Family Law Case now in High Court – perhaps should not have been in Family Court to begin with? High Court will determine jurisdiction

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Family Law Appeal

In the September 2012 sittings, the High Court of Australia, the Court will hear a family law appeal from the Full Court of the Family Court in the decision of Stanford & Stanford [2012] FamCAFC 1 (19 January 2012).

This case is particularly relevant to contemporary Australian society with the formation and blending of families.  This was the second marriage for both the parties and they both had children from their first marriages. Their children from previous marriages had been their respective case guardians and I think this could shed some light on why the case started despite the marriage continuing.

The parties were in their 80s and had been married for 40 years when the proceedings were initially instituted.  The wife, by reason of her physical and mental frailty, required high care in a nursing home. In contrast, the husband was of good health and wished to remain living in the home.

The marriage of the husband and wife remained intact but they had been separated as a result of the wife’s health.  She later passed away, but the property proceedings were continued by the legal representative of the deceased.  It is not disputed that section 79(8) of the Family Law Act allows proceedings to be completed when a party dies.  The issue arises before this step.

Did the Family Court have jurisdiction to hear the family law matter in the first place as the parties were not divorced nor separated in the usual sense?

Issue for determination

In September 2012, the High Court will determine whether (and if so in what circumstances) the Family Court has jurisdiction to make an order for property settlement pursuant to section 79 of the Family Law Act 1975 where a marriage is still intact but where a physical separation has been forced upon the parties by reason of one of the parties’ health.

Background facts

The parties lived in the former matrimonial home in Perth registered in the husband’s sole name.  The Perth property was purchased by the husband and his first wife.  He and his first wife were divorced and the home was subsequently transferred to the husband’s sole name.

The wife in this matter was also previously married and was divorced from her first husband.  She made contributions to the second marriage including monies that she won after her divorce on Lotto.  Back in the 1960s, she had won $16,000 on Lotto and had used the majority of her winnings to pay out the mortgages on her home in Perth.

In 1995, the husband made a will. He wrote to his sons and explained that his wife intended to leave her estate to her daughters, and that he intended on leaving his estate to his sons (with provision for a life tenancy in the Perth home for his wife). He was of the view that the wife’s daughters would have no expectations of him, just as his sons would have no expectations from the wife.

In 2005, the wife signed an Enduring Power of Attorney in favour of her daughters, although the husband was not aware of this.

In 2008, the wife suffered a stroke and was admitted into full time residential care and could not return to reside in the former matrimonial home to live with the husband. She also suffered from dementia.

The physical separation was forced upon the parties, but they remained in a marital relationship. The husband continued to provide for his wife including placing monies in her account for her use. He also visited her about three times a week at the care facility.

In 2009, the husband signed an Enduring Power of Attorney appointing his son and the wife of his other late son as the attorneys.

Family Court Decision

After hearing, the Full Court of the Family Court made orders including that the husband by his case guardian were to pay the personal representatives of the wife a sum of money upon his death or at such earlier time as may be determined by the case guardian.

Appeal to High Court

The Appeal to the High Court questions whether section 79, as applied in this case, extends beyond the bounds of validity. The appellant has raised a constitutional question, not going to the validity of section 79, but to its valid construction.  Were the orders made by the Full Court beyond the power conferred on the Family Court of Australia in that it was not a matrimonial cause as specified in s 4(1)(ca) of the Act such that section 79 of the Act as applied in this case invalid?


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