Taylor and Taylor

[2017] FCCA 125

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR & TAYLOR [2017] FCCA 125

Catchwords:
FAMILY LAW – Jurisdiction to alter property interests where the parties had not separated and one party was suffering at the time of the Application with certain mental impairments – Applicant died shortly after Application filed – factual scenario very similar to High Court decision in Stanford v Stanford – parties had very long marriage and separate wills neither of which left anything to the other spouse – whether just and equitable to make property adjustment Order had the parties remained together – Husband professed his continuing love for his Wife – Application dismissed on basis of lack of jurisdiction under s.79(2) and the operation of s.79(8).

Legislation:

Family Law Act 1975, s.79(2) & (8)

Cases cited:

Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387

Stanford v Stanford (2012) 247 CLR 108

Applicant: MR TAYLOR

Respondent: MS TAYLOR

File Number: CAC 1108 of 2015

Judgment of: Judge Neville

Hearing date: 12 April 2016

Date of Last Submission: 14 July 2016

Delivered at: Canberra

Delivered on: 10 March 2017

REPRESENTATION

Counsel for the Applicant: J. Selfridge

Solicitors for the Applicant: KJB Law

Counsel for the Respondent: M. Hassall

Solicitors for the Respondent: Alliance Family Law

ORDERS

1. The Application, filed 10^th July 2015, be dismissed.

2. All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.  

IT IS NOTED that publication of this judgment under the pseudonym Taylor & Taylor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1108 of 2015

MR TAYLOR

Applicant

And

MS TAYLOR

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant Husband seeks that a property distribution be made pursuant to s.79 of the Family Law Act1975 (“the Act”).  The simplicity of this sentence belies a certain level of legal and factual complexity for the following reasons.

2. The following facts are not contentious.

3. The parties were married in 1976.  There were no children from this marriage, but each party had children from an earlier relationship.  At the time of the Application, the Husband was aged 76 years and the Wife was then soon to turn 76 years.

4. In very recent years, with the Husband confirming his continuing love for his Wife and significantly that the parties had not [voluntarily or otherwise] separated (emphasis added), he had become her full-time carer since the Wife had developed a progressive cognitive impairment.[1]  The Wife’s geriatrician confirmed in writing in December 2014 (annexure A to the Husband’s affidavit, filed 10^th July 2015) that the Respondent Wife “does not have capacity to make informed decisions in relation to her health, finances or accommodation.”

   [1] See, for example, pars.6 – 8 of the Husband’s affidavit, filed 10^th July 2015.

5. Indeed, on 25^th September 2015, the Australian Capital Territory Civil and Administrative Tribunal (“ACAT”) made an Order appointing (a) the Public Advocate of the ACT to act for the Wife in these proceedings, and (b) the Wife’s daughter, Ms L, to be the “manager” of her Mother’s property. Having made an enduring power of attorney in July 2009 and again in July 2013, ACAT revoked the enduring power of attorney that had been executed on 10^th July 2013 on the ground that at the time of execution the Wife was “impaired” in her decision-making in relation to “all property/personal care/health care matters.”

6. To add to the complexity and factual (and family) difficulty, the Applicant Husband died in (omitted) 2015, while the Wife now lives in a higher care facility in Queensland.  According to the Manager of the Wife’s affairs (her daughter Ms L), who filed an affidavit on 16^th June 2016, her Mother executed a Will on 3^rd August 2011.  The terms of that Will leave nothing to her Husband (the Applicant).  Ms L has also obtained a copy of the Husband’s Will; she deposed that the Husband left nothing to his Wife under his Will.

7. Ms L also deposed to her Mother’s future needs remain very high with the Respondent Wife having been diagnosed with depression, anxiety and Parkinson’s Disease.

8. The Respondent Wife, through her Guardian and the Manager of her affairs, seeks to have the Application dismissed.  An Order for costs is also sought.

9. In my view, for the reasons that follow, the Application must be dismissed. Among other things, it may be the case that the Application should have been filed in a different Court in relation to “family provision” rather than the current Application under the Act. But that is a matter for the executors of the Husband’s estate. In my view, a clear reading of the High Court’s decision in Stanford v Stanford, together with the clear terms of s.79(8) of the Act, require that the current Application be dismissed.[2]  Further, having regard to all the circumstances of the matter, I decline to make any Order as to costs.

   [2] Stanford v Stanford (2012) 247 CLR 108.

Submissions for the Applicant Husband

1. The Applicant Husband’s Written Submissions, filed 29^th June 2016, were as follows:

   INTRODUCTION

   1. The proceeding arises out of an Initiating Application, filed on 10 July 2015, in which the Applicant seeks an adjustment of the property interests of the parties by way of final property orders, pursuant to s 79 of the Family Law Act (Cth)(the Act).

   2. The Respondent filed a Response on 22 February 2016, seeking orders that the Application of 10 July 2015 be dismissed, and that the Applicant pay the Respondents costs in the Application.

   3. On 12 April 2016, Judge Neville made orders for the filing of submissions for the Respondent's Application [sic: “Response”] to be dismissed on the papers.

   4. It is implicit on the face of the Orders that the basis for the Application, brought by the Respondent to dismiss the Initiating Application, is that the Respondent submits that the Court does not have jurisdiction to make a property order under s 79 of the Act, by reason of the matters identified by the High Court of Australia in Stanford v Stanford (2012) 247 CLR 108 (Stanford).

   5. Furthermore, it is implicit in Order 1 of Judge Neville, dated 12 April 2016, when his Honour directs that “the Applicant file and serve written submissions with regard to the Respondent's application to dismiss the Applicant's application on or before 28 June 2016”, that the Respondent's application is limited to whether the Court has jurisdiction to make an order under s 79 of the Act. This implication is fortified by the fact that the Application will be heard on the papers, and the fact that the Applicant is to file and serve written submissions first (which one would expect given that it is the Applicant who bears the onus of proving the jurisdictional issues), the Applicant is directed to file first.

   6. The Applicant submits that the Court has jurisdiction to make a property order altering the rights of the parties, pursuant to s 79 of the Act, and the jurisdictional matters identified in Stanford are satisfied.

   Background

   7. The Estate of Mr Taylor (the Applicant) has commenced an Initiating Application for financial orders as against the Public Advocate (of the Australian Capital Territory) which has been appointed as case guardian of Ms Taylor (the Respondent). The Respondent has made an application for the Initiating Application to be dismissed.

   8.  The Applicant reads and relies upon the Affidavit of the Applicant, sworn 9 July 2015 and filed on 10 July 2015. From that affidavit, the facts asserted in these submissions are adduced as evidence.

   9. The Applicant and Respondent commenced living together in (omitted) 1974, and were married in (omitted) 1976.

   10. The Respondent is suffering from a form of dementia, and lacks capacity to conduct her own legal affairs. She lived with the Applicant from 1974 and from approximately 2013 her dementia required greater medical care as well as in-home care by the Applicant, necessitating her relocation into a care facility subsequent to the death of the Applicant in November 2015.

   11. The Applicant commenced the Initiating Application for final property Orders in July 2015, five months prior the Applicant's death, in anticipation of the Respondent requiring admission to a full-time nursing or care facility.

   12. Both the Applicant and Respondent have children from earlier relationships, and according to the affidavit of the Applicant, each of the Applicant and Respondent had a will which provided for (or, does provide for in the case of the Respondent) the children of their earlier relationships to inherit their estate, with no interest being bequeathed to the other party.

   13. The Applicant’s affidavit on 9 July 2015 is relatively short in length; it is unnecessary to set out the factual matters identified in that affidavit. Rather, these submissions will identify paragraphs of that affidavit as the source for the evidence in support of the submissions made.

   Guiding Principles

   14. As has already been identified, the Respondent has made an application that the Application ought to be dismissed by reason of an assertion that the Court does not have jurisdiction to make a property order under s 79 of the Act, for the reasons set out in Stanford. That case is a very helpful authority as it considers a factual scenario very similar to the present circumstances where one party has died, and the parties are (until the date of one party’s death) living apart as a consequence of the care needs of one party.

   15. In Stanford four justices of the High Court of Australia emphasised the jurisdictional elements required for the making of a property order, pursuant to s 79 of the Act.

   16. In Stanford the plurality said:

   [35] ... Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   17. The plurality continued:

   [36] The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition (footnote omitted). It is not possible to chart its metes and bounds.  And while the power given by s 79 is not “to be exercised in accordance with fixed rules” (footnote omitted), nevertheless, three fundamental propositions must not be obscured.

   18. The four members of the Court in Stanford then set out the “three fundamental propositions” which must not be obscured:

   [37] First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(l)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

   [38] Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion ....

   [39] ... the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties' rights to or interest in marital property are or should be different from those that then exist. ...

   [40] Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down” (footnote omitted). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   (Original emphasis)

   19. In addition to these three fundamental propositions, the plurality in Stanford helpfully observed that:

   [42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of the property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.

   (Original emphasis)

   20. The Court contrasted this with “the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order”.

   21. The first property appeal heard by the Full Court of the Family Court subsequent to Stanford was the case of Bevan v Bevan [2013] 49 Fam LR 387 (Bevan), where the Full Court of said of the passage set out in paragraph 19, above, that:

   [70] In our experience, the circumstances described in the paragraph above encapsulate the vast majority of cases. Hence, the reminder in Stanford of the pivotal role of s 79(2) is unlikely to have any impact in most cases, although it will serve as a reminder to trial judges that the precondition to making any order is a finding that it is just and equitable to do so.

   [71] Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result.” Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.

   22. In ascertaining the operation of what the High Court said in Stanford, it is necessary, in the Applicant’s submission, to have regard to the Full Court’s explanation of the state of the law in respect of s 79 of the Act in Bevan. The two decisions should be read conjointly.

   Submissions on the Facts

   23. As to the issues identified in Stanford, the Applicant submits that:

   a. when regard is had to the existing interests (both legal and equitable) of the parties in the matrimonial property, and, in particular, the fact that the Torrens property is registered in the name of the Respondent, the Court should conclude that it is just and equitable to make a property settlement order;

   b. having regard to the financial and non-financial contributions made by the Applicant to the acquisition, conservation and improvement of the property of the parties, in particular, to the Torrens property, it is just and equitable that a property settlement order should be made; and

   c. pursuant to s 79(8)(b )(ii) of the Act, despite the death of the Applicant, it is still appropriate for the Court to make an order with respect to property.

   24. In respect of (a) above, the Applicant points to the matters identified in paragraphs 21 to 33 inclusive of the Applicant's affidavit as evidence supporting the making of that submission.

   25. In addition, the Applicant points to the observation made in Stanford at [42] and Bevan at [70], quoted supra, as being applicable in the present circumstances, and as warranting the conclusion that it is fair and equitable to make a property order pursuant to s 79 of the Act.

   26. By way of amplification, the Applicant submits that matters set out in paragraphs 31 and 32 of the Applicant's Affidavit warrant the conclusion that the jurisdictional element has been satisfied by the Applicant. In particular, the Applicant's conservation and improvement of the Torrens property, as set out in paragraph 31, demonstrates how his contribution went to improving the value of the Torrens property, with that asset being held in the name of the wife; therefore the Applicant's contribution over 40 years has improved the value of an asset which the Applicant has no current legal entitlement to.

   27. In respect of (b) above, the Applicant points to the matters identified in paragraphs 21 to 33 inclusive, of the Applicant's affidavit as evidence supporting the making of that submission.

   28. In respect of (c) above, subs 79(8) of the Act sets out an additional jurisdictional requirement which must be met. That subsection provides, relevantly, that:

   (8)     Where, before property settlement proceedings are completed, a party to the marriage dies:

   (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings.

   (b) if the court is of the opinion:

   (i) that it would have made an order with respect to property if the deceased party had not died; and

   (ii) that it is still appropriate to make an order with respect to property;

   the court may make such order as it considers appropriate with respect to:

   (i) any of the property of the parties to the marriage or either of them; or

   (ii) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and

   (c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

   29. In respect of (c) above, the Applicant again points to the matters identified in paragraphs 21 to 33 inclusive of the Applicant's affidavit as evidence supporting the making of that submission.

   30. The  Affidavit of Ms L, sworn on 16 June 2016, states in paragraphs 23 to 25 inclusively that, in essence:

   a. the Applicant has, by his will dated 31 October 2013, not provided for the Respondent, or her children or grandchildren from an earlier relationship; and

   b. the Respondent has a will, which is dated 3 August 2011, and which provides that upon the Respondent's demise, the Respondent's estate is to pass to Ms L and the Respondent's niece, Ms M.

   31. Therefore, if there is no order pursuant to s 79 of the Act, the estate of the Applicant will not benefit from any interest that the Applicant might have obtained in the matrimonial property (in respect of the Torrens property) which the Applicant made a very considerable contribution towards over a more than 40 year period. And in that situation, the beneficiaries of the Applicant's estate would not benefit from the inheritance of any interest that would have been created by a property order.

   32. In respect of (c) above, the Applicant submits that it is still appropriate to make a property settlement order because of:

   a. the matters set out in these submissions, in particular, the inability of the estate of the Applicant to be able to bequeath to the Applicant's beneficiaries property which the Applicant would have been able to obtain during his lifetime by reason of a property settlement order;

   b. the contribution (both financial and non-financial) made by the Applicant to the Torrens property;

   c. the financial and non-financial contribution made to the marriage by the Applicant by reason of the matters set out in paragraphs 32 and 33 of the Applicant’s affidavit; and

   d. the contribution that the Applicant made to caring for the Respondent as the Respondent's care needs developed, and in this respect, the Applicant points to the matters set out in paragraphs 9 to 13 of the Applicant's affidavit.

   33. The use of the word “appropriate” in subs 79(8)(b)(ii), like the use of the words “just and equitable” (in subs 79(2)), does not admit of exhaustive definition. It is “not possible to chart its metes and bounds”.

   34. With these principles in mind, the Court should from the view that it would have made an order with respect to property if the Applicant had not died, and that “it is still appropriate to make an order with respect to property”.

   35. The Respondent’s submission that the Initiating Application should be dismissed prior to the trial should be rejected, and the application to dismiss the Initiating Application itself should be dismissed.

   36. Those are the submissions of the Applicant.

Submissions for the Respondent Wife

1. The Respondent Wife’s Written Submissions were filed on 14^th July 2016.  They were as follows:

   GENERAL BACKGROUND

   1. The proceedings concern an application for property alteration orders commenced by Mr Taylor (the Applicant) on 10 July 2015, and sought to be maintained by his estate (following his death in November 2015) pursuant to subs 79(8) of the Family Law Act 1975 (Cth) (the Act). The parties commenced living together in (omitted) 1974 and were married in 1976. The Respondent suffers from a progressive degenerative cognitive impairment, and is represented in the proceedings by a Case Guardian. The Respondent now resides in a nursing home in (omitted), Queensland.

   2. The proceedings were commenced in circumstances where the Applicant maintained that the parties had not separated and were “in an ongoing, intact relationship”. In addition, the Applicant had no present financial needs which were not being met. Notwithstanding these factors, the Applicant commenced proceedings and sought an order altering the existing property interests of the parties so as to effect an equal division of those interests between the parties. The implied basis for the proceedings appears to have been a claim of moral entitlement on the part of the Applicant to half of the property owned by the parties.

   3. The Applicant and the Respondent each executed wills leaving no property to the other.

   APPLICATION TO DISMISS PROCEEDINGS

   4. By a Response filed on 22 February 2016 the Respondent sought that the Applicant’s Initiating Application be dismissed. The Respondent submits that, having regard to the circumstances described in the Applicant’s own affidavit material, the Applicant was and is incapable of establishing that it is “just and equitable” to make any order altering the existing property interests of the parties. In the circumstances, the Respondent submits, the discretionary power conferred on the Court by subss 79(1) & 79(8) are not engaged, and the Applicant’s Initiating Application should be dismissed.

   RELEVANT LAW

   5. By subs 79(1) of the Act, the Court may make such order as it considers appropriate altering the interests in property to the parties of a marriage. By subs 79(2), the Court is not to make any order under subs (1) “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.

   6. By subs 79(8), where, before property proceedings are completed, a party to a marriage dies, the proceedings may be continued by the estate of the deceased party, and the court may make an order in relation to the property of the parties if it is of the opinion:

   (i) “that it would have made an order with respect to property if the deceased party had not died; and

   (ii) that it is still appropriate to make an order with respect to property…”

   7. The interaction between subs 79(1), (2) & (8) was considered by the High Court in Stanford v Stanford (2012) 247 CLR 108 (Stanford), a case with significant factual similarities to those presently before the Court. In Stanford, as here, a husband and wife each had children from their respective earlier marriages, but no children by the marriage between them. In addition, in Stanford and here, the wife had been diagnosed with dementia.

   8. In contrast with the present case, however, in Stanford the parties to the marriage had become separated (involuntarily) following the placement of the wife in a high care facility.

   9. In relation to the interaction between subs 79(1) & (2), the plurality in Stanford held:

   “The requirements of the two subsections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”

   10. In relation to the relevance of the involuntary “separation” of the parties which had occurred in Stanford, the plurality observed:

   ... the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just.

   When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife's care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and ability to make those necessary or desirable adjustments.

   11. Finally, the High Court in Stanford held that the rights of parties to a marriage are to be determined according to law, not by reference to other, non-legal considerations, such as “moral” claims or obligations.

   APPLICATION TO PRESENT CASE

   12. The Respondent submits that, in the present case, on the Applicant's own evidence - including in particular his assertion that the parties had not separated – the Applicant's estate is incapable of satisfying the Court that it would have been, or is, “just and equitable” to make an order altering the existing property interests of the parties. The Applicant did not seek to persuade the Court even that the parties had been involuntarily separated. Further, on the Applicant's own evidence, he had no financial needs which were not being met at the time of his Initiating Application. In such circumstances, the Respondent asks, how could the Court possibly have been persuaded to make orders altering property interests of the parties? And if it had made orders, what if there had later been a genuine separation of the parties in circumstances where the financial situation of the parties had changed? – the Court's jurisdiction would potentially have been exhausted because of the earlier, premature exercise of jurisdiction.

   13. The Applicant's death in November 2015 serves to accentuate even further the artificiality of any involvement of the Court in this matter. Self-evidently, the Applicant has no ongoing financial or future needs, and any order the Court might make in relation to property could only serve to benefit the Applicant's children (in circumstances where the parties' respective wills indicate that an intention to benefit each other's children is contra-indicated).

   14. The present case is even more extreme than the circumstances faced by the Court in Stanford. In the present case, unlike in Stanford, the Court is being asked to make property orders against the interests of the party with significant future financial needs. Given the outcome in Stanford, it is submitted, there cannot possibly be a basis for the Court being satisfied that it is or was “just and equitable” to make property orders in the present case.

   15. In reality, the Court is being asked to adjust the property interests of the parties solely on the basis of some form of “moral” claim, solely for the benefit of the Applicant's children from his previous relationship. In the circumstances, the Initiating Application should be dismissed.

Consideration & Disposition

1. In my view, a fundamental flaw in the Applicant’s argument is that at no time was there any relevant “voluntary severance of the mutuality of the marital relationship.”[3]  No less significantly, at [43] the plurality in Stanford (French CJ, Hayne, Kiefel and Bell JJ) said:

   … the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order.  It does not permit a Court to disregard the rights and interests of the parties in their respective property and to make whatever Order may seem just and equitable.

   [3] Stanford, 247 CLR at [42].

2. On the uncontested facts of the present matter, when the Application was first filed, in July 2015, there was no separation at all.  The Applicant Husband confirmed that he still resided with and was his Wife’s primary carer.  Among other things, this was perfectly consistent with any classical or traditional marriage vow or promise (broadly as per the Book of Common Prayer): “…for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, till death us do part, according to God's holy law, and this is my solemn vow” (emphasis added). The Husband carefully and dutifully honoured this vow. In doing so, it thereby did not entitle him to bring proceedings under the Act for property settlement simply on the basis that the property of the relationship was primarily in his Wife’s name and because she suffered, due to illness, mental impairment.

3. Property division under the Act is predicated upon a “voluntary separation” of the parties, as described by the High Court in Stanford. On the facts of the present matter, there never was a “voluntary separation.” Accordingly, there cannot be property settlement Orders under the Act.

4. The Husband’s cause is not aided by the terms of s.79(8)(b)(i), (ii) and (iii). That section relevantly provides:

   if the court is of the opinion:

   (i)  that it would have made an order with respect to property if the deceased party had not died; and

   (ii)  that it is still appropriate to make an order with respect to property;

   the court may make such order as it considers appropriate with respect to:

   (iii)  any of the property of the parties to the marriage or either of them;

5. In Stanford, at [40], the High Court said (internal citations omitted):

   … whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down.” To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

6. Then at [41], the High Court said (emphasis in original; underlined emphasis added):

   … if the parties to a marriage have not expressly considered whether or to what extent there is or should be some differentarrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

7. At [42] – [44], the High Court went on to state (emphasis added):

   [42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s. 79(4).

   [43] By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just.

   [44] When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together…

8. In Stanford, at [64], Heydon J said that the “legal entitlements of the parties did not reflect their contributions to the marriage” and that this argument (advanced by the Wife’s legal personal representatives in that case) may be relevant, even decisive, in circumstances different from those in the case before the High Court when the contributing party was still alive. Such is the case in the present matter: the argument in relation to “contributions” may well have been significant had the Applicant Husband still been alive. But that is no longer the case.

9. Heydon J also noted, at [62], about the change in the surviving spouse’s needs, which in that case militated against a determination being made that it was just and equitable to make an Order for property settlement.  Just so here: the Respondent Wife’s needs had increased and were likely to continue to do so.  That being the case, for this reason also it would not be just and equitable to adjust the property interests of the parties.

10. Further, the parties clearly chose, over the course of a long marital relationship to conduct their finances whereby the Husband paid for certain day to day and other ongoing expenses while the matter of “investments” (to speak in general terms) were put in the Wife’s name only.  It was a matter for them and them alone how they conducted the financial dimension of their relationship.  It ought not be for a Court, ex post facto, to make any sort of assumption about a just and equitable distribution of property interests in circumstances where the parties had not voluntarily ended their relationship and where they had chosen to conduct their relationship, over a long period of time, as they did including their financial affairs.

11. It is sufficient, in the light of the known and essentially uncontested facts, and in the light of the comments by the High Court and its consideration of s.79(8) of the Act, to conclude using the words of the High Court in Stanford similarly to determine the outcome the current Application. Thus, (interposing the correct pronoun for the current matter), at [3] the High Court said:

    These reasons … demonstrate that it was not shown that, had the [Husband] not died, it would have been just and equitable to make an order with respect to property. It follows that, after [his] death, it could not be found to be “still appropriate to make an order with respect to property”.

12. The same conclusion must be reached in the current matter.  The parties over a long marriage did not seek to alter their property interests and had conducted the financial dimension of their relationship in a very specific way as outlined in the Husband’s affidavit evidence.  There was no voluntary separation of the parties that would relevantly attract the jurisdiction of the Court.  As the High Court said in Stanford (at [43]) even the bare fact of separation, when involuntary, “does not show that it is just and equitable to make a property settlement order.” Here there was not even separation, prior to the Applicant’s death.

13. Accordingly, the Application must be dismissed.  Given the understandable elements of grief and tragedy that have obviously attended all parties, in my view, it is not apposite to make any Order regarding costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:       10 March 2017