P and L

[2009] FCWA 145

[2009] FCWA 145

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	P and L [2009] FCWA 145
CORAM	:	MONCRIEFF J
HEARD	:	19 & 20 OCTOBER 2009
DELIVERED	:	6 NOVEMBER 2009
FILE NO/S	:	PTW 740 of 2009
BETWEEN	:	P
Applicant
AND
L Respondent
Catchwords:

FAMILY LAW - Jurisdiction - short de facto relationship - non disclosure

PROPERTY - contribution - future needs

Legislation:

Family Court Act 1997 Part 5A

Interpretation Act 1984 s 13A(2)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M Berry
Respondent	:	Mr P Mugliston

Solicitors:

Applicant	:	O'Sullivan Davies
Respondent	:	Patrick Legal

[2009] FCWA 145

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

Marsh and Gowland (2006) FCWA 1
Weir and Weir (1993) FLC 92-338

[2009] FCWA 145

1 The parties in this case were in a relationship between May 2003 and October

2008, however they are unable to agree as to the nature of that relationship, namely, whether it was a de facto relationship for the purposes of Part 5A of the Family Court Act 1997.

2 [Mr P] says that the parties were in a de facto relationship and [Ms L] says they

were not.

3 Mr P seeks orders pursuant to Part 5A for a settlement of property in his favour.

Ms L says that the Court has no jurisdiction as the parties were not in the requisite relationship. Ms L says that she was nothing more than Mr P’s carer during the course of their relationship.

4 I must therefore determine, firstly, whether I have jurisdiction to make any

orders under Part 5A and secondly, if I am satisfied that I have jurisdiction, what
orders represent a just and equitable division of property between the two parties.

Background

5 Mr P was born in [Europe] [in] August 1924 and at the time of trial was 85 years

of age. He has lived in Australia since he was 13 years of age and was previously married and then divorced. He has two children, both adults, of that relationship, [Joanna B] and [Louise F].

6 Ms L was born on 18 September 1963 in Asia and came to Australia in

November 1992. She was married in 1992 and there is one child of the marriage, namely [Chelsea L] born [in] February 1993. Chelsea was 16½ at the time of the trial. Ms L also has a son [Mitchell] from another relationship. Mitchell is 22 years of age.

7 The parties met at a bar in [the suburbs] some time in the year 2000. Ms L says

that at that time Mr P asked for her telephone number, but even if it was given, there was no contact between the parties until they happened to meet again in or about May or June of 2003.

8 Ms L says that she remembers the encounter because at the second meeting in 2003 she says that Mr P offered her $1,000 if she would “show him her tits”.

9 The parties formed a relationship in 2003 and also commenced a sexual

relationship together, although it would appear that the sexual relationship did not continue for a long period of time and certainly ceased when Mr P commenced to suffer from prostate cancer.

10 On 15 August 2003 the parties travelled together to Asia, returning on

13 September 2003. Later that year, on 4 November, they travelled to Asia again, returning after approximately three weeks. The purpose of the visits, at least in part, was, as Ms L put it for Mr P “to meet my family”.

11 Between 2003 and March 2006, the parties socialised together and would see each other at least two to three times a week.

[2009] FCWA 145

12 In March 2006 Mr P moved into the home owned by Ms L. The parties shared a

bedroom and continued to do so until shortly prior to their separation on 6 October
2008.

The evidence

13 Mr P relied on an extensive affidavit he had filed in July 2009. Evidence was

also received from his witnesses, his daughters, two of his friends, [Mr S] and [Mr B], his general practitioner, [Dr S], and his bank manager, [Mr F], who had not filed an affidavit and appeared under subpoena.

14 At the time of the trial Mr P was being cared for by his daughter Joanna in

[another state]. His daughter Louise resides in [the Eastern states] and Dr S conducts his practice in [a country town]. A request had been made for Mr P, his daughters and doctor to appear at the trial electronically. Video facilities were not available at the time of the trial and accordingly Mr P, his daughters and doctor were available to be cross-examined by telephone.

15 Dr S gave his evidence prior to Mr P being cross-examined as there was a very

real and genuinely held concern that Mr P might not be capable of answering any questions in cross-examination. Mr P has some very serious health issues, in particular, advanced prostate cancer. This has led to periods of clinical depression with additional underlying physical difficulties faced by Mr P as a result of an old knee injury and severe gouty arthritis in both feet and ankles.

16 In a report prepared for these proceedings on 19 July 2009, Dr S expressed

concern as to whether or not Mr P would be able to attend the court and be able to
answer questions pertaining to the matter.

17 It was agreed between counsel that the best approach to Mr P’s evidence was to

contact him and “see how it went” in terms of Mr P’s ability to answer questions and
participate in the proceedings.

18 Whilst receiving evidence by telephone is probably the most difficult way of

making an assessment of a party, in this case I found it to be without difficulty. Mr P presented as alert, aware and fully able to answer the questions that were put to him by counsel. He made appropriate concessions against his interests and in my assessment was open, frank, spontaneous and overall very impressive.

19 Dr S also particularly impressed me, for although his evidence was largely

clinical by nature, he was appropriately cautious in terms of making assessments about Mr P’s condition subsequent to August 2009, when he had last seen him and referred him for specialist treatment in Perth. He also presented as an individual with a genuine concern for his patient. His evidence was also most helpful about the level of future care that Mr P would need for the balance of what is going to clearly be a shortened life span.

20 The remainder of Mr P’s witnesses all, in my finding, presented their evidence

fairly and were not shaken in cross-examination. I accept the truth of their evidence and although Mr P’s daughters quite clearly had a significant degree of animosity

[2009] FCWA 145

towards Ms L, I accept that they tried to be fair in their evidence and made appropriate
concessions when cross-examined.

21 At the commencement of the trial I was called upon to consider an Application

in a Case that had been filed late on Friday, 16 October 2009, that is to say the very last business day before the commencement of the trial. The application sought leave to adduce evidence at the trial from Chelsea, Ms L’s daughter. An affidavit had in fact been filed by her prior to the filing of the application.

22 Additionally, at trial, leave was also sought to rely on an affidavit of one

[Mr M], a next door neighbour of Ms L and Mr P. For the reasons I gave at the commencement of the trial after hearing from counsel, I refused to grant leave to adduce evidence from Chelsea and refused leave to file the affidavit of Mr M. What is curious about the filing of the affidavit of Chelsea, notwithstanding the fact that it was filed in breach of the Family Law Rules 2004 and the Family Court Act 1997, is that no affidavit was filed by Ms L’s son Mitchell, who resided in the home with the parties for the time they lived together. Mitchell is an adult and was a competent witness whose affidavit could have been filed without leave. Ultimately, it was only Ms L who gave evidence in her case at trial.

23 Ms L’s presentation at trial was amongst the most unusual I have ever had cause

to witness. In his closing, Mr Berry of Counsel for Mr P, described her conduct in the witness box (and indeed throughout the trial) as being a presentation of “histrionics and theatrics without parallel, with demeanour and conduct that was distracting and contrived”. I entirely agree with Mr Berry’s assessment other than to observe that he understates Ms L’s presentation. Throughout the trial and whilst seated in the body of the court behind her counsel Ms L made faces at the witnesses present in court, made exaggerated gestures of disbelief, then dissolved into near hysterical sobbing, although with entirely dry eyes.

24 Putting aside her extraordinary and extreme physical presentation, her evidence

itself was entirely unsatisfactory. I formed the view that during the course of her evidence wherever Ms L perceived that she could take an advantage, she would take it without any regard for the truth of the statements being made. Particular examples were her statements about the first meeting with Mr P where she alleged that he made her the offer of $1,000 to “show him her tits”, her claim that the parties had sexual intercourse three times during the year 2003 and on each occasion it was not consensual, and further that Mr P had given cheques to Mr B. None of these propositions were put to Mr P, or Mr B, in cross-examination, not through any inadequacy on behalf of Ms L’s counsel, but I have no doubt because they were made up during the course of her evidence.

25 Also, Mr Berry asked questions of Ms L about a memorial registered on the

[particular] property’s Certificate of Title by the Legal Aid Commission. Ms L, for reasons that are not clear, chose to represent that the memorial was securing some $40,000 that had been paid in legal fees. She was given more than one opportunity to clarify her understanding of the amount and confirmed that the amount was $40,000. A copy of the memorial was produced to Ms L which indicated the charge against the property was $1,500. My impression of Ms L was that she perceived there was some advantage in exaggerating the figure.

[2009] FCWA 145

26 These examples are typical of her conduct in her evidence. She was not

forthright with her answers, she was evasive and appeared to deliberately confuse her answers. The only statement she was able to make clearly and, it would seem, at every available opportunity was “he gave me the money it’s my money”.

27 Wherever there is a conflict between the evidence of Ms L and any other witness in these proceedings I prefer the evidence of the other witness.

Disclosure

28 Ms L disclosed only two documents for the purpose of these proceedings. They

were a copy of her passport and bank statements for one account with the National
Australia Bank for the period between 16 January 2004 and 11 February 2009.

29 On 11 February 2009 her bank account with the National Australia Bank was in

debit to the extent of $125.93. During the course of her evidence Ms L acknowledged that she had purchased a second-hand Holden Motor vehicle for $19,000 in April 2009. She was unable to identify the source of funds. She did acknowledge that she had continued to receive bank statements from the National Australia Bank and that they had not been produced.

30 She said her current bank balance was “about $3,000”.

31 She further said that she is presently not in receipt of government benefits

because she has not been able to satisfy the requirements for Centrelink that she
actively seek work and thereby be eligible for Newstart.

32 In her Statement of Financial Circumstances filed on 24 April 2009 Ms L

discloses her entire income to be $6.50 per week being payment of her child support for Chelsea. She discloses the Holden motor vehicle at $19,000 as being property held by her and household contents of $10,000. By way of real estate she identifies the property at [ an address in the northern suburbs]. She discloses no other real estate and describes her funds in banks, building societies, credit unions or other financial institutions as “nominal”.

33 Ms L, it would seem, overlooked the inclusion in her Statement of Financial

Circumstances of land that she acquired in[her home country] with funds she had received from Mr P.

34 Ms L claimed, in addition to funds received during the relationship from Mr P,

to have received cheques from the Child Support Agency. No disclosure was given by her of any documents supporting her claims about receiving cheques from the Child Support Agency, nothing was disclosed relevant to the holding of or acquisition of the land in Asia, or its value, bank statements were not disclosed, nor the source of funds for the acquisition of her motor vehicle.

35 Ms L did suggest that she had received some monies from an insurance claim, however no documents were produced in support of this claim nor disclosed.

[2009] FCWA 145

36 In her Papers for the Judge prepared by her counsel Ms L nominated that she had

$20,000 worth of jewellery. In her evidence she changed the value of the jewellery to
$10,000. No evidence of value was proffered nor was any disclosed.

37 Notwithstanding the almost complete want of disclosure, Ms L signed an undertaking as to disclosure which was filed on the second day of the trial.

38 In the circumstances it is almost impossible to rely on any representation made by Ms L as to her current financial circumstances or property that she owns.

Was there a relationship between the parties that is a de facto relationship?

39 Section 13A(2) of the Interpretation Act 1984 sets out a list of factors that are indicators of whether or not a de facto relationship exists between two persons. The section emphasises that the factors are indicators, but that they are not essential. They are:

(a)	the length of the relationship between them;
(b)	whether the two persons have resided together;
(c)	the nature and extent of common residence;
(d)	whether there is, or has been, a sexual relationship between them;
(e)	the degree of financial dependence or interdependence and any arrangements for financial support between them;
(f)	the ownership, use and acquisition of their property (including property they own individually);
(g)	the degree of mutual commitment by them to a shared life;
(h)	whether they care for and support children;

(i) the reputation, and public aspects, of the relationship between them.

40 Ms L represented that her relationship with Mr P was that of “carer”. Her

counsel and Ms L used that expression as a “term of art” and Mr Mugliston, for Ms L, properly and fairly conceded that when in his cross-examination Mr P used the expression “carer” he was not using the expression as a term of art, but rather acknowledging the fact that Ms L did care for him in the broader and common usage of the word.

41 The parties were in a relationship from mid 2003. There was a limited sexual

relationship between the parties. I reject the suggestion made by Ms L in her evidence that the sexual relationship was non consensual, particularly given the time period in which she says the sexual relationship between the parties ended, namely, the end of 2003, nearly 2½ years prior to their commencing cohabitation.

[2009] FCWA 145

42 Mr P’s evidence is that the parties’ socialised together, went out together and

whilst I accept there were aspects of the parties’ relationship that were volatile, I accept the relationship continued throughout that period and ultimately was strengthened by the parties commencing to reside together at the home owned by Ms L.

43 The existence of a sexual relationship between two persons is not conclusive

evidence of a de facto relationship as observed by Thackray J, as he then was, in
Marsh and Gowland (2006) FCWA 1 at 38(c):

“The fact this middle age couple had an active sex life is not a strong indication of the existence of a de facto marriage. In modern Western society, regular sexual intercourse is far from being the preserve of those living in marriages or marriage-like relationships. It is a common element of boyfriend/girlfriend relationships and, in fact, is common amongst those in no relationship at all.”

44 I respectfully agree with his Honour’s observations and, in any event, it is

common ground that the sexual aspect of the parties’ relationship came to an end when
Mr P was diagnosed with advanced prostate cancer.

45 In late 2005 Mr P resolved to sell the home in which he was residing, and which

he owned, at [the beach]. In his affidavit he says that he was persuaded to sell his house by Ms L’s statement to him to the effect that “you buy half of my house and move in with me”. Mr P goes on to say that he did consider purchasing another house in [the same suburb] Rocks but Ms L said to him “no, move in with me, better not to pay double everything. It will be cheaper for us if you move in with me”.

46 Of the period between 2003 and their cohabitation in March 2006, Mr P’s

evidence is that the parties were in each other’s company more often than not. In
paragraph 25 of his affidavit of evidence in chief he swears the following:

“I love [Ms L] and told her many times that I loved her. She did not say to me that she considered herself to be my friend and carer. She and I were physically lovers at times until I got cancer. We continued our relationship after the sex stopped – not having sex didn’t change anything between us. It was because I trusted that our relationship was serious and would continue that I handed over all of my money to her. If [Ms L] had once told me that she was only my friend and carer and that my love for her was unwelcome, I would have not have given her my money. She led me to believe that she accepted my love and was in a committed marriage- like relationship with me by making statements to me such as “we will share my house” and “what will happen to me when you die?”

47 Mr P also notes that Ms L introduced him to other people as “my boyfriend”,

“my love” or “my old man” and that he referred to her as “my love” and “my [girl”. Ms L said in her cross-examination that whilst she denied referring to Mr P as her boyfriend or love, she did refer to him as “lovey dovey” and “my old man”.

[2009] FCWA 145

48 Mr P moved into Ms L’s property at [the northern suburbs] in March 2006. The

parties slept in the same bedroom and in the same bed until shortly before the cessation of their relationship, a fact that Ms L confirmed in proceedings after the separation. Mr P acknowledged that there were times when Ms L was cross with him and she would put pillows “down the middle of the bed between us”.

49 I also accept Mr P’s evidence that Ms L asked him to marry her and that he paid over $4,000 for a diamond engagement ring from [a jewellers].

50 Perhaps the most telling evidence of the view that Ms L held of this relationship

was that which she gave to [the Magistrate] in proceedings in the [local] Magistrates’ Court on 13 October 2008, a week after the parties’ separation. In answer to questions from his Honour in her evidence in chief Ms L responded as follows:

“Question:	So you moved in together 2 years ago?
Answer:	Yes.
Question:	You were living as man and wife basically?
Answer:	Actually, something like that.
Question:	Something like man and wife okay?
Answer:	Something like that.”

51 His Honour then asked Ms L why she needed a violence restraining order, to which she responded:

“A violence restraining order from the start to the daughter”.

“His Honour:	Why what has she done?
Answer:	Because I think that 3 years ago when my partner (my emphasis) was very sick and that’s how we found out that he got the cancer at the hospital, I look after him for 6 months that time and 3 years ago in October when he come and visit, the father, which is I pick her up at the airport and the next day he come and fight with me.”

52 In the following two pages of the evidence given by Ms L in chief and in answer

to his Honour she refers to Mr P as “my partner (my emphasis) ” – “I never realised that my partner (my emphasis) had already bring it outside” (sic), referring to Mr P. Probably the most telling reference was in answer to a question by his Honour:

“Why are you afraid of him if you are?

Because my partner, since we been together, I used to like when he asked me to stop working and then I let him, I tried to I just when he asked me to stop working in [the suburbs] and because he gives me money and (indistinct) every year, okay I give it a go maybe he’ll support me.”

[2009] FCWA 145

and further “I know he loves me so much”.

Financial dependence and support between the parties

53 The applicant opened his case on the basis that he had provided cheques to the

respondent to a total net amount of $337,800.55. The actual total amount furnished was in excess of $443,000, however, $50,000 worth of cheques had been returned by the bank when two cheques in the sum of $20,000 and $30,000 were presented for payment, however Mr P had not transferred funds from his investments to cover the cheques. There was also a further $6,000 where it was identified that Mr P had received a benefit.

54 In a most comprehensive schedule attached to correspondence from O’Sullivan

Davies to Patrick Legal on 28 May 2009, which was received into evidence, Mr P had listed cheque deposits amounting to $388,034.40 paid to Ms L, a further $53,771.39 in cash deposits paid into her accounts and cash withdrawals from Ms L’s account, excluding withdrawals from which Mr P derived a benefit and the returned cheques, totalling $387,569.65 of which $61,635.65 was withdrawn in Asia.

55 Ms L’s bank statements were introduced into evidence for the period between

16 January 2004 and 22 February 2009. The only deposits to Ms L’s account, other than monies received from Mr P and Centrelink benefits (to which she was probably not entitled subsequent to cohabitation), were cheque deposits on 19 June 2008 of $38.97, and fortnightly payments of $50 from [the local] “Medical Centre” until May 2005, which would coincide with Ms L’s evidence that she was undertaking some cleaning work at the medical centre, which she ceased in about May 2005.

56 Not only was the global extent of the payments made for the benefit of Ms L

significant, but also there were significant individual payments, for example, the sum of $175,000, paid on 6 September 2006 to enable Ms L to discharge the mortgage on her property. The undisputed evidence is that, of the payments made by Mr P to Ms L, she also used about $60,000 to discharge other debt.

57 During the period of the parties’ cohabitation Mr P also made some withdrawals from his accounts for his own benefit.

58 I find that there was a significant financial support given to Ms L by Mr P throughout their relationship. However, subsequent to cohabitation in March 2006, the level of support increased significantly with the size of cheque and cash deposits growing, from being no greater than $1,000, with one exception of $1,500 in August 2004, to substantial amounts, for example:

• 6 September 2006 - $175,000 (to which I have referred)

• 20 April 2007 - $50,000

• 29 June 2007 - $20,000

• 9 June 2008 - $15,000

• 3 October 2008 - $35,762.82

[2009] FCWA 145

59 The extent of the cash payments also increased significantly from being always

less than $1,000 pre cohabitation to a maximum of $32,000 on 14 May 2007 post
cohabitation.

The degree of mutual commitment by the parties to a shared life and the reputation and public aspects of the relationship between them

60 I deal with these two factors together as they are interlinked and to some extent, cover the same evidence.

61 There is no doubt that the parties were in a relationship prior to cohabitation

which involved them frequently visiting each other and being in each other’s
company.

62 At the time that Mr P moved into Ms L’s home he had sold his property and had contemplated purchasing another property, to which I have already referred.

63 He did not immediately pay off the mortgage on Ms L’s home, which was done

some six months later. That later payment is, in my finding, consistent with his assertion that the parties were committed to a shared life as there was a perceptible mutual benefit in Mr P paying off the mortgage as there would be a lessening of expenses to be borne by the household.

64 During the period prior, and subsequent to their cohabitation they were observed

to be physically affectionate towards each other, although I accept there were certainly
periods of volatility in their relationship.

65 [Mr S] gave evidence of his meeting Ms L in Mr P’s company. He expressed

concern to his friend about him giving money to Ms L, although the time that that expression was made was prior to the parties’ cohabitation and the amounts were significantly less than those provided subsequent to cohabitation as I have found.

66 Mr S gave evidence that he would visit Mr P at the parties’ home and how he

observed that the parties shared a bed and, indeed, that he frequently sat on the bed to
talk to Mr P and Ms L would sit in the room with them during their social exchanges.

67 Mr S was aware of some periods of disharmony between the parties, but

otherwise he said they generally got on and that he did not himself observe any animosity between the parties. Mr S was aware that Ms L would give him food, drive Mr P around and otherwise observed them in what appeared to be a normal relationship as a couple. He referred to the fact that Mr P referred to Ms L as “his girl” and that she referred to him as “my love”.

68 Whilst Mr S f rmed the view “in the end” that she may have only been after his

money, certainly prior to that time he was of the view that they were in a normal
relationship together, consistent with that of a couple.

69 Similarly, Mr B, from his more limited observation, held a similar view, but

whilst he and Mr P did not discuss the nature of the relationship between Mr P and Ms L, he had certainly formed the view that the parties were friendly, that they were

[2009] FCWA 145

lovers and the thrust of his evidence was that, as far as he could tell, the parties were in

a committed relationship.

70 The parties as I have mentioned, travelled together to

Asia so Mr P could meet Ms L’s family.

Conclusion

71 The factors enumerated in subsection 13A(2) are merely indicators of whether or not a de facto relationship exists between two persons, but they are not essential.

72 Considering the totality of the relationship between the parties in this case, I

have no doubt that they were in a committed relationship and that Ms L saw Mr P as
her “partner” as she described him to the [Magistrate].

73 I find that a de facto relationship existed between the parties and that such

relationship continued for a period of greater than two years. Accordingly, I have
jurisdiction for the purposes of Part 5A of the Family Court Act 1997.

Adjustment of property

74 I now turn to consider what would be a just and equitable order for the

adjustment of property between the parties. To do so I must consider four things. First, what is the pool of assets available for distribution between the parties; second, what are the parties’ respective contributions to that pool of assets; third, whether I should make any adjustment having regard to the factors prescribed in s 205ZD(3) and finally; whether the conclusion that I reach having regard to factors two and three is in all the circumstances a just and equitable outcome.

The known pool

75 One of the difficulties in this case is determining what the available pool of assets is. The identifiable assets in the possession of Ms L are:

• the home at [a northern suburban address], which was valued for the purpose of the proceedings at $325,000 as “currently presented”;

• a 2007 [motor car] acquired by Ms L in April 2009, which she estimates as having a value of the sum she paid for it of $19,000;

• Ms L’s household contents which she estimates to have a value of $10,000;

• jewellery which she represented in her Papers for the Judge as being $20,000, but then sought to adjust to $10,000;

• the land in Asia – value unknown;

• cash at bank – not known.

76 Mr P’s position is as set out in his most recent statement of financial

circumstances where he indicates that he now has no assets under his direct control. He receives an aged pension and his affairs are managed by his daughter, Joanna,

[2009] FCWA 145

although the funds that were left as available to Mr P at the end of the relationship
were about $31,000.

77 Mr P came into the relationship with some chattels, some of which were of

significant sentimental value as well as having a monetary value. It would appear for the most part that they have been dissipated by Ms L through them being pawned and not redeemed prior to sale.

Contributions

78 At the commencement of the parties’ relationship Mr P asserts that he had no debts and the following assets:

(a)

an unencumbered property at [an address in the northern suburbs] worth $450,000;

(b)

approximately $20,000 in an investment with ANZ;

(c)

a half share with his brother in a block of land in [Europe] worth at Mr P’s estimation $30,000;

(d)

shares in [ blue-chip companies], the exact number of which Mr P cannot recall;

(e)

a boat;

(f)

a houseful of furnishing and effects;

(g)

accumulated specific personal effects of particular sentimental or monetary value, namely:

(i)	mementos left to him by his father;
(ii)	a gold chain with gold nuggets worth, in Mr P’s estimation $10,000;
(iii)	three or four other gold nuggets on chains;
(iv)	approximately $4,000 of gold coins.

79 Mr P’s memory of the property held by Ms L was

(a)	the property at [the northern suburban address], which was encumbered by mortgage (Mr P estimated the property to be worth about $300,000 and understood the mortgage to be about $200,000);
(b)	the furniture and effects in that house; and
(c)	in addition to the mortgage debt, Ms L had represented to Mr P that she had debt of some $60,000 to $70,000.

80 Ms L is silent in her evidence about her asset position at the commencement of the relationship, although Mr P’s representations as to the same were not disputed.

81 In 2003 the parties twice travelled together to Asia, firstly, between 15 August

2003 and 13 September 2003, and secondly, between 4 and 24 November 2003. The
cost of the travel was met by Mr P.

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82 It is common ground that Ms L was working at the time the parties formed a relationship and that she stopped, it would seem, in May 2005.

83 In addition, Mr P gave Ms L amounts of money whilst the parties were in the Asia. They travelled again to Asia together for about a month in 2007.

84 During one of those trips a motor vehicle was purchased for the members of Ms

L’s family. Mr P had represented in his affidavit that Ms L had purchased the vehicle from funds that he had otherwise provided to her, however, Ms L was adamant in her evidence that Mr P in fact paid for the vehicle. Nothing really turns on the question of who acquired the vehicle as such in Asia, but if Mr P paid directly for the vehicle, then a greater degree of explanation as to how Ms L used the monies that she withdrew whilst in Asia is required.

85 When Mr P sold his [own] home in early 2006, he received proceeds of sale of

slightly over $419,000 which he placed into his ANZ Bank account. He later distributed the funds between a higher interest account and an ING Investment Account. In September of 2006, he withdrew $175,000 which was paid to Ms L to discharge her mortgage.

86 He otherwise disposed of the balance of assets to which I have referred above,

during the relationship, and for the most part withdrew the proceeds and provided
them to Ms L.

87 Mr P paid for blinds to be installed in the home and for some repairs. There is

no doubt that each of the parties enjoyed gambling. Mr P says that the most he has ever gambled was $5,000 and his evidence in that regard was not challenged. Ms L did not dispute that out of a sum of $50,000 given to her by Mr P she lost the bulk of it over a period of about four days at the [Casino]. Her bank statements disclose consistent and systematic withdrawals of funds at automatic teller machines as the Casino.

88 Ms L claimed that she had in fact won $40,000 at the Casino, however there

appears to be no record produced of the win or, alternatively, any evidence of that sum
being deposited into her bank account.

89 Mr P says that he always took cash himself on the occasions he went to the Asia

with Ms L. His unchallenged evidence was that “[Ms L] made no financial
contribution to my assets or expenses”.

90 I accept however that Ms L did make some contribution towards the day to day

running and expenses of the household from sources other than those provided by Mr P, namely monies she received from Centrelink and some minimal child support payments which she accepted were less than $300 per year.

91 I accept that Ms L did take a caring role with Mr P who, for a large part of the

parties’ cohabitation, was close to bedridden as a consequence of his various illnesses.

92 Mr P was however left to fare for himself on many occasions and indeed, the

evidence of both he and Mr S was that towards the end of the relationship Ms L would lock him in the bedroom whilst she went away or went out. Mr P overcame the

[2009] FCWA 145

difficulty of being locked in the bedroom by storing food in the bedroom to cover for
these periods.

93 During the course of the relationship, Ms L travelled to the Asia separately on

another five occasions. On each occasion Mr P says that he had provided her with money and on one occasion when he had provided her with an amount of money she, in fact, left for the Asia without him knowing that she was planning to do so.

94 Comparing the dates of payments or other deposits made by Mr P as contained

in Exhibit 1, being the letter from O’Sullivan Davies on 28 May 2009, and the schedule of Ms L’s travel to the Asia extrapolated from the passport copy, there is a remarkable coincidence between significant payments being made to Ms L and her travelling to the Asia. For example, on 9 June 2008, a cheque deposit of $15,000 was made from Mr P’s account to Ms L’s account. She departed for the Asia 10 days later.

95 On 22 April 2008, a cheque deposit of $4,000 was made and Ms L departed for

the Asia on 29 April 2008.

96 I accept that Mr P was supportive of Ms L travelling to the Asia, however,

during the periods that she was away he, of course, was dependent entirely upon his
own resources for his care and upkeep.

97 I find that Mr P made the overwhelmingly greater financial contribution and that

his direct financial contribution indeed exceeds the total value of the known pool of
assets.

98 I find that while Ms L did make a contribution as homemaker and a carer for Mr

P, that contribution was not of such an extent as to offset or otherwise reduce Mr P’s overall contribution to a value less than the total known pool of assets.

Any adjustments under s 205ZD(3)

99 As an outcome from these proceedings Mr P seeks effectively to be in a position

that he can have sufficient resources to secure a bed in a nursing home. There is no doubt that he is in extremely poor health and will have an increasing dependency upon professional care.

100 The undisputed evidence was that the cost of a nursing home bed would be at least $250,000, as subject to the level of care needed, the daily costs vary.

101 Ms L appears to be in good health and whilst she has a limited earning capacity,

she does have an earning capacity. During the course of her evidence she indicated however she was not receiving Newstart allowance as she had not satisfied the requirement to actively seek work. Given Ms L’s claims as to her financial position, particularly as set out in her Statement of Financial Circumstances filed in April 2009, where she claims to have an income of $6.50 per week, I am left wondering how it is that she is able to support herself, the costs of running a household and her dependant daughter.

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102 Neither of the parties are presently cohabiting with any other person and nor has

the duration of the relationship between the parties impacted upon Ms L’s capacity to
earn.

103 The difficulty that I face in considering the factors prescribed under s 205ZD(3)

is that I cannot make any accurate assessment of the totality of Ms L’s financial
position.

104 I can however make such a finding insofar as Mr P is concerned and I find that,

apart from a few modest personal effects that he has retained, the only funds available to him are an aged pension and the balance of the funds that have been managed by his daughter, which for the most part have been utilised to pay legal fees. I accept that there is no available capital sum presently remaining that would come close to meeting Mr P’s needs. Mr P does not have any superannuation and Ms L states in her Statement of Financial Circumstances that she has no superannuation entitlements.

105 One of the factors that I must consider pursuant to s 205ZD(3) is the effect of

any orders that I propose to make in this matter. Normally, such a consideration would be premised upon an ability to determine what the pool of assets was between the parties. I am prevented in this case from making such a finding as a result of the failure by Ms L to make proper disclosure or to answer appropriate questions as to the disposition of funds that she has had.

106 Overall, whilst Ms L has an ongoing obligation to continue to support her 16½

year old child, and has a limited earning capacity, any of the prescribed factors that may weight in her favour are, in my finding, outweighed by the immediacy of the need to provide properly for Mr P’s health care and his ability to support himself, and I am unable to make any finding about her own resources to meet her obligations.

What is a just and equitable outcome

107 Mr P seeks that I order that the home at [the northern suburbs address] be transferred to him.

108 On purely a contributions basis such an outcome can be supported as it is not

disputed that Mr P, as I have indicated, contributed significantly greater than the total
current value of the property.

109 As against that however, the effect of such an order would be to deprive Ms L

and her dependant daughter of a place to live and in circumstances where I could make a fully informed decision as to the available property and resources of the parties, I would know, or be able to determine, what resources would then be available to Ms L and for her to provide for her needs.

110 In this case however, I am not in a position to make such a finding.

111 In Weir and Weir (1993) FLC 92-338 at 79,593 the Full Court of the Family

Court observed:

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“It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.” …

and further:

“We should have thought that the Court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.”

112 I have referred earlier in these reasons to specific elements of the failure by Ms

L to disclose her circumstances. In addition, in the letter O’Sullivan Davies wrote to Ms L’s solicitors on 28 May 2009, to which I have already referred, specific requests were made about the use of funds. A portion of that letter enclosed the lists of the various deposits to which I have also referred. Significantly and despite these requests to advise as to the disposition of funds had by Ms L, she elected not to do so.

113 It was only in cross-examination that she admitted the existence of land in the

Asia and there is nothing to support her ability to purchase a motor car for $19,000 in
April.

114 Ms L has had at her disposal a significant body of money over a short period of

time. It is incumbent upon her to disclose what has happened to that money, but she
has chosen not to do so.

115 She makes such a choice at her peril because it makes it impossible for me to

then determine what is a just and equitable outcome by balancing what is sought by
Mr P as against the position in which that would leave Ms L.

116 However, given what is known in this case and by reference to what is known, I

am satisfied that the outcome sought by Mr P is just and equitable in all the
circumstances and I propose to make the orders sought.

117 There is the memorial registered upon the Certificate of Title in favour of the Legal Aid Commission to which I have earlier referred, securing the sum of $1,500. That memorial secures funds that, according to Ms L, provided for legal assistance for the benefit of her son. I am satisfied that she should discharge the obligation, having derived the benefit of the grant of Legal Aid.

Proposed orders

1. All the respondent’s right, title, benefit of and interest in the land and improvements located at [the northern suburbs address] does hereby vest in the applicant.

2. Within 28 days of the publication of these orders to the parties or their solicitors, the respondent do all things and sign all documents necessary to transfer to the applicant all her right, title, estate and interest in the said

[2009] FCWA 145

property located at [the northern suburbs address], being the whole of the land described in Certificate of Title Volume XXXX Folio XXX ("the Northern Suburbs Property") free from encumbrance.

3. Within 28 days or contemporaneously with the transfer of the Northern Suburbs Property to the applicant in accordance with paragraph 1 of these orders (whichever is the sooner), the respondent:

(a)	deliver up vacant possession of the Northern Suburbs Property, and remove from the Northern Suburbs Property all of her furniture, household contents, personal effects and other chattels, except as provided for in paragraph 3(b) hereof;
(b)	leave at the Northern Suburbs Property all furniture, household contents, personal effects and other chattels belonging to the applicant;
(c)	deliver up to the applicant's solicitors all sets of keys, garage remotes and any applicable security and alarm codes to the Northern Suburbs Property.

4. Unless otherwise specified in these orders:

(a)	each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)	monies standing to the credit of the parties in a bank account is deemed to be the property of the person named on the account;
(c)	insurance policies are deemed to be the person named as the beneficiary;
(d)	superannuation entitlements are deemed to be the entitlements of the person named as the fund member or who is otherwise holds the interest; and
(e)	each party be solely liable for, and indemnify the other against:

(i) any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(ii) any liability in the sole name of each party.

4. The applicant and the respondent otherwise retain their own assets and be responsible for their own debts.

5. The parties have liberty to apply with respect to the implementation of these orders.

I certify that the preceding [117] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate