Conti and Conti
[2008] FMCAfam 1156
•23 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CONTI & CONTI | [2008] FMCAfam 1156 |
| FAMILY LAW – Property – undefended proceedings – husband subject to guardianship order – husband requires capital sum to pay accommodation bond for nursing home place – only asset available former marital home occupied by wife – husband’s litigation guardian and trustee seeks sale of property – wife has failed to respond to application – whether just to proceed with application in wife’s absence – no proof of separation – matrimonial cause – whether proceedings between parties to a marriage – application granted – just and equitable. |
| Family Law Act 1975 (Commonwealth) ss.4, 75(2), 79 Guardianship & Administration Act 1993 (SA) ss. 3, 39 Aged Care Act 1997 (Commonwealth) Act Div 57 |
| Taylor v Taylor (1979) 143 CLR 1 Pavey v Pavey (1976) FLC 90-051 Batty v Batty (1986) FLC 91-703 Jennings v Jennings (1997) FLC 92-773 Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-355; Clauson v Clauson (1995) FLC 92-595; Hickey &Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143; Biltoft & Biltoft (1995) FLC 92-614 |
| Applicant: | MR CONTI |
| Respondent: | MS CONTI |
| File number: | ADC1066 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 17 October 2008 |
| Date of last submission: | 17 October 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 23 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Mellor Olsson |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No appearance |
ORDERS
Within 60 days of the date of these Orders the wife pay to the husband the sum of $75,000.00 and concurrently with this payment the husband transfer to the wife his entire estate and interest in the former marital home being the property known as and situated at Property M, in the State of South Australia and being the whole of the land situated in Certificate of Title Volume [5] Folio [1] hereinafter referred to as “the former marital home”.
If the wife fails to comply with Order 1 hereof or makes no application to the court to set aside these orders the parties do all things necessary and sign all relevant documents to place the former marital home upon the market for immediate sale at a price not less than $220,000.00.
In order to comply with order 2 hereof the wife do vacate the former marital home and remove all her furniture and effects and personal possessions from it at the expiration of sixty days from the date of these orders unless otherwise modified.
In the event that the wife fails to comply with any aspect of these orders necessary to achieve the sale of the former marital home the Public Trustee is authorised to execute all necessary documents on behalf of the husband and the Registrar of this Court at Adelaide is authorised to execute all necessary documents on behalf of the wife to achieve such sale.
Forthwith upon the wife ceasing to reside at the former marital home pursuant to order 3 hereof the Public Trustee is directed to engage such licensed real estate agent as it may choose for the purposes of marketing the property to give effect to order 2 hereof on such terms and conditions as the Public Trustee considers appropriate and in default of agreement as recommended by the nominated licensed real estate agent.
The Public Trustee on behalf of the wife do in consultation with the aforesaid real estate agent, facilitate general cleaning and gardening preparatory to the sale of the former marital home on the following terms:
(i)the wife be provided with copies of written quotations and invoices for work done;
(ii)the total cost of work done of this nature be not more than $5,000.00;
(iii)the wife be at liberty to attend the former marital home to inspect such cleaning and gardening work prior to settlement of sale of the former marital home;
(iv)the Public Trustee, on behalf of the husband, do meet the cost of such cleaning and gardening in the first instance, with the wife to reimburse the Public Trustee on behalf of the husband as to one half.
The proceeds of the former marital home be applied as follows:-
(i)to the payment of all agents, fees and commissions;
(ii)50% of the remainder to the husband less the sum of $70,000.00 and one half of the costs incurred in preparing the property for sale;
(iii)the balance to the wife less half the costs incurred preparing the property for sale.
The husband retain for his sole use and benefit free of any claim or right or entitlement from the wife all items of property currently in his possession including the following items held on his behalf by the Public Trustee of South Australia;
(i)his savings and investments;
(ii)his interest in the Italian Benevolent Fund;
(iii)his furniture and household effects.
The wife retain for her sole use and benefit free of any claim or right or entitlement of the husband all other property standing in her name or possession.
A copy of these orders and reasons for judgment be translated by the applicant into the Italian language and be personally served on the wife with the sealed orders and reasons for judgment herein.
A copy of these orders and reasons for judgment be personally served upon each of the parties’ adult children A.C., C.C. and M.C..
The wife have liberty to apply to set aside these orders on 7 days written notice to the applicant herein.
