P and S

[2006] FCWA 23

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: P and S [2006] FCWA 23

CORAM: THACKRAY J

HEARD: 31 JANUARY 2006

DELIVERED: 10 MARCH 2006

FILE NO/S: PT 7098 of 2003

BETWEEN: P

Applicant/Wife

AND

S

Respondent/Husband

Catchwords:

Property settlement - short marriage - contributions - s 75(2) factors

Legislation:

Family Law Act 1975, s75(2), s79

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr E Wall

Respondent: Self Represented Litigant

Solicitors:

Applicant: E J Wall & Associates

Respondent:

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

Kennon & Kennon (1997) FLC 92-757

Robb and Robb (1995) FLC 92-555

1[Ms P] commenced proceedings in 2004 seeking a $5,000 property settlement following her very short marriage to [Mr S]. By the time the trial commenced, she had increased her claim to $20,000 and also wanted $5,000 spousal maintenance. [Mr S] wants [Ms P] to pay him $5,000 “for expenses for spouse visa and travel [overseas]”.

Credibility

2The trial was conducted in most difficult circumstances. [Ms P] and two of her three witnesses gave evidence via an interpreter. [Mr S] was unrepresented, had no idea how to present his case and continually interrupted [Ms P], her witnesses and the interpreter.

3 I had considerable difficulty in assessing [Ms P]’s credibility.

She appeared to be a pleasant woman, with an open disposition. She was subjected to an unpleasant but quite ineffectual cross- examination. No obvious major flaws were exposed in her testimony. Nevertheless, largely because of the language barrier, I was not

convinced all of her evidence was true.

4 [Mr S] insisted repeatedly that he is an honest and truthful man.

However, he is also a very angry and bitter man. He is incensed even at the thought that [Ms P] might have any entitlements arising out of what he now calls a “marriage of convenience”. Whilst in everyday life [Mr S] may be an honest person, I consider his anger and

bitterness resulted in him giving evidence that was not truthful. He frequently avoided answering questions when he thought that the answer might in some way assist [Ms P]’s case. He was also prone to what seemed to me to be gross exaggeration.

5[Ms P]’s two friends, [Ms Q] and [Ms Y], also gave their evidence through an interpreter. They appeared to be pleasant and honest women and I had no reason to doubt their testimony. Another of her friends, [Mr G], presented as a mature and agreeable man. I had little doubt he was telling the truth, even though I suspect he is keen to ingratiate himself with [Ms P].

6[Mr S]’s longstanding friend, [Mr M], was an extremely partisan witness. He clearly shares [Mr S]’s view that [Ms P] contributed

almost nothing in the relationship and is entitled to absolutely nothing. He was better placed than some of the other witnesses to give evidence about what occurred in the parties’ home, as on a number of occasions he lived in a caravan parked on the property, socialised with them and used their toilet. Nevertheless, I was not persuaded that all of his evidence was credible. In some instances, I consider it was not true and in other instances it was based on matters of assumption (sometimes illogical) rather than observation.

7[Mr S]’s daughter, [B], also gave evidence. [B] and her father have been through some tragic times together and she is understandably very attached to him. I found her to be a pleasant woman of open disposition, although she clearly shared her father’s view that [Ms P] is little more than a “gold digger”. I was inclined, however, to place somewhat more weight on her evidence than that given by either her father or [Mr M].

Short history

8[Ms P] was born [overseas] and is 51 years of age. She works part-time as [a cleaner] and also receives social security. [Mr S] was born in [the UK] and is 62 years of age. He operates his own [repair] business.

9[Ms P] has a daughter, [H] from a previous relationship. She is nine years of age. [Mr S] has a granddaughter, [W], who I gather must now be about 12.

10 The parties met in late 1997 when [Ms P] was visiting Australia.

They spent various periods of time living together before they were eventually married in April 2000. [Ms P] then had to return to [her home country] to await her “temporary spouse visa”. She and [H] came to Australia in late July 2001, after the visa was obtained. The parties lived together in [Mr S]’s home in [the southern suburbs]. [W] was a regular visitor to the home, staying over on most weekends.

11 The parties separated in early October 2002. [Ms P] claims that this followed a disclosure from [H] that [Mr S] had molested her at his workshop. This is denied by [Mr S].

12 In October 2003, [Mr S] sold his [southern suburban home] for

$144,000 net. He used some of the money to buy the workshop from

which he operates his [repair] business in [a nearby suburb]. This purchase accounted for just over $91,000 of the proceeds of sale.

[Mr S] claims to have disposed of the rest of the money.

Length and circumstances of cohabitation

13 There was a dispute concerning precisely when the parties lived together and the circumstances under which they cohabited.

14 I found [Ms P]’s version of the chronology to be somewhat more credible than [Mr S]’s. According to her version, the parties commenced a sexual relationship soon after they met in December

1997 and cohabited for a very short period in Perth in March/April

1998. During this time, [Mr S] discussed marriage, even though he was not divorced from his second wife. The parties then lived

together for about two weeks [overseas], before coming back to stay together in [Mr S]’s home in late April 1998. [Ms P] returned to [her home country] in early July 1998 and the parties then maintained a “long-distance relationship”.

15 The parties did not live together for some time after July 1998, other than for short periods around Christmas 1998 and 1999, when [Mr S] visited [her home country]. [Mr S] was finally divorced from his wife in March 2000 and he and [Ms P] were married in Perth the following month. [Ms P] was unable to remain in Australia. After living with [Mr S] for two weeks, she returned to [to her home country], pending the issue of her visa. [Mr S] once again visited her at Christmas 2000 and they lived together again for about two weeks. They finally took up permanent cohabitation together in late July

2001, when [Ms P] and [H] arrived in Perth after the visa was issued.

16 Although [Mr S] does not accept all of this chronology, in my view very little turns on which version is the more accurate. Even accepting all of [Ms P]’s evidence about the extent of cohabitation, it is the case that this was a very short relationship, during which the parties lived together in total for less than two years.

17 The matter of greatest contention was [Mr S]’s claim that within two or three weeks of [Ms P]’s arrival in Perth in 2001, she moved into [H]’s bedroom and that thereafter the parties did not share a bedroom and did not have sex. It is common ground that when [W] came to visit on weekends, [Ms P] moved out of the bedroom and slept in [H]’s room, as [Mr S] liked to share a bed with [W].

However, [Ms P] claims she generally only slept in [H]’s room whilst [W] was staying over, and that at other times she and [Mr S] shared a room and had an ongoing intimate association.

18 I was inclined to accept the evidence of [B] that on some occasions she came to the home early in the morning and saw that [Ms P] appeared to have slept in [H]’s room, even though [W] had not been sleeping over the previous night. However, I was not persuaded this was the regular state of affairs. [Mr S] claimed that after she moved out of the main bedroom, [Ms P] did not keep her clothes in that bedroom. This allegation was directly contradicted by [Ms P] and her witnesses and I accept their evidence that she had her clothes and cosmetics in the main bedroom.

19 [Mr S] presented as an extremely arrogant and overbearing person with rigid views in relation to the role expected of a wife and mother. I am quite satisfied that life for [Ms P] and her daughter in the home must have been exceedingly unpleasant. I am satisfied that this and other frictions resulted in much disagreement and unhappiness in the relationship. In such circumstances, it would not be surprising if [Ms P] chose to sleep elsewhere than in the main bedroom from time to time, even when [W] was not visiting.

20 [Mr S]’s claim that within two weeks of [Ms P]’s arrival in Australia in July 2001 he had gone back to living “like a single person again” do not sit well with the letter he wrote to her within a matter of days of the final separation. In that letter he said:

“Please come home and talk to me, I am sad, and miss you like crazy. You are the only person that I love, and I will be a better husband to you… waiting for you…”

21 In assessing all the evidence on this issue, I came to the conclusion that [Ms P]’s claims were more credible.

The asset pool

22 Counsel for [Mr S] accepted that there was no evidence to support a finding that [Mr S]’s factory unit in [the suburbs] is worth any more than the $80,000 he paid for it (excluding GST) in October

2003. He also accepted [Mr S]’s estimate of the value of his motor vehicle at $500 and there appeared no dispute with his valuation of his caravan at $3,500. Apart from [Ms P]’s own estimate, there was no evidence to support the assertion that [Mr S] has $3,000 worth of

furniture. He did have $2,086 in the bank when he completed his statement of financial circumstances in October 2005.

23 [Mr S] has no debts. He owns his own business, which appears unlikely to have any value greater than its plant and equipment. [Ms P] suggested in her affidavit the entire business might be worth

$5,000.

24 [Ms P] has no assets of substance. The motor vehicle she owns was acquired after separation. She was not cross-examined on her claim that the car is worth only $2,000. She also has furniture, which she values at $1,000, donated to her by a women’s refuge. She has a

$5,000 Visa card debt and is likely to owe a similar amount to her lawyer.

25 Both parties are suspicious that the other has not disclosed the full extent of their assets. [Ms P] is not convinced that [Mr S] has spent the balance of the money he received from the sale of his home, but I was reasonably satisfied he has. [Mr S] is not convinced that [Ms P] was telling the truth about the disbursement of the sale proceeds of her home [overseas], but I am satisfied she no longer has control of any of the money.

26 I should note that I accept [Mr S] made an error in his statement of financial circumstances when he said he earns $85 per week from investments. It would seem that somehow or other he became confused when completing the form, and transposed the figure from item 33 on the statement to item 10.

Contributions

27 I do not consider either party made any contribution of relevance in the period prior to July 2001, when they first lived together for any significant length of time. I accept that in the period leading up to then, [Mr S] had paid for some travel costs to allow the parties to spend some time together and he made occasional gifts of small amounts of money to [Ms P]. I also accept that each party provided shelter and sustenance to the other whilst they were staying in each other’s homes. However, none of these things was sufficient to warrant consideration under s 79(4) of the Family Law Act 1975.

28 At the commencement of the relationship proper in July 2001, [Mr S] owned the property [in the southern suburbs]. He did not challenge [Ms P]’s assessment that the property was worth about

$120,000 at the time she came to Australia. He also owned a motor vehicle and household contents of modest value and he had his mechanical repair business.

29 [Ms P] was the registered proprietor of a property [overseas] in which she and (apparently) other members of her family resided. She says, however, that she only owned a part interest in the property. She claimed it had only been registered in her name because the other members of the family were not acceptable as parties to the mortgage. I accepted her evidence on this issue.

30 [Ms P] claimed that she sold her interest in the property [overseas] to her brother prior to her departure for [local money], which she said was around A$24,000. She says the money was disbursed in the fashion described in paragraph 11 of her affidavit, which meant that she only had $2,600 left over when she came to Australia – after payment of her airfares.

31 [Mr S] and his daughter, [B], allege there were discussions between the parties to the effect that [Ms P]’s home [overseas] would realise as much as A$100,000, of which $50,000 would be given to [B] to allow her to reduce her mortgage. I accept that there was discussion to that effect at some stage early in the relationship, but I am not persuaded it was [Ms P] who was convinced she would receive A$100,000.

32 During the course of the marriage, [Mr S] continued to operate his [repair] business, from which he claims to earn only about $250 per week. It is difficult to know how much [Mr S] really earned during the marriage. He has not lodged a tax return since 2003 and he did not cross-examine [Ms P] on her claim that he takes “cash money”.

33 I was not inclined to accept that [Mr S] earns as little as $250 per week for his work. I doubt he would have been such a regular visitor to the Casino if he had such a small income. I nevertheless accept that all of the evidence suggests he does earn only a very modest income. I accepted his evidence, for example, that he was unable to afford to fix the hot water system [in the southern suburbs] home for some months. It is true he found the means to travel [overseas] on a number of occasions. He says he paid for one trip with casino winnings of

$2,500 and another with $1,130 he won in the lottery. Such stories are regularly told in this Court and often stretch credulity, but on this

occasion I was inclined to believe it. It is also the case that [Mr S] claimed the parties ate at restaurants more than they ate at home, which of course is inconsistent with the claims he makes about his low level of income. However, I considered that was one of the instances where [Mr S]’s evidence was grossly exaggerated.

34 [Ms P] had some lowly paid, part-time employment after she arrived in Australia. No evidence was given to indicate the total amount that she earned but it would not have been very substantial. For example, when she was working for a friend at the [markets] she was being paid only $4 per hour.

35 Notwithstanding her low level of income, I accept [Ms P]’s evidence that [Mr S] did not provide a great deal for her during the relationship. He did provide the roof over her head. There was also no suggestion she contributed to the utilities, albeit her share would have been fairly inconsequential, given the austere living conditions imposed by [Mr S]. However, I do not accept [Mr S]’s claim that

[Ms P] spent “every cent” of her earnings at the Casino. I find that she used most of her money in buying necessary requirements for herself and [H]. I also consider it fairly likely that [Mr S] often paid for the groceries on their weekly shopping trip. [Mr S]’s limited contribution to the support of [Ms P] and her daughter is consistent with his claim that he had previously told [Ms P] he would be unable to afford to support them if they both came to Australia to live.

36 [Mr S] also made some indirect contribution in relation to the income [Ms P] earned, because he often gave her a lift to or from work. (On the other hand he did not challenge her claim that he refused to let her take driving lessons.) I also accept that on rare occasions, by no means as often as he implied, [Mr S] also begrudgingly collected [H] from school when [Ms P] was late home from work.

37 [Ms P] claimed to have provided assistance of significance to [Mr S] in his workshop, whereas he said she occasionally came to the workshop because she was lonely and did very little to help. I am satisfied that [Ms P] did, in fact, come to the workshop much more often than [Mr S] admitted. I am also satisfied that she did her best to assist him by keeping him company, making him drinks and snacks and helping out to the limited extent of her abilities. This probably involved the sort of work described by her in paragraph 18 of her

affidavit; however, [Ms P] had no skills and I doubt she ever did anything of significance in the mechanical work.

38 [Mr S] also claimed that [Ms P] did almost no cooking and provided almost nothing by way of domestic services around the home. I am quite satisfied this is a gross exaggeration and that [Ms P] did much more cooking than [Mr S] acknowledged and also undertook most of the other household duties. She did not do any gardening, as this was done by [Mr S].

39 [Ms P] also relied upon her care of [H] as part of her contribution but this is not a contribution that can be taken into account: Robb and Robb (1995) FLC 92-555. I do accept, however, that [Ms P] also made some contribution to the care of [W] by the cooking and household duties she undertook. This was not a matter of great significance, as [W] usually stayed over on weekends only and was not a very young child.

40 I am also satisfied that [Ms P] from time to time provided [Mr S] with sociable companionship. I did not accept his evidence that he was opposed to her accompanying him to the Casino. On the contrary, I am satisfied he usually wanted her to come with him once a week, but I also accept that on occasions he probably told her she should be staying home with her daughter. I gained the distinct impression from observing [Mr S]’s cross-examination of [Ms P] that he enjoyed exercising power over her and it would have pleased him from time to time to tell her that she could not go to the Casino, which appears to be the only activity they enjoyed together outside the home.

41 I consider that the contributions [Ms P] did make during the relationship were made under exceedingly difficult circumstances, as I am quite satisfied [Mr S] would have been an arrogant, threatening and patronising husband. There was also a period of some months when there was no hot water in the house, which must have made life uncomfortable. However, I am not satisfied the circumstances under which [Ms P] made her contribution were so difficult as to make any difference to the outcome of the proceedings.

Assessment of contributions

42 The contribution of greatest significance was the initial contribution of assets by [Mr S]. He contributed an unencumbered home, furniture, a car and his business, whereas [Ms P] contributed only a very small amount of money. It is true that a great deal of what

[Mr S] contributed has now been spent or squandered, but what remains represents what he had at the commencement of the relationship.

43 [Ms P]’s counsel accepted that his client had made no contribution of significance under subparagraphs 79(4)(a) and (b) of the Act, although he did place reliance on the work she did in the workshop. He argued that her major contribution was that made to “the welfare of the family”, which should be recognised under s

79(4)(c). He submitted the value of her contribution should be assessed at somewhere in the region of 10% of the asset pool.

44 I am unable to accept this submission. The parties cohabited for only a very short period of time. Whilst I accept that [Ms P] made a far greater contribution than [Mr S] alleged, [Mr S] also made his own contribution. Each of them was working and earning money. Each of them was doing some work around the home and garden. It is difficult to conclude that one of them made any greater contribution than the other. This does not, of course, mean that the contributions simply cancel each other out: Kennon & Kennon (1997) FLC 92-757 at 84,298. However, it should also be remembered that [Ms P] and her daughter were effectively living rent-free in [Mr S]’s home. Taking that factor into account, I am not satisfied that [Ms P] made any contribution in this very short relationship that should result in her receiving a share of assets, which in effect represent what remains of what [Mr S] owned at the commencement.

Section 75(2) adjustment

45 Counsel for [Ms P] also submitted there should be an adjustment of 10% to take into account the matters set out under s 75(2) of the Act. I consider the s 75(2) factors of most significance are these:

(a)The relationship was a very short one. There is no evidence it has had any impact on [Ms P]’s earning capacity. Whilst I recognise she would have difficulty in obtaining anything other than poorly paid, menial work in Australia, there was no evidence to suggest [Ms P] could not return [overseas] (or [to another country] where she previously worked) if she wished to do so. I can understand, however, why she may wish to remain in Australia, as she now has a network of friends and presumably [H] has settled down here;

(Page 12)

(b) There is a fairly significant age gap between the parties. [Mr S] must have a fairly limited future income earning capacity, especially as he suffers from arthritis. I accept [Mr S]’s evidence that he has had some burglaries at his workshop, resulting in the loss of equipment. He is also finding it increasingly difficult to earn income because of changes in the technology in [his repair business]. Nevertheless, I am satisfied he will probably earn a somewhat greater income than [Ms P] is likely to earn over the next few years, before he becomes entitled to receive the old age pension;

(c)[Mr S] is more strongly placed financially than [Ms P] because he does have some assets of value. When he no longer requires the business premises for employment, he will be able to sell them and will have a small nest egg on which to draw during his retirement. On the other hand, [Ms P]’s current financial position is quite drastic. Apart from a very low income from menial work, she is dependent upon social security. She is living in a refuge and has only the furniture that has been donated to her. She is living in a foreign country, with a limited command of English. She has a young child to support;

(d) Prior to the marriage [Ms P] at least had a roof over her head, even if the equity she had in the property was very modest. She sold that property in order to come to Australia to live with [Mr S].

46 Even if [Ms P] were to receive the 10% adjustment her counsel proposes, her financial circumstances would still be very grim, albeit she would have enough money to pay off her debt and to have some left over for other purposes. On the other hand, anything other than a nominal adjustment for s 75(2) factors will cause [Mr S] financial difficulty, as I am satisfied he would need to borrow money in order to discharge any significant amount awarded to [Ms P].

47 Taking these matters into account, I consider that a very modest allowance for s 75(2) factors is warranted. The factor of most significance in persuading me some payment is warranted is [Ms P]’s

(Page 13)

quite desperate financial circumstances. She cannot afford to pay a bond on a home or acquire more furniture. She could not even afford an airfare home if she decided to make her way back to her family and her home country.

48 The amount I consider appropriate is $3,500.

Just and equitable?

49 The final step in the process of property adjustment is to step back from the result suggested by assessment of contributions and the s 75(2) factors and determine whether the outcome proposed is just and equitable. The overwhelming contribution in this case was made by [Mr S]. It is appropriate he ends up with almost the entire asset pool following such a short marriage. It is true that [Mr S]’s capital has diminished (and arguably been wasted), but it was [Mr S]’s capital and he was entitled to use it as he saw fit.

50 I nevertheless do consider it just and equitable for there to be a small payment to [Ms P] on account of s 75(2) factors. If [Ms P] receives the amount I have proposed, she will at least have enough money to fly herself and her daughter back [home] if she decides that would be the best option. If she decides to remain in Australia, it would be sufficient to pay a bond on rental accommodation and to acquire some further inexpensive items of furniture.

51 I recognise that the amount I am proposing to order is less than the amount of [Ms P]’s legal expenses. However, this is no basis for denying her a settlement, as she will have the same liability to her lawyer regardless of the outcome of the proceedings. I am also unsure to what extent her lawyer may be acting pro bono.

52 Finally, although the amount [Ms P] will receive is significantly less than what was sought at trial, it is only $1,500 less than the amount she sought when she commenced these proceedings. I acknowledge she was unrepresented at the time, but no doubt she asked for that amount because she herself considered it would be fair.

Spousal maintenance

53 [Ms P] was seeking $5,000 by way of lump sum spousal maintenance. During his closing address, counsel for [Ms P] suggested a payment of $2,500 by way of spousal maintenance would be appropriate, although that concession was made in the light of a proposed payment of $20,000 by way of settlement of property.

(Page 14)

54 [Ms P] is only earning about $90 per week from her part-time work and otherwise subsists on social security. She is 51 years of age, has no skills and has limited English. I accept that [Ms P] has a very low earning capacity and will have considerable difficulty in earning sufficient income to maintain herself adequately. Nevertheless, I was not satisfied she would be unable to take on more hours of work as a [cleaner] or in some other menial occupation. However, I also accept she has responsibilities to [H], who is still very young. This would make it very difficult for her to obtain full-time work, as there is no evidence she could rely on friends to look after [H] for the whole time she would be at work.

55 On the other hand, [Mr S] has limited assets and enjoys only a modest income. I am not satisfied he has the capacity to make a contribution to [Ms P] by way of periodic spousal maintenance, nor do I consider it appropriate to require him to find the means to make a lump sum payment. In arriving at this decision, I have taken into account the fact that I have already made an adjustment of $3,500 on account of s 75(2) factors in determining the property settlement application.

Orders

56 [Mr S] claims that his bank has refused to lend him even $5,000 because of “changed circumstances”. It seems most surprising he has not been able to borrow money, whereas [Ms P], who has no security to offer, has been able to obtain a Visa card on which she owes

$5,000.

57 I am satisfied that [Mr S] could, in fact, borrow a small amount of money without great difficulty, for example on a credit card, to make the payment proposed. I accept he will find it somewhat difficult to discharge the liability whilst meeting his own living costs, but he is a humble man, who has apparently lived modestly for a long time. He lives in a caravan parked on his business premises and his living costs are low.

58 For these reasons, I intend to make the following orders:

1. Within 60 days the husband pay to the wife the sum of

$3,500.

(Page 15)

2. The husband shall charge his interest in the property at [the address in the suburbs] with payment of all monies due to the wife pursuant to this order (and any interest payable pursuant to the Family Law Rules 2004) and the wife shall be at liberty to register a caveat against the title to the property to secure payment.

3. The husband shall transfer and assign to the wife any interest he may have in any property in the wife’s possession.

4. The wife shall transfer and assign to the husband any interest she may have in any property in the husband’s possession.

5. The application and response otherwise be dismissed.

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

Associate