M and M

[2008] FCWA 39

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: [REGIONAL CENTRE]

CITATION: M and M 2008] FCWA 9

CORAM: PENNY J

HEARD: 25, 26 & 27 JULY 2007

DELIVERED : 23 JANUARY 2008

FILE NO/S: PT 2347 of 2004

BETWEEN: M

Applicant/Wife

AND

M
Respondent/Husband

Catchwords:

Property settlement - issue as to whether wife has undisclosed assets [overseas] - initial financial contributions of husband
Children's issues - wife wants to take child [overseas] for holiday - wife allowed to take child once per year - bond $15,000 to secure her return - this to be reviewed in two years time

Legislation:

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

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms G Braddock

Respondent: Self Represented Litigant

Solicitors:

Applicant: Slee Anderson Pidgeon

Respondent: Not Applicable

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

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

1At the time these parties met the wife was an [Asian citizen] living in [a capital city] and the husband an Australian citizen, mainly resident in Perth. They first met in 1996 when the husband was in [the capital city]. They met again on two occasions during 1996 when the husband was passing through [Asia] and in November 1997, when the husband was on his way to [Europe]. While in [Europe] he proposed marriage to the wife and she accepted. They were married in July 1998 in [the capital city]. The husband and wife resided in [Asia] until they arrived in Perth in September 1998. They separated when they were living in [the South-west] in April 2003. There is one child of the marriage, [Allan], born [in] October 1999. The parties both live in [the country town] and share the care of [Allan]. Final orders were made to give effect to this arrangement in August 2005.

2The only issue relating to [Allan] which was live at trial was whether the wife should be able to take [Allan] to [Asia] on holiday to visit her family and friends. The husband opposes this and says that [Allan] should not be able to leave Australia without his consent until he is 18 years old. It is his opinion the wife will not return from [Asia] if she is allowed to leave with [Allan].

3The parties have not been able to agree on the manner in which their assets should be divided. The husband is adamant that the wife owns a number of assets in [Asia], which she has not disclosed and which have a value. The wife says she has an interest, along with her siblings, in a property in [Asia] and says she has no interest in any other property.

4It is appropriate to deal with the issue of the [Asian] property first.

[Asian] property

5The main issue between the parties relates to the extent of the wife’s property interest in [Asia]. The wife acknowledges that she and her two siblings own a property in [a resort area]. This property has been valued [in local currency] which equates to $103,890.

6The husband has visited [Asia] since the parties separated in October 2005, March 2007 and June 2007 in an attempt to establish, what he says are, the assets owned by the wife. It is his case that she has an interest in the property in which she was living when they met, a business, a car and the [a resort area] property.

7The husband has been self-represented in these proceedings. He has filed affidavits which have been very lengthy and attached numerous documents. He has found it very difficult to focus on the issues and the facts relating to this matter. He does not work and says he has devoted 15 months to the preparation of this matter for trial. He has seized on any information he could find to attempt to prove that the wife has lied about any number of matters, including her property in [Asia]. An example of this is a translation he received of a document dated 27 May 1998, where the wife applied to a government agency in [Asia] for a document to prove her marital status. She needed this document to register her marriage with a foreigner. The certification on the document was as follows:

“This office has examined [Ms S], the individual witnesses, as well as the evidence in registering the marriage at the Registration Office of [the local] District. It is shown that [Ms S] never registered the marriage with anyone at this office before. So this certificate is issued and can be applied as a reference.”

8Clearly this document was saying, in not perfect English, that there was no registration of a previous marriage for the wife at that office. The husband was receiving some legal advice from a practitioner [locally]. In relation to the above document he wrote to that solicitor:

“I finally read the attached document, thoroughly…3 times… and from where I stand, it seems that [Ms S] was previously married – a [religious] marriage.. legal in [Asia]… but the marriage was not registered as was our marriage…”

9It is obvious that the husband is desperate to interpret any document he sees in a manner which he perceives is advantageous to himself. I will now deal with the assets, the existence of which are in dispute.

The business

10The wife’s evidence was that she was a partner in a business known as [HESS] Limited Partnership in 1997. The wife says that to the best of her knowledge her interest in the partnership had no value at the time of the marriage and the company has since been de-registered. Documents obtained by the wife show that on 9 July 2003 a notice was issued cancelling the limited partnership registration on the basis that the business had ceased operations in the year 2003. The wife says the circumstances in which she became a partner are as follows.

11The law in [Asia] at the time she became a partner in the business prevented foreigners having complete ownership of a business. The wife was working as a casual bookkeeper for [SKC] and her employer, [Mrs C] was the wife of the Managing Director, [Mr C], who was not [Asian]. [Mr C] wished to start up the partnership. Another partner was to be a man the wife had never met called [Mr T]. [Mr C] needed a [Asian] citizen to be another partner. The wife agreed that her name could be put forward as a third partner without having to contribute any funds so that the partnership could be registered. The wife says that to her knowledge the company never traded. She left [Asia] for Australia in September the following year. The wife says that she has never signed any tax returns or any documents in relation to the partnership, and she has never received an income from it. The wife says when she returned to [Asia] in January 2006 she tried to find [Mr C] to obtain some evidence from him for the Family Court, but she was unable to find him.

12The husband has obtained a letter of certification showing that the partnership was registered in accordance with the Civil and Commercial Law. The three partners are as stated by the wife. This document shows that they each invested capital and that the wife invested [some local currency]. This is approximately A$10,570. The husband has supplied documents which indicate that the partnership was de-registered in July 2004 for failing to provide yearly profit and loss statements. It appears this date is the correct one, not 2003.

13The wife was cross-examined about these issues. I accepted her evidence that she did not invest any money, although the documents show otherwise, and she has no interest in the partnership, nor has she received any income from it.

The car

14In 1997, before her marriage, the wife purchased a [motor vehicle], [in local currency] or A$5,387. The wife purchased this motor vehicle by paying a deposit of and repaying a loan [monthly]. The wife says that when she knew she was leaving for Australia, she gave the [motor vehicle] and its accompanying debt to her sister. She says her equity in the vehicle at that time would not have been more than A$2,000. In evidence she stated her sister did not pay her for the motor vehicle because she had no money. It appears that [her sister] was unable to maintain the payments of the car, and the car was then transferred to her sister-in-law, [Ms A]. I am satisfied the wife has no interest in this vehicle. The husband was aware that the wife left the car in [Asia] when the parties left for Australia in 1998.

Leased premises - [the capital city]

15The wife was residing in this property when she and the husband met. The wife says she had the right to live in the property and pay rent to the local government. She says that when she left the house, her sister resided in it. She says that she received no funds for the sale of the lease and, in fact, did not sell it. The husband's case is that she sold the lease, however, there is no proof that this occurred.

16In my opinion, the only asset in [Asia] owned by the wife is her interest in the property at [a resort area]. The wife’s counsel states that this sum should not be included as an asset of the parties, or of the wife, as the wife only has a third interest in it and her siblings, in particular her brother, do not wish to sell the property. The wife’s counsel says it should be treated as a resource. In my view, even though the wife has a minority shareholding, the property has value and should be included as an asset owned by her.

The law

17The 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:

•identify the value of the assets and liabilities of the parties;

•consider the contributions made by the parties within paragraph (a) to (c) of s 79(4);

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

•consider whether the order proposed is just and equitable.

Assets and liabilities of the parties

Assets:

House [in the South-west] $440,000

Wife’s one third interest in land at [a resort area], [Asia] 34,455

Wife’s [motor vehicle] 1,000

Wife’s furniture and contents 1,000

Husband’s furniture and contents 5,000

$481,455

Liabilities:

University Credit Society mortgage 61,689

Husband’s student financial supplement 15,189

Husband’s legal fees to Howard Evans 6,215

83,093

Total assets: $398,362

Wife’s superannuation $7,623

Contributions

Financial contributions

18At the time the parties married, the husband was the owner of a unit at [an address in the Perth suburbs, and a property [at an address in the South-west]. The wife was the owner of [a property in the resort area]. The husband says the unit at the time of marriage was valued at approximately $75,000, and the [South-west] property was valued at approximately $180,000. There was owing on the properties approximately $135,000.

19The [suburban] unit was sold in 2001 for $93,000. The sum of $65,000 from the sale proceeds was paid to partly discharge the mortgage and approximately $50,718 was then owing, secured over the [South-west] property. The sum of $7,121 was paid to Dwyer Durack to discharge the husband's liability to them in relation to legal fees incurred on his behalf.

20During the course of the marriage both parties, when in Australia, were in receipt of Social Security benefits. The husband received a variety of benefits, including New Start, Carer’s Allowance and Austudy. It is common ground that he never attempted to work during the course of the relationship, except for 2 days as [a teacher] in [a nearby town] and some work as a [sporting umpire]. The wife says that on the insistence of the husband, she did obtain work. She firstly worked in Perth at a restaurant, and after the parties moved to [the South-west], she obtained work as a fruit picker and then in the [wine] industry. She has continued to work in that occupation since the parties separated.

21The only income the husband has earned has been from [refereeing] games and working on a very casual basis for a friend.

22The husband is trained as [a teacher]. He says he sought work as [a teacher], but he cannot gain employment because of an allegation of misconduct by him [quite some time ago]. He says that he has spoken to a representative of an organisation who have stated that they may take on his case and he may take legal action to clear his name. He says he may be entitled to damages as a result of the fact that he has not been able to obtain work as [a teacher].

23The husband has been involved in litigation in a number of different forums. There was a dispute between he and his brother in relation to possession of his mother’s residence. The Public Trustee eventually became the Administrator of his mother’s affairs. The husband says he was forced to sell the [suburban] unit because he owed Dwyer Durack fees in relation to the dispute involving his mother’s estate, the Public Trustee and his brother. The husband says he intended to wait for 18 months and then continue this litigation to get back the fees he had to incur because of his brother’s alleged fraud.

24The husband, during the course of the marriage, was also sued by a neighbour for a debt. After a hearing, the husband was ordered to pay in excess of $900. The wife says that eventually this debt was paid by her.

25The husband rented the [South-west] property while the parties were living in Perth. There were difficulties with the tenants and they ceased paying rent. He commenced proceedings in relation to the debt. He has incurred fees in excess of $6,000 to Mr Evans, a solicitor. He says there is no arrangement currently to pay Mr Evans and nothing is happening in relation to that piece of litigation until he gets paid and then it will continue.

26The husband brought proceedings in the [Asian] court seeking a divorce from the wife. The parties had already obtained a divorce in Australia. The husband says it was necessary to do this to obtain information about the wife’s financial position in [Asia]. The wife’s address on the court document was given as the address in [Asia] at which she was living in 1998. The court document was, therefore, served at that address and her sister became aware of it. The wife appointed lawyers to act for her in [Asia] and sought to have the application adjourned. The husband was very unhappy about this.

27The husband has been happy to rely on any type of Social Security Benefit to which he became entitled, and has shown no real desire or effort to obtain employment. The husband says one of the limitations in this regard is the fact that he has care of the [son Allan]. The parties share the care of [Allan], and despite this, the wife still manages to work 30 hours per week as an [assistant in the winery].

28I am satisfied the husband’s ability to earn has been affected by his involvement in legal proceedings, which have also resulted in the parties incurring legal costs which, in the case of the dispute with the tenants, have been incurred for no return.

29There is no doubt that the husband's financial contribution has been greater than the wife’s. The major asset now owned by the husband, being the [South-west] property, was owned by him at the time of the marriage. The funds from the sale of the [suburban unit], also owned by the husband at the time of marriage, assisted in the reduction of the mortgage on the [South-west] property.

30The husband paid $6,000 for a car, which was used by the wife during the course of the marriage for her employment. It appears that these funds were accumulated during the course of the marriage from Social Security entitlements, and the wife’s income.

31During the course of the marriage, I am satisfied the parties made an equal financial contribution to the accumulation and maintenance of their assets.

Non-financial contributions

32In his chronology, the husband indicates that between July and September 2001 he was responsible for repairing and renovating the [South-west] house. He says at that time he spent $10,000 in repairs. These funds were raised by increasing the mortgage. It appears that after the parties separated he did not maintain the property and there are problems with it. One of the reasons he gave for not completing the repairs was his necessity to concentrate on this litigation.

Contributions to the welfare of the family

33The husband claims that after the birth of [Allan] he was the primary care-giver for him. The wife says that this is not true and that the husband was frequently away from the home with his study or working on his court cases. In addition, the husband was his mother’s carer from 24 December 1998 until his mother was hospitalised in May 2000.

34Shortly before [Allan] was born, the wife’s niece came from [Asia] to assist the wife with housework and with the care of [Allan]. From a perusal of the husband's chronology, it appears that from January 2000 the husband was spending significant time defending claims by his brother and dealing with the issue of “a new will”. Later in 2000, the husband commenced legal proceedings in relation to the tenants at [the South-west property].

35During 2000 and 2001 the husband was completing [further studies at university and another college], as well as being involved with pieces of litigation mentioned and caring for his mother.

36In October 2002 the parties moved to [the South-west]. The husband then, as he describes it, “assisted the applicant (wife) in her desire to find work…” The next month the wife commenced work at [the business] in which she is still employed. The husband accepts that from November 2002 onwards [Allan] was enrolled at a child care centre in [the South-west]. He confirmed that the wife would take [Allan] to child care on her way to work in the morning and would collect him on the way home. The husband confirmed that on occasions he, too, took [Allan] to the child care centre.

37I am satisfied that up until the time the parties separated that they were both responsible for the care of [Allan]. I am satisfied that when the wife was working, the child was mainly at child care. I am also satisfied that the husband was involved in lengthy pieces of litigation, study and caring for his mother and his ability to make contributions to the welfare of the family were limited as a result of this.

38Post-separation, the child, [Allan], mainly lived with the husband from April 2003. The wife, however, went to the house and assisted the husband with his care. Thereafter, the wife spent time with [Allan] when suitable to the husband. In August 2005, final orders were made that [Allan] would spend time with the parties on a two week rotational basis, in the first week from 8.00 am Monday to 8.00 am Friday with the husband, and from 8.00 am Friday to 8.00 am Monday with the wife, and for the second week from 8.00 am Monday with the husband to 8.00 am Thursday, and with the wife from 8.00 am Thursday to 8.00 am Monday. This arrangement has continued to trial.

39The wife pays to the husband a modest sum by way of child support.

Conclusions on contributions

40The husband came into the marriage with the property at [a Perth suburban address] valued at $75,000, the [South-west] property valued at approximately $180,000, with mortgage over these properties of $135,000. His net assets were $120,000. Any assets the wife had, aside from her interest in the [property in the resort area], were left in [Asia] and now have no value to her.

41The marriage was a short one and the parties have both benefited from the fact that the property [in the South-west] has increased in value. It appears that some renovations were completed by the husband, but it has not been properly maintained since separation. I am satisfied that contributions by the parties during the marriage were equal.

42In my view, there should be an apportionment of the assets taking into account contributions alone of 70% to the husband and 30% to the wife.

Section 75(2) factors

43The husband is aged 57 and is in good health. The wife is aged 45 years, and suffers from Hepatitis C. She was first diagnosed with this disease in 1998, shortly after arriving in Australia from [Asia]. The husband had suffered from Hepatitis C in the early 1990s. The wife was reviewed by [Dr W], a gastroenterologist in February and May 2007. Her opinion was that the wife required 48 weeks of treatment with a combination of therapies. There are some side effects from the treatment, including flu like symptoms, depression and mood changes. She stated that the wife would be able to continue with her employment, but there may be days she does not feel like working. It was her opinion that if the wife did not undertake the treatment, there was up to a 20% chance she would develop severe liver disease.

44The parties continue to share the care of [Allan] equally. The wife currently works 30 hours per week as a [winery assistant] and earns approximately $525 per week. She is also in receipt of family tax benefits and rent assistance. She is currently renting accommodation from a friend, [Kim]. [Kim] has paid out her car loan debt and she is repaying him in instalments.

45In [Asia] the wife had a good job working in an administrative position. She says she is unlikely to be able to obtain this type of employment without better skills in the English language, and without undertaking further studies.

46The husband has the qualifications which will enable him to work, but he shows little or no motivation to do so. Because of this his financial position is unlikely to change in the future, whereas the wife is far more motivated to work and to make a better life for herself and [Allan].

47In my view, there should be no allowance for either party to take into account s 75(2) factors. I am aware of the fact that the husband will have a greater share of the assets as a result of my findings in relation to contributions, but I am not satisfied that this factor alone is sufficient to justify an order in favour of the wife.

Just and equitable

48As a result of my judgment, the wife will retain 30% of the assets of the parties, which amounts to $119,508. The assets retained by her are as follows:

Property at [a resort area], [Asia] $34,455

[Motor vehicle] 1,000

Furniture and contents 1,000

$36,455

49The husband will have to pay to the wife $83,053 to effect a settlement in terms of my judgment.

50I do not know whether the husband intends to raise these funds by way of a loan, or the property in [the South-west] will have to be sold. I will hear from the husband in relation to this issue before making final orders.

Wife’s ability to travel to [Asia] with [Allan]

51The wife seeks orders that the husband's time with [Allan] be suspended for a period of four weeks each year to enable her to take [Allan] on holidays to [Asia] to visit her family. She proposes to give the husband 30 days notice in writing of her intention to take [Allan] overseas, and to provide him with an itinerary. In her affidavit she suggests that she puts up the sum of $5,000 as a bond to ensure her return.

52The wife’s case is that [Allan] would benefit from a period in [Asia] each year with her family members in order that he may establish a relationship with them, and to better understand his cultural background. The husband says there is no need for [Allan] to travel to [Asia] and it is his view the wife has no ties in this country and she is unlikely to return once out of this jurisdiction.

53The wife says that she is well established in [the South-west], renting a property from [Kim]. She enjoys her employment. She says she intends to apply for Australian Citizenship. The wife has returned to [Asia] on two occasions since the parties separated, but was unable to take [Allan] on each occasion.

54The husband does not suggest that the arrangements which the wife would make for [Allan] and the environment in which he would reside during a holiday in [Asia] would be inappropriate. His sole objection to the holiday appears to be the fact that [Allan] may not be returned.

55In my view, there are significant benefits which could accrue to [Allan] in being able to travel to [Asia]. Currently he lives in Australia and spends half his time with his Australian father. Apart from spending time with his mother, he has limited exposure to his [Asian] cultural background. In my opinion, however, a holiday for a period each year of four weeks is too long. [Allan] has been cared for both of his parents since his birth. On the evidence, it appears he has not been separated from his father for lengthy periods. In my opinion, a holiday for a period of two weeks would be appropriate, at least for the next two years.

56To some extent I share the husband's concerns about whether the wife will return. It is now nine years since the wife has lived in [Asia]. She has job in [the South-west] she enjoys, but no other ties to Australia. In [Asia] she has family and the [a resort area] property. As a result of my judgment in relation to property matters the wife will receive a cash payment of $83,053. In my view, the sum of $5,000 as proposed by her by way of a bond to ensure her return is not sufficient. There should be a sum put aside by her sufficient to ensure her return. Should the wife wish to take [Allan] to [Asia], she will need to place in a joint account in the name of herself and the husband the sum of $15,000.

57Upon [Allan]’s return from [Asia], the wife is to return the child’s passport to the Family Court. Upon the husband receiving proof that the passport has been returned, the $15,000 held in the joint account, together with any interest thereon, is to be returned to the wife. The sum is to be deposited again on any subsequent occasions the wife wishes to leave Australia with [Allan]. This arrangement is to be reviewed after two years.

58If the husband will not sign the necessary documents for the wife to be able to obtain a passport for [Allan], then a Registrar of the Family Court of Western Australia will be given permission to sign the necessary documents.

I certify that the preceding [58] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate