AK & AK - [2005] FamCA 735

[2005] FamCA 735
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT CANBERRA CA 958 OF 2003
AK
AND:
AK
RESERVED JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE FAULKS
DATE OF HEARING: 3-5 August 2005

DATE OF JUDGMENT: 8 August 2005
APPEARANCES:
Mr AK for himself
Mr Brzostowski for Ms AK
MATTER:AK v AK
CA 958 OF 2003

CORAM:Faulks DCJ
DATE OF HEARING: 3-5 August 2005

DATE OF JUDGMENT: 8 August 2005

CATCHWORDS:
FAMILY LAW - PROPERTY - Jurisdiction and Enforcement (Divorce Proceedings in Russia) - s 44(3) Family Law Act - Value of property - Conflicting Evidence - s 79 Family Law Act - Contributions - s 75(2) Family Law Act
CHILDREN - Contact - Best interests - Contact overseas

CASES CITED:
Whitford v Whitford (1979) FLC ¶90-612; Neocleau v Neocleau (1993) FLC ¶92-377; Harris v Harris (1997) FLC ¶95-192; Chorn v Hopkins (2004) FLC ¶93-204; Coghlan v Coghlan (2005) FLC ¶93-220; Thrum v Cavanough [2002] FamCA 196); Farmer v Bramley (2000) FLC ¶93-060; Norbis v Norbis (1986) FLC ¶91-712; Pierce v Pierce (1999) FLC ¶92-844

REASONS FOR JUDGMENT
CA 958 OF 2003
AK v. AK
IN CANBERRA
3-5 August 2005
Foreword
1.The wife is the applicant and is 49 years of age. The respondent husband is currently 47.[1] There are two children of the relationship being R (aged 21) and N (aged 8). The parties were born in Russia, but have lived for periods of time in Australia. Both parties hold Australian citizenship.

[1] I may refer throughout this judgment to the parties as the “husband” and the “wife” notwithstanding that the parties are divorced in Russia and the husband has remarried. This is for convenience only and no offence is intended to either party.

2.The parties married in 1983 but the date of separation is contended. The wife asserts that separation occurred in April 2001, and that she was served with divorce certificates (proceedings allegedly undertaken by the husband without her notice in Russia) in December 2001 or January 2002. The husband asserts that ‘relations finish in September 1999’. The husband has remarried and his current wife has provided an affidavit.

3.The wife asserts that she has poor English language skills, her work prospects depend upon her health, which she asserts is not good, and her only personal income comes from Centrelink in the form of parenting payments and family assistance. The husband is employed on a contract in Kuwait.

Orders sought
4.Orders sought by the wife appear at endnote 1 Endnote 1. Orders sought by the husband appear at endnote 2 Endnote 2.

background
5.This is a matter which was a difficult and emotional one for both the parties and also for their adult daughter R. Both parties were from a Russian background and neither was fluent in what might be called legal English – although, both, from my observation, understood rather more English than either was prepared formally to acknowledge. The husband had requested an interpreter in advance and Mrs G provided an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AK & AK [2005] FamCA 735
Case: [2005] FamCA 735
Decision Date: 8 August 2005

CaseChat Overview and Summary

The Family Court of Australia considered a property dispute between a wife and husband, both Australian citizens originally from Russia. The wife sought property orders, while the husband contended that Russian divorce proceedings had already finalised all legal matters. A key point of contention was the date of separation, with the wife asserting April 2001 and the husband claiming September 1999. The wife, who had limited English proficiency and health issues, relied on Centrelink payments, while the husband was employed overseas.

The court was required to determine whether it had jurisdiction to hear the property dispute, particularly in light of the Russian divorce. This involved considering whether leave to proceed under section 44(3) of the *Family Law Act 1975* was necessary, given the timing of the wife's application relative to the Russian divorce. The court also had to assess the value of the parties' property pool, which included real estate in Russia and Australia, savings, and superannuation, and to determine the appropriate division of these assets. Finally, the court needed to consider the impact of the parties' contributions and future financial circumstances, including the needs of their son with autism, in making its orders.

Justice Faulks found that the court possessed jurisdiction to hear the matter, as the parties were Australian citizens and the orders sought were enforceable in Australia. He determined that leave under section 44(3) was not required, following the reasoning in *Kemeny v. Kemeny*, and even if it were, grounds for granting leave would exist due to the wife's lack of understanding of the Russian proceedings and the potential hardship she would suffer. The court then proceeded to assess the property pool, valuing the assets based on the evidence presented, including the husband's admissions regarding the Russian flat and the sale of the Russian house. The court adopted the approach that property is generally valued as at the date of the hearing, and that post-separation contributions, particularly in relation to the parties' son, would be considered.

The court ultimately made orders for the division of the parties' property. The husband was ordered to pay the wife a sum of $170,000, representing her entitlement to the property pool. This amount was to be paid from the proceeds of the sale of the parties' home in F, with the husband having a period of time to sell the property and pay the wife her share. The court also made orders regarding the children, including that the husband continue to pay child support for their son N and that the wife have sole use and occupation of the F home until N turns 18, or until the property is sold, whichever occurs first.

Orders