S by her Case Guardian R and by S his Case Guardian S

[2010] FCWAM 26

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150

TERRACE ROAD

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : S by her Case Guardian R and by S his Case Guardian S [2010] FCWAM 26

CORAM : DUNCANSON M

HEARD : 7 - 15 JULY 2010

DELIVERED : 30 SEPTEMBER 2010

FILE NO/S : PTW 4187 of 2009

BETWEEN : S by her Case Guardian R Applicant/Wife

AND S

by his Case Guardian S Respondent/Husband

Catchwords:

Jurisdiction of Family Court of Western Australia - to make property orders where parties not separated - incapacity of a party - case guardian - long marriage - no adjustment for s 75(2) factors - just and equitable

Legislation:

Family Law Act 1975, s 4(1)(ca), s 75(2), s 79

Guardianship and Administration Act 1990

Category: Not Reportable

Representation:

Counsel:

Applicant : Ms H Athanasiou
Respondent : Mr P Dowding

Solicitors:

Applicant : Ferrier Athanasiou & Kakulas
Respondent : Carr & Co

Case(s) referred to in judgment(s):

Falk and Falk (1977) FLC 90-247

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Omacini and Omacini (2005) FLC 93-218
Pavey and Pavey (1976) FLC 90-051

Pederson and Pederson (unreported, Family Court of Western Australia, 21 March 2001) Phipson & Phipson [2009] Fam CAFC 28 at [39]

Sterling & Sterling & Protective Commission [2000] FAMCA 1150
Sterling and Sterling [1999] FAMCA 1676
Todd and Todd (No 2) (1976) FLC 90-008

1The Court has been asked to make a decision about the division of the property of this elderly couple, in circumstances which are very sad.

2 [Beryl] is aged 88 years and [Charles] is aged 86 years. They were married in

1971. It was a second marriage for both. They lived together for 37 years in Charles’ home [in the suburbs]. They ceased living together when Beryl suffered a stroke at the end of December 2008. At that time she was admitted to hospital and then to a nursing home. The parties have not lived together since. Beryl is now in full time residential care and will remain so. She suffers from dementia. Charles visits her three time a week. They did not intend to separate. The separation was forced upon them by reason of Beryl’s illness.

3Beryl’s daughter from her first marriage, [Mrs R] as Case Guardian, commenced these proceedings on her behalf. Prior to that Beryl had been assessed for low level residential care and Mrs R sought payment of a sum of money from Charles to enable her to pay a bond for a nursing home. Charles was unwilling to pay that bond and to sell his home to enable him to raise the necessary funds. Beryl has since been assessed as requiring high level residential care. Mrs R wishes to improve Beryl’s standard of care and to fund that she commenced proceedings for property settlement. Charles wishes to remain living at his [suburban] home where he has lived for about

48 years. He may have to sell the home to pay what is sought on behalf of Beryl, namely an equal division of the parties’ assets. These proceedings are conducted on Charles’ behalf by his son [Kevin] as his Case Guardian.

ISSUES FOR DETERMINATION

4 The issues for determination, as set out in the parties’ papers for the Judicial

Officer, include the following:

1.Whether the Court has jurisdiction to make an order for property settlement having regard to the fact that the parties had not intended to separate and had not sought to determine financial issues between them prior to Beryl’s illness.

2.In the event that the Court has jurisdiction, whether that jurisdiction should be exercised having regard to the matters referred to in 1. above.

3.The quantum and nature of the contributions by each party to the pool of assets.

4. The disposition by Beryl of assets during the marriage in particular

[her former] property.

5.The parties respective future needs and whether there ought be any adjustment pursuant to s 75(2).

AGREED ISSUES

5It was agreed that the value of the home at [the suburban address] registered in the name of Charles, is $1,375,000. Both parties submitted, in their Papers for the Judge, that there should be no adjustment in favour of either party to take account of s 75(2) factors.

ORDERS SOUGHT BY BERYL

6 The orders sought by Beryl are contained in her Form 1 application filed

17 August 2009 and are as follows:

1.The former matrimonial home situated at and known as [the suburban address] in the state of Western Australia, be sold and the proceeds be divided equally between the parties.

2.That the husband’s superannuation entitlements and the parties combined savings be divided equally between the parties.

3. That the husband pay the costs of and incidental to this application.

7At the conclusion of her closing submissions Counsel for Beryl handed up a Minute of Orders sought at trial dated 15 July 2010 which are as follows:

1.The costs personally paid by the wife’s Case Guardian be indemnified out of the wife’s estate.

2.The property known and situate at [the suburban address] in the Case Guardians to be sold on terms and conditions to be agreed between them, and the net proceeds be divided equally between the parties.

3.There be liberty to apply in order to implement the order contained in Paragraph 2 above.

4.The husband pay the costs of the wife’s Case Guardian in respect of these proceedings.

ORDERS SOUGHT BY CHARLES

8The orders sought by Charles at trial were contained in his Minutes of Final Orders sought within the Papers for the Judicial Officer filed on 6 July 2010 which are as follows:

1. The wife’s Form 1 application filed 17 August 2009 and Amended

Form 1 filed 15 September 2009 be dismissed.

2.To the extent that the wife is unable to support or provide for her own financial needs, the husband pay to the wife such payments as deemed appropriate by the Court.

3.The wife pay the husband’s costs arising from and incidental to these proceedings.

4.Should the Court determine that an order should be made for property settlement then the wife be restrained from taking any step to enforce the order until the death of the husband or the sale of his home, whichever is the earlier.

9 Although the husband’s Minute refers to an Amended Form 1 application filed

15 September 2009, that was in fact an Amended application in a case filed on behalf of the wife and the orders sought therein did not form part of the wife’s case at trial. The said application will be dismissed.

JURISDICTION

10 At the outset I was called upon to determine the preliminary issue of jurisdiction.

I determined that the Court has jurisdiction which is founded in s 4(1)(ca) of the Family Law Act 1975. I then determined that the Court should exercise that jurisdiction. My judgment as to the preliminary issue was published. ([2010] FCWAM 15)

11 In closing, Counsel for Charles renewed his submissions that, either:

(a) the Court has no jurisdiction because to exercise a s 79 jurisdiction in the circumstances would be contrary to s 44(3) of the Act, and to public policy; or alternatively

(b) the question of whether the jurisdiction ought to be exercised is clearly a discretionary matter, see the Full Court majority In the Marriage of Sterling (by new next friend the Protective Commissioner for New South Wales) EA16 of 2000 and; having regard to the view expressed by Dessau J in Jennings, RA (by his next friend State Trustees Limited) v Jennings MA (1997) FLC 92-

773 and Kay J in Sterling, it ought not be exercised.

12 Having heard the evidence, my determination with respect to (a) and (b) above remains unchanged.

13 I accept that the parties did not intend to separate and that they live apart only because Beryl suffered a stroke and required hospital treatment followed by permanent residential care. The unchallenged evidence of Charles is that he visits Beryl up to three times a week. He said he loves her and would do anything and everything for her. She knows who he is and he said she looks forward to his visit.

14 As to her financial needs, Charles could not remember the detail but said his will excludes Beryl as she is in hospital. He did not recall discussing payment of her fees at the Brightwater facility and he did not understand the bond or recall the figure of

$300,000. He had heard about an offer to pay $100 Beryl per week but said he did not set that figure, he has not paid anything and does not see a need to do so.

15 I accept that Charles loves his wife and he is likely to continue to visit her as long as he is able. However, he sees no need to provide financial support to her and was unable to recall the details of the trust fund set up for her benefit or indeed much of the financial detail at all.

16 It was submitted on behalf of Beryl that Charles abrogated his financial responsibilities to her by failing or refusing to pay the money sought for payment of the bond for a low care residential facility and the fees for her care, and that this abrogation goes to the heart of the consortium vitae, which, as a consequence, has broken down.

17 The statement of what is meant by separation is that given by Watson J in Todd and Todd (No 2) (1976) FLC 90-008 at 75,079, which was subsequently adopted (with just two small amendments) by the Full Court of the Family Court in Pavey and Pavey (1976) FLC 90-051 at 75,211-3. The amended statement is as follows:

“ ‘Separation’ means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or other of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.”

18 This account of what is meant by separation was subsequently referred to with approval by the Full Court of the Family Court in Falk and Falk (1977) FLC 90-247 at

76,333.

19 I am not persuaded that Charles has knowingly abrogated his financial responsibilities to Beryl. I am not therefore satisfied that the consortium vitae has broken down for this reason or indeed any other reason, given that neither party intended to sever the marital relationship or to act as if it had been severed.

20 The absence of an intention to separate is not however a bar to the Court exercising jurisdiction pursuant to s 79.

21 I remain of the view, that in my discretion, the jurisdiction which I have pursuant to s 4(1)(ca) ought to be exercised in this matter.

22 In Sterling and Sterling [1999] FAMCA 1676 Moss J at first instance stated: “The evidence is clear that a complete and final physical separation has

been forced upon the parties by the circumstances of the Applicant”.

23 That is the position for Charles and Beryl.

24 The elements of marriage referred to in Pavey which may exist in a marital relationship no longer exist for them even though that is not what either party intended.

25 The parties will never live together again. Most of the elements of a normal marital relationship have ceased to exist. Their marital relationship has diminished to

3 short visits by Charles to Beryl each week. Although Beryl did not initiate these proceedings or seek to determine the financial relationship between the parties before her stroke, the financial issues between the parties ought to be determined. Beryl’s case is that she has contributed to the assets of the marriage and thus has an entitlement. She now needs a sum of money to provide for her future financially and she will benefit there from. Charles’ case is that Beryl’s needs are being met and paid for from her income and there is no benefit to her by the making of an order under s 79. To the extent that her needs are not met, he will maintain her.

26 I consider that the financial aspects arising from the relationship of these parties ought be finally determined thus avoiding further proceedings between them. The fact that the parties did not intend to separate or intend the consortium vitae to break down does not, in my discretion, preclude me from exercising the jurisdiction which I have arising from the marital relationship.

27 I agree with Coleman and Carter JJ in Sterling & Sterling & Protective

Commission [2000] FAMCA 1150 who, in dismissing the appeal, held:

•There is no authority that established the necessity for a judge to be satisfied that benefit, of any particular kind, would flow to a party as a consequence of an order being made under s.79.

•Absent authority which established that evidence that the parties had not intended their separation was a discretionary bar to doing so, his Honour was not precluded from making an order by reason of that fact.

•The absence of an intention to separate, or terminate the marriage, has not been regarded by the High Court in Dougherty v Dougherty (1987) 163 CLR 278 and Fisher v Fisher (1986) 161 CLR 438, as a bar to making an order for settlement of property under s.79.

•In the absence of any authority establishing a requirement that the “….loving relationship of the parties to the marriage” had broken down, his Honour was not precluded from exercising his discretion to make an order by virtue of this factor.

•The trial judge was not obliged to adopt the approach in Jennings’ case. Whilst it might be preferable for there to be unanimity and consistency in the determination of applications of this kind, the mere fact that one Judge exercising a discretion has come to a different view to another exercising that discretion on facts which are quite similar, does not render either of those judges in error. These differing views illustrate precisely the generous ambit of discretion afforded to trial Judges.

28 The Act mandates the court not to make a property order unless it is satisfied that in all the circumstances it is just and equitable to do so. Clearly if a final property order was made between parties whose marriage was intact, the consequence might be

an unjust and inequitable division when the parties ultimately separate. In this matter however the incontrovertible evidence is that Charles and Beryl live separately now and they will continue to live apart in the future.

BRIEF BACKGROUND

29 Beryl was born [in] September 1922. She is aged 88 years. She is in permanent residential care at [a nursing home].

30 Charles was born [in] March 1924. He is aged 86 years. He resides at

[a suburban address].

31 The parties commenced a relationship in about 1971 and were married on [in] October 1971. Upon their marriage Beryl moved into the suburban home owned by Charles and they lived together there until Beryl was hospitalised.

32 Both parties had both previously been married. Beryl has two daughters from her first marriage, [Mrs R] and [Mrs B].

33 Charles had two sons from his first marriage, [Kevin] and [Robert] now deceased. Roberts’s wife, [Angela] is a significant person in Charles’ life. She refers to him as “Dad”.

34 On 31 December 2008 Beryl suffered a severe stroke. She is now in permanent residential care. The parties have not lived together since that time.

THE EVIDENCE AND OBSERVATIONS OF THE PARTIES

35 All parties and their witnesses presented as being honest people and this case does not turn on issues of credibility.

36 Prior to evidence being given by case guardians, significant amounts of their affidavits were struck out as objectionable on the basis of hearsay. Counsel for Beryl informed the Court that it had been agreed at the Conciliation Conference on

28 January 2010 that the case guardians would be permitted to give hearsay evidence. Such an agreement was not recorded on the Conference file note. Charles changed solicitors shortly before the Trial. Counsel for Charles objected to hearsay evidence and sought to have it struck out.

37 In the absence of any such agreement being recorded I determined that the parties should not be permitted to rely on hearsay evidence. Similar circumstances were considered in the case of Pederson and Pederson (unreported, Family Court of Western Australia, 21 March 2001) per Barlow J at paragraph 15(4):

“Clearly a next friend has an obligation to the person on whose behalf he or she acts, to present to the best of his or her ability the disabled person’s case and evidence in support of it. The ability of the next friend to do so may be affected and/or limited by any one of a number of factors, including difficulty in communicating with the disabled person and/or

difficulty in gathering evidence to be presented to the Court in support of the disabled person’s case. I am not persuaded the appropriate way of overcoming such practical difficulties is to admit evidence, which would otherwise be inadmissible.”

38 Mrs R maintained throughout that her motivation in bringing and pursuing these proceedings was to obtain funds to provide a better standard of care for her mother. I accept that. It was clear that her mother’s circumstances and the diagnosis of dementia are very distressing to her and [her sister Mrs B]. She was firmly of the view that the obligation to support her mother rested upon Charles and that he had failed to do so. Her mother was entitled to receive funds after 38 years of marriage which could be applied to her needs and improvement of her care.

39 Charles gave evidence. Prior to doing so I rejected the submission on behalf of Beryl that Charles’ case guardian, Kevin, should leave the Court while he did so, as he had not by that time given his evidence. I did this because a case guardian effectively acts in place of the party. Beryl is completely incapacitated by her disability but Charles is not. The degree of disability determines the level of involvement of both the party and the case guardian. Beryl had no involvement in the proceedings but Charles did.

40 Federal Magistrate Judy Ryan, in her paper; Mental Health and Family Law – A Question of Degree, (2006) stated:

“Once appointed the litigation guardian provides instructions in lieu of the client, including as to final settlement. In all respects the litigation guardian assumes the rights and responsibilities of the original party as to the conduct of the proceedings. It does not necessarily follow that the original client should be ignored, and in my view best practice suggests the incapacitated client will still be involved in the process. The extent of involvement will depend on the degree of incapacity and advice from those managing the original client’s treatment as to the appropriateness of involvement.”

41 As Kevin acted in place of Charles, I considered it entirely appropriate that he remain in Court while Charles gave evidence.

42 Charles’ evidence was truthful and given in a way which was commensurate with his age. He said he would pay for his wife’s needs but clearly believes they are being met and can be paid for by her pension. He saw no need to pay anything extra and no extra weekly money has been sought. His will provides that Kevin’s and Robert’s sons will inherit his estate upon his death.

43 Charles’ view of his wife’s family, Mrs R and Mrs B in particular, has been coloured by events before and since these proceedings were commenced. It is likely he has been influenced by Kevin and Angela either knowingly or inadvertently. They have tried to protect him from Mrs R’s financial demands. Charles was clearly not well disposed to Mrs R and her family. During the course of cross examination he said to Beryl’s counsel “Those people behind you don’t care, I know they don’t care”. He remembered very clearly asking for Beryl’s keys back, saying he didn’t want them

(Beryl’s family) in the house going through papers. Angela removed photographs of Beryl and her family from the living room at his home but Charles said she did not tell him why she did that. Angela said she did that at his request after court proceedings commenced. I consider it is unlikely that he remembers or understands the financial detail. Charles loves his wife and continues to visit her.

44 On the most favourable view, both case guardians had as their primary motivation the interests of their respective parents. It cannot be ignored, however, that both had good reason to protect those interests, having regard to their likely inheritance.

THE LAW

45 The approach to be taken in relation to an application for property settlement pursuant to s 79 of the Family Law Act 1975 is a four step process. (Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143). Those steps are:

•to make findings as to the identity and value of the assets and liabilities of the parties;

• to identify and assess the contributions made by the parties within s 79(4)(a), (b)

and (c);

•to identify and assess the s 75(2) factors, together with any matters relevant pursuant to section 79(4)(d)-(g);

• consider whether the proposed orders are just and equitable.

HISTORY

46 Charles purchased the property at [the suburban address in] 1962 as joint tenants with his first wife... They obtained a war service loan secured by mortgage dated April 1964 to enable them to build the home on the property.

47 On 8 December 1966 Charles and [his first wife] were divorced.

48 On 25 September 1967 the home was transferred to Charles’ sole name and at the time of transfer he granted a mortgage over the property to [his first wife] as security for payment of the sum of $2,600 from him to her by monthly instalments.

49 On 14 June 1968 Beryl was divorced from her first husband.

50 In December 1968 Beryl won approximately $16,000 on Lotto. The bulk of the proceeds were used to pay out the mortgages on her home at [the suburban address]. Charles and Beryl married [in] October 1971. At that time Charles was employed as a [tradesman] with [a large company]. Beryl had previously been employed as a shop assistant and after the marriage she worked as a canteen assistant at [the company]. Charles’ son Robert lived with them for about three years until 1974.

51 Charles’ mortgage to his first wife was discharged on 22 January 1973. [In] April 1974 Beryl sold her home [in the suburbs] to Mrs R and her husband for a price of $13,000. Mrs R subsequently sold that property for a price of $64,000 on 16 May

1979. She carried out renovations to the property before it was sold.

52 In about 1989 Charles retired. Beryl also retired around that time. Both parties then received a pension from the Department of Veterans’ Affairs and continue to do so.

53 On 15 March 1995 Charles made a will. He did not discuss it with Beryl and hid it from her. Charles wrote a letter on 27 March 1995 addressed to Beryl (who did not see it at the time) and to his sons. He explained that Beryl intended to leave her estate to her daughters excluding him and he was accepting of that. He further explained that his will provided for Beryl to have a life tenancy of the [suburban] home. His estate was to be divided equally between his sons or their issue per stirpes. The letter stated that he was sure Mrs R and Mrs B would have no expectations of him just as his sons would have none of Beryl.

54 Beryl was appointed carer for Charles [in] March 2002.

55 In August 2003 Charles suffered a stroke but he made a good recovery.

56 Charles suffered a further stroke on 1 February 2004. He was admitted to hospital but after his discharge made good progress. Beryl remained his carer.

57 On 1 September 2005 Beryl signed an Enduring Power of Attorney in favour of

Mrs R and Mrs B. Charles was not aware of this.

58 Robert died on 15 July 2007. Beryl suffered a severe stroke on

31 December 2008. She was treated at Sir Charles Gairdner Hospital and then on

9 January 2009 was transferred to the Osborne Park Hospital Stroke Unit.

59 On 28 February 2009 Charles had a fall and was admitted to Hollywood

Hospital for eight days.

60 On 8 March 2009 Charles made an Enduring Power of Attorney appointing

Kevin and Angela jointly and separately to be his attorneys.

61 On 10 March 2009 an Aged Care Assessment Team (ACAT) assessment issued from Osborne Park Hospital recommending high residential care for Beryl. On

16 March 2009 Beryl was transferred to [a facility] into their transitional care program for assessment for long term accommodation options.

62 Between January and May 2009 various meetings took place involving, at different times, Mrs R, Mrs B, Charles, Kevin, Angela and staff at Osborne Park Hospital and subsequently staff at [the transitional care facility]. During those meetings discussions took place regarding Beryl’s arrangements and, after Charles’ fall in February 2009, they included his arrangements as well. Prior to Beryl’s stroke the family members on both sides enjoyed a cordial relationship. Mrs R and Mrs B enjoyed a good relationship with Charles. The relationship between the family members subsequently deteriorated.

63 A second ACAT assessment issued dated 29 April 2009. Beryl was assessed as requiring low level residential care.

64 Mrs R made enquiries about low care residential facilities. She ascertained that three homes, namely [the Aged Care Facility], [the McKillop Centre] and [Crown Care] both [nearby], required payment of an entrance fee or bond of $300,000 which was payable on entry and repayable to the person’s estate on death. She deposed that Beryl agreed to her taking legal action against Charles to access joint funds for that purpose. I am not convinced that Beryl understood or was aware that legal action was to be taken.

65 Charles refused to sign the Interim Care Client Agreement accepting responsibility for payment of all accounts in respect of Beryl’s admission there. He subsequently said that he would pay the accounts. Angela ascertained from the staff at [the facility] that their charges would be met from Beryl’s pension and rent assistance payments and that a direct debit should have been arranged by Mrs R. For some weeks the accounts were unpaid and Angela sent invoices to Mrs R for payment. Inadvertently included in the documents sent to Mrs R was a bank statement of Charles’ showing a sum at credit of an account of $150,000. Ultimately on 25 May

2009 Mrs R signed the care agreement using the enduring power of attorney in favour of herself and Mrs B. The [transitional care] accounts were then met from Beryl’s pension with payments being made direct from her bank account.

66 Angela deposed that Charles complained to her that Mrs R and Mrs B were making financial demands upon him and he was upset that he might have to sell his home. Angela typed a letter which Kevin sent to Mrs R dated 7 May 2009 in the following terms:

“[Mrs R],

It has come to my attention that on the evening of Monday 20 April 2009 you visited my father, [Charles], having come into his home ‘ranting, raving and spitting’. The reason for this outburst according to him was for the accounts for [transitional care] of which should be covered by [Beryl’s] pension and Centrelink payment.

Following this, two nights later on 22 April another visit by you, [Mrs B and husband], resulted in demands of monies to each.

This has caused my father great concern, possibly affecting his health. Coercion, emotional blackmail and demanding of monies with menace are

a criminal offence.

Also, the fact that you have demanded to see his will is unacceptable on all accounts.

My father should be treated with respect and civility at ALL times and failure to do so will result in further actions.

Sincerely

[Kevin S]”

67 On 3 May 2009 Beryl had a fall.

68 On 19 May 2009 Beryl had a home visit which Mrs R said she was not informed about and did not attend.

69 Angela deposed that Mrs R was invited to attend the home visit but she did not do so. I consider it highly unlikely that Mrs R would not have attended had she known about it. The [transitional care] therapist determined that Beryl could not function at home. Charles was upset by the realisation that he could not care for Beryl at home.

70 On 17 May 2009 a meeting took place between Mrs R, Mrs B, Charles and Angela. Mrs R raised the issue of cost of low care facilities and the payment of a bond. She said Angela suggested Beryl could mount a “charity” case not to pay the bond. Mrs B was upset by the suggestion that Beryl should be in a home for poor people but Angela and Charles saw nothing wrong with this.

71 Angela described the meeting as positive until Mrs R arrived when she said the discussions became heated upsetting Charles. She told Mrs R that costs associated with Beryl’s care could be met by her pension and government benefits. Charles was upset that Mrs R wanted him to sell his house and told her that she had received her house from her mother, referring to the [wife’s former] property.

72 On 24 May 2009 Beryl was found wandering outside the [care] facility. On 26

May 2009 she had a fall and was found in the carport. She was transferred to a secure unit at [the care facility]. On or about 25 May 2009 [Dr F] conducted tests upon Beryl. Following those tests and a brain scan she was diagnosed with vascular dementia. Mrs R found this diagnosis difficult to accept and sought a second opinion. [Ms S], the social worker at [the transitional care facility] would not support the request for the second opinion. The relationship between Mrs R and Ms S was poor with Mrs R believing that Ms S aligned herself with Charles and his family against her and Mrs B. In early June 2009 Mrs R found a place for Beryl at [the Aged Care Centre] which required payment of a $300,000 bond. Charles was not prepared to pay this and he refused to consider her suggestion that he join Beryl in [the centre]. He was upset by the suggestion that he should leave his home.

73 In June 2009 Charles executed a new will in more or less the same terms as his previous will.

74 Mrs R consulted her solicitors and caused a letter dated 11 June 2009 in the following terms to be sent to Charles.

“Dear Sir

CARE ARRANGEMENTS FOR [MRS S]

We advise we have been consulted by [Mrs R] and [Mrs B] in relation to their mother’s care arrangements and the financial resources that will be required to set those arrangements in place.

We understand Mrs S is currently at [transitional care facility in the suburbs]. We further understand she can only remain living there temporarily and that permanent accommodation must be found elsewhere.

It is apparent to both [Mrs S’s] daughters and her treating doctors that [Mrs S] is unable to resume living at the home in [the suburbs]. She needs to live in an appropriate aged care facility. The daughters have considered their mother’s options and we understand they have discussed these with you. The daughters have advised that all the potentially suitable facilities require a bond of at least $300,000. You have refused to consider funding this despite the fact that [Mrs S] does not have the money to pay this.

[Mrs S] must receive this money. As you are her husband, the obligation to financially support her rests with you. We understand that you may not have the money for the bond readily available. In those circumstances, it is clear that the main asset of the relationship, the home, will need to be sold. It would be appropriate for the proceeds to then be divided equally between you and [Mrs S].

We propose that the home is placed on the market and that the proceeds be divided equally. There may be a further payment to [Mrs S] to ensure that there is financial equality between you.

As [Mrs S] cannot remain indefinitely at the [transitional care facility], you will need to give this matter your prompt consideration. Accordingly, we require your response within fourteen (14) days.

If you are in any doubt as to your legal position in this matter, we advise you to consult with a solicitor who specialises in matrimonial law. Please have you or your chosen solicitor respond to us in writing within the time allocated.

If we do not hear from you we will take the daughters’ further instructions with respect to taking this matter further, so as to ensure [Mrs S’s] future is appropriately secured. This will entail a consideration of whether Family Court proceedings are necessary. Court proceedings would be a costly and stressful exercise for both parties and it would be far more beneficial for this matter to be resolved by agreement.

Yours faithfully

FERRIER ATHANASIOU & KAKULAS”

75 By letter dated 30 June 2009 Charles’ solicitors responded in the following terms:

“Dear Ms Athanasiou

We act for [Mr Charles S]

We refer to your letter of 11 June 2009 in relation to purported requirements for the care arrangements of our client’s wife, [Mrs Beryl S], put up by her daughters. Would you please advise us upon what basis Mesdames [R] and [B] purport to act for [Mrs S].

Our client acknowledges his wife’s inability to return home, which of itself has been a great sadness, and his responsibility to support her financially. Indeed, and contrary to the tone of your letter, he is keen to ensure that [Mrs S] is well cared for and placed in an appropriate care facility. However, to ensure our client complies with his legal obligations, your clients propose that the family home be sold with our client similarly accommodated in an aged care facility.

We have been instructed that discussion between the parties has been minimal at best. Your clients have not provided information in relation to the various facilities which may also prove suitable for [Mrs S]. Nor have the parties considered alternative options by which the matter might be solved. For example, in order to raise any necessary funds, has the issue of a reverse mortgage against the parties home been raised?

There are significant issues which need to be addressed before our client can make informed, appropriate decisions. From your letter to our client, for example:

1. What is the purpose of the $300,000 bond?

2. How much of the bond is recoverable in the event of death?

3.What research have your clients undertaken in relation to the proposed facility?

4.How does the proposed facility weigh against similar suitable facilities?

The third paragraph of your letter alleges that my client has …. ‘refused to consider funding despite the fact that [Mrs S] does not have the money to pay this’. Our client has never refused to fund a suitable facility for his wife. He does, however, take exception to demands being made of him without an appropriate level of discussion or involvement.

Our client is keen to ensure this matter is dealt with effectively and without recourse to protracted litigation in the Family Court. Provision of further information by your clients, if we can be satisfied that they have their mother’s authority to act on her behalf, will assist in this regard.

We look forward to your response. Yours sincerely

ROBERT PARKINSON & ASSOCIATES”

76 A third ACAT assessment issued dated 10 July 2009. Beryl was assessed as requiring high level residential care. With effect from 14 July 2009 she was approved by the Department of Health as eligible to receive that care.

77 On 16 July 2009, as Beryl’s next of kin and without reference to Mrs R, Charles gave permission for Beryl to be admitted to [St Lawrence’s] and signed the relevant documents. Angela and he visited St Lawrence’s and both considered the facility to be comfortable, secure and friendly with a homely atmosphere. Mrs R and Mrs B were not involved in the decision making. Beryl was moved to St Lawrence’s on

21 July 2009. St Lawrence’s is a high care facility which did not require payment of a bond.

78 Mrs R and Mrs B visited St Lawrence’s. They were unhappy with Beryl’s placement there. They considered the accommodation to be inferior to facilities at [the McKillop Centre] and [Crown Care]. Their complaints included the fact that Beryl had to share a room, the floor was uneven, there was no common room or lounge for interaction or family visits and no easy access to communal toilets or showers.

79 Charles instructed authorities that Beryl’s pension would cover the fees. At that time her pension was $680 per fortnight and the fees were $515 per fortnight. Mrs R was concerned that little funds were left for additional needs such as medication, toiletries, spending money and physical therapy.

80 The account responsibility agreement was subsequently given to Mrs R for signature accepting responsibility for St Lawrence’s fees.

81 On 23 July 2009, assisted by Angela, Charles opened a trust account with Beryl as the sole beneficiary and himself as the trustee, for the purpose of providing additional funds for any additional medical, accommodation, outgoings or expenses Beryl may require. The balance of funds deposited into the account was $42,186.36. The funds have not been utilised. No request has been made on behalf of Beryl for payment of those funds.

82 On about 5 August 2009 Angela stopped payments from Charles’ bank account for Beryl’s HBF cover. Mrs R subsequently re-instated this cover.

83 In August 2009 [Ms S] applied to the State Administrative Tribunal (SAT) for an administration order under the Guardianship and Administration Act 1990. She had not sighted the Enduring Power of Attorney in favour of Mrs R and Mrs B and was concerned about conflict between family members. She was of the view that pressure was put on Charles by Mrs R’s lawyer. On 17 August 2009 on behalf of Beryl, Mrs R applied to the Family Court for property settlement.

84 In August 2009 during a visit to [the matrimonial home] by Mrs R and Mrs B they found that Beryl’s family photographs had been removed and bundled up in her bedroom. Beryl’s keys to the property were returned to Charles when he called to Mrs R’s home and demanded their return. He then agreed to Mrs R keeping them. The following month the locks to the home were changed.

85 Mrs R and Mrs B continued to seek alternative accommodation for Beryl and her name was placed on the waiting list at Crown Care in [the suburbs]. Crown Care does not require payment of a bond. It has however established a Building and Development (Deeming) Fund consisting of deposits made by residents of families. The capital sum provided by the resident family is guaranteed without reduction and is returned in full when the Nursing Home placement is no longer required. The interest earned on the deposit is applied to the maintenance and development of the home and facilitating residents amenities and care. Deposits are voluntary but residents who contribute to the Fund are provided with single rooms as they become available. On

23 September 2009 [Ms C], Director of Nursing at Crown Care spoke with Mrs R and offered Beryl a place there. Mrs R and Mrs B were keen to accept the place and contacted Charles.

86 Mrs R’s daughter took Charles to see Crown Care and she reported that he was happy with Beryl’s move there as it was closer and more convenient for him. Ms C also reported that once Charles was assured that it would cost no more than St Lawrence’s he was in favour of the move.

87 Kevin and Angela visited Crown Care with Charles later that day and spoke with Ms C. They told her that Beryl had dementia and was prone to wandering. Angela deposed that St Lawrence’s confirmed with Ms C that Beryl had dementia and as Crown Care was not dementia secure Beryl could not be transferred there. Mrs R deposed that she was told that Angela deemed Crown Care as unacceptable for Beryl as she “wanders” and might fall down the stairs or lift well. Mrs R strongly disagreed and pointed out to Ms C that Beryl had only had one episode of wandering which could have been due to the urinary tract infection she had at the time which may have caused her to be disorientated. She had limited mobility but was not at risk of a fall down the lift well. She walked around St Lawrence’s unaided.

88 Charles then withdrew permission for Beryl to be moved to Crown Care.

89 On 5 November 2009 Mrs R and Mrs B applied for joint guardianship of Beryl.

On 20 December 2009 Charles had a fall and was admitted to hospital. He was discharged on 26 December 2009 and Kevin moved into his home as his carer on that date. Kevin has received the carers allowance since 4 January 2010.

90 Mrs R does not believe Kevin is living with Charles full time. I consider that he probably is. His answers to questions as to his movements were not inconsistent with the evidence of the Private Investigator who carried out surveillance of Charles’ home between 6 and 13 May and I am not convinced that he lives elsewhere at this time.

91 On 8 January 2010 orders were made by the SAT appointing Mrs R and Mrs B as jointly plenary administrators of Beryl’s estate and guardians to make decisions about her living arrangements and medical treatment or health care of Beryl for a period of 2 years.

92 At the time Mrs R maintained her position that she wished Beryl to be moved to a facility superior to St Lawrence’s, for example, Crown Care and to contribute to the Deeming Fund. Charles’ position at that time was that while he considered the facilities at St Lawrence’s to be more than adequate for Beryl, he had no objection to

her moving to an appropriate care facility on condition that he was not liable for any additional payments or outgoings that he was not currently liable for to pay at St Lawrence’s.

93 Charles offered to pay Beryl $100 per week in the event of any shortfall.

Payment has never been requested or received.

94 Mrs R and Mrs B wished Beryl to be seen by a Geriatrician. On 21 December

2009 [Dr H], the Geriatrician at Sir Charles Gairdner Hospital declined to accept her for review and refused the referral from [Dr C] who is the General Practitioner for the St Lawrence’s residents.

95 On 17 February 2010 Kevin, Charles’ son was appointed his Case Guardian.

96 On 22 March 2010 unbeknown to Mrs R, Beryl spent a night at [the matrimonial] home as St Lawrence’s Hospital was badly affected in the hail storm in Perth.

97 On 16 April 2010 Mrs R met with [Ms D], the Director of St Lawrence’s Nursing Home regarding Beryl’s medical records. Mrs R was unhappy about being asked to sign care plans dating back to August 2009 and she found Ms D was not pleased at being asked about Beryl’s care.

98 Ms D deposed that Beryl was assessed upon admission to St Lawrence’s and her care plan addressed her care requirements, and she also has an individual occupational and physiotherapy treatment plan. From her evidence it appeared to me that she resented any suggestion that St Lawrence’s was inferior to other facilities and that she does not have a good relationship with Mrs R.

99 On 1 May 2010 Dr C wrote a referral letter to [Dr M], Geriatrician at

Hollywood Specialist Suite (private health). On 30 June 2010 Beryl was seen by him.

ASSETS AND LIABILITIES AT TRIAL

100 The parties were largely agreed as to how the pool of assets is comprised.

There are three issues which are relevant to the pool of assets and which deserve mention.

• Charles’ legal fees.

101 As at trial Charles has paid legal fees totalling $95,403, of which $56,069 has been paid for accounts rendered and the balance held in trust.

• Beryl’s legal fees.

102 To date Mrs R has paid legal fees on behalf of her mother from her own resources in the amount of $35,496. She seeks an order that she be indemnified out of Beryl’s estate.

• The transfer by Beryl of the [former home].

103 For Charles, an issue for determination was said to be the disposition by Beryl of assets during the marriage, in particular the [former home]. It was not disputed that in about December 1968 Beryl won $16,000 on lotto and paid out the mortgages on her home. She sold the property to Mrs R and her husband for $13,000 on 23 April 1974. Mrs R subsequently sold the property on 16 May 1979 for $64,000. Mrs R was asked some questions about whether she acquired the property for less than its full value. She said she had not and had made extensive renovations to the property during her ownership.

104 In the decision of Omacini and Omacini (2005) FLC 93-218, the Full Court reviewed the cases dealing with the notion of addbacks. Three clear categories of cases were identified as being appropriate to notionally addback to the pool of assets monies that no longer existed. These categories are:

• Where the parties have expended money on legal fees;

• Where there has been a premature distribution of matrimonial assets; and

•Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effect or value of assets or has acted recklessly, negligently or wantonly with assets.

105 I consider that the legal fees paid by Charles should be added back into the pool in the sum of $95,403.

106 I further consider that Mrs R should be indemnified from Beryl’s estate for the legal fees paid by her and I will make an order to that effect. In practical terms that does not have an impact on the pool of assets because Mrs R will be repaid from Beryl’s savings.

107 There was no evidence as to the value of [the former home] at the time of its transfer to Mrs R other than the price paid. In these circumstances I am unable to find that it was transferred to her for less than full value. She said she carried out extensive renovations and sold it some 5 years later. I am not persuaded that this was a disposition of assets by Beryl during the marriage and indeed no submissions were made to the effect that any sums should be added back into the pool as a consequence of this transaction.

108 I find the pool of assets available for division to be as follows:

ASSET	HUSBAND	WIFE
Reward bank account 2	E 19,125
Gold Term Deposit 9	E 8,854
Gold Term Deposit 5	E 33,772
Bankwest Trust account in husband’s name	E 43,834

Reward Bank Account	$7,500
Gold Term Deposit 0	Nil
[matrimonial home]	E 1,375,000
Household contents	E 4,000
Legal fees paid by Husband	95,403
TOTALS	$1,525,737	E $61,751

109 The total of the pool of assets of the marriage is $1,587,488

110 There are no liabilities.

Contributions

111 This was a very long marriage. Beryl’s position is that on the basis of contribution there should be an equal division of the assets. She says this is appropriate because of her initial contribution and the length of the marriage.

112 Charles’ position is that the percentage division on the basis of contribution should be 80% in his favour. He says this is appropriate having regard to the parties’ contributions from the commencement of cohabitation to the date of separation and to date of hearing.

113 At the commencement of the parties’ relationship Beryl owned a home [in the suburbs]. The precise value of the home at that time is unknown. The sale proceeds of the home of about $13,000 were brought into the marriage in 1974.

114 At the commencement of the relationship Charles owned the home at [the suburban address]. The value of the equity in that home at that time is not known. There were two mortgages secured over the property, one to his first wife which was discharged in 1973 and a war service loan subsequently discharged in 2002. The mortgage to Charles’ first wife was to secure payment of the sum of $2,600 to her. In return the property was transferred to Charles. It is not known what proportion that amount represented in relation to the equity in the property. It is Charles’ home which is now the principal asset of the marriage.

115 The parties’ other assets at the commencement of their relationship are insignificant.

116 At the time of the marriage Charles worked as a [tradesman]. He was subsequently employed as a costs estimator with [a company] at the time of his retirement in 1989.

117 Beryl worked as a shop assistant but after the parties’ marriage she was employed as a canteen assistant with [the company]. It is not known precisely when she retired but it is thought to be around the same time as Charles.

118 When Beryl and Charles retired they both received the aged pension from the

Department of Veterans Affairs and continue to do so.

119 It is likely that Charles earned more than Beryl. It is not disputed that they kept their finances separate and had separate bank accounts. It is common ground that Charles paid the mortgage repayments, council rates, maintenance of the home and the utilities. Beryl paid for food, household supplies and clothing for them both.

120 The parties enjoyed holidays together both in Australia and overseas. For Beryl it is said that she paid for her own fares and expenses of at least two of the overseas trips. Charles deposes to have taken her on numerous overseas and interstate holidays and to have purchased personal items for her. It is not clear whose income funded the holidays. It is likely that both contributed to some extent but in any event nothing turns on this.

121 The parties lived simply and modestly. Beryl was a frugal shopper who cooked inexpensive meals. Mrs R deposed that Charles had a lock on the hot water heater and strictly monitored electricity, gas and water consumption in the home. Mrs R said she saw her mother boiling water. She stayed with Charles and Beryl for eight weeks in

2007 and there was no hot water until the sun came out and no water from the electric hot water booster. The existence of a lock on the hot water system was disputed by Charles. Mrs R was shown photographs of the hot water heater from which no lock was evident. I consider that Charles probably did monitor consumption closely as he paid the bills. In evidence, he acknowledged that Beryl boiled water but that was for a bath. He said they both tried to save money. I do not accept that a lock was placed on the hot water heater by Charles. Charles said that he and Beryl never had arguments and I do not think that the matter of hot water was a significant issue between them. It is more likely that the parties’ frugal lifestyle might be an issue for Mrs R arising out of concern for her mother’s well being. In this context, Mrs R purchased for her mother a television and an air conditioner for her bedroom for her comfort.

122 During their marriage the parties had “traditional roles”. Before and after retirement Charles maintained the home, paid the bills and did the banking.

123 Beryl did the shopping, cooking and cleaning. For three years after their marriage Charles’ son Robert lived with them and Beryl cooked for and looked after him as well. After Charles’ stroke Beryl was his carer and provided for his needs to the extent that he was unable to do so. She was registered as such for Centrelink purposes from 1 March 2002 until the time of her own stroke.

124 The parties provided companionship for each other although in later years Charles suffered deafness. In addition to holidays Charles said that they saw friends and relatives and went to movies once a week. Mrs R deposed that Beryl never went to Kevin’s house or visited Charles’ extended family although Charles and Beryl attended all of her own and her family’s functions. Mrs R was shown some photographs taken over the years of Beryl and Charles in the company of Charles’

family. Again it appears this was not an issue for Charles and Beryl. Charles said he and Beryl never had a cross word. It may have been an issue for Mrs R, again, arising out of her concern for her mother’s wellbeing.

125 Mrs R maintained that a bone of contention between the parties was that Charles refused to put the home into their joint names. Charles made no mention of this. His position in this respect is clear from the terms of his will. He did not say it was an issue between them, nor was the fact that she was not aware of the terms of his will.

126 After Beryl’s stroke in December 2008 Charles remained in the home. He has been responsible for its upkeep, now assisted by Kevin who lives with him as his carer. Beryl has made no contributions since that time as she has been unable to do so. Charles continues to visit Beryl.

127 Charles and Beryl each retain their own income. None of Beryl’s income is applied to the family home and is solely applied to her own needs.

Conclusion as to Contributions

128 I consider that both parties made an initial contribution to the assets of the marriage, Charles did so by his ownership of the home and Beryl by the introduction of the sale proceeds of the [former home] into the marriage, which it is likely were utilised for the benefit of the parties notwithstanding that they kept their finances separate. Charles’ contribution by way of the home should be recognised as it was the foundation of what is now the principal asset of the marriage.

129 During the marriage Charles made the greater financial contributions as his earnings were greater than those of Beryl. Although Beryl’s earnings were less she made the greater contribution by way of home maker. Both applied their pensions to the payment of bills or the purchase of necessities. I consider the contributions during the marriage to have been equal.

130 Since Beryl’s stroke she has made no contribution to the assets and has been unable to do so. Charles continues to make a contribution to the assets of the marriage.

131 Charles’ initial contribution of the home and his later more recent contributions should also be recognised. I consider that there should be a percentage adjustment of

7.5% in his favour for those contributions.

132 Exercising the very broad discretion which I have, taking into account the contributions of both parties in this long marriage and post separation I conclude that the overall percentage based on contributions should be 57.5% to Charles and 42.5% to Beryl.

Section 75(2) Factors

133 I am required to take into account the factors set out in s 79(4)(d) to (g) of the

Act which incorporate the matters referred to in s 75(2) insofar as they are relevant.

134 Beryl is 87 years of age. She is under the care of [Dr C] and has been since she was admitted to St Lawrence’s Nursing Home in July 2009. Dr C sees her for medical review monthly. In his report dated 29 May 2010 to Helene Athanasiou he describes Beryl’s diagnosis. He says:

“[Mrs S’s] current diagnoses would include CVA, Vascular Dementia, Hypertension, Hyperlipidaemia, Depression, Osteoporosis, Hypothyroidism and Oesophagael Reflux. She now has minimal evidence of limb weakness; she can vocalise well but tends to offer limited conversation. She is biochemically euthyroid and her hypertension, hyperlipidaemia, depression and osteoporosis are being treated with appropriate medications. During her ACAT testing her MMSE score was

15/30 and PAS score following admission to St Lawrence’s was 17 both indicating a moderate degree of dementia. She has deficits in short-term memory, with poor concentration and disorientation”.

135 Beryl was also seen by [Dr M], Consultant Physician of Cardio-Vascular

Services, Nedlands. In his letter dated 30 June 2010 addressed to [Dr C] he said:

“On examination [Mrs S] was pleasant and fully cooperative with the examination. She carried out one stage commands without difficulty but not more complex commands. She had significantly reduced speech but made some automatic sentences. With gesture she cooperated with examination. There was a systolic murmur but no evidence of cardiac failure and chest was clear. Abdomen not examined. She had a degree of right hemiparesis but not major. She could walk without assistance although slowly and with a somewhat stuttering gait.

She is apparently incontinent of urine and faeces (this has developed only since the strokes).

Conclusion – an 87 year old lady with certainly significant speech deficits and mobility impairment following strokes. She probably has some cognitive impairment associated but certainly interacted appropriately with me and my impression is that it would be very unlikely that she would be disruptive or a ‘malignant’ wanderer”.

136 The information provided by both medical professionals is not dissimilar.

Where they do differ is with respect to their assessment as to whether she would benefit from allied health involvement or her quality of life enhanced by a change in circumstances.

137 Dr C states:

“At family request I wrote a referral to [Dr H] at SCGH but he declined to see her as he felt little further would be achieved with regard to her management. I subsequently gave her daughter a referral letter to [Dr M] but I don’t know whether this has been acted on.

[Mrs S] is medically stable and I usually see her monthly for medical review. Having said that I do visit [St Lawrence’s] twice weekly and do informally greet [Mrs S] on many occasions.

I know her daughters wish the best for [Mrs S] and feel she would benefit from allied health involvement, e.g. speech pathology, physiotherapy, etc. I commend their good intentions but in my opinion given [Mrs S’s] age and her dementia any therapy is unlikely to produce worthwhile benefits”.

138 Dr M states:

“Currently [Mrs S’s] daughter and grand-daughter are concerned that [Mrs S] has a significantly reduced quality of life living at [St Lawrence’s] in a dementia-specific institution which they feel she may well not need. She is in a shared room with other patients who are described as having a much more severe cognitive impairment where privacy is difficult with visiting and they report very limited access to gardens and activities.

I agree with her family’s assessment that her quality of life is likely to be enhanced by change of circumstances if this could be arranged. She would obviously continue to require high level nursing care but in my assessment it is unlikely she would need dementia specific facility”.

139 The case for Beryl is that funds are required to enable her daughters to access and pay for additional services for her and possibly to move her to an alternative residential facility all to improve her quality of life.

140 Currently Beryl receives allied services but not frequently or on an individual basis. Such additional services would have to be paid for. Under cross examination Mrs R acknowledged that she had not to date obtained any additional services for Beryl or utilised the sum at credit of Beryl’s account for those purposes. She was firmly of the view that Charles should meet the cost of these services but she acknowledged she had not requested payment from him for that purpose. She said she and Mrs B have been prudent and wish to preserve their mother’s savings which were finite.

141 As to St Lawrence’s, Mrs R is unhappy with her mother’s residence in that facility. She believes her mother would prefer her own room and some privacy. She considers St Lawrence’s to be of a lesser standard than The McKillop Centre and Crown Care where Beryl could have her own room. Again, under cross examination she acknowledged that there were areas at St Lawrence’s which could be private and that some unfavourable photographs taken of the facility were taken shortly after the storm in Perth when furniture and other items had been moved as the facility had received some damage.

142 At the time Mrs R requested $300,000 from Charles for a bond, Beryl had been assessed as low care and her enquiries had revealed that a bond would be required for a placement in a suitable nursing home. Beryl’s third ACAT assessed her as high care and Mrs R acknowledged that a bond is not required for high care patients. However,

patients can contribute to a deeming fund and a benefit of doing so is access to a single room.

143 Put simply, Mrs R’s case is that she requires funds to enable her to improve her mother’s quality of life and provide for her future economic needs. She also believes her mother’s contributions should be recognised. In cross examination it was put very bluntly to her that hers was in fact an Inheritance Act application which she strongly denied.

144 Charles’ case as to Beryl’s needs is that they are adequately met where she is.

He relies on the report from Dr C, her treating practitioner, that she is medically stable, that additional services would not benefit her and that the current facility is comfortable and adequate for her needs. The cost of her needs are met from her pension. There is no need for him to provide additional funds to her.

145 Charles has no objection to Beryl moving to an alternative facility provided it does not cost him anything.

146 Charles is aged 86 years. He deposes that his state of health has declined since these proceedings commenced. He has become increasingly forgetful and anxious in stressful situations. He requires a carer to assist him in completing daily tasks such as shopping which he cannot complete on his own. After a fall in December 2009 Kevin has lived with him as his registered carer and intends to continue to do so until Charles can no longer live at home.

147 [Doctor R] reported on 12 January 2010 regarding Charles as follows:

“[Mr S] attended the surgery today and I examined him. In my opinion he is suffering from:

1.anxiety re the upcoming court action – no desire to have the anxiety worsened.

2.reduced mental capacity – as confused with pressure and reduced memory.

As a result wishes his son to act in his place”.

148 The property of the parties is as set out above. Charles receives the veterans’

pension from the Department of Veterans’ Affairs and a disability pension totalling

$481 per week.

149 Beryl receives a veterans’ pension from the Department of Veterans’ Affairs in the sum of $340 per week. The cost of her care is met by her pension although there is a shortfall of about $100 per week which is met from her savings.

150 As to the parties’ standard of living Mrs R seeks funds to draw upon to meet the cost of Beryl’s needs in the future to enable her to improve the quality of Beryl’s care. Charles maintains that Beryl’s standard of living is adequate. His own standard of living remains the same as during the marriage and he continues to occupy the family home which is a short distance from the St Lawrence’s facility.

151 Clearly, Beryl will remain in a residential care facility for the rest of her life. It is not known whether she will move from St Lawrence’s Nursing Home to another facility in the future.

152 It is unlikely that the costs of her care will remain static.

153 It is not known whether Charles will move from his home in the future. He deposes that he will require substantial sums for his future care if he requires hospitalisation or aged care.

154 Ultimately, he may require residential care although that is certainly not contemplated by him or those caring for him at this time. He does not wish to leave his home but should he require residential care it is likely that the family home would at that time be sold. As with Beryl, the cost of Charles’ future care is unlikely to remain static.

155 Neither party sought an adjustment to the percentage (based on contributions) as a result of the factors set out in s 75(2) of the Act. Both parties will have needs in the future and having considered the matter, I agree there should be no such adjustment.

Just and Equitable

156 As the fourth step in the process it is necessary to step back and consider whether the outcome based upon the assessment of contributions and adjustment on account of s 75(2) factors, in this case none, brings about a result which is just and equitable.

157 As a consequence of the percentage division I have arrived at the outcome is that Beryl will receive 42.5% of the assets and Charles will receive 57.5%. 7.5% of the asset pool is $119,061 although the disparity in the amounts to be received by the parties is double that amount (Phipson & Phipson [2009] Fam CAFC 28 at [39]).

158 In practical terms Beryl currently has savings totalling $61,751. 42.5% of the total asset pool of $1,587,488 is $674,682. Charles will therefore be required to pay Beryl the sum of $612,931. Charles will retain assets to a value of $912,806.

159 On behalf of Charles, it was submitted that the evidence presented on behalf of Beryl about her needs was “a wish list” for additional services and therapy and that could not justify the disproportionate detriment to him, if he had to sell his house.

160 Beryl’s entitlements were gained by her contribution during the parties’ cohabitation and she should not be deprived of them because, on Charles’ case, she does not need them. Indeed, although I do not have to be satisfied that any benefit would flow to Beryl as a consequence of my order, I am of the view that she will benefit. I accept that Mrs R and Mrs B wish to improve Beryl’s care, obtain services for her and may move her to another residential facility involving a contribution to a deeming fund. At the very least, they will have the option of doing so if funds are available.

161 I am mindful of the fact that Charles may have to sell the home although the possibility of a reverse mortgage was considered at one time. It is unlikely Charles would remain in the home in the long term, in any event. While he made a good recovery from his stroke, he requires a full time carer and he has the health difficulties to which I have referred above.

162 For Charles it was further submitted that in the event that I made an order in favour of Beryl, she should be restrained by injunction from enforcing it until after he sells the house or his death, whichever is the earlier. I do not consider that it is just and equitable for payment to Beryl to be deferred for an indefinite period, particularly when those caring for her could apply the funds to improving her care at this time. I also consider that an order which finalises the financial proceedings between the parties is one which is just and equitable.

163 As a result of the division arrived at based on my assessment of the contribution of the parties to this long marriage, the needs of both will be catered for and I am satisfied therefore that the outcome is one which is just and equitable.

THE ORDERS

164 Subject to hearing from Counsel the orders I propose to make are as follows:

1.The husband shall pay to the wife the sum of $612,931 within 60 days.

2. Contemporaneously with the payment referred to above –

(a) all of the wife’s interest, if any, in the property at [the suburban address], the personal property, bank accounts and household contents in the possession or name of the husband vest in the husband absolutely, and

(b) all of the husband’s interest, if any, in the personal property and bank accounts in the possession or name of the wife vest in the wife absolutely.

3.The costs personally paid by the wife’s Case Guardian be indemnified out of the wife’s estate.

4.There be liberty to apply in relation to the terms of and implementation of these orders.

5. The proceedings otherwise be dismissed.

I certify that the preceding [164] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary