FAMILY COURT OF AUSTRALIA
Balansky & Nerrata [2020] FamCA 996
File number(s): CAC 601 of 2020 Judgment of: GILL J Date of judgment: 27 November 2020 Catchwords: FAMILY LAW – Interim proceedings – Application for partial property adjustment to pay for legal fees and costs associated with property proceedings – orders in relation to disclosure – where Husband’s approach sits poorly with his obligations as to disclosure – where property pool is as yet unable to be identified due to failures in disclosure – no significant disparity established in capacity to fund litigation – orders assigning responsibility for payment of outstanding rates on former matrimonial home Legislation: Family Law Act 1975 (Cth) ss 79, 79(2), 79(4), 80(1)(h), 90SM
Family Law Rules 2004 (Cth) rr 13.01, 13.04, 13.15, 15.47
Cases cited: Gabel v Yardley (2008) 221 FLR 270
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Jones v Dunkel (1959) 101 CLR 298
Shelbourne & Shelbourne [2019] FamCAFC 196
Strahan & Strahan [2009] FamCAFC 166
Wenz v Archer (2008) 40 Fam LR 212
Zadenev & Zadenev [2013] FamCA 838
Zschokke & Zschokke (1996) FLC 92-693
Number of paragraphs: 53 Date of hearing: 17 November 2020 Place: Canberra Counsel for the Applicant: Mr Othen Solicitor for the Applicant: Farrar Gesini Dunn Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Douros Jackson ORDERS
CAC 601 of 2020 BETWEEN: MS BALANSKY
Applicant
AND: MR NERRATA
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
27 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The parties are each to file a written notice pursuant to Rule 13.15 within a period of 28 days and, in the event that a party does not do so, that party is to file an affidavit, within a further 7 days, setting out the circumstances that meant that the party was unable to file the undertaking.
2.The proceedings are adjourned to 2pm on 4 February 2021 for a compliance check, for the giving of further directions, and to hear any applications in relation to disclosure.
3.The listing on 2pm on 4 February 2021 is a costs notice event for the purposes of Rule 19.04.
4.Ms A of B Valuers be jointly appointed to value:
(a)2 C Street, D Town;
(b)4 C Street, D Town; and
(c)E Street, F Town.
5.Mr G of H Valuers be appointed to value J Street, Suburb K.
6.Mr L of M Valuers be jointly appointed to value the parties’ interest in the following:
(a)Nerrata Family Investment Trust (Nerrata Family Discretionary Trust);
(b)N Pty Ltd;
(c)O Pty Ltd;
(d)P Pty Ltd;
(e)Q Pty Ltd;
(f)Q Unit Trust;
(g)R Pty Ltd;
(h)Nerrata Family Trust 2;
(i)S Pty Ltd;
(j)Nerrata Trust;
(k)Nerrata Family Investment Trust 2;
(l)Nerrata Family Trust (Nerrata Family Discretionary Trust 2);
(m)T Pty Ltd;
(n)T Unit Trust;
(o)T2 Pty Ltd;
(p)U Pty Ltd;
(q)T3 Pty Ltd;
(r)V Pty Ltd;
(s)W Pty Ltd;
(t)AA Pty Ltd;
(u)BB Pty Ltd;
(v)CC Pty Ltd;
(w)DD Pty Ltd; and
(x)Joint Super Fund.
7.The costs of the valuations are to…
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CaseChat Overview and Summary
The court was required to determine several legal issues, including the respondent's obligations regarding disclosure and the appropriate orders to ensure compliance. The court also considered applications relating to the payment of outstanding rates on the former matrimonial home and the broader question of interim relief in the context of incomplete financial disclosure. The court needed to balance the need for adequate disclosure with the parties' capacity to fund ongoing litigation and associated costs.
Gill J found that the husband's approach to disclosure was unsatisfactory and hindered the ability to identify the property pool. Consequently, the court made detailed orders for the joint appointment of valuers to assess various properties and entities, with the costs to be shared equally. The husband was also ordered to provide extensive financial documentation within seven days, with specific provisions for asserting prior provision of documents. The court dismissed applications concerning rates arrears for the J Street property, ordering the husband to pay rates relating to his period of occupation, and otherwise dismissed interim relief applications.
Orders
Orders of the court
CAC 601 of 2020
BETWEEN:
MS BALANSKY
Applicant
AND:
MR NERRATA
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
27 NOVEMBER 2020
THE COURT ORDERS THAT:
1. The parties are each to file a written notice pursuant to Rule 13.15 within a period of 28 days and, in the event that a party does not do so, that party is to file an affidavit, within a further 7 days, setting out the circumstances that meant that the party was unable to file the undertaking.
2. The proceedings are adjourned to 2pm on 4 February 2021 for a compliance check, for the giving of further directions, and to hear any applications in relation to disclosure.
3. The listing on 2pm on 4 February 2021 is a costs notice event for the purposes of Rule 19.04.
4. Ms A of B Valuers be jointly appointed to value:
(a) 2 C Street, D Town;
(b) 4 C Street, D Town; and
(c) E Street, F Town.
5. Mr G of H Valuers be appointed to value J Street, Suburb K.
6. Mr L of M Valuers be jointly appointed to value the parties’ interest in the following:
(a) Nerrata Family Investment Trust (Nerrata Family Discretionary Trust);
(b) N Pty Ltd;
(c) O Pty Ltd;
(d) P Pty Ltd;
(e) Q Pty Ltd;
(f) Q Unit Trust;
(g) R Pty Ltd;
(h) Nerrata Family Trust 2;
(i) S Pty Ltd;
(j) Nerrata Trust;
(k) Nerrata Family Investment Trust 2;
(l) Nerrata Family Trust (Nerrata Family Discretionary Trust 2);
(m) T Pty Ltd;
(n) T Unit Trust;
(o) T2 Pty Ltd;
(p) U Pty Ltd;
(q) T3 Pty Ltd;
(r) V Pty Ltd;
(s) W Pty Ltd;
(t) AA Pty Ltd;
(u) BB Pty Ltd;
(v) CC Pty Ltd;
(w) DD Pty Ltd; and
(x) Joint Super Fund.
7. The costs of the valuations are to be met equally by the parties.
8. Unless such documents have already been provided by the husband to the wife, with such fact to be asserted in a schedule in accordance with the order immediately following provided to the wife on otherwise providing the documents in accordance with this order, the husband shall provide to the wife within 7 days:
(a) Statements for all bank accounts, including credit cards and loans, in his name, including together with any other person, or for which he is a signatory, for the period 1 January 2019 to date;
(b) Statements for all bank accounts, including credit cards and loans, in the name of any of the entities listed in Order 6 above;
(c) A list of any other proprietary company, unit trust, trust, or partnership in which he has an interest or in which any of the entities listed in Order 6 above have an interest; and
(d) Financial statements, dividend statements, distribution statements and copies of all minutes of meetings and resolutions in relation to each of the entities in Order 6 above and any further entity referred to in Order 8(c) above for the financial years 2016 to now.
9. In the event that the husband asserts that he has already provided documents complying with the immediately preceding order, then such assertion is to be provided to the wife by means of a schedule identifying what documents have been provided, their manner of provision and the date of their provision to the wife.
10. The parties’ applications in respect of the payment of rates arrears for the J Street property stemming for their pre separation occupation of the property are dismissed.
11. The husband is to pay all rates and outgoings on the J Street property relating to his period of occupation of the property.
12. The parties’ applications and responses in respect of interim relief are otherwise dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
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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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