FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ashcroft & Rosen [2024] FedCFamC2F 1428
File number(s): DGC 1473 of 2023 Judgment of: JUDGE JENKINS Date of judgment: 17 October 2024 Catchwords: FAMILY LAW – PROPERTY – De facto relationship – non-compliance with trial directions – complete non-disclosure by respondent – failure to file or challenge evidence. Legislation: Family Law Act 1975 (Cth) ss 90SM(1), 90SM(3), 90SM(4) Cases cited: Aleksovski & Aleksovski [1996] FamCA 111
Bevan & Bevan [2013] FamCAFC 116
Clauson & Clauson (1995) FLC 92-595
Commissioner of Taxation v Worsnop (2009) FLC 93-392
Dickons & Dickons [2012] FamCAFC 154
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93 143
Lee Steere & Lee Steere (1985) FLC 91-626
Mallet v Mallet (1984) 156 CLR 605
Omacini & Omacini [2005] FamCA 195
Re F: Litigants in person guidelines (2001) FLC 93-072
Stanford and Stanford [2012] HCA 52
Weir & Weir [1992] FamCA 69
Division: Division 2 Family Law Number of paragraphs: 72 Date of hearing: 3 October 2024 Place: Dandenong Counsel for the Applicant: Ms Theoharopoulou Solicitor for the Applicant: Malkin Lawyers Representative for the Respondent: Self-represented ORDERS
DGC 1473 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ASHCROFT
Applicant
AND: MR ROSEN
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
17 OCTOBER 2024
IT IS ORDERED BY THE COURT THAT:
1.The net proceeds of sale of B Street, Suburb C, in the state of Victoria, after the payments provided for in orders 3 (a) to (d) of the interim orders of this court dated 3 October 2024 be divided as follows:
(a)To effect a 70 per cent division of the total asset pool to the applicant; and
(b)The balance to the respondent.
2.For the purposes of order 1 the asset pool is set out in annexure A to these orders.
The Respondent’s Corporate Entities
3.In relation to the corporate entities namely, D Pty Ltd (formerly E Pty Ltd), F Pty Ltd, G Pty Ltd, Rosen Superannuation Fund, and H Pty Ltd to be (“collectively called the Respondent’s Corporate Entities”) the following shall apply:
(a)Except as otherwise provided in these Orders, the Applicant shall have no claim or right to claim any right, title or interest, in or income or payment from the Respondent’s Corporate Entities; and
(b)The Respondent shall pay and indemnify the Applicant and keep her indemnified against any and all liabilities of or in relation the Respondent’s Corporate Entities, of whatsoever nature or kind and howsoever and whensoever arising (past, present and future) including but not limited to any debt personally guaranteed by the Applicant and any unpaid tax (including capital gains), penalties, fines and interest assessed, or hereinafter assessed, against the Applicant with respect to income derived, distributed or otherwise received or deemed to have been received by the Respondent and/or the Applicant from any of the Respondent’s Corporate Entities, or any amount owed by the Applicant to any or all of the Respondent’s Corporate…
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- Ashcroft & Rosen [2024] FedCFamC2F 1428
- Case
- [2024] FedCFamC2F 1428
- Decision Date
CaseChat Overview and Summary
The court held that the non-compliance by the Respondent significantly hindered the fairness of the proceedings. Despite the Respondent's failure to provide any evidence or challenge the Applicant's claims, the court proceeded to make orders based on the evidence presented by the Applicant. The court divided the net proceeds of the sale of the property in a 70/30 ratio in favour of the Applicant, and granted her exclusive rights to specific personal assets. The Respondent was ordered to indemnify the Applicant against any liabilities arising from the corporate entities and the superannuation fund. The Applicant was to resign from her position as a trustee and member of the superannuation fund. Each party was held solely liable for their respective debts and personal liabilities.
The court ultimately divided the property and liabilities between the parties, with the Applicant receiving a larger share of the asset pool and specific personal items. The Respondent retained his corporate entities, personal savings, and superannuation entitlements. The court also made orders concerning the handling of costs, stipulating that the parties were to submit written submissions within 28 days and that the final determination of costs would occur in chambers.
The court's orders, as outlined, aim to finally determine the financial relationship between the parties and avoid further proceedings, in line with Section 90ST of the Family Law Act 1975 (Cth).
Orders
Orders of the court
DGC 1473 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS ASHCROFT
Applicant
AND:
MR ROSEN
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
17 OCTOBER 2024
IT IS ORDERED BY THE COURT THAT:
1. The net proceeds of sale of B Street, Suburb C, in the state of Victoria, after the payments provided for in orders 3 (a) to (d) of the interim orders of this court dated 3 October 2024 be divided as follows:
(a) To effect a 70 per cent division of the total asset pool to the applicant; and
(b) The balance to the respondent.
2. For the purposes of order 1 the asset pool is set out in annexure A to these orders.
The Respondent’s Corporate Entities
3. In relation to the corporate entities namely, D Pty Ltd (formerly E Pty Ltd), F Pty Ltd, G Pty Ltd, Rosen Superannuation Fund, and H Pty Ltd to be (“collectively called the Respondent’s Corporate Entities”) the following shall apply:
(a) Except as otherwise provided in these Orders, the Applicant shall have no claim or right to claim any right, title or interest, in or income or payment from the Respondent’s Corporate Entities; and
(b) The Respondent shall pay and indemnify the Applicant and keep her indemnified against any and all liabilities of or in relation the Respondent’s Corporate Entities, of whatsoever nature or kind and howsoever and whensoever arising (past, present and future) including but not limited to any debt personally guaranteed by the Applicant and any unpaid tax (including capital gains), penalties, fines and interest assessed, or hereinafter assessed, against the Applicant with respect to income derived, distributed or otherwise received or deemed to have been received by the Respondent and/or the Applicant from any of the Respondent’s Corporate Entities, or any amount owed by the Applicant to any or all of the Respondent’s Corporate Entities and from all actions, proceedings, costs, claims and demands in respect thereof.
Superannuation Orders – Rosen Super Fund
4. The Respondent retain all of his entitlement in the Rosen Super Fund (SMSF).
5. Within 14 days of these Orders, the Applicant do all such acts and things and sign all such documents necessary, at the expense of the SMSF, to:
(a) Resign as a Trustee;
(b) Resign as a member of the Fund; and
(c) Renounce all claim against the Trustee and/or the Fund.
6. The Respondent be solely liable for, pay, and indemnify the Applicant against any and all liabilities of or in relation to the Trustee and/or the SMSF including but not limited to any unpaid tax (including capital gains), penalties, fines and interest assessed or hereinafter assessed with respect to income derived, distributed or otherwise received by the Trustee and/or the Fund or in relation to the Fund’s non-compliance with the Superannuation Industry (Supervision) Act 1993 (Cth) and associated Regulations.
Property to be retained
7. The Applicant shall retain as her property to the exclusion of the Respondent:
(a) Her motor vehicle;
(b) Her savings and bank accounts;
(c) Her cryptocurrency;
(d) All the household furniture and chattels in her possession and or in the Suburb C property; and
(e) Her Superannuation entitlements.
8. The Respondent retain as his property to the exclusion of the Applicant:
(a) His Corporate Entities;
(b) His savings and bank accounts;
(c) His shares;
(d) Motor Vehicle 1;
(e) Vehicle 2;
(f) All his personal items in his possession; and
(g) His Superannuation entitlements in the SMSF.
Liabilities
9. The Respondent shall be solely liable for and indemnify the Applicant absolutely against all payments and liability whatsoever in respect to any debts, loans, credit cards or property in his name or in which he has a liability.
10. The Applicant shall be solely liable for and indemnify the Respondent absolutely against all payments and liability whatsoever in respect to any debts, loans, credit cards or property in his name or in which he has a liability.
Omnibus
11. Unless otherwise specified in these Orders and except for the purposes of enforcing any compliance with these Orders:
(a) each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders; and
(b) monies standing to the credit of the parties in any bank account in their joint names is to be divided equally between the parties and the joint bank(s) and the parties shall do acts and things necessary to sign all documents to close such account/s; and
(c) each party hereby foregoes any claim they may have to any superannuation benefits or other employment related benefits belonging to or earned by the other; and
(d) all insurance policies to become the sole property of the owner named in the policy; and
(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(f) each party is solely liable for and indemnify the other in relation to;
(g) any liability encumbering any item of property to which they are entitled pursuant to these Orders; and
(h) any and all liabilities in their sole name, including any personal credit card or taxation liability.
12. All applications be otherwise dismissed save as to costs.
Costs
13. Within 28 days the Applicant make, file and serve any written submissions with respect to costs including the calculation of any quantum.
14. Within 28 days of Order 13 herein, the Respondent make, file and serve any written submissions in response.
15. Costs shall thereafter be determined in chambers.
NOTATION:
A. Pursuant to Section 90ST of the Family Law Act 1975 (Cth) the parties intend these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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