Research task for BMCLC

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Victoria University *

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MISC

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Law

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Apr 3, 2024

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Research task for BMCLC S 75(2) in relation to married parties. Section 75(2)(a) This provision describes one of the elements the court must consider when deciding whether to order spousal maintenance. The court must consider each party's age, health, Section 75(2)(d), and ability to generate money, including any physical or mental disabilities. The criteria that are considered for the parties' future needs are listed in Section 79 (4)(e), including their health, and earning potential. Fontana v Fontana [2016] FamCAFC11 – case 1 - The total worth of the marital estate was $1.72 million, primarily made up of real estate and excluding superannuation funds. - The wife was 43 years old, and the husband was 49 years old. - There was a 15-year marriage between the two. - The wife was caring for one child, who was 15 at the time of the proceedings. - The husband was on a waiting list for a kidney transplant and required dialysis three times weekly due to his diabetes and renal insufficiency. - Regarding money, the husband received income protection insurance worth $150,000 annually, while the wife had the potential to make over $200,000 annually. - During the trial, the judge gave the wife 56.4% of the nett pool and the husband 43.6%. The trial judge stated that she was "satisfied" that the husband's needs, regardless of whether he receives a transplant, are more likely to last for a shorter period than the wife's needs. This is a topic that I regrettably must consider in the wife's favour. - The trial court's adjustments regarding the husband's diminished life expectancy and his particular needs, which the trial judge stated would "subsist for a shorter time," caused the husband to appeal the division. - The trial judge gave weight to the husband's life expectancy even though the judge was unable to make a definitive determination regarding the husband's life expectancy, the full court ruled on appeal. - The property decisions from the initial trial were reversed because the court determined that a 4.5% adjustment in the wife's favour was made in error. Morcomb and Lennox (2016) FCCA 485 - Case 2 - The future demands and requirements of each party had to be carefully considered by the judge. In this case, the judge determined that, given the husband's terminal illness and life expectancy, the court had to modify the property pool in favour of the wife because her requirements surpassed those of the husband under the law. - Instead of depending on emotions and morality, the courts will decide each case individually using evidence from the medical record, legal precedent, and logic. Lawrie v Lawrie FLC 91-102 (1981) - Case 3 - In the case of the husband who had cancer, the court concluded that it is appropriate to take it into consideration where it is shown that a party's future financial demands will end upon the occurrence of a certain future event. The final percentage of assets allotted to each party may change if a terminal disease is revealed to be the case.
- In the case of Lawrie v. Lawrie, the husband had terminal cancer and was estimated to live for around six (06) months. Due to the clear and undisputed evidence regarding the husband's life expectancy, the court was able to correctly consider the future needs of parties based on the occurrence of a specific future event. Stanford & Stanford [2012] HCA 52 - The parties shared their home in Perth for 37 years. The Husband's name appeared on the house's registration. The property had been bought by the husband and his first wife, but it was given to him following their divorce. - The wife experienced a stroke in December 2008 and was placed in full-time residential care. Her dementia was later identified. The Wife was unable to do so and chose not to move back in with the Husband. The Husband remained a resident of the house. He kept giving the Wife financial support. He established a trust account in July 2009 and transferred $42,000 into it as payment for the wife's medical and living expenses. - In her application, the Wife requested that the Husband's claim to superannuation benefits, as well as the parties' combined savings, be divided equally between them and that the house be sold. - The husband was ordered by the Magistrates Court of Western Australia to pay the wife $612,913 as part of a property settlement. The Husband appealed this judgement to the Full Court of the Australian Family Court. - The High Court decided that it would not have been just and equitable to have imposed an order regarding property if the Wife had not passed away, and it dismissed the application continued by the Wife's daughters. - The Court believed that the Wife's requirements were addressed when it reached this conclusion. In other words, the Wife's demands were adequately met by the care that was provided, which was paid for by her pension and the trust fund that the Husband had established. - The Court stated that certain parts of the Wife's motion did not need an instant order definitively changing the parties' property interests, particularly where it would force the Husband to vacate his house of 48 years, where he was still living.
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