R and R
[2006] FCWA 136
•21 DECEMBER 2006
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY LAW ACT 1975 |
| LOCATION: | PERTH |
| CITATION: | R and R [2006] FCWA 136 |
| CORAM: | PENNY J |
| HEARD: | 19 SEPTEMBER 2006 |
| DELIVERED: | 21 DECEMBER 2006 |
| FILE NO/S: | PT 1839 of 2005 |
| BETWEEN: | R |
Applicant/Wife
AND
R
Respondent/Husband
(Page 2)
Catchwords:
Property settlement - small asset pool - Filipina wife treated in an "appalling" manner by husband - apportionment to wife to take into account contributions by her far more arduous than should have been
Legislation:
Family Law Act 1975 - s 75(2), s 79
Category: Not Reportable
Representation:
Counsel:
| Applicant: | Self Represented Litigant |
| Respondent: | Self Represented Litigant |
Solicitors:
| Applicant: | Not Applicable |
| Respondent: | Not Applicable |
Case(s) referred to in judgment(s):
Hickey and Hickey (2003) FLC 93-143
Kennon v Kennon (1997) FLC 92-757
(Page 3)
1 This application involves an assessment of the competing claims of [Mrs R] and [Mr R] for property settlement. Both parties represented themselves at trial and appear to have prepared their own affidavits of evidence. As a consequence, the state of the evidence is such that a proper assessment of the parties’ claims is very difficult. On the evidence as I interpret it, these are my reasons for decision.
Background to the application
2 The only asset of any real significance is [Mr R]’s 41% share in a State Housing Commission house currently valued at $115,000, which is secured by a mortgage in the sum of $29,000. [Mr R] owns his share of the property in conjunction with the State Housing Commission. [Mr R] is in receipt of a disability pension of $260 per week, and works as a [warden] at a school crossing earning an extra $98 per week.
3 [Mr R] married [E], [from overseas], in 1981. They were married for 15 years and had two children. In 1996, the year he and [E] separated, [Mr R] went to the [overseas] and met [Mrs R]. They married in January 1997 and [Mrs R] arrived in Australia in August 1997 with her two children, [A], then aged almost 12 years, and [C], aged almost 10 years.
4 The parties lived with [Mrs R]’s children and [Mr R]’s son, [B], together with a lodger, in the State Housing Commission home in [the suburbs]. This property had been purchased by [Mr R] and [E] in 1985. After their separation [E] made no claim upon the house and transferred her interest to [Mr R].
5 The parties separated in 1999, but reconciled after six months in 2000. During the course of the marriage [Mr R] received his disability pension and his small income from his employment. [Mrs R] received her family payment and an income from work as a cleaner. She later trained as a [hairdresser].
6 The relationship does not appear to have been a happy one and the parties finally separated in April 2004, with [Mrs R] leaving the [suburban] home and taking her two children with her.
7 [Mr R] has subsequently formed another relationship with a [another lady from overseas], who he has now married.
| (Page 4) |
[Mrs R]’s case
8 Although [Mr R] owned his 41% share of the house when he and [Mrs R] got together, she says that she contributed her pension and income from her employment to the relationship while they lived together. When she left the marriage almost seven years later she took little with her and had virtually nothing to reflect the income contribution by her. During the relationship the parties committed to a personal loan of $20,000. [Mrs R] made most of the repayments during the marriage. There remains $16,000 owing on that loan, which [Mrs R] says needs to be repaid. She says the [suburban] property should be sold and after paying to the State Housing Commission the sum they are owed, discharging the mortgage and the personal loan, the proceeds of the sale of the home should be split equally between herself and [Mr R].
[Mr R]’s case
9 [Mr R] says [Mrs R] and her children lived in accommodation provided by him during the course of the relationship. He says her funds were used for herself and her children and, in addition, she sent back to her family [overseas] a large amount of her income.
10 During the marriage [Mrs R] trained as a [hairdresser] and now earns $550 per week managing a salon. Her prospects, [Mr R] says, are much better than his in that she has the ability to earn an income while he will only ever be in receipt of a disability pension and a small income from his employment. [Mr R]’s mortgage payments are only $100 per week. He says if he had to sell the property he would not be able to get rental accommodation as cheap as this in the future.
11 [Mr R] also says that during the course of the relationship the parties travelled to [her home country] and bought property there, in which the wife’s family now reside. He says that the value of this property is approximately $25,000 and should be taken into account as an asset of the wife.
The law
12 The approach to be taken in relation to an application for property settlement pursuant to s 79 of the Family Law Act 1975 is a four step process. Hickey and Hickey (2003) FLC 93-143. Those steps are:
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Assets and liabilities
13 The only asset I intend to take into account in this matter is [Mr R]’s 41% share in the property [in the suburb] which is valued at $115,000. The parties seemed to have an equal amount of furniture and a similar amount of superannuation. There is no superannuation splitting orders sought and I have no information about when the superannuation was accumulated. They both have individual credit cards and loans for which, in my view, they should each be responsible.
14 The joint loan, however, is a different matter. The loan was accrued jointly by the parties in 2002. Some of the funds were used to discharge [Mrs R]’s credit cards. While the cards were in her name, the funds were used for joint expenses, including travel [overseas] for all the family. Some of the funds were also used to renovate or maintain the house. In these circumstances, I intend to take the debt into account. In addition, of course, I must take into account the liability by way of the mortgage on the [suburban] property.
| (Page 6) | |
| 15 | [Mr R] alleges that [Mrs R] owns real estate property in [her home country]. [Mrs R] disputes this and [Mr R] has not provided any evidence that she owns this property. He has provided some proof that she has forwarded funds to [her home country], but [Mrs R] stated that these were for family members and were not a contribution towards property. I did not find [Mr R] a particularly impressive witness. I think it is likely he would make up an allegation that [Mrs R] was a property owner in [her home country] to preserve his own property in [the suburbs]. For these reasons I do not intend to take into account the alleged ownership of [Mrs R] of a property at a value ascribed to it by [Mr R]. |
16 On this basis the assets and liabilities are as follow:
41% share of [suburban] property $115,000.00
Less liabilities:
Joint loan 16,000.00
Mortgage 29,000.00NetAssets $70,000.00
Financial contributions
17 There is no dispute that at the time the parties commenced living together in Perth in August 1997 [Mr R] was the owner of the 41% share in the house [in the suburbs]. As stated previously, his interest had been acquired with his previous wife, who had transferred her interest to him for no consideration upon their separation.
18 [Mrs R] says that upon her arrival in Australia [Mr R] took her to Centrelink and to the ANZ Bank to open a bank account in which she could receive social security payments for the children. [Mrs R] says that she was then told by [Mr R] that the money she received for her children should go directly to him. It was not until 1998 that she received the Social Security payment for the children rather than [Mr R]. This only occurred when she spoke to others in
(Page 7)
the community and realised that this payment was a personal
payment for her and not for [Mr R].19 The documents provided by [Mrs R] support the fact that she contributed money to [Mr R] for household and other expenses. Cheque butts which form part of annexure “F” to [Mrs R]’s affidavit set out various amounts paid by [Mrs R] to [Mr R]. These amounts were for electricity bills, gas bills, mortgage, and some of the amounts support her case that [Mr R] insisted that she pay him funds to take into account his lost pension as a result of her living with him. As late as 2002 there is a receipt signed by [Mr R] acknowledging that he received $100 from [Mrs R] as a result of him losing part of his pension. A number of the cheque butts indicate she was making contributions towards the State Housing Commission mortgage as well.
20 Not only was [Mrs R] supporting the household and making contributions towards the expenses, but any time [Mr R] spent money which was deemed to be a household expense, for example, on milk, [Mrs R] would have to repay it. When she was studying and attending her [hairdresser]’s course, if [Mr R] drove her, he would charge her $20 to take her.
21 The bank credit card statements and bank statements annexed by [Mrs R] to her affidavit show contributions made by her for a number of household expenses, both for the family and for her children.
22 It is clear that after the loan for $20,000 was taken out, that [Mrs R] made regular payments in reduction of the debt. [Mr R] hardly made any repayments at all.
23 Shortly after [Mrs R] arrived in Australia she obtained employment and worked as a casual cleaner part-time. I am satisfied that these funds were mainly contributed towards household expenses together with whatever Social Security payment she was able to receive.
24 I accept [Mr R]’s evidence that some monies were repatriated to [her home country] from [Mrs R]’s income, but I do not accept that they were large as he submitted. [Mrs R] said that upon the death of her grandfather she forwarded $1,000 to [her home country]. Exhibit “H.1” shows ANZ banking slips indicating that between October and December 2003 [Mrs R] forwarded [overseas] around $2,300.
| (Page 8) | |
| 25 | In 2001 the parties went to [her home country] with [Mrs R]’s children and stayed in a home owned by [Mrs R]’s parents. [Mr R]’s ticket was paid for by [Mrs R] through her Visa Card. Bank statements and Visa Card payments show payments by [Mrs R] to Traveland, presumably for these expenses. |
| 26 | I accept the evidence of Mr and Mrs [D] that during the course of the marriage [Mr R] was in receive of funds which were not contributed to the family unit and which he kept secret from [Mrs R]. [Mr R] boasted to the [D’s] that he received $13,000 from the State Housing Commission as a repayment of funds relating to insurance and a fence. In addition, he received at least $3,000 by way of compensation for items stolen from the family during the course of the marriage. Many of these items were [Mrs R]’s. These lump sums were significant in a low income household. [Mr R] accepted that he had bought shares during the marriage and had not accounted to [Mrs R] for funds from their sale. While [Mr R] paid some expenses, I am not satisfied that he contributed most of his income towards the family unit. |
Non-financial contributions
27 There is evidence that [Mrs R] tried to keep the house in good condition, attending to the garden and the inside of the house. The backyard was in poor condition because [Mr R] had [several] dogs living there.
Non-financial contributions to the family
28 [Mr R]’s son, [B], gave evidence on behalf of [Mr R]. The purpose of his evidence was to confirm that there was no violence in the relationship as alleged by [Mrs R]. He also, however, gave evidence that [Mrs R] did all the cooking, housekeeping and shopping. [Mrs R] stated she only returned to live with [Mr R] in 2000 because there was no-one to look after him and he was unable to cook for himself.
29 [Mrs R]’s case was that the environment in which she lived with [Mr R] was extremely unpleasant, that he put her down at every opportunity and was physically violent towards her.
30 Mr and Mrs [D], neighbours of the parties, gave evidence about [Mr R]’s attitude to [Mrs R], his first wife [E], and the violence they witnessed in the household. The husband confirmed that he had been a very good friend of the [D]s and used to visit
(Page 9)
| them most days. Mrs [D] stated that [Mrs R] kept a tidy home with her children helping out with household chores. She |
| (Page 10) |
cooked meals every evening, mostly Asian, and kept a neat front garden, but there was little that she could do with the back. She confirmed that [Mr R], in their presence, put down [Mrs R] and the children, and appeared very racist. He seemed to consider all [such] women dumb. He stated to Mrs [D] that if [Mrs R] ever left him she would never get the house. He told her he had beat the court system once in a divorce settlement, referring to [E], and that [Mrs R] was not going to get anything either.
31 [Mr R] stated to Mrs [D] that he kept hidden bank accounts, about which he did not tell [Mrs R]. He stated he had used her Visa Card over the phone and bragged about the fact that he had received a payment of $13,000 from the State Housing Commission in 2003, which was a back payment of funds relating to house insurance and repairs to fences and a roof.
32 Mrs [D] gave evidence of going to see [Mrs R] in the house one evening. She found that she had severe stomach pain and had told her that [Mr R] had jumped on her stomach earlier that evening. She stated that [Mr R] refused to call an ambulance as he did not want to pay for it. She stated that on the day [Mrs R] moved out of the house she personally cleaned the house and witnessed that [Mrs R] took very little from the house when she left. [Mr R] had commented after that he was surprised with the little that she had taken. [Mr R] subsequently complained about the state of the house when she left and the amount of items she had taken. I accept the evidence of Mrs [D] generally, and particularly in relation to the state of the house and the items in it after separation.
33 Mr [D] also gave evidence and stated that [Mr R] had bragged to him about taking money out of [Mrs R]’s purse and stating that he used her credit card over the phone. He stated that she was dumb and never checked her statements. He also bragged about a TAB account and about the amount of shares he had that [Mrs R] did not know about. Mr [D] spoke of an incident where he was called to the parties’ home. When he arrived he found [Mrs R] in the kitchen on the floor. She had a chunk of hair pulled out and was very distraught. Both her children were there and were upset at seeing their mother in this state. He took [Mrs R] to his home for a short time, but she then returned to the home as she was concerned that [Mr R] would lock her out. Mr [D] says that he
(Page 11)
| took [Mrs R] back to the home and told [Mr R] not to touch [Mrs R] again. |
| (Page 12) |
34 I am satisfied on the evidence of the wife corroborated by Mr [D], that [Mr R] constantly put down [Mrs R], not only to herself, but to others.
35 In assessing [Mr R]’s attitude to [Mrs R], a comment of [B] was significant. He confirmed, when cross-examined by [Mrs R], that he said to her during the course of the relationship that “dad will do the same to the new wife [[Mrs R]] that he did to his mother”. In saying this, I accept that he meant that [Mr R] would ensure that [Mrs R] received nothing from the marriage, as had happened to [E], his mother.
36 While [Mrs R] did not know how to put her submission in legal terms, it is clear that she was saying that her contribution to the family was made more arduous because of [Mr R]’s conduct in assaulting her on occasions, demanding funds from her, putting her down and her children and generally treating her very badly. The decision of the Full Court in Kennon v Kennon (1997) FLC 92-757 gives some legal basis for this submission.
37 This matter involved a consideration of the effect on the wife’s contributions to the welfare of the family and of the husband’s violent conduct towards the wife during the course of the marriage. In relation to this issue, Fogarty and Lindenmayer JJ stated at p 84,294:
“Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that.
(Page 13)
However, it is important to consider the “floodgates” argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters - a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk.”
38 In my view, this is an exceptional case. [Mr R]’s treatment, as described above, was appalling. Not only did [Mrs R] have to work inside and outside the house, but she had to make her funds available to [Mr R], who only worked in a part-time job. She had to put up with his demeaning attitude towards her and her children, and the incidents of assault upon her. In my view [Mrs R]’s contributions were significantly more arduous than they ought to have been and I am satisfied that this is an exceptional case which would warrant a greater apportionment in [Mrs R]’s favour to take into account this factor.
39 In my opinion it is not a coincidence that [Mr R] has now had three wives, all of whom have been from the [same country]. It is highly likely the other women had similar backgrounds to [Mrs R]’s, that is, they were from poor backgrounds and were desperate to come to Australia to make a better life for themselves and their families. [Mrs R] was easily manipulated and was unaware of the Australian system when she arrived. It was easy for [Mr R] to fool her and take the Social Security money, which was supposed to be available for her children, until she learnt that it was not his money, but hers. Even then she was forced to pay to [Mr R] funds to make up for his reduction in Social Security entitlement as a result of her living with him.
40 The evidence of Mr and Mrs [D] reveals that [Mr R] had no respect for either [Mrs R] or [E] and thought it was amusing that he had manipulated the system so [E] received nothing when they separated, even though she was a part owner of the [suburban] property. Fortunately, [Mrs R] was aware of [Mr R]’s assertion that [E] did not keep records and made sure she kept records and
(Page 14)
| was able to substantiate her contributions. The manner in which he spoke about [E], [Mrs R] and [Mrs R]’s children was disgusting. |
| (Page 15) |
41 I am satisfied on the evidence of [Mrs R], corroborated by Mr and Mrs [D], that she suffered some violent behaviour from [Mr R] and she and her children were denigrated by him. In my view, her contribution to the family, was made far more difficult as a result of his appalling attitude towards her.
Conclusions on contributions
42 It is true that [Mr R]’s initial contributions were significant in that he brought into the marriage his interest in the house [in the suburbs]. [Mrs R] assisted financially by making contributions not only towards the mortgage, but towards household expenses during the course of the relationship of seven years. She also contributed both financially and non-financially to the day-to-day management of the household and provided housekeeping services to the household. Since separation in 2004 [Mr R] has continued to make mortgage payments, but he has also had the benefit of residing in the home. The amount he is paying by way of mortgage is significantly less than he would have to pay by way of rent for similar accommodation. [Mr R] retained joint funds belonging to the parties. These were significant amounts in the context of this marriage. In my view, there should be an apportionment taking into account contributions alone of 50% in favour of [Mrs R] and 50% in favour of [Mr R].
Section 75(2) factors
43 [Mr R] is on an invalid pension and is likely to remain so. He supplements that income by $98 per week working as a [warden]. In awarding almost any sum to [Mrs R], I am mindful of the fact that [Mr R] will almost certainly have to sell the [suburban] property. While I acknowledge that he has been living in this property for over 20 years and is unlikely to be able to rent a property, certainly on the open market, in the same sum for which he is now paying in reduction of the mortgage, I am still satisfied that it is necessary to order such a payment to be made to [Mrs R] to make a just and equitable distribution of the assets.
44 [Mrs R] has now retrained as a [hairdresser]. She is the manager of a salon and her prospects, I would think, are very good. She presently has little in the way of assets, having only a motor vehicle in which she has little equity.
| (Page 16) | |
| 45 | In my opinion, taking into account these circumstances, there should be an apportionment to [Mr R] of 10% of the assets to take into account the fact that his financial position is not as secure as [Mrs R]’s and he does not have the capacity to earn a similar sort of income to that earned by her. |
| 46 | Unless [Mr R] can arrange alternate finances and discharge the personal loan, and pay out [Mrs R], the [suburban] property will have to be sold and the proceeds divided so that [Mrs R] receives 40% of the net proceeds of sale, and [Mr R] receives 60%. If the house sold for the sum estimated by [Mr R] to be its value, this would mean that [Mrs R] would receive $28,000 and [Mr R] the balance. |
| 47 | In my opinion, such an apportionment would be just and equitable. [Mrs R] would retain her car, in which she has little equity, some modest superannuation, but with a capacity to increase this sum by her employment. The sum of $28,000 will allow her to discharge her credit cards and give her some funds to start again. [Mr R] would lose his home, but would retain funds of approximately $42,000 to start again. He has another wife. I do not know her earning capacity, but with [Mr R]’s “form”, I am sure she is contributing to the household. |
Proposed orders
1. The former matrimonial home at [the address], [suburb] in the State of Western Australia registered in the names of the husband (41/100 share) and the State Housing Commission (59/100 share) and more particularly described as Lot [no] on Plan [no] being the whole of the land comprised in Certificate of Title Volume [no] Folio [no] be forthwith sold and the proceeds of sale arising therefrom be disbursed as follows:
(a) in payment of the agent's commission and sales costs; (b) in adjustment of rates and taxes; (c) in payment of the monies required to discharge the Mortgage to the State Housing Commission No. (d) in payment to the State Housing Commission of 59/100 share of the balance; (Page 17)
(e) from the balance then remaining: (i) in payment of the amount outstanding under the personal loan to the National Australia Bank Ltd;
(ii) in payment to the wife of 40% of the balance; and
(iii) the remainder be paid to the husband.
2 All of the wife's right, title and interest in the following vest
in the husband:
(a) the furniture and chattels in the husband's possession; (b) the proceeds of the sale of the [three] cars; (c) the proceeds of the SGIO Insurance claim; (d) the children's shares; (e) the husband's superannuation entitlements. 3. All of the husband's right, title and interest in the following
vest in the wife:
(a) the motor vehicle in the wife's possession; (b) the furniture and chattels in the wife's possession; (c) the wife's superannuation entitlements. 4. Each party to be solely liable for their own personal debts and indemnify and keep indemnified the other against any liability encumbering any item of property or resource to which that party is entitled under these Orders.
I certify that the preceding [47] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
0