v Neale (1991) FLC 92-242
Sterling & Sterling & Protective Commissioner [2000] FamCA 1150
Sterling and Sterling [1999] FamCA 1676

1The parties to the marriage in this matter were married in 1971. The issue before the Court in these proceedings is an application by the wife filed 17 August

2009 for property settlement. She seeks an equal division of property. The application was brought on behalf of the wife by her Case Guardian [Mrs R].

2On 30 December 2008 the wife suffered a stroke. She was admitted to a care facility, she will not return to the matrimonial home or again cohabit with the husband.

3The husband filed a Minute of Proposed Orders contained within his Papers for the Judge received on 6 July 2010 in which he seeks orders that the wife’s application be dismissed, to the extent that she is unable to support or provide for her own financial needs he pay to her such payments as deemed appropriate by the Court and should the Court determine that an order be made for property settlement then the wife be restrained from taking any step to enforce the order until the death of the husband or sale of his home, whichever is the earlier. The husband’s son, [Mr S] has been appointed his Case Guardian.

4I have been called upon to determine a preliminary issue of jurisdiction and a discretionary issue of whether jurisdiction should be exercised.

5It appears to be common ground that there was no decision taken by the parties to separate. Their physical separation was forced upon them by the wife’s need for full time permanent residential care. The evidence of the husband, subject to any objections which have yet to be taken, is that he continues to provide for the wife and that they continue to be in a marital relationship. The husband visits the wife.

6The thrust of the wife’s case is that payment of a sum of money is sought on her behalf which will provide for her financially in the future. The husband’s case is that the wife’s needs are adequately met and to the extent that they are not, he will maintain her.

7Counsel for the husband submitted that the Court must consider in circumstances where the marriage is intact:

a) the jurisdictional issue of whether the court has jurisdiction to determine the matter; and

b)the discretionary issue of whether the court should exercise that jurisdiction.

8 Counsel distinguished the secondary issue from the actual discretion which the

Court has under s 79 of the Family Law Act 1975 to make an order.

9Counsel described the discretionary issue of whether the jurisdiction should be exercised as whether “the door should be opened” or “the jurisdiction enlivened”.

10 Counsel for the husband referred to the case of Sterling & Sterling & Protective Commissioner [2000] FamCA 1150 per Kay, Coleman and Carter JJ. This case similarly involved a determination as to whether it was appropriate to make a property order in favour of the wife who was suffering from Alzheimer’s disease and who was living apart from her husband although he claimed the marriage was still intact. In the

matter of Sterling the trial judge made a property order and his decision was upheld by the majority of the Full Court. The High Court granted special leave to appeal and Counsel for the husband submitted that this raises the spectre that there is substance to the proposition that the Court should not make orders under s 79 in the exercise of a jurisdiction, which has as a primary obligation the recognition and enhancement of marriage as a voluntary relationship entered into for life, where s 79 directs it as far as practicable, to end the financial relationship of the parties to that marriage.

11 The matter was subsequently settled and not determined by the High Court.

12 Counsel for the husband referred to the Courts discretion as to whether it should exercise its jurisdiction. He referred to Kay J’s dissenting judgement and as to whether I should exercise jurisdiction under s 79 the following elements referred to by Justice Kay were present in this case, namely

•The marriage is intact although there is little likelihood that the parties would share the same accommodation again;

• Neither had sought to determine the marriage relationship;

•There was no suggestion that the wife had attempted to alter the parties financial arrangements to increase her estate for the benefit of her heirs;

• The wife’s needs if any could be met by a maintenance order.

13 The jurisdiction should not be enlivened where there is no benefit to the wife by doing so and the matter might be dealt with as a maintenance issue.

14 Counsel for the wife cautioned me against relying on the transcript of the High Court proceedings where the matter was settled and not ultimately considered by the High Court.

15 She urged me to follow the majority decision in Sterling submitting that the jurisdictional requirements have been met, that there is no requirement for the parties to be separated before the Court should exercise its discretion to make orders pursuant to s 79 and that there is no need for the Court to be satisfied as to the benefit to the party. She referred to the case of Neale v Neale (1991) FLC 92-242 as authority for the proposition that the Court does not have a general discretion to refuse to make an order without considering the matters set out in s 79 (4) and s 75(2) of the Act and she submitted that I should follow the majority decision in the matter of Sterling..

