Property interests of elderly couple adjusted

Heath & Heath

The Law

33. Since Stanford & Stanford^[1] in considering applications for alteration of property interests the Court must:
    1. identify the existing legal and equitable interests of the parties in property;
    2. consider whether it would be just and equitable in the particular circumstances to make an alteration;
    3. if an alteration should be made consider the matters contained in section 79(4) and section 75(2) of the Family Law Act in making an adjustment; and
    4. analyse and consider whether the adjustment under consideration would be just and equitable.

Assessment of the parties under cross-examination

34. The Applicant wife gave her evidence in a forthright manner and I was satisfied that she was at all times doing her best to answer questions put to her in an honest manner.
35. As the Respondent was self-represented there was some obvious discomfort displayed by the Applicant when the Respondent asked her certain questions due to the manner in which he asked them. Nevertheless she presented as a reliable witness at all times.
36. The Respondent husband avoided answering questions in the main and was aggressive from time to time towards the Applicant’s Counsel.
37. I formed the impression that the Respondent was intent on painting the Applicant in a bad light rather than giving his evidence in an honest and forthright fashion. Accordingly I did not assess the Respondent as a reliable witness.
38. Having made those assessments wherever the Applicant and Respondent’s evidence is in conflict and to the extent there is no other objective evidence available for me to determine the dispute I at all times prefer the evidence of the Applicant over that of the Respondent.

Is it just and equitable to make an order altering property interests

100. Section 79(2) of the Family Law Act provides:

‘The Court shall not make an order under this Section unless it is satisfied that in all the circumstances, it is just and equitable to make the order’.

101. In Stanford^[3] the High Court said that the requirement that any order altering legal and equitable interests of the parties must be just and equitable will be readily met where:

‘42… as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a martial 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.’

102. The evidence satisfies me that the parties are no longer living in a martial relationship and that they no longer enjoy the common use of property.
103. In those circumstances I am satisfied it is just and equitable to alter their existing legal and equitable interests.

Just and equitable

125. Pursuant to my orders the wife will retain the Property A property free of encumbrance and the sum of $34,000 as an addback.
126. I have found that the husband has available to him the sum of $186,353.79.
127. There are liabilities totalling $84,155.89 and the husband will be responsible for these as a result of my orders.
128. In order to satisfy a 50/50 alteration of property between these parties the wife would need to receive a payment of $88,398.95.
129. The total liabilities plus the total adjustment equals $172,554.84.
130. Having regard to my findings and in particular that I am satisfied that the husband has at his disposal the sum of $186,353.79 I am satisfied that the husband has the capacity to pay out the existing liabilities and the sum required for adjustment.
131. I am further satisfied that the parties came into the relationship with minimal assets and together through their financial and non-financial contributions over a long marriage of 45 years they accumulated a modest amount of assets.
132. I am satisfied that the wife has greater needs moving into the future.
133. Accordingly I am satisfied that the orders I’ve made are just and equitable.