The Public Trustee have liberty to apply for necessary consequential orders on 7 days written notice.
IT IS NOTED that publication of this judgment under the pseudonym Conti & Conti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1066 of 2008
| MR CONTI |
Applicant
And
| MS CONTI |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Conti was born in 1928. He is in poor health, suffering from age related dementia and a number of other chronic illnesses, including diabetes. Because of his age and state of health, Mr Conti is unable to manage his own affairs and needs constant medical care.
On 7 March 2006, the Guardianship Board of South Australia found that Mr Conti suffered under a mental incapacity. This is defined as the inability of a person to look after his health, safety or welfare or to manage his own affairs as a result of illness or some deterioration of the mind.[1]
[1] See Guardianship & Administration Act 1993 (South Australia) at Section 3.
As a result of its finding, the Guardianship Board appointed the Public Advocate as Mr Conti’s limited guardian in respect of accommodation and healthcare issues and the Public Trustee of South Australia as the full administrator of his estate.
Accordingly, the Guardianship Board found Mr Conti to be a protected person as a result of his level of mental incapacity, flowing from his compromised state of health. As such, the Public Trustee was appointed to manage his financial affairs.
Pursuant to the Guardianship & Administration Act, the administrator of a protected person has a comprehensive range of powers and duties.[2] These include the following:-
·paying any necessary sum to provide proper accommodation for the protected person;
·instituting any necessary proceedings relating to the protected person’s estate and compromising these proceedings upon appropriate terms;
·applying money (whether income or capital) owned by the protected person towards the payment of any debt, obligation or liability incurred by the administrator on behalf of the protected person;
·completing any contracts entered into by the protected person;
·applying any property owned by the protected person for the benefit and maintenance of that protected person or his spouse, children or grandchildren.
[2] Ibid at s.39
At the time of the making of the guardianship order, Mr Conti lived at [H] House, [suburb omitted]. In 2007, he moved into the [V] Nursing Home located at [omitted]. The nursing home concerned is operated by the Italian Benevolent Foundation (SA) Incorporated. In order for
Mr Conti to enter the home, it was necessary for a residential care service agreement to be entered with the foundation.
The Public Trustee, as the financial administrator of Mr Conti’s affairs, entered the necessary agreement with the Italian Benevolent Foundation on 9 July 2007. It was a condition of this agreement that an accommodation bond of $114,528.00 be paid on Mr Conti’s behalf.
The agreement stipulated that the sum was to be paid by a lump sum of $65,000.00 to be provided on or before 27 October 2007 with the balance to be paid “upon settlement of sale of home”. The home referred to is a property situated at Property M.
Mr Conti is married. His wife is Ms Conti. The two married in 1959. The marriage produced three children, now all adults. The marriage between Mr and Ms Conti has not been dissolved nor is there an application on foot, by either party, seeking its dissolution.
Given the state of his health and level of mental impairment, Mr Conti is incapable both of applying to the court for the marriage between the two to be dissolved or of providing the necessary evidence, on oath, to prove that the marriage concerned has “broken down irretrievably”.[3] In addition, such an application is beyond the authority of the Public Trustee.
[3] See Family Law Act 1975 (Commonwealth) at s. 48 (1)
Mr Conti is not a wealthy person. His major source of income is the aged pension. When the Public Trustee began to administer his affairs, it discovered that Mr Conti had four accounts with the Commonwealth Bank which contained $72,705.56.
The Public Trustee has been administering this sum since the Guardianship Order was made on 7 March 2006. It was from this sum that the Public Trustee advanced the amount of $65,000.00, which was the partial payment required for the accommodation bond to the [V] Nursing Home.
As yet, the remainder of the accommodation bond ($49,528.00) has not been paid. The Public Trustee has no other source of immediate funds to pay the outstanding balance. This has led to it commencing the current proceedings, before this court, pursuant to the provisions of the Family Law Act.
Mr & Ms Conti are the joint proprietors, in fee simple, of the property situated at Property M. The property is unencumbered. A valuation obtained by the Public Trustee indicates its value to be somewhere in the vicinity of $220,000.00.
The Public Trustee wishes, in some way, to release Mr Conti’s equity in the property, so that it may fulfil its obligations and pay the necessary accommodation bond to the [V] Nursing Home. The attitude of Ms Conti to this proposal is unknown, as she has failed to take part in these proceedings or to respond to any of the Public Trustee’s correspondence.
Ms Conti is younger than her husband. She is around 71 years of age. I know nothing of her state of health or indeed her knowledge of English or business affairs generally. It seems clear however that she continues to live in the Property M property and has done so for many years. As such, I have no reason to think that she regards it as anything other than her home.
It is the understanding of the Public Trustee that Mr & Ms Conti have not lived in the same household for many years, since at least some time in either 2002 or 2003. Up until this time, the two had lived continuously together since their marriage in 1959.
In either 2002 or 2003, Mr Conti started to live with his son A.C. and did so for a number of years. However, his declining health saw his admission to [H] House and more recently the [V] Nursing Home. The application for guardianship was taken out by members of the care team at [H] House.
Mr Conti’s condition is chronic. He suffers from chronic schizophrenia, type 2 diabetes, depression, a tendency to hallucinations and paranoid delusions, an intermittent tremor, a large hernia, urinary incontinence and poor dentition.
It is the Public Trustee’s understanding that the management of these challenging health issues and a general sense of incompatibility caused Mr and Ms Conti to separate from one another, a situation which began when Mr Conti went to live with A.C. and which has prevailed to the current time.
In support of its contention that there is no subsisting marital relationship between Mr and Ms Conti, the Public Trustee points to the fact that staff members at the [V] Nursing Home have reported to them that Mr Conti has no visitors whatsoever. Again, because of her lack of involvement in these proceedings, I do not know what is Ms Conti’s attitude towards the marriage and Mr Conti is incapable of telling me what he feels about it.
On 24 October 2007, solicitors for the Public Trustee wrote to
Ms Conti informing her that it wished to sell the Property M property on behalf of Mr Conti. In its letter, the Public Trustee advised that if it did not hear from Ms Conti it would have “no alternative but to apply to the Family Court for a property settlement”. No response was received.
The application
The Public Trustee commenced these proceedings on 17 March 2008. In its application it sought the following orders:-
· the husband’s interest in the Property M property be transferred to the wife in consideration of the wife paying the public trustee a sum of money deemed appropriate by the court;
· in the alternative, the Property M property be sold and the proceeds of sale be divided between the wife and the public trustee in the proportion which the court deemed appropriate;
· otherwise the husband and wife each retain the property currently standing in their respective possessions, free of any claims which might be brought by the other.
By way of necessary procedural order, the Public Trustee sought that it be appointed as litigation guardian for Mr Conti, pursuant to the applicable provision of the Federal Magistrate’s Court Rules. Such an order was made on the 30th April 2008.
Ms Conti was personally served with the Public Trustee’s application; an affidavit of Jennifer Hill, who is the solicitor in the public trustee’s office, who has been managing Mr Conti’s affairs; and a statement of Mr Conti’s financial circumstances; on 5 April 2007 at the Property M property.
The application was given a first return date of 4 June 2008, which date was endorsed on the initiating application. Ms Conti did not appear on the first return date, either in person or by a legal practitioner. In addition, she did not file any answering material.
An examination of the marriage certificate of Mr & Ms Conti indicates that they were married in Adelaide in 1959. The wife’s place of birth is indicated as being Ceppaloni, Italy. I was concerned that, for reasons of which I was unaware, Ms Conti might not understand the import of the application brought by the Public Trustee.
On 4 June 2008, I ordered that Ms Conti file and serve a response, an affidavit in support and a statement of her financial circumstances within 35 days. The matter was then further adjourned to 30 July 2008. The order noted that if Ms Conti failed to respond to the application, the Public Trustee would be permitted to proceed, with its application, on an undefended basis.
I directed that a copy of this order be personally served on Ms Conti and, if appropriate, on another member of her family. The order bore the notation that the court would arrange an interpreter, for Ms Conti, if she gave notice that she required one.
Once again, on 30 July 2008, Ms Conti failed to appear in court. As a result, the Public Trustee’s application was fixed for final hearing on 17 October 2008 and a direction was made that Ms Conti be personally served with the relevant orders and any additional affidavit material.
Ms Conti was served with the relevant orders together with a further affidavit of Marcia Stewart, who is a senior officer within the Public Trustee’s office, on 13 September 2008. The relevant affidavit of service indicates that Ms Conti acknowledged her identity but refused to sign an acknowledgment of service saying “I’m not signing anything, they will blackmail me.”
Concurrently with the service of these documents upon Ms Conti, she was provided with a comprehensive letter from the Public Trustee’s solicitor outlining the circumstances of the case, from the Public Trustee’s point of view, which indicated that the Public Trustee wished the Property M property to be sold. The relevant correspondence had been translated into Italian.
As I anticipated and feared, there was no appearance by or on behalf of Ms Conti when the case came before me on 17 October 2008. In these circumstances, the Public Trustee wished the court to deal with the matter, in Ms Conti’s absence, notwithstanding the potential hardship such a course was likely to occasion her and the not insignificant practical difficulties, which were likely to ensue.
It is the position of the Public Trustee, as outlined by its counsel
Ms Dickson, that the parties’ marital assets, comprising the Property M property and the monies nominally held in the husband’s hands, when the parties stopped living together and which were used to acquire, in part, the husband’s admission to the [V] Nursing Home, should be divided equally between the parties.
In support of her submission, Ms Dickson provided to me some proposed orders, which would provide the mechanics for this division to occur. These included an order that Ms Conti vacate the Property M property within 60 days and thereafter an estate agent be appointed for its sale and necessary arrangements be made for its repair or renovation, if appropriate.
The legal principles applicable
The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings. Before a person can be adversely affected by judicial order, he or she must be afforded an adequate opportunity to be heard.[4] In this case, I am satisfied that the wife has been given an adequate opportunity to be heard and to file material on her own behalf.
[4] See Taylor v Taylor (1979) 143 CLR 1
For reasons which are unclear to me, she has not chosen to avail herself of that opportunity. I can only conjecture why this is so. It is not beyond the bounds of possibility that she herself labours under significant difficulties, as a result of her lack of facility with the English language and unfamiliarity with the legal process or indeed because she suffers from some frailty of either mind or body.
I had hoped that one of Mr & Ms Conti’s adult children might intervene in these proceedings in order to assist their parents. Sadly, this has not occurred. I was informed by Ms Dickson that some overtures were made by officers of the Public Trustee’s office to the adult Conti children but these were not responded to. In Ms Dickson’s expression, the Conti family is “fractured”.
At this juncture, I can see no point in adjourning the proceedings in the hope that either one of the Conti children or Ms Conti herself will respond to them. I think such an expectation would be a vain one, given what has occurred up to this stage. Such involvement may occur if the matter is pushed to its proposed conclusion but not otherwise.
The Public Trustee is entitled to have its application dealt with, notwithstanding Ms Conti has chosen not to respond to it. As I have already indicated, I accept that Ms Conti has been formally advised of the proceedings and been given an adequate opportunity to take part in them.
Given the lack of any direct evidence from either Mr Conti or Ms Conti regarding the circumstances of their physical separation, I am concerned whether there is the appropriate jurisdictional nexus for me to make the orders which are sought by the Public Trustee. The difficulty is that these proceedings are not ancillary to either any previous or anticipated proceedings in respect of the dissolution of the marriage between the parties.
In order for the court to make a divorce order, in respect of the marriage solemnised between the parties, it is necessary for it to be established that the marriage between them has irretrievably broken down, the proof of which is established by the fact that they have lived separately and apart for a period of 12 months.
Such separation may be proved notwithstanding that the cohabitation of the parties was brought to an end by the actions or conduct of one party only and the other spouse concerned does not necessarily accept that the marriage between the parties has ended.
The common law, in Australia, regarding what is required for such separation is clear. It means more than physical separation, rather what must be established is the breakdown of the various strands, which make up a marital relationship and which are encompassed in the latin phrase consortium vitae.[5]
[5] See Pavey v Pavey (1976) FLC 90-051 and Batty v Batty (1986) FLC 91-703 at 75,087
In this case, I accept that Mr & Ms Conti have been living separately for some years. However, apart from the assertion that Mr Conti receives no visitors at his nursing home, there is no available evidence to establish that the consortium vitae between the parties has been terminated.
Mr Conti may be incapable of mustering the required mental faculties to reach the conclusion that he wishes to terminate the marital relationship between him and Ms Conti. In addition, for all I know,
Ms Conti may find it too emotionally distressing to visit her husband, given his reduced and unhappy circumstances, but may nonetheless consider that she remains married to him.
Dessau J. dealt with a similar situation in Jennings v Jennings.[6] Ultimately Her Honour concluded that, in the absence of express instructions from one of the parties to a marriage, a trustee appointed to represent the interests of that person could neither make the decision, on the part of that spouse to separate, nor in fact conclude that separation of the required kind had occurred.
[6] Jennings v Jennings (1997) FLC 92-773
However, ultimately it was determined by the court that it did have jurisdiction to deal with an application for settlement of marital property in the absence of express proof that the parties to the marriage concerned had separated.
This followed from the definition of “matrimonial cause” in section 4 of the Family Law Act. This court has jurisdiction in matrimonial causes, including:
“(ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(ii)in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii)in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104;
In this case, I conclude that the application brought by the Public Trustee arises out of the marital relationship between Mr & Ms Conti and thus falls within placita (i) of section 4 (1)(ca) of the Family Law Act. Accordingly, I am satisfied that I have jurisdiction to deal with the matter.
In Jennings, one of the parties concerned opposed the making of property orders pursuant to section 79 of the Act. In that case, as in this, the agitator for the property orders concerned was a trustee appointed to safeguard the interests of a mentally incapacitated husband. The trustee concerned sought the payment of a sum of money, from the wife, in settlement of property claims.
At the time, the wife continued to reside in a property in which the husband had also lived prior to his hospitalisation as a result of suffering a “multi-infarct dementia”. The wife continued to visit him in the hospital. It was her position that it would be unfair to her for the court to deal with the application, which might potentially result in the sale of the property concerned. As such, she sought a permanent stay of the proceedings.
Dessau J. acceded to this application. Her Honour said as follows:-
“In my view, the particular and unusual circumstances of this case warrant a particular and unusual approach. It seems to me that there is nothing to be gained by embarking upon a full property application in the circumstances of parties who have formed no intent to separate; where one is suffering illness and is hospitalised and where the other continues to visit and partake in his care to the extent that she is able. Orders finally determining the property issues between them could not be appropriate, fair or just in that context.”[7]
[7] See Jennings v Jennings (Ibid) at 84, 538.
Overall, Dessau J. acknowledged that at the heart of the case before her was the need of the husband’s next friend to be put in funds on his behalf. As such, she concluded that the appropriate course was for the trustee concerned to make an application for spousal maintenance rather than for the settlement of property.
In my view, the circumstances of the present case before me are clearly distinguishable to those which prevailed in Jennings. For one thing the husband’s need is for a settlement of capital to enable him to discharge his contractual obligations in respect of the payment of the accommodation bond concerned. Accordingly, this is not a case involving Mr Conti’s day to day financial support. Rather, it is a case concerned with his long term security.
For another thing, there is no evidence that Ms Conti regularly visits her husband or has expressed any interest in his ongoing care. Nor, more importantly, has Ms Conti sought formally to oppose any of the orders sought by the public trustee.
Mr Conti’s situation can only be remedied by an injection of capital. Potentially, this capital will be returned to his estate, on his death, depending upon his life expectancy. The Public Trustee has contracted to pay the accommodation bond concerned, on Mr Conti’s part. His continued occupation of his nursing home place depends upon the complete payment of the bond. His situation cannot be rectified by the payment of maintenance alone.
I acknowledge that the situation is also potentially unfair to Ms Conti. It seems likely that she has lived in the Property M property for many years and has no obvious form of alternative accommodation. The liquidation of the property concerned may not provide her with sufficient funds to purchase or provide herself with appropriate alternative accommodation. Its sale is likely to cause her considerable hardship.
However, given that Ms Conti has chosen not to take part in these proceedings, in my view, it would be a greater injustice to the husband if the court declines to deal with his application. In my view, at this stage, it is incumbent upon the court to continue to take steps to bring the matter to a head notwithstanding the strong possibility that this will result in some form of unpleasant confrontation with Ms Conti and a situation where she will not be able to make some orderly and planned adjustment of her situation, which takes some account of both her and Mr Conti’s circumstances.
For all these reasons I propose dealing with the application for property settlement, notwithstanding the potential for future difficulties to arise in respect of the enforcement of any orders which will be made in this case and the absence of any response from Ms Conti.
The process to be followed, for the division of the parties property is well established by law.[8] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Family Law Act 1975. I am required to follow a number of steps.
[8] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-355; Clauson v Clauson (1995) FLC 92-595; Hickey &Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143;
Firstly, I must ascertain what are the parties’ assets and liabilities as at the date of trial.[9] In this case, given the lack of participation by
Ms Conti, it is difficult to make a definitive assessment of the parties’ total assets and liabilities. However, the pool is not likely to be a large one.
[9] See Biltoft & Biltoft (1995) FLC 92-614
Secondly, I must ascertain the contributions which each party has made towards those assets. Contributions fall into two broad categories. The first kind is contributions to the property; financial contributions and non-financial contributions, made directly or indirectly by or on behalf of the parties to a marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section “The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of homemaker or parent.” [10] It is clear from the authorities that this second kind of contributions must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
[10] See Family Law Act Section 79(4)(c)
The third step involves the assessment of the parties prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975). Pursuant to section 75(2)(o) the court is entitled to take into account “Any facts or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.”
Finally, in determining what order the court should make under section 79, the court must be satisfied that, in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.
The first step
Ms Dickson calculates the parties matrimonial assets as follows:-
Asset
Value
Property M
$220,00.00
Furniture and effects – wife
Not known
Furniture and effects – husband
Minimal
Husband’s savings
$5,000.00
Wife’s savings
Not known
Partialpayment of accommodation bond to [V] Nursing Home
$65,000.00
Total
$290,000.00
It is uncertain precisely when the husband acquired the money, which the Public Trustee utilized to pay part of the deposit on the accommodation. It is possible, but unlikely, it was acquired after
Mr Conti stopped living at the Property M property. I propose to include the sum in the parties’ pool of assets.
Ms Dickson estimates that the costs involved in selling the Property M property will be somewhere in the vicinity of $5,000.00. The legal fees of the public trustee to date amount to some $9,000.00. As previously indicated, the husband is indebted to the [V] Nursing Home in the sum of $49,528.00.
The second step – assessment of contributions
The marriage between the parties was one in excess of 40 years in duration. It produced three children. It seems to be the case that the husband worked during a large proportion of the marriage at [business omitted].
I have not been provided with any details of the level of the wife’s contributions during the marriage. Given the length of the marriage and the circumstances of the case now, it would seem appropriate to assess the parties’ various contributions as being essentially equal. This was the position advocated by counsel for the Public Trustee and I can see no reason to disagree with it.
The third step – section 75(2) factors – the prospective needs of the parties
The husband’s health is poor. However, it is not possible, at this stage, to estimate the likely cost of his future medical treatment or know how many years of life he has before him. I do not know what, if any, estate planning he has made. It is not beyond the bounds of possibility that Ms Conti remains the major beneficiary of his estate. As such, upon his death, the remainder of the accommodation bond will revert to her.
The husband receives an aged pension, which is largely utilised in paying the daily care fee at his nursing home. This daily fee is heavily subsidised by the Commonwealth Government. Otherwise, Mr Conti’s daily needs are modest. Essentially, he needs to purchase toiletries and clothing to ensure that he has a modest level of comfort.
The Director of Nursing at the [V] Nursing Home, [name omitted]. has indicated that it would be of benefit to the husband if some modestly valued items of furniture could be purchased, on his behalf, to render his life more comfortable.
These include a recliner chair; a bedside lamp; a quilt; a radio; and some more items of clothing. The Director of Nursing estimates that these items would cost more than $5,000.00 and it would be appropriate to allow the husband a sum of around $50.00 per month to purchase small items for his ongoing needs.
Obviously, I have received no evidence of the wife’s prospective needs. I do not know what her financial circumstances currently are or what exigencies she is likely to face. However, it seems likely that she is not in a strong financial position.
In all the circumstances of this case I accede to the submissions of the Public Trustee that it is not appropriate to make any further allowance in favour of one or other of the parties in respect of any of the factors set out in section 75(2) of the Family Law Act 1975.
Conclusions – section 79(2) – is this a just and equitable outcome
Due to Ms Conti’s unwillingness to take part in the proceedings, up until this stage, the court is placed in an invidious situation. It is impossible for me to gauge, with any degree of certainty, what is likely to be a fair outcome, in the case, from the wife’s perspective.
However, for obvious reasons, it is likely to be a significant thing for her if the Property M property is sold. She is of an age at which the vast majority of Australians have retired from the paid workforce. She is entitled to receive an aged pension. In such circumstances, it does not seem unreasonable to assume that the prospect of the property being sold would cause her great anxiety and potential serious hardship.
As I understand them, the purpose of accommodation bonds is to enable aged care facilities to have a source of capital to invest to produce income which can fund their ongoing functions.[11] In addition, the facility concerned is entitled to retain a specified monthly amount, from any bond paid, to fund its ongoing operation. Accordingly, the provision of such bonds is an important part of the system for the provision of aged care within Australia.
[11] See Aged Care Act 1997 (Commonwealth) Act Div 57
Pursuant to Clause 10 and Schedule 7 of the Residential Care Service Agreement entered into between the Italian Benevolent Foundation and the Public Trustee, Mr Conti has contracted to provide an accommodation bond according to the provisions of the Aged Care Act. The [V] Nursing Home is entitled to retain an annual amount of $3,282.00 from this accommodation bond.
It is unclear to me what precisely will occur if the bond in question is not paid in full. It seems unlikely, given his infirmity and level of need, that Mr Conti will be evicted from the nursing home in question in the short to medium term, particularly as he continues to pay the daily care fee of $30.77 from his aged pension entitlements.
However, from the perspective of the Italian Benevolent Foundation it will be deprived of the full measure of capital, to which it is entitled, to fund its ongoing operations, so far as Mr Conti is concerned. Pursuant to the provisions of the Aged Care Act, Mr Conti is entitled to apply for the waiver of the accommodation bond, if it would cause him financial hardship. This does not seem to be an entitlement which attaches to Ms Conti and, in the circumstances of this case, the Public Trustee does not see any utility in pursuing it.
I can understand why it would adopt this stance. The obligations of the Public Trustee are to Mr Conti alone. It is obligated to ensure that, amongst other things, he is appropriately accommodated and meets his contractual and financial obligations.
At this point, the only means of Mr Conti completing his financial obligations towards the Italian Benevolent Foundation is if, in some way, his equity in the Property M property is liquidated.
I have received no application from Ms Conti to stay these proceedings because of any special hardship which they may occasion to her. In addition, she has not made any representations either directly to the nursing home concerned or, as far as I know, to the Department of Health and Aging regarding the issue. In these circumstances, I believe it would be unjust to Mr Conti if I declined to deal with his application because of inchoate concerns I have about Ms Conti’s future security.
Rather, I think the circumstances of Mr Conti and his contractual obligations to the nursing home concerned require me to take action, notwithstanding that considerable practical difficulties are likely to arise from the fulfilment of any orders made by the court. At the end of the day, Mr Conti is entitled to liquidate his assets to provide for his own idiosyncratic needs.
Accordingly, I have reached the conclusion that the parties’ modest pool of assets should be divided equally between them. Half of $290,000.00 amounts to $145,000.00. Mr Conti must be accounted to have assets to the value of $70,000.00 in his possession. This means he requires a further payment to him of $75,000.00 in order to accord an equal division of assets.
Such a division will enable the balance of the accommodation bond to be paid and leave him with a modest sum to cover future exigencies, such as the purchase of a modest amount of furniture to add some level of comfort to his life. Regrettably legal fees may erode his potential to respond to exigencies. In my view, at this juncture, this represents a just and equitable outcome.
In all the circumstances of this case, I propose allowing Ms Conti
60 days to secure this sum. However, if it is not paid after the expiration of 60 days, steps will need to be taken to secure the sale of the Property M property.
Ms Conti needs to be personally served with a copy of these reasons for judgment and the resulting orders. If experience to date is anything to go by, she will disregard these documents.
Nonetheless, in my view, considerations of fairness to her dictate that they should be translated into the Italian language. It is not too late to hope that she may play some proactive role in the resolution of the problems which the case raises. In addition, I propose making orders that would see these documents personally served on each of the adult Conti children.
I have no authority to compel any or all of Mr & Ms Conti’s children to become involved in these proceedings or to require them to assist their aged parents in the resolution of the serious dilemma which this case presents. However, for obvious reasons, it would be helpful if one or all of them provided some level of support and assistance to their mother.
I am concerned that necessarily the orders which I proposed making will have something of a provisional quality. Regrettably, given the uncertainty of Ms Conti’s ultimate position, this must be so. It is obviously preferable that there be some orderly process through which Mr Conti’s future financial needs are met and, at the same time, some consideration is given to Ms Conti’s ongoing needs.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Rachel Hodgson
Date: 23 October 2008
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