Breaking The Unbreakable?

In a week dominated by wall to wall coverage of the flood crisis in Queensland, one could not help but feel for those who lost loved ones, homes, possessions, and livelihoods due to this epic natural disaster. It was, for me, a bit much seeing such widespread devastation on the television, then stepping outside my front door to see more of the same live in person. I had reached, for want of a better term, saturation point, and struggled to look for other news items not related to the flood crisis.

A most interesting but obscure report came from the West Australian’s Alana Buckley-Carr who reported the outcome of a case in the Family Court of Western Australia. Hers was the only account of this case that concluded late last year.  She raises an interesting question about the extent that the law can inject itself into our lives and circumstances.  The case is tragic in its circumstances on a number of levels and is not an impossible occurrence in our own or our friend’s families.

The case in question involved an elderly couple, pseudonymously named Charles and Beryl to protect their identities.  Charles, 86, and Beryl, 88,  were married for nearly 40 years and was a devoted couple. Both Charles and Beryl had children from previous marriages, and each parent in later life appointed their birth children to act as enduring powers of attorney. In December 2008, Beryl suffered a severe and incapacitating stroke requiring admission to a care facility for ongoing care and rehabilitation. Charles would visit his wife in this facility three times a week and he was satisfied that Beryl’s Department of Veterans Affairs pension was covering her accommodation and care expenses. Beryl’s daughters, her enduring powers of attorney, believed that their mother’s level of care and privacy could be higher and sought $300,000 from Charles to pay for the bond for admittance to a higher standard care facility. The money, they claimed, could be sourced by the sale of the $1.3 million matrimonial home, which was purchased by Charles in 1962, prior to the marriage. Charles, however, still lived there and did not wish to move.  The resulting impasse between their respective powers of attorney resulted in the matter being heard in the Family Court of Western Australia. The court ruled that Charles and Beryl be legally separated and that Charles pay Beryl $600,000.

On the surface, this verdict appears to be an incredible injustice where a loving couple that had no intention of separating has had their relationship status decreed by the court to be that of separated. It appears to endorse what many would claim is a cash grab on the part of some relatives who are seeking to sure up their inheritance.  Unfortunately, it is a fact of life that greed causes much division in families where estates are concerned. Sadly, some dissension starts before the testator leaves the earth. Whatever the motives are behind this case, nobody can dispute that it is very sad and not the way that either Charles or Beryl would have envisioned occurring.

Even for a black and white fundamentalist that some would say I am, this is a Biblically complex case. The presiding magistrate, Susan Duncanson, was always going to be on the prickly side of this pineapple no matter how she ruled. Let’s face it, the Family Court doesn’t have a job that wins it a lot of friends. After reading the formal judgement, I commend her on her attempt to rule with both compassion and consideration for all parties.

At the centre of the case was the question of whether the Family Court had jurisdiction to intervene in the financial arrangements of Charles and Beryl.  The Family Law Act 1975 is an extensive document that empowers the court to do just that. Clearly, at some point mediation was required to break the stalemate that had occurred between the parties and their powers of attorney.  The Public Advocate of Western Australia states that enduring powers of attorney must in the case of conflict with other stakeholders ensure“that all efforts be made to resolve the issues in the best interests of the donor and with as little disruption as possible to his or her lifestyle.” When one party is seeking the sale of the matrimonial home to free up funds to pay for health care and accommodation and the other is seeking to prevent the health costs that comes with involuntarily selling and moving from half a century of memories, each fulfilling their requirements as a power of attorney, there is very little option but to petition the court for a ruling.

From a Biblical viewpoint, there are some who would say that one shouldn’t go to court if at all possible. However, appointing an arbitrator is not an unbiblical thing.  Moses sat in judgement of the cases that people brought to him to settle their disputes, as did David. Solomon was also a dab hand as a child custody ombudsman. It is of course preferred that the mediator be a godly person, but that is not always possible.

Then there is the bits about honouring fathers and mothers, bearing the infirmities of the weak, and doing justice to the afflicted and needy that also create a stalemate in their fulfillment by the respective parties.

As for the big question, can the court legally separate two people who had no intention to part and who are still in regular contact? We need to remember that laws come from two sources, from God to man and from man to man. God’s standard is for enduring covenant relationship and a hatred of divorce. Let the Biblically literate shout “What God has joined together let no man put asunder!” But… we are not talking about divorce. We are talking about separation, and in the context of a law made by man to man.  The covenant relationship is still intact. God joined them together in holy matrimony, and before God they have not been severed. Functioning as a married couple has become extremely difficult due to the health care requirements of Beryl, but legally they are still hitched.

It is this point, however, that the court drew upon to legally separate Charles and Beryl. The Full Court of the Family Court in 1976 defined separation in part as “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.” Whilst they did not agree to separate, health reasons have caused Charles and Beryl to live in separate places, live separate lives for four days out of seven, and to interact differently on a number of levels than they did previously.  In a way, Beryl’s stroke has severed the marital relationship although the covenant remains. All that remained was for the court to arrive at an appropriate decision regarding the financial value of martimonial assets and intangible contributions to arrive at a settlement figure.

Once again, this was a sad and tragic case that some, including myself in the beginning, have speculated wrongly on. In reading the judgement, I was able to see some of the legal framework that supported the decision. I could see that the magistrate had a colossal task in cutting through the fat to get to the meat of the case. Digging below the surface revealed a different picture than that which appeared at the outset.  For me there only remains one unanswered question… how does an aged care facility justify a $300,000 bond? I’ll try to answer that another day…