Stanford & Stanford

[2012] FamCAFC 1

FAMILY COURT OF AUSTRALIA

STANFORD & STANFORD [2012] FamCAFC 1

FAMILY LAW – APPEAL – PROPERTY – Where the parties are of a considerable age and each have children to former spouses – Where the parties were physically separated due to the frailty of the wife and her need to live in a nursing home – Where the husband remains living in the former matrimonial home – Where the wife’s children ask that the former matrimonial home be sold and the proceeds of sale spent on the wife’s care – Where the orders of the Magistrate provided, inter alia, for the wife to receive the sum of $612,931 – Where the husband maintained that he could only satisfy the orders by selling the former matrimonial home

FAMILY LAW – APPEAL – PROPERTY – Whether and if so in what circumstances can the court make an order for property settlement pursuant to s 79 where the marriage is still intact but where there has been the physical separation of the parties as a result of one of the parties health – Where the various options available in the alternative to the making of final orders were not considered – Where the Magistrate should have considered the possibility of making an order for spousal maintenance – Where it could not reasonably have been found that the wife needed a sum of money to provide for her financial future or that the level of care would improve by the making of a final settlement order – Where the Magistrate failed to give adequate reasons as to why her Honour considered the orders made to be just and equitable – Where although there was jurisdiction to make a property settlement order, the discretion to do so should not have been exercised in this case – Appeal allowed

FAMILY LAW – APPEAL – PROPERTY – Where the wife died before the discretion of the Magistrate was re-exercised – Where the requirements for the continuation of proceedings after the death of a party have been complied with – Where both parties agree that the Magistrate’s findings as to contribution should not be disturbed – Where a re-exercise of discretion was deemed appropriate – Where it was ordered that the wife’s legal personal representatives receive the fixed sum of $612,931 upon the death of the husband – Where the order recognises the wife’s contribution-based entitlement to the property pool and protects the husband from a need to move from his home earlier than he would wish, allows for a capital sum to be provided should it become necessary for his care and avoids an incorrect assessment of the husband’s current and future needs – Should the home be sold prior to the death of the husband, and in the event that the payment is not made to the wife at that time, security for payment is required. Failing agreement as to the form of the security the parties are at liberty to apply to the Court

FAMILY…