JURISDICTION

16 The Court’s jurisdiction in these property proceedings is founded in s 4(1)(ca) of the Act. The court has jurisdiction in:-

“(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings

(i) arising out of the marital relationship;

(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

(iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104”.

17 Clearly, these proceedings arise out of the marital relationship between the parties and therefore fall within sub section (i) of s 4(1)(ca). I therefore consider that the Court has jurisdiction.

18 I then turn to the second issue for determination, namely whether the Court should exercise that jurisdiction.

19 I have considered the decisions of Dessau J in Jennings v Jennings (1997) FLC

92-773 and Moss J at first instance in Sterling and Sterling [1999] FamCA 1676.

20 In Jennings Dessau J stated at p84, 538:

“Unlike McManus’s case this is not presently a case where there is a dispute between the parties in terms of completing claims for property. State Trustees Limited, as the administrator of Mr Jennings estate seeks a payment of $20,000 from the wife. At this point, seeks no property orders by way of response other than that this matter should not proceed.

In my view, the particular and unusual circumstances of this case warrant a particular and unusual approach. It seem to me that there is nothing to be gained by embarking upon a full property application in the circumstances of parties who have formed no intent to separate where one is suffering illness and is hospitalised and where the other continues to visit and partake in his care to the extent that she is able. Orders finally determining the property issues between them could not be appropriate, fair or just in that context.”

21 In Sterling, Moss J stated at [52]:

“The evidence is clear that a complete and final physical separation has been forced upon the parties by the tragic circumstances of the Applicant’s illness. The marriage subsists, but the only contact between the parties comes about when the Respondent visits the Applicant in the nursing home for short periods of time. Thus, almost every attribute of a normal married life and a normal married relationship between married persons has ceased to exist. Although their separation has been brought about by circumstances other than the intention of either party, nevertheless such a separation seems to me to be a highly relevant matter. In the circumstances of this case I conclude it would be just and equitable to make an order. Cf Jennings v Jennings (1997) FLC 92-773, where the

Court refused to make an order in circumstances not unlike the circumstances in this case.”

22 These passages demonstrate the different views on similar facts. As was stated by the majority in Sterling. “These differing views illustrate precisely the generous ambit of discretion afforded to trial Judges”.

23 Having considered the matter carefully it is my view that I should exercise the jurisdiction I have to determine the wife’s application for property settlement.

24 I consider I should follow the decision of the majority in Sterling for the following reasons:

25 The Court has jurisdiction to make a property order under s 79 of the Act any time after marriage and the fact that the parties have not separated or intended to separate or end their marriage is not a bar to doing so. The Court must not make a property order unless it is satisfied that in all the circumstances it is just and equitable to do so and the fact that the marriage is intact is a matter to be taken into account. The Court does not have to be satisfied that benefit of any kind would flow to a party as a consequence of an order under s 79.

26 It seems clear in this case that there is a physical separation between the parties and that it is final. Although the marriage subsists the only contact the parties have with each other is the husband’s visits to the wife at her current residential facility. Although they did not intend to separate, the separation has been forced upon them by reason of the wife’s illness.

27 The orders sought on behalf of the wife are intended to secure her future financially. A lump sum is sought to fund an improved quality and/or standard of care for the wife. This is contrasted with the position of the husband that she will be provided for the rest of her life without the necessity of such an order. He has set up a trust fund from which she will benefit.

28 I consider that the wife’s application should proceed to a full hearing. In the circumstances of this case where there is an enforced separation between the parties, the issues between them should be determined and it is to the benefit of both parties that those issues be put to rest.

29 I am of the view the Court should exercise the jurisdiction it has pursuant to s 79 and consider the matters set out in ss 79(4) and 75(2) of the Act to enable me to be satisfied in all the circumstances, what, if any, order is just and equitable for both parties.

I certify that the preceding [29] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary