Taguchi, S. and Taguchi, a.

[1987] FamCA 16

In the marriage of TAGUCHI, S. and TAGUCHI, A.

(1987) FLC ¶91-836

Full Court of the Family Court of Australia at Melbourne.

Judgment delivered 30 July 1987.

Before: Simpson, McGovern and Joske JJ.

Simpson J.: This is an appeal by the wife against an order made by Fogarty J. on 23 February 1987.

By that order the trial Judge dismissed the applications of the wife for maintenance and property settlement.

The parties were married in Australia on 24 December 1982. They were both born in Japan, the husband on 3 November 1933 and the wife on 3 February 1942. There are no children of the marriage.

The marriage came to an end not earlier than May 1984 when the wife left the former matrimonial home. The wife returned to Japan in mid-1984 but came back to Australia in the latter part of that year. The parties then renewed contact and until towards the end of 1985 they had intermittent association. In any event, in April 1986 the wife instituted proceedings in the Magistrates Court, Prahran, on the basis that the marriage was at an end.

On 17 April 1986 consent orders were made in that Court. The husband paid the wife an amount of $4,500 pursuant thereto. Despite the specific terms of those consent orders, it was common ground before his Honour that the wife was not thereby prevented from pursuing her applications for property settlement and maintenance in the Family Court of Australia.

For reasons which appear to me to be valid, the trial Judge decided to deal with the application for maintenance before considering the property application.

His Honour canvassed the husband's financial position and concluded that review with the following comments:

``It was not suggested that there was an inability in the husband to meet an order for maintenance at least to a reasonable level.''

The trial Judge then referred to the wife's position and said, inter alia:

``the wife's income is constituted by unemployment benefits which she receives together with a very small, almost non-existent, income from her painting which she has continued since her return to Australia.''

His Honour then went on to give consideration to the provisions of sec. 72 of the Family Law Act. Some attack has been made on behalf of the appellant wife in relation to his Honour giving consideration to the wife's claim for maintenance under para. (c) rather than para. (b) of sec. 72. However, it seems to me clear enough that what his Honour was doing was giving the wife the benefit of any ground which she could reasonably put forward to establish that she was unable to support herself adequately.

His Honour's judgment then continued:

``The contest really in the case is this; the husband's case is that the wife could obtain employment if she wanted to, could support herself if she so desires, but she desires not to do so and therefore it is not his obligation to support her.''

At a later stage of his judgment the trial Judge said:

``The question really is whether the wife can obtain employment. Her evidence which was quite unequivocal yesterday was simply this — that there were, in Melbourne, a number of jobs which she could perform and for which she would be paid a proper wage. She has not applied for them, the reason being that she would be unable, if she did that, to continue with her painting and she said she is a professional artist and she is not prepared to sacrifice that. Many people in the present and the past pursue artistic bents at great economic sacrifice to themselves, and sometimes to others as well; but, this case is concerned with whether the wife may pursue her undoubted artistic interests at the expense of her husband. In my view, she is capable of obtaining employment in Melbourne if she chose to apply for it, but chooses not to do so.''

In my view that was the real issue that his Honour had to determine.

Counsel for the wife contends that there was no evidence supporting the findings of the trial Judge, to which I have just referred. I do not accept that submission. In view of the attack made on his Honour's findings, which to me is conclusive of the dispute, I think it proper to quote the relevant passages from the evidence of the wife.

This was evidence given by the wife under cross-examination and through an interpreter, as has already been mentioned. Counsel for the husband said:

``I put it to you there were a number of jobs which arose in the teaching area which you could perform that are advertised in the newspaper.

The interpreter: That is correct.

Question: Those positions pay a proper salary.

The interpreter: Yes, I know.

Question: Have you applied for any of those positions?

The interpreter: No, I have not. She has brought one job in a museum relating to art because of her lack of English and fluency. She was not able to.

Question: I suggest that a number of jobs which are advertised in those papers that your lack of English would be of no effect.

The interpreter: If I do that it would be very difficult for me. I will not be able to paint and I would like to continue my painting, that is my profession, to paint.

Question: If you did not desire to paint, then you would be able to undertake those positions which are advertised.

The interpreter: I cannot think of that. I am a professional artist and I cannot sacrifice my work.''

In my view the trial Judge, who had the advantage, of course, of directly hearing that cross-examination of the wife and no doubt appreciating the responses in a better way than I am able to do from a reading of the transcript, was entitled to make the findings that he did in relation to the wife's ability to obtain employment.

Having come to that conclusion I think that disposes of the wife's appeal so far as the question of maintenance is concerned.

In relation to the other aspect, namely the property application, I think it is fair to say that that aspect of the appeal has not been argued particularly vigorously.

His Honour commenced his consideration of the sec. 79 application by saying:

``It is really unrealistic to talk in terms of section 79; it is almost impossible to squeeze the evidence in this case into a legitimate claim under that section, but I will do my best.''

His Honour then made reference to his task under sec. 79 and reviewed the financial positions of the parties. Among other things his Honour said that the contributions of the wife ``are virtually illusory''.

At another stage he said:

``The wife's only contribution would be the extended contribution to the household within section 79, and some extremely modest and direct financial contributions to day to day living expenses; although it is extremely difficult to equate that to the property with which we are concerned.''

In conclusion the trial Judge made the following remarks:

``Had I been left entirely at large about the matter, I would have found it very difficult because I feel it fairly unrealistic and really an attempt to put a square peg in a round hole. However, I would have fitted it in, if I would have done it at all, it certainly would not have amounted to a peg the shape of $4,500. I conclude in this case, had I made a property order at all, about which I have considerable reservations, that it would not have been in excess of $4,500.''

We have not been referred to any error of fact or law on his Honour's part in relation to the application by the wife under sec. 79. In my view his Honour's decision was within a proper exercise of his discretion and I see no warrant for this Court to interfere with that part of his Honour's judgment.

In the circumstances I consider the appeal should be dismissed.

McGovern J.: I am of the same view as that of his Honour the learned presiding Judge, and have nothing to add to his reasons, and would also dismiss the appeal on those grounds.

Joske J.: I also agree for the reasons which have been given by the learned presiding Judge. I too would dismiss the appeal and there is nothing which I wish to add.

Simpson J.: The order of the Court therefore is the appeal be dismissed.