Evidence from the hairdresser?
Most people would consider the relationship they have with their hairdresser to be deeply personal. Indeed, the conversations between client and hair stylist would be thought of as confidential by many. However, that is not the case. Did you know your hairdresser can be called to give evidence about you? Here is such a case.
In a recent Family Court decision, no fewer than three hairdressers were called to give evidence. Two were called by the husband, and one was called by the wife.
The hairdressers were asked to give evidence about the wife’s ability to understand English, as English was her second language.
The trial was focused on a Binding Financial Agreement (BFA) which was signed during the relationship. The husband contended it was a binding agreement and the wife contended it should be set aside.
Calling a hairdresser to give evidence might seem a little unusual, but the wife was trying to prove that her ability to understand and speak the English language, at the time of signing the BFA was “limited”, which in turn impacted on the advice she was provided at the time she signed it.
The husband was trying to prove the wife could “well understand and speak the English language” at the time of signing the BFA, and the fact that she did not have an interpreter was “her own fault”, as she had opportunity to use one.
The couple met when the husband was 77 and the wife was 42. The relationship lasted for approximately six years, during which time he financially supported her, and she made homemaker contributions. The judge specifically referred to the wife as having provided her husband with “a level of personal care that he likely had not enjoyed for many years, if ever”.
The husband had been previously divorced and the judge referred to the painful and long-lasting effect this first separation and property settlement had had on the husband.
During this case, the first hairdresser gave evidence that the wife “spoke English slowly and clearly, but not fluently. Enough for me to understand what she was doing on the weekend or where she was going for the evening, or whether I had to dress up her hair or just give her basic hairdos”.
The second hairdresser said, “I would speak to her in English and she would respond to me in English … I found that she and I communicated well in English”. However, under cross-examination he conceded the wife was the type of person who “basically did not want to talk”.
According to the third hairdresser, there were significant communication barriers. “… because I could not understand what the wife was saying I looked on my phone for an app to translate from (her native language) to English and vice versa. I could not find one, and so we had to manage with gestures and pictures”.
The wife, having a very limited understanding of the English language, as well as some visa issues in relation to staying in the country, and limited finances, had signed a BFA that provided her with no property settlement should the couple separate.
The judge found all the hairdressers were “basically honest in giving evidence to the best of their recollection”.
The judge was not persuaded that the signing of the BFA by the wife was the product of her free will and found:
- There was a general position of dominance by the husband towards the wife.
- That there was undue influence because of the husband’s ongoing insistence over a considerable period of time that she sign the BFA.
- That the husband knew that the wife depended on the relationship continuing in order to obtain a permanent visa to remain living in Australia, and yet the husband made it clear that he would end the relationship unless she signed the BFA.
- That the wife’s solicitor had advised her not to enter into the agreement – albeit inadequately, having had only a 30-minute appointment with the wife, without an interpreter. Further, the wife had not been given a copy of the BFA, which would have been pointless anyway, as she could not read it, much less understand it.
- There was a finding that the husband used his money to manipulate and control others.
The judge found that the wife was in a position of special disadvantage at the time she signed the BFA, and that the advice given to the wife by her solicitor was not sufficient to remedy that special disadvantage.
The judge, having then found that the terms of the BFA were “simply outrageous”, set aside the agreement.
If you have a question about what happens with the division of property in a separation, or any other aspect of family law, call Michael Lynch Family Lawyers on (07) 3221 4300 to organise a no-obligation, fixed-fee initial appointment.
