Forth and Hoddle - [2008] FMCAfam 1318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FORTH & HODDLE

[2008] FMCAfam 1318

FAMILY LAW – Property – alteration of interests – long marriage – long separation – application for reverse mortgage – husband does not need any property – modest house only asset.

Family Law Act 1975, ss.75(2), 79, 79(4), 81

Hickey & Hickey [2003] FamCA 395
Stevens & Stevens (2005) FLC 93-246
Mallett v Mallett (1984) FLC 91-507
Pierce & Pierce (1999) FLC 92-844
Louth v Diprose (1992) CLR 621
H & T [2002] FMCAfam 209
Russell v Russell (1999) FamCA 1875
Best & Best (1993) FLC 92-418

Applicant:

MS FORTH

Respondent:

MR HODDLE

File Number:

TVC 828 of 2007

Judgment of:

Coates FM

Hearing date:

17 July 2008

Date of Last Submission:

25 September 2008

Delivered at:

Cairns

Delivered on:

10 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr L Leotta

Solicitors for the Applicant:

Legal Aid Queensland – Mackay

Counsel for the Respondent:

Mr P Cullinane

Solicitors for the Respondent:

Porter Hulett

ORDERS

The husband’s response filed 16 June 2008 is dismissed.
Both parties are to take all necessary steps to transfer the marital home situated at Property S, Mackay, in the state of Queensland, described as Lot [1] of Registered Plan [7], County [omitted], Parish of [omitted], to the name of the wife.
If either party refuses or neglects to sign any documents that are necessary to give effect to the terms of this order within 48 hours of being presented to the party or their solicitor, pursuant to section 106A of the Family law Act 1975 the registrar of the Federal Magistrates Court at Townsville be appointed to execute all such documents on behalf of the party refusing to sign.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MACKAY

TVC 828 of 2007

MS FORTH

Applicant

And

MR HODDLE

Respondent

REASONS FOR JUDGMENT

This is an application by the wife to have the marital home transferred to her sole name or in the alternative, for orders giving her a beneficial or equitable interest in the realty in fee simple, pursuant to a species of trust based on her contributions.
In response the husband seeks orders for:
a)Withdrawal of the wife’s caveat on the marital home;
b)The parties to hold their interest-as-tenants in common in equal shares;
c)The wife to occupy the home until ceasing to occupy it for a month, her death, any notice she gives to sell the home, failing to adequately insure the home, failing to pay rates or failing to treat it for termites.
He also seeks orders which would allow for what is known as a reverse mortgage against the property.
He seeks orders to have documents signed by a registrar if the wife refuses to comply with an obligation under his orders.
In the alternative he seeks that the home be sold and the net proceeds of sale be divided equally between the parties.

The law

The usual approach to property proceedings was outlined in Hickey & Hickey [2003] FamCA 395 at paragraph 39 onwards:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.”
In assessing the evidence, non-financial contributions have to be properly accounted for as the exercise is not merely a mathematical decision. It is not necessarily a question of bare equality. In Mallett v Mallett (1984) FLC 91-507, Wilson J at 7,126 stated:
“However, equality will be the measure, other than it being equal, only if equality of the respective contributions of the husband and wife, each adjusted by reference to their sphere, are equal. The quality of the contribution made by a wife as a homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in everyway or may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and disserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree…”

Step one

The only asset is the marital home at Property S, valued at $285,000.00. There was no issue raised about other goods and chattels except that the parties keep whatever they have in their possession. The wife gave evidence of small savings. The husband did not ask that this be included in the pool.
At the time of trial, the property was held by the parties as tenants-in-common in equal shares.
The resources available to the parties are limited.
The wife receives the old age pension and the husband receives a disability pension.
There are no liabilities but for commitments to rates, utilities and preservation costs of the property.

Step two

The wife was born in 1940. She is 68 years of age.
The husband was born in 1939. He is 69 years of age.
The parties agree that they cohabited from about 1960 after the wife had left her first husband Mr T, the father of her first child [X] born in 1959. Mr T was violent.
The wife changed her surname to that of the husband by deed poll long before marriage and two children were born, [Y] in 1963 and [Z] in 1965.
According to the wife the family stayed on the husband’s parent’s farm before the husband decided to pack up and move to Kyabram, Victoria, to work in a [omitted]. She described living in primitive conditions in a “ten-foot” caravan and stayed in Victoria until [Y] was nine days old, when the husband decided to move back to Mackay.
They lived in caravans for the next three years.
The wife said the husband came home one lunch time after working as a labourer [omitted], which she said was good money, and announced he was going to Mount Tom Price in Western Australia, leaving on the four o’clock plane. He was supposed to work for three months to get a bonus but worked there for two months and three weeks before returning to Mackay.
The wife said he then worked for the [omitted] and it was usual for him to stay at road camps during the week, returning home at weekends.
She said a couple of times in a year he would disappear for a couple of weeks at a time and up to two months on occasion before returning home. When away he would not send money for family support.
The husband confirmed he was an itinerant worker. He denied not providing for the family. Both agreed that around 1967 or 1968 the husband was diagnosed with schizophrenia and a year later with deep depression.
There was agreement that he had been admitted to a number of psychiatric wards between Townsville and Brisbane over the years although at the time the wife said she did not know about those admissions.
The wife said that during the course of the relationship she managed to save $750.00 over five years for a ten percent deposit on the marital home. She said she purchased the house in both names (as joint tenants) and had managed to save the money primarily from refusing the husband access to it. She said her mother’s partner loaned her the money for stamp duty. There was no evidence about the loan from either party.
The family moved into the house on 19 May 1971 and there was a mortgage owing of $6,750.00.
She said that when the husband disappeared she was responsible for supporting the family and she would go door to door looking for work and obtained employment in cafes, the [omitted] Hospital, the [omitted] Hospital, as a maid in private homes and at [supermarket omitted].
She said the money earned she put food on the table, paid the mortgage, bills and the husband’s car loan.
She said she had to leave the children unattended for periods because she had to work otherwise the mortgage, the bills and the food would not be paid for.
The husband said the parties purchased the home and that the deposit, stamp duty and solicitor’s costs were met from his holiday and severance pay after he left employment. He denied an assertion about the wife working or paying for any motor vehicle.
The evidence requires a finding as to who contributed the deposit. The husband lists in his affidavit of 17 September 2007 numerous positions held and places he has lived or stayed at over many years before and after the house was purchased. His evidence that the deposit and costs came from severance pay on leaving employment, if his list of work places is correct, would mean the money came from leaving employment at [omitted] in March 1971. According to his list he did not work again until June when he went to Peak Downs, 250 kilometres inland from Mackay. The parties moved into the house in May. The husband gave no evidence of the amount received in severance pay which enabled him to pay the deposit and costs and support the family between March when he left his job and June when he went to Peak Downs. The period of unemployed time could also stretch between as little as two months to four months, depending on the date he left the job in March and the date he started a job in June. The deposit would have amounted to a lot of money. I think on that evidence the conclusion left open is that the wife’s evidence is to be accepted, she did save her meagre amounts of money received to get the deposit together. I accept that the husband provided money from time to time but not with the intention of saving for the deposit. It was the wife’s sacrifice which allowed for the purchase of the home. Further, that he said he paid the deposit from severance and holiday pay – with no job necessarily to go to – leads to an inference that he had no plans to provide materially long-term for the family, but instead took employment which would provide for the moment and to pay bills of the moment.
In 1972 the wife’s father left enough inheritance to pay out the mortgage, but the wife said the husband persuaded her to buy a cabin cruiser boat and other things, on the proviso that when his family’s farm was sold, he would use that money to pay the mortgage in full.
The husband said merely that the parties used part of the inheritance to buy a boat for about $1,800.00. He denied that he promised to use money from his share of the family’s farm to pay out the mortgage and did not know whether his share of the farm would be worth anything.
The farm was sold in 1976 and he said $7,800.00 was used to pay off the mortgage on the matrimonial home, although the wife said that at first he had lent his money to his brother Mr H and then got it back and paid the house off. It was put in submission that as the wife wanted to pay her inheritance into the mortgage, it should be considered that the husband was reimbursing her for the use of her funds. That is not the case. The evidence is that she was persuaded to buy a boat and other things for the husband. Persuasion here is irrelevant. It was her decision.
While the husband paid the mortgage eventually, he still gave no evidence to persuade me that it was a goal of his to provide materially for the family as his first priority, which is a commitment of contribution to the family’s welfare. He had money at that moment.
This was at a time when he left family life for weeks or months (see exhibits A and B attached to husband’s affidavit filed 9 July 2008) at a time and did not support them at various times. Even if the husband did support the family when he was away working, he could not have done so when admitted to hospital for various periods (see exhibit B to husband’s affidavit filed 9 July 2008). Life was difficult for the wife and children.
The wife gave evidence that the husband stated from time to time when he left that she should put the children in the orphanage if she could not support them. She also gave evidence that he would use extremely derogatory terms to describe her sexually. I was concerned that such abuse may have affected the wife’s capacity to contribute. The relevant test was outlined in Stevens & Stevens (2005) FLC 93-246 - that there exists a course of violent conduct and that is demonstrated to have a significant adverse impact on the party’s contributions to the marriage. Whether the words violent conduct include abuse or not in this circumstance does not have to be decided because the wife continued to contribute both financially and to the welfare of the family and she appears to have accepted the reality of the situation. There is no excuse for the abuse, but I was not satisfied that the wife did not cope with the situation. That the husband would disappear and not contribute forced onto the wife a great responsibility to make up the shortfall to contribute. Had the husband contributed during those times, there would have been either more property or a better lifestyle or a contribution by the wife in looking after the children instead of leaving them in order to work. These are all questions of the degree of their respective contributions.
The husband rejects most of the wife’s assertions and said she did not work for long periods. He said he contributed non-financially by building an extension to the house in the 1970s and re-roofing the building. On the evidence I accept he contributed in the manner described.
In 1978 the wife said the husband left home and did not return. She said on New Year’s Eve 1980 the parties married, although only for the sake of appearances for the children and at no time did they reconcile.
There is conflict in these two statements by the wife and the husband said from 1978 he lived in a back room at the weekends, that the couple functioned as a family and he always gave the wife his pay packet.
Whatever the situation, the wife was adamant that from 1978 the husband had not contributed to the children or the upkeep and maintenance of the home.
The husband’s evidence was that separation occurred in about 1981 or 1982 when he stopped coming home at the weekends and that he stopped giving financial support at that time, when the children were 23, 19 and 16, as none were then dependents. He said his 16-year-old daughter had given birth and was living in the house, with the child’s father.
He said from 1984 the wife did not allow him to return to the home.
From that period on until now, the wife on admission of the husband was responsible for the utilities, maintenance and costs of upkeep of the house.
Even if the husband’s evidence is correct as to the separation date, being 1984, he has not then assisted for the last 24 years. But there is confusion as to when he stopped contributing. The affidavit evidence of solicitor Mr H for the husband exhibits a letter written on the husband’s instructions, stating the husband had not lived in the home for 27 years. That would put the husband’s departure from the home at about 1981. The statement was not corrected. So there is conflict in the evidence produced on behalf of the husband.
From at least 1984, very possibly earlier if the wife’s evidence or the husband’s instructions in the Mr H letter are correct, the wife became the sole contributor to the preservation, maintenance and improvement of the home. She is not a high income earner and such left her without means of even providing for her retirement. Memories of exact dates are hazy, but overall the situation is clear. I do not have to make a positive finding as to the exact date the husband ceased contributing given that the lessor figure of 24 years is a long period of time. That means the husband has not contributed for at least one third of the time the house has been owned.
The costs of keeping any house are not insubstantial especially for a person poorly paid as the wife has been over her entire working life.
As to percentages, the wife puts forward that 100 percent of the property would be within range. The husband suggests that 50 percent would be the appropriate figure.
The concept of erosion of contributions over time or being given weight was addressed in Pierce & Pierce (1999) FLC 92-844 and it would appear that considering what weight should be put on these contributions is an appropriate manner in which to consider contributions. The early contributions by the husband - including the major cost of the house, repairs and his ceasing to contribute at least

24 years ago - have to be considered. In oral evidence the wife was more exact in minor detail whereas the husband brushed over important issues. The wife produced many dockets stretching back to about 1990 of expenditure and outlays she paid to preserve and maintain the marital premises, including rates, insurance, plumbing repairs, a new roof, floor coverings, pest control and repairs. She is a pensioner and has never had a high wage. In giving that weight and comparing it with the husband’s contributions - as stated I should do in Mallett - the direct financial contribution and of course the endless housework over the years as a non-financial contribution, the benefit the husband seeks on a 50 percent basis cannot be justified. The husband states he should be given the benefit of allowing the wife to live in the house while he had to pay rent in sub-standard accommodation. He has a history of coming and going and on his oral evidence he was content to stay living at a boarding house so I do not accept that he was forced into sub-standard accommodation, especially when he earned money. Neither counsel’s research nor my research found a comparative case to determine how such a situation had been analysed previously. I am satisfied that the years of the wife’s sole contributions have exceeded all of the early contributions by both parties and the total contribution should be expressed as an 80 percent contribution by the wife. That accounts, or gives proper weight, for the sacrifice in getting the deposit together, her very great contributions to raising the children and what I would describe as the husband’s disinterest in owning a property.
I would make an alteration of property interests on that basis.

Step three

Of the Step Three issues, any proposed order will have no effect on the earning capacities of the parties, but the needs of the parties under the relevant s.75(2) factors are to be considered.
The pool is very small, consisting of a run down house valued at $285,000.00.
Chief Justice Bryant, then Chief Federal Magistrate in H & T [2002] FMCAfam 209 stated at paragraph 19: “In some senses the smaller the asset pool the more critical the adjustment for other factors beyond contribution may be”. In this matter, not only is there a small asset pool but there are no other resources or sources of income other than pensions available to the parties. I need to carefully assess what is the evidence of their needs.

The wife is aged 68 and receives the pension, $262.00 a week. She has health issues but none which as yet are pressing. The husband is aged 69 and receives a disability pension of $310.00 a week. He has suffered from schizophrenia and depression. In 1986 he lost a kidney to cancer and in 2004 or 2005 he was diagnosed with prostate cancer. This condition is in remission. In other words, he has no active ailments.
It is fair to say that it is the potential for prostate cancer to return which was the major issue prompting this action. I will return to this issue under the justness and equity Step Four consideration.
The only income available to the parties are their pensions. They are both past retirement age.
The only financial resource they have is this single, low value house.
Both parties have a standard of living in circumstances where they can support themselves on their limited income. The husband is living in a boarding house in Brisbane and gave evidence that he did not need to move and was not planning to move. He is content in that accommodation. If the house was sold, assuming it achieved its value which may not be the case since there has been a general fall in real estate values, costs of sale and outlays would be deducted. I do not know what those costs would amount to, but there would be a further reduction in the monies available to distribute.
Unchallenged evidence from Ms M of the Mackay Tenant Advice and Advocacy Service was to the effect that on the wife’s pension, she would not be considered as a possible tenant where the rent was more than $109.00 per week. In her opinion, although the wife’s pension would rise marginally if she was in the rental market, she would not be able to obtain Mackay-based accommodation. Mackay is her home town.
However, on the division proposed, the wife would have a lump sum of money which could be diverted to rent, however, at some stage that money would run out. No evidence was given as to whether a lump sum would affect her pension.
Ms M also gave evidence that the wife would need at least $370,000.00 to purchase a retirement village unit or a minimum of $300,000.00 for a basic older house. As an observation, the evidence shows the marital home fits that description physically, although it is less in terms of value.
On the proposed division of 80 percent to the wife, she would not have enough money to buy another residence, that is, maintain her standard of living in her own home.
Accommodation is the immediate significant need of the wife. I conclude that the wife would have real difficulty in accommodating herself in the standard of living she is used to in her home town and that would cause her hardship compared with the husband’s case that he was not planning to move and so his standard of living will not change.
Accommodation is the main future need of these parties. While a larger pool would leave open an assessment of possibilities in relation to medical needs, it is of critical importance for these parties that the adjustment for needs take into account exactly what their needs are on the evidence, as opposed to possible needs. On the evidence here, no further adjustment to the proposed division should be made on a needs basis as their circumstances are stable. I have considered the other

sub-sections in s.75(2) and they have no major applicability in this case.

Step four

Having then made the determination as to the proper alteration which should be made when applying the law to the facts, I must step back and consider whether the proposed orders are just and equitable.
A timely reminder was set out in H & T in considering this step: “Finally, in determining what order the court should make under section 79 the court must be satisfied in all the circumstances that it is just and equitable to make relevant orders. It is the justice and equity of the actual orders that the court must consider (see Russell v Russell (1999) FamCA 1875”.
The relevant statement in Russell v Russell, at paragraph 80, states: “… because of the impact which the amended orders would have on the wife’s financial position, the making of those orders must be said to have required an independent exercise of discretion. It must be remembered that under s.79(2) of the Family Law Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. The Full Court took the opportunity to emphasise that in the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered”.
This is a very small pool. Both parties have health concerns, but not where immediate or identified needs have to be met in the circumstances they are living in.
The 24-year absence, at a minimum, of the husband must be considered at this stage.
Whatever the husband’s needs have been in the time he has been absent, they have not been such, on the evidence, to require any need to be met from the marital pool. The application came because of the husband’s perceived need to be able to afford the best medical assistance if there is a return of his prostate cancer, as well as an unknown need for assisted accommodation.
He had no real idea how much medical treatment would cost but told the court, on advice of his brother, that the best treatment was available in the United States.
His brother Mr H is a property valuer and lives in Hong Kong. He gave evidence by telephone.
In 2007 he persuaded, organised and took the husband to a solicitor’s office where the husband severed the joint tenancy in the marital real estate, leaving the parties as tenants-in-common owning equal shares of the property.
Mr H said he was concerned about his brother’s condition. I should say that is a concern about his past medical status, because he has no current medical condition of concern.
I am of the opinion that the husband is influenced by his brother but not to the extent that he could not make decisions.
The severing of the joint tenancy was an act affecting the marital property and against the interests of the wife in that she had no opportunity to give her consent or to oppose the act. She was never given the opportunity to seek legal advice about the ramifications of the severing of the joint tenancy and her interest in the pool was reduced to exactly half when the title was severed.
According to Mr H, the idea of a reverse mortgage was a suggestion of solicitor Mr H, which was made at the time the joint tenancy was severed. The wife was not a party to any potential arrangements to secure a reverse mortgage on the home.
That is surprising because an affidavit by solicitor Mr H states he acted for the husband and he then makes references to investigating a reverse mortgage, stating that such may well be available for the wife. This possible arrangement was incorporated into the husband’s case.
All of this was done behind the wife’s back and none of these arrangements could be said to be in her interests since she was not looking to obtain a reverse mortgage, a debt which would attach to her estate if not repaid and she was not given opportunity to seek advice on the proposal.
Affidavit evidence was given by the husband that a reverse mortgage could be arranged so that it attaches only to his share of the property and so that it would not affect the wife. He did not seem to understand much about reverse mortgages in the witness box. The closest explanations of what can be achieved with a reverse mortgage was hearsay material apparently from an organisation called Australian Senior Finance, attached to the affidavit of Mr H. In that circumstance it is not appropriate I place weight on this material and what may be achieved with a reverse mortgage, because the wife had not been consulted, there appears to be many options available and the terms of any option lay with the lender who, not being a party, is not compellable by Court orders. Any such order, even if the power to make such an order exists under s.79, would have to compel the lender, who could only give relevant evidence after obtaining all relevant details from the potential customers, in this case the husband and wife and I do not know what information such a lender would require.
That limits the alternatives because of the small pool and circumstances of both the husband and wife.
The alternatives must be based on the evidence referred to above. The crucial evidence of the husband was that – he does not need the money at present and he does not know how much he may need if his prostate cancer returns or other ailments occur or he is in the position where he needs assisted accommodation. For the wife – she needs her accommodation.
The husband produced no evidence to support his beliefs identifying the best medical treatment if prostate cancer returns, no evidence about the availability of medical treatment in Australia, no evidence of the costs he would face for medical treatment as a disability pensioner or costs of or his need for assisted accommodation. He assumes his future needs but has no known future need for which he seeks a property settlement.
He also wants the wife to stay in the house and does not want the house sold. He said he never wanted her evicted although his first response was framed so that she would have to vacate the house if he died, to allow his estate to be wound up.
The wife has need to be accommodated and no resources other than what she will receive, being 80 percent of the proceeds of the sale of the home. Even if she receives 80 percent of the pool, it would provide accommodation of a reasonable standard for a period of time before that money runs out.
The effects of ordering an alteration of interests now would give a cash settlement to the husband and force the wife out of her home.
On that basis to make an order which would adversely affect the wife’s position when the husband, on his evidence, only wants a settlement for unknown future need would not be just an equitable in relation to the wife, nor would it satisfy any immediate need of the husband.
The husband did seek an order that the couple hold their interests as tenants in common-in-equal shares. That perhaps anticipated a finding that the husband had affected the wife’s title to the whole of the property when he took secretive steps to severe the joint tenancy. He gave no evidence as to how the severing of the joint tenancy would benefit him. The husband in fact took a step to alter the property interests of the parties without notice and without an application under s.79. It was not a step taken in justness or equity with regard to the wife’s position based on contributions.
Russell v Russell confirms that the Court is to consider the independent exercise of the discretion and to be satisfied that the order is just and equitable, not the underlying percentage division of the net value of the assets.
I attempted during the trial to get the parties to consider their position, but negations failed and the matter has now been heard.
If the husband had an immediate need then orders may have to have been made altering the property interests and the property would most probably have been sold, because justice and equity has to be afforded to both parties.
But he has no immediate or known need.
The wife has the immediate need to be housed to a standard of living she is used to, if it is possible to achieve that.
Since a reverse mortgage possibility was not supported by evidence, the alternatives open would be to give her sole occupancy until the husband may need a settlement, which in effect would be to adjourn the matter to an unknown date in the future, or is to transfer the property to her sole name. If adjourned, the case could be left dangling for years. I am not persuaded to leave the case open on that basis as the parties need stability and the Act, at s.81, leans towards finalisation as far as is practicable. Counsel for the wife said that it may be an option to allow the wife to raise money if the orders were that the husband receives part of the pool. Given the wife’s financial position, such a course would not be promising.
Being such a small pool, I cannot take into account what parties think may happen in the future although such may have been open in a larger pool, depending on the evidence. I have to consider whether either possible alteration is within the discretion, given that I have found that the husband has made a 20 percent contribution and the wife’s need.
A sole occupancy order would resolve the wife’s immediate and significant need for accommodation, but long term, she would not have stability of accommodation, either because the husband needed money or his estate was being wound up.
Accommodation is a very significant need and from a practical viewpoint, the husband has acted so as to allow the wife to act as though the house was her house.
In Best & Best (1993) FLC 92-418, on appeal the Full Court altered the interests giving 100 percent of the property to the wife because of her significant needs, compared with that of the husband. Significant need was the only similarity with this case.
Keeping in mind that the husband does not want the wife out of the house, his acts over the joint tenancy and the needs of the wife to be housed – not an insignificant consideration against the evidence of the Mackay rental market, justness and equity must account for the party whose immediate needs are the more significant.
Both parties will soon be considered to be elderly and on all of the evidence her need is greatest and the order should allow her to stay in the house without fear of having to vacate in the future. That is where the evidence falls and I will order she receive 100 percent of the property pool.
This application has caused stress to both parties and I think, but for the interference of Mr H, would possibly not have come to Court. There was just no evidence to support the husband’s beliefs as to what is the best or what future medical treatment he may require and there was no evidence he received less then the best assistance when he suffered from the prostate cancer. If the parties had been left as holding the property in joint tenancy, the husband would have taken all if the wife died, as would the wife if the husband died. I cannot restore that situation because of the instability for the wife. It is a very sad state of affairs.
Finally, there was evidence about the wife and the children attempting to persuade the husband to discontinue his proceedings without telling him the ramifications of such an action. The adult children may well have been motivated about the wills of both parties whereby the house would be sold and distributed to them. They may well have been concerned about care for the wife, their mother. The motivation is irrelevant. Firstly, whatever occurred, the husband was not persuaded to discontinue his application and secondly, as I understand the law and this is a simple explanation, persuasion of another party to do something is allowable as long as the acts are not unconscionable or there is not undue influence, see the full discussion in Louth v Diprose (1992) CLR 621. There is no reason why the wife, or the children who stand to benefit at least from the wife’s will, should not have been allowed to try and persuade the husband to discontinue his action. The husband is used to obtaining advice from his brother and he obviously treated the efforts of his children as akin to advice and refused to follow it.
I did not consider draft orders relating to a species of trust. No argument was directed to me as to why I would make an order that the wife hold the house in trust.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Coates FM

Acting Associate: Debra Horold

Date: 10 December 2008