Bondar-Twersky and Twersky
[2009] FMCAfam 163
•4 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BONDAR-TWERSKY & TWERSKY | [2009] FMCAfam 163 |
| FAMILY LAW – Property – very short marriage – wife emigrated from Ukraine to Australia – expectations of the marriage and allegations of domestic violence –whether adjustment be made due to wife’s social dislocation arising from her relocation to Australia – consideration of unpaid legal costs under s.75(2)(o) – non-disclosure of assets – assessment of contributions– just and equitable. |
| Family Law Act 1975, (Cth), Part VIII, ss.43(a), 75(2), (2)(o), 79(2), 79(4), Part XV, s.117 Family Law Rules 2004, Ch 13 |
| Barker v Barker (2007) 36 Fam LR 650 “Best Practice Guidelines for Lawyers Doing Family Law Work,” Attorney-General’s Department, (Canberra: 2004) |
| Applicant: | MS BONDAR-TWERSKY |
| Respondent: | MR TWERSKY |
| File Number: | CAC 2241 of 2007 |
| Judgment of: | Neville FM |
| Hearing dates: | 30 June, 1 July, 25 & 26 November 2008 |
| Date of Last Submission: | 26 November 2008 |
| Delivered at: | Canberra |
| Delivered on: | 4 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Farrar |
| Solicitors for the Applicant: | Farrar, Gesini & Dunn Family Lawyers |
| Counsel for the Respondent: | Ms Tonkin |
| Solicitors for the Respondent: | Hill and Rummery Barristers & Solicitors |
ORDERS
That within sixty (60) days of the date of these Orders, the Husband pay to the Wife the sum of $112,333, less any payments made by way of property settlement by the Husband to the Wife in accordance with Orders dated 1 July 2008.
That the Wife retain the whole of the proceeds of sale of the Ukraine property.
That contemporaneously with Order 1, the Wife is to transfer to the Husband any right, title and interest she has in real property and/or personal property in the possession and/or control of the Husband, including but not limited to:
(a)“Property W”, [L] in NSW;
(b)Property L, [L] in NSW;
(c)“Property M”, [L]; and
(d)“Property P”, [L].
That in the event that Order 1 is not complied with, and the “Property W” property has not already been sold, then the Husband is to do all things necessary to effect the sale of “Property W” by private treaty at the market value determined in accordance with Order 5, at the earliest possible date.
That the market value of “Property W” be as agreed between the husband and wife or failing such agreement as determined by a valuer nominated by the President of the Real Estate Institute of the ACT, such determination to be paid for by the Husband.
That in the event that the property is not sold by private treaty within sixty (60) days of the Due Date, the Husband and Wife place “Property W” with an agent for sale to be agreed between the Husband and Wife or in default of agreement with an agent ("the Agent") nominated by the President of the Real Estate Institute of the ACT.
That if the “Property W” is not sold within ninety (90) days of the Due Date, or if “Property W” is sold and the sale subsequently does not proceed to completion, the Husband and Wife do all things necessary to offer “Property W” immediately for sale by public auction by the Agent, the reserve price being the market value determined in accordance with Order 5.
That the Husband shall execute all documents requested by the Agent as auctioneers for sale of “Property W” by auction within 7 days of this request.
That the Husband shall execute a contract of sale.
That the Husband shall cooperate in every way with the Agent in relation to the auction of “Property W” including making the keys available for an inspection of “Property W” at times requested by the Agent and ensuring that the “Property W” is in a clean and neat condition at the time of inspection by the prospective purchasers.
That if “Property W” is not sold at the auction within 21 days thereafter the husband and wife shall meet the market price and sell the “Property W” at the best price then obtainable.
That during the period that “Property W” is being offered for sale the Husband shall allow prospective purchasers to inspect “Property W” at all reasonable hours by appointment.
That the Husband and Wife do all things necessary to cause the proceeds of the sale of “Property W” to be distributed as follows:
(a)To pay all costs commissions and expenses of the sale;
(b)To pay the usual rates adjustments;
(c)To pay the amount required to discharge the mortgage;
(d)The amount owed to the Wife in accordance with Order 1; and
(e)To pay the balance to the Husband.
That the time limits and the terms and conditions for sale set by these Orders may be varied by the parties by written agreement.
That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 7 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.
That unless otherwise specified in these Orders each party shall otherwise retain any motor vehicles, chattels, bank accounts, personal property and superannuation in their possession or control.
That liberty is granted to the parties to relist the matter within 21 days in relation to costs. In the event that there is no application regarding costs, each party is to pay their own costs.
IT IS NOTED that publication of this judgment under the pseudonym Bondar-Twersky & Twersky is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2241 OF 2007
| MS BONDAR-TWERSKY |
Applicant
And
| MR TWERSKY |
Respondent
REASONS FOR JUDGMENT
Introduction
All marital breakdowns, unfortunately, inevitably and understandably, involve heartbreak, dislocation of various and varying kinds, and a myriad of other aspects of human distress. Not least among them are anxieties – emotional and financial - about the future in the face of the certainties that were expected and certainly hoped for but which did not materialise, or at least did not continue. The future and all of its vagaries hang before separated parties with greater uncertainty than would otherwise, or more usually, be the case.
Such concerns are increased in situations where the parties are in their more mature years and where one of them has left their country of birth to settle in Australia in the hope of either “greener pastures” and or leaving behind other difficulties in that country of birth. This general description or scenario, and the uncertainties of the future for those in their more mature years, are very much the back-drop to these property proceedings.
Background and issues
The applicant in these proceedings is Ms Bondar-Twersky, a 59 year old lady from the Ukraine, who was married to Mr Twersky, a 59 year old farmer from [L].[1] After a very short marriage of, at best, three (3) years, but perhaps a little less, Ms Bondar-Twersky left the relationship.[2] She makes a series of accusations against her husband, including that he was physically and verbally abusive to her, in part because of his consumption of alcohol. He strongly denies all of these claims.
[1][2] The actual period of co-habitation was approximately 2½ years. The parties married in July 2001. Mr Twersky lived in the Ukraine with his new wife for about 1 month. Ms Bondar-Twersky did not arrive in Australia until March 2002. I do not think that Ms Bondar-Twersky’s 3 month holiday back in the Ukraine in 2003, during which time she had dental work done, paid for by Mr Twersky, is relevant to the period of co-habitation.
Both parties have been married previously. Ms Bondar-Twersky divorced in the early 1990s.[3] Mr Twersky’s second wife died after a marriage of not insignificant length; he and his first wife were divorced. Ms Bondar-Twersky has two grown children who live overseas; Mr Twersky has five adult children, none of whom live with him.
[3] In par.14 of her affidavit of 23rd May 2008, Ms Bondar-Twersky deposed to divorcing her first husband in 1993. In par.18 of the same affidavit, she deposed to her divorce having occurred in 1994. Nothing turns on this discrepancy.
Given the circumstances of the formation of the relationship, and `the geography’ and financial situation of the parties, it is largely incontestable that Mr Twersky brought the financial resources and contributions to the relationship, and did so to an almost overwhelming degree. Put more summarily, he had the financial resources – primarily through his real estate and labour as a farmer; Ms Bondar-Twersky, by and large, was unable to bring any financial resources to the relationship.
The future is less than rosy for both parties, in part because of their ages and significantly because of their circumstances. In the case of Mr Twersky, he is facing either the voluntary or forced sale of the largest farming property from which he has earned a living but in relation to which growing debt has been incurred, especially in the last three years, due primarily to crop failure because of the drought. That said, his situation is not immediately dire because he will have a roof over his head courtesy of an arrangement with his children, and he will have some prospect of contract work harvesting, albeit that such work is seasonal for perhaps two months, and of course with no guarantee of work, (again) in part because of the continuing drought.
The situation of Ms Bondar-Twersky is rather different and immediately more difficult. Having left the Ukraine – it should be said immediately, in my view, completely voluntarily, and conversely, without any hint of coercion – she embarked upon the uncertain voyage of marriage to the other side of the world, to country New South Wales.[4] It may be stated with reasonable certainty, however, that she could not have known exactly what life on a farming property in a small rural environment was going to be like. Nor could she have known with great particularity what life with Mr Twersky was going to be like in such a setting. All of that said, having been married previously, and having willingly engaged in or with the overtures from Mr Twersky about a relationship, albeit largely from afar, she could not be said to have been a neophyte to married life and the vagaries and vicissitudes that accompany it. Such of course is the nature of any committed relationship, and which is captured in most forms of marital vows or promises and recognised in the definition of “marriage” under s.43(a) of the Family Law Act (“the Act”).[5]
[4] In his opening to the Court, Mr Farrar, for Ms Bondar-Twersky, submitted that his client had been “enticed” to come to Australia. Transcript (30th June 2008) p.5. For reasons set out below, I do not accept that this was the case.
[5] See here FM Brown’s similar observations in Maguire & Richter [2009] FMCAfam 85. At [61], his Honour said: “The move [by the wife from Germany] was not without its risks. However, some level of risk is a necessary corollary of many aspects of human endeavour, including marriage. One party to a marriage is not necessarily to be penalised because things do not work out between the parties concerned as envisaged. As the Anglican Book of Common Prayer has it, marriage is “for better or worse, for richer or poorer.” Emphasis in original.
To a significant degree, this aspect of sacrifice or loss – past, present and future - experienced by Ms Bondar-Twersky, featured prominently in the conduct of the trial, especially in the course of final submissions. Although emphasis was placed on (a) her contributions, limited though they can only have been given the short duration of the relationship, and (b) bolstering the size of the asset pool via exposition of
Mr Twersky’s somewhat fluid approach to his financial records,[6] the current and future plight of Ms Bondar-Twersky in the light of her failed, brief marriage, together with some “health issues”, were, fundamentally, the cornerstones of her case.
[6] In dealing with the evidence of the parties I will consider the impact of Mr Twersky’s failure to disclose fully some assets, which in the larger scheme of things and compared to the overall size of the asset pool, were not vastly significant amounts. For a recent discussion of identification and disclosure of property, see the Full Court judgment in Barker v Barker (2007) 36 Fam LR 650.
Putting her case at its highest, all of this is to say (which is confirmed by the evidence set out below) that there was not a lot of straw with which Mr Farrar (for Ms Bondar-Twersky) could make the bricks which Ms Bondar-Twersky might use to rebuild her future.
It is not a case, formally speaking, of loss of expectation of the long-term benefits and securities of marriage. It is, as correctly put by
Mr Farrar, an appraisal, according to the usual “four steps,” of what is the appropriate “just and equitable” order in this case based on the structured adherence to the legislative prescriptions in s.79 of the Family Law Act 1975 (Cth) (“the Act”).[7]
[7] There is abundant authority in relation to the judicial prescription to use the “four inter-related steps” approach. See, for example, the Full Court decisions in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003)FLC ¶93-143 at p.78,386, and AJO v GRO (2005) 33 Fam LR 134 at p.147 [46].
There is one other matter to mention here because it was raised specifically by Mr Farrar as a consideration in determining the just and equitable order to be made in these proceedings: it is dealt with more fulsomely later in these reasons.
Mr Farrar submitted that I should take particular note of the estimated legal costs incurred by Ms Bondar-Twersky in her pursuit of her property application against Mr Twersky. Those costs are estimated at $80,000.00. For his part, and by way of comparison, Mr Twersky has paid $16,000.00 in legal fees. Mr Farrar submitted that in determining an appropriate order in this case, which he submitted should be in the order of $300,000 or approximately 30% of the asset pool,[8] I should take into account the significant legal fees that will be extracted from any award. As I explore later, there is some circularity, as well as a degree of invidious circumstance, involved in such a submission.[9] I might also add that the precedent such a submission – if accepted – would provide would doubtless be embraced eagerly by lawyers (from the very competent to the significantly less so) who might be tempted to increase their fees even more so in order that their client’s s.75(2) factors are further advanced.
[8] See Transcript (26th November 2008) p.134.
[9] Although there was no specific mention of it, I assume that Mr Farrar’s submission in relation to [estimated] costs eating a very large hole in any award is a matter that should be treated under s.75(2)(o) of the Act.
It is clear that the consideration of legal costs does not relate to “adding back” legal costs that have been expended from the pool of assets. This is to say that the usual cases (if they may be so termed), of Milankov & Milankov and AJO v GRO and the cases cited there,[10] are not directly in point. It is, as I have indicated, a situation where extremely large [estimated] costs (that might, in any event, reasonably be held to be disproportionate to the case itself) have been incurred – but not yet paid – but which, it is said, I should take into account in determining what is a `just and equitable’ award. This is so, according to the submission, because it would not be just and equitable to make an award in the wife’s favour but have her walk away with a minute sum in her hand because most of the award would remain in the pockets of her attorneys. And all of this takes place in a case which, by any reasonable measure, is of quite modest proportions, factually relatively straight-forward, and legally, with only a small number of issues to be determined. As I have said, I will come back to this `costs and just and equitable’ submission. I mention it now because of its significance – on many fronts.
[10] Milankov& Milankov (2002) FLC ¶93-095; AJO v GRO (2005) 33 Fam LR 134.
Thus, by way of summary, the issues revolve around (a) the very short duration of the marriage, and (b) contributions - primarily financial on the husband’s part and non-financial on the wife’s part. In my view, of lesser moment for the purposes of determining what is `just and equitable’ in the circumstances of the case, the only other issues relate to disclosure of assets by Mr Twersky, the somewhat unusual “costs consideration” argument on behalf of Ms Bondar-Twersky and the allegations of domestic violence.
My course in these reasons is to discuss (briefly) the principles (such as they might be) gleaned from a range of cases applicable in short marriages, then to consider the issues and evidence, and finally to undertake the usual “four steps.”
III. Short marriage cases
In Quinn & Quinn, Evatt CJ (with whom Asche & Ross-Jones JJ agreed) said:[11]
The fact that the marriage was of short duration, in the circumstances of this case … does give added weight to the capital contribution which the wife made to the acquisition of this home, as against the contributions which the husband made from his income and earnings during the marriage. That is, because the marriage was of such short duration, the asset in question to a large extent could be seen not as an asset accumulated from the efforts of the parties during the marriage but still largely an asset brought into the marriage by the wife.
[11] (1979) FLC¶90-677 at pp.78-613-614.
The significance of the case for current purposes is the Chief Justice’s focus on (a) the treatment of the contribution of the major asset brought into the marriage, and (b) the fact that it was a short marriage of approximately three years. In the result, the Full Court dismissed the appeal against the trial judge’s orders whereby a very modest payment was made to the husband by the wife; the latter kept the former matrimonial home.[12]
[12] Quinn’s case is also noteworthy because of the Chief Justice’s discussion, at p.78,615, about “contributions.” Evatt CJ said that she did not subscribe to the view that “one should do mathematical calculations in determining the appropriate property order to make….” Admittedly, this was in the context of her Honour’s concern about an over-emphasis on calculations of this sort at the expense of “indirect and non-financial contributions.”
In Bushby & Bushby, in a marriage of four years with no dependent children, the Full Court allowed an appeal, which reduced the wife’s award from that which was allowed at first instance. The case turned upon the evaluation of the respective contributions by the parties, and on the exercise of discretion. On the basis of contributions, at first instance, the Court held that the wife should be paid $10,000, plus costs. Baker J said: “Although the wife did make a contribution over a period of some four years by way of homemaker, nevertheless, I am satisfied that to leave the parties as they were at the time of the separation would have produced a just and equitable result.”[13]
[13] Bushby & Bushby (1988) FLC ¶91-919 at p.76,669.
His Honour concluded: “The husband’s income substantially exceeded that of the wife, and when one looks at the total property, whether in cash or in kind, which the wife received, to confer any further benefit upon her would … be a grave injustice to the husband.”[14]
[14] Ibid.
In In the Marriage of Goodwin, there was a four year marriage in relation to which there were no children, although the wife had teenage children from a former relationship. There was, as there is in this case, a significant disparity in the financial resources of the parties. They heavily favoured the husband. The trial judge found that the wife’s contribution to the short marriage was “very small.” At first instance, the Court awarded the wife 10% of the assets, with no allowance under s.75(2).
On appeal, although the Full Court found that there was error in the trial judge taking into account, in relation to contribution, the financial disparity between the parties, their Honours (Nicholson CJ, Simpson & Finn JJ) held that they would arrive at the same result, based on assets.[15]
[15] In the Marriage of Goodwin (1991) FLC ¶92-192 at p.78, 271. The Full Court said, in the same place, that the financial disparity between the parties was a consideration under s.75(2).
In Turnbull & Turnbull, there was a marriage of approximately two years. There was a very significant difference between the financial resources of the husband and the wife, the former having by far `the lion’s share.’ There was one child of the marriage. Baker J said:[16]
The wife, in my view, married a wealthy man and lived in very comfortable circumstances on prime grazing land, albeit for two years only. She had the expectation of a long and happy marriage and enjoyed a very comfortable standard of living. Since the separation, she has lived in a basic cottage in a small country village.
[16] (1991) FLC ¶92-258 at p.78,740.
In the result, his Honour awarded the wife an amount that approximated 5% of the very large pool of the husband.
Cohen & Cohen[17] involved a marriage of approximately three and a half years, the couple having met in Russia and then married in Australia. The Full Court upheld an award by FM Mowbray to the Wife of 7.5 per cent of the non-superannuation assets. The Court did not disturb any of the findings or application of the law by his Honour, for example in relation to the Wife’s fastidious cleaning of the matrimonial home and that such a consideration made little appreciable difference to the ultimate result.
[17] [2008] FamCAFC 54.
The final case to note is the very recent judgment of FM Brown in Maguire & Richter.[18] There is some similarity between the facts, and the issues, in that case and those in this case. In Maguire there was a marriage of approximately four years. The wife came from Germany and married in South Australia. At the time of the trial, the wife was aged 53 years, and the husband was aged in his early sixties. She was in part-time employment, whereas he was not and unlikely to become so. While the wife had some assets back in Germany, including access (in due course) to a pension the weight of `asset contribution’ at the commencement of the marriage significantly favoured the husband.
[18] [2009] FMCAfam 85 (6th February 2009).
Brown FM acknowledged the significant dislocation suffered by the wife in coming to Australia (she was, he said, `amidst the alien corn’), and that her employment and financial prospects were somewhat attenuated. In the result, and in very broad terms, his Honour determined that each party should keep their respective assets, save for a motor vehicle of very modest value [$4500]. Thus, there was no payment to the wife, and no adjustment under s.75(2).[19]
[19] Ibid at [290].
I will return to this case later in this judgment particularly in relation to his Honour’s treatment of the “dislocation of the wife”, and the significant argument, also addressed by his Honour, in relation to the impact of “costs.”
Orders sought, issues and evidence
Orders Sought:In broad terms, as already indicated, for the applicant wife’s part, she seeks a sum of $300,000. If that sum is not paid within 28 days of the order, Ms Bondar-Twersky seeks that it be paid out of the sale of the Property W property.
For his part, again speaking broadly, Mr Twersky seeks orders whereby Ms Bondar-Twersky retains the whole of the proceeds of sale of her property in the Ukraine, and that he pay her $10,000 in 12 monthly instalments.
Issues: In many, but not all, respects, the wife’s case is relatively straight-forward. It essentially centres around two matters to which I have already referred. The first is the nature and level of her contributions during the course of the very short marriage. The second issue relates to her contention that her labours during the marriage were rendered more onerous because of “the husband’s bad treatment of the wife.” It was alleged that Mr Twersky “demeaned the wife verbally and on occasions physically.”[20]
[20] These statements are taken from the Wife’s Case Outline, filed 27th June 2008, p.2 (un-numbered).
It was also submitted that the “husband kept the wife isolated on the farm and required her to remain at `Property M’ property performing significant tasks both within and outside the home.” As a consequence, it was submitted, the wife “suffered physical and psychological problems as a consequence of her work performed at the instigation of the husband and his treatment.” It was further contended that the wife “continues to receive treatment from a psychologist. The wife requires medication to treat her depression and anxiety. The wife is not fit to undertake employment.”[21]
[21] Ibid.
For his part, Mr Twersky denied the allegations of abuse. He also denied that he had effectively kept Ms Bondar-Twersky captive on the farm. He gave a number of instances where, he said, he took his wife regularly into town for shopping and for social occasions.
As presented in the husband’s case outline, the issues for consideration and determination centred around whether the wife had a better standard of living in the Ukraine, the relevance of the allegations of domestic violence, whether a sum of $40,000 disposed of by
Ms Bondar-Twersky (arising out of her apartment in the Ukraine)[22] should be added back into the asset pool, and the appropriate consideration, as a matter of principle, of a just and equitable award in such a short marriage.
[22]The Evidence - Ms Bondar-Twersky: The relevant parts of Ms Bondar-Twersky’ evidence may be summarised or dealt with as follows.
First, she confirmed that her photograph and personal profile had been placed on the internet by her daughter. She also conceded that she was “very lonely.” She asserted that she did not respond to inquiries, via the internet, from a number of American doctors who wished to meet her in Moscow. She also said that she asked her daughter to take her picture and profile off the internet. She confirmed that there was another inquiry, in response to her internet profile, from Mr F, who is a neighbour of Mr Twersky. Ms Bondar-Twersky confirmed that she passed on Mr F’s inquiry to a friend of hers, Ms F. That friend ultimately married Mr F.[23]
[23] These matters are canvassed at Transcript (30th June 2008) pp.17-19.
Later in her evidence she denied that she was looking for a marriage partner.[24] But almost immediately, she confirmed that she wrote in the following terms to Mr Twersky in approximately mid-2000: “Please tell my dear what job I must be able to do that to be as good wife for you?”[25] The letter, which became exhibit “B”, began “My dear
Mr Twersky.”[26] This is not the language of coercion, nor does it suggest disinterest in a prospective marriage partner.
[24] Transcript (30th June 2008) p.33.
[25] Transcript (30th June 2008) p.34.
[26]In answer to further questions Ms Bondar-Twersky confirmed that she wrote to Mr F. In the course of cross-examination, she confirmed that she wrote to Mr F and stated to him that she was a `white Caucasian female, divorced, fifty, looking for male friendship and marriage.’[27]
[27] The internet profile, with photograph, is annexure C to Mr Twersky’s affidavit of 10th June 2008. The cross-examination in which she confirmed that she wrote to Mr F is at Transcript (30th June 2008) pp.20ff. Her “profile”, seemingly not written by her but by a friend of her daughter, lists her occupation as “[omitted].” Ms Bondar-Twersky deposed to being employed for a significant number of years at a government trade company in Russia where she rose to the position of “[omitted].” See her affidavit of 23rd May 2008, par.16.
In further cross-examination, and accepting that English is not her first language but nonetheless with a reasonably sound grasp of it,
Ms Bondar-Twersky said that she felt sorry for Mr Twersky as a widower with children.[28] She also confirmed that “she liked everything about him, what he do and I wanted to speak with kids, with him and to produce myself better to know me better.”[29]
[28] In support of the quality of her command of English, Ms Bondar-Twersky confirmed that she worked as a translator and interpreter from Russian, and Ukrainian, into English. See Transcript (30th June 2008) p.48.
[29] Transcript (30th June 2008) p.28.
For all of the waxing and waning in her evidence about what she did and did not say to Mr Twersky, and what she did and did not know about her personal profile on the internet, in my view, it was abundantly clear that Ms Bondar-Twersky was genuinely and actively looking for a marriage partner. The submission that she was somehow enticed, and perhaps duped, into coming to Australia, cannot be sustained. She was a genuinely willing participant in the whole enterprise. The fact that the relationship failed has patently and strongly (and understandably) coloured her perspective of events surrounding the engagement process, and all matters since.[30]
[30] Ms Bondar-Twersky also confirmed that she was “never poor” when living in her native country. Transcript (30th June 2008) p.35. Later she confirmed that her circumstances in the Ukraine were not poor. Transcript (30th June 2008) p.48. That said, in my view, it is very difficult to make any finding about the living situation of Ms Bondar-Twersky in the Ukraine and whether she would be better off returning to that country. There was insufficient evidence to form any settled view in this regard one way or the other, save that she agreed that she received $US1 per page for translation work. Res ipsa loquitur.
Moreover, her evidence was that Mr Twersky was loving and kind at the outset of the relationship but that he changed only after her arrival in Australia. I confess to having some problems with this line of argument, accepting that the warm glow of a new relationship can give a somewhat distorted perspective of reality, and when the colder light of day shines on the relationship, some things do appear rather different.
The line of argument regarding Mr Twersky’s changed personality poses a number of problems. First, as I note below, he denied that he changed at all. Secondly, to be accepted, the Court would have to find that Mr Twersky either engaged in a deliberate course of deception to entice Ms Bondar-Twersky to Australia, and or that he was, in fact, a Jekyll and Hyde character. For my part, I have some difficulty with both lines of argument. No evidence was tendered to support the latter characterisation; and no reason was proffered to explain the former. As well, Mr Twersky did not present (on which more below) as a person who could or would do such a thing.
As well, there was protracted examination about Ms Bondar-Twersky and her “encouragement” of Mr Twersky to support her various applications for visas of various types, as well as Mr Twersky paying for them. Again, however disparate and or convoluted her answers, I do not accept any suggestion that Mr Twersky was either controlling or directing Ms Bondar-Twersky in her pursuit of such things. Again, the evidence confirms that she was a genuinely active and willing participant in the whole enterprise.
Ms Bondar-Twersky accepted that Mr Twersky had paid her various sums of money while she remained in the Ukraine, much or most of which related to costs associated – directly and indirectly – with her application for a visa. For example, she agreed with Mr Twersky’s claim that he paid $1206 for her visa.[31]
[31] See Mr Twersky’s affidavit of 10th June 2008, par.12 & Transcript (30th June 2008) p.60.
Ms Bondar-Twersky also agreed that Mr Twersky paid for his airfare to the Ukraine and that while he was there he paid all expenses for himself and Ms Bondar-Twersky while in that country. She confirmed, somewhat reluctantly, that Mr Twersky had sent money (the amount was disputed – either $400 or $200) so that a heater could be installed in her apartment in the Ukraine. She also conceded Mr Twersky’s claim that he paid out her mortgage in relation to her apartment.[32] Again, she disputed the amount. On either version of the amount in question it was not a large sum of money – either $600 or $200.
[32] Ms Bondar-Twersky contested that it was in fact a mortgage but rather a “municipal debt” in relation to various services. See Transcript (30th June 2008) pp.63 ff.
After their marriage in July 2001 in the Ukraine, Mr Twersky continued to travel while Ms Bondar-Twersky remained behind, presumably to finalise various matters before moving to Australia. While she remained in the Ukraine, Mr Twersky sent her further funds. Ms Bondar-Twersky agreed that this occurred and that the amount totalled $1600. Mr Twersky also paid for her airfare to Australia, which cost, approximately, a further $1800.[33]
[33] Generally, see Transcript (30th June 2008) p.66.
Ms Bondar-Twersky agreed, in cross-examination, that she went back to the Ukraine in 2003. She suggested that the main purpose was to accompany a Mr W who, like Mr Twersky and Mr F, was interested in securing a marriage partner. She also said that she ultimately had some teeth repair work done while in the Ukraine. There was some discussion as to the reason or reasons and their respective emphases. Nothing turns on it, save to note that Mr Twersky paid for Ms Bondar-Twersky’ airfare for the holiday as well as some $1500 for her dental work, and that Ms Bondar-Twersky had access to Mr Twersky’s NAB bank account while she was in the Ukraine.[34]
Ms Bondar-Twersky[34] Transcript (30th June 2008) pp.67 & 70. Mrs Bondar-Twersky had a duplicate NAB Visa Gold Card. See Transcript (30th June 2008) p.71.
The discussion about Mr Twersky paying for these expenses should be seen not only in relation to his regular payment of expenses and other matters for his wife but also in the light of allegations by Ms Bondar-Twersky that her husband did not give her any money for clothes and that he forced her to wear `rags from the tip’ and or from a second-hand goods shop.[35]
[35]In the course of her evidence, Ms Bondar-Twersky also confirmed that, for example, in filling in the immigration sponsorship form, she filled it in primarily because Mr Twersky did not and does not write very well.[36] Such matters are material, among other things, because
Ms Bondar-Twersky contended that Mr Twersky wrote a letter in support of her visa application. The unsigned letter is annexure B to her affidavit of 23rd May 2008. In relation to the letter Ms Bondar-Twersky swore (at par.55 of her May affidavit) that she recalled “that he wrote the letter in support of my visa application.” Yet she quite readily conceded that not only could Mr Twersky not write well but that he could not use a computer.[37] She suggested that Mr Twersky had assistance in writing the letter. That much should certainly be accepted.
[36] Transcript (1st July 2008) pp.89-90.
[37] Transcript (1st July 2008) p.94.
Regarding the living conditions in the Ukraine, Ms Bondar-Twersky confirmed that when Mr Twersky came to her country, it was in something of a state of crisis, such that some necessities of life, such as heating, was not readily available. She also confirmed that water had to be boiled for bathing.[38]
[38] Transcript (1st July 2008) p.98. Ms Bondar-Twersky had lost her job in 1996. She sold some of her paintings to obtain funds, as she said, to pay for her daughter’s university education. She also confirmed writing to Mr Twersky stating that there were food shortages.
The final matter to note relates to Ms Bondar-Twersky’ health. First, she confirmed that she brought with her from the Ukraine the herbal sedative “valerian.” She said that it was to aid her sleeping, particularly arising out of her anxiety in travelling to a new country. This cause of anxiety is perfectly understandable. It was suggested, but denied, that the valerian was also for a gall-bladder condition.[39]
[39] Evidence was later given by Dr P, a medical practitioner, which was essentially uncontested, about Ms Bondar-Twersky’s anxiety and depression. See, for example, Transcript (Transcript (1st July 2008) pp.139-147. Later in the proceedings, a psychologist, Dr T, gave evidence. That evidence confirmed the treatment of Ms Bondar-Twersky for anxiety and depression, although Dr T confirmed that her notes did not record any allegations of physical violence. They did record Ms Bondar-Twersky indicating that she had left a relationship in which she felt intimidated. See Transcript (25th November 2008) pp.3 ff.
Secondly, in early July 2002, she was admitted to [L] Hospital in relation to vomiting blood. It is suggested in the medical records of the hospital that the vomiting was caused by her taking aspirin. Notwithstanding the hospital records, Ms Bondar-Twersky denied taking aspirin. She did agree with the records noting some problem with her gall-bladder. She was diagnosed in August 2002 with a gastric ulcer. She confirmed that this condition made her very unwell.[40] She also confirmed that her medical condition made her anxious and depressed.
[40] Transcript (1st July 2008) p.105.
Ms Bondar-Twersky confirmed that her first marriage ended because her first husband drank and made her life “a nightmare.” She denied, however, that she was depressed as a result of the life she had in her first marriage, or following its collapse.
She also confirmed that she remains depressed and anxious in her current living situation in a certain part of Canberra where there are regular fights, seemingly associated with drink, among other things. She is being assisted to find alternative, government-owned accommodation. She is on a disability pension.
Ms Bondar-Twersky claimed that she told one of Mr Twersky’s daughters (adopted step-daughter, Ms T) in 2002 that he was abusive towards her.[41] In her affidavit of 10th June 2008, Ms T deposed that (a) Ms Bondar-Twersky was treated as part of the family, (b) Mr Twersky regularly took Ms Bondar-Twersky shopping in Griffith, and that Ms T (and others) also took Ms Bondar-Twersky to Griffith “for a girls’ shopping day.” Such matters are relevant to Ms Bondar-Twersky’ claim that she was totally isolated.
[41] Transcript (1st July 2008) pp.110-111.
No less relevantly, in the same affidavit (par.16) Ms T deposed to never having seen her Father aggressive, abusive or violent towards
Ms Bondar-Twersky. She contended that her Father is none of these things by nature. She also stated (par.18) that she has never seen her Father in a drunken state.[42] She also deposed to Mr Twersky being hard of hearing, which caused him to speak loudly.
[42] This evidence is relevant to allegations by Ms Bondar-Twersky that Mr Twersky was often intoxicated. In this regard, although her evidence generally was of rather doubtful value (primarily because her comprehension of the English language was clearly somewhat limited: see Transcript (1st July 2008) pp.160-161), a long-time close friend from the Ukraine, Ms F, who married a neighbour of Mr Twersky, confirmed that Mr Twersky `had never been drunk.’ See Transcript (1st July 2008) pp.162 & 163.
It is convenient here to note that Ms T’s evidence, by affidavit and orally, confirmed that Ms Bondar-Twersky did some work around the farm, primarily in relation to rejuvenating an established garden on the farm. She confirmed that there was an existing, and working, watering system in relation to the garden, although there had been some deterioration of it (i.e. the garden) due to the drought.[43] Contrary to
Ms Bondar-Twersky’s evidence, which was to the effect that when any of the Mr Twersky children came home they were treated like guests, Ms T stated that she (and any other siblings), would clean the house, cook and help on the farm. She also confirmed that general cleanliness and tidiness of the house improved appreciably when Ms Bondar-Twersky lived there.
[43] Transcript (26th November 2008) pp.119 ff.
To the degree of any inconsistency between the factual matters between Ms Bondar-Twersky and Ms T, I prefer the latter’s account to the former. Again, it struck me throughout the trial that Ms Bondar-Twersky’s account of events, across all areas canvassed, was very strongly coloured by her current depression and her understandable distress at her current, and future, plight.[44]
[44] I confess to having some difficulty with Mr Farrar’s submission that Ms Bondar-Twersky’s depression stemmed primarily from her having left such a good life back in the Ukraine. See Transcript (26th November 2008) p.121. Given that she stated that there had been a crisis in her country that left her unemployed, that she had to sell personal items to pay for certain things, and that she was earning approximately $1 per page for translation work, it would appear that her life in her country of birth was not as idyllic as she would have the Court believe. All of that said, doubtless there would be some comfort being in one’s home land than in a foreign country.
In the course of her evidence, Ms Bondar-Twersky answered a series of questions, in close succession, concerning (a) her contributions (she said that she would “make paradise out of that place”), (b) obtaining her permanent visa (she agreed with the proposition that she raised allegations of abuse against Mr Twersky only after she had obtained a permanent visa in 2004), (c) her allegations of domestic violence (notwithstanding her answer noted in (b) she averred that Mr Twersky was violent to her `practically every night’ and rejected the proposition that Mr Twersky was a restless sleeper),[45] (d) the removal of clothes from the matrimonial home in anticipation of her leaving the marriage (her clothes from the Ukraine had been packed up a week or so before her hospitalisation, notwithstanding her later evidence that she did not know if she was going to return to Mr Twersky or not), and (e) her taking of photographs of the property and matrimonial home (it was not completely clear when the photographs were taken).[46]
[45] Dr P, a medical practitioner called by Ms Bondar-Twersky, confirmed in evidence that the first time that Ms Bondar-Twersky raised with her issues relating to “abuse” was on 15th June 2004. Dr P also said that, from her medical notes in July 2004, Ms Bondar-Twersky was suffering from “adjustment disorder.” See Transcript (1st July 2008) p.141.
[46] All of these matters, treated summarily here, are canvassed in the Transcript (1st July 2008) pp.114-120. She also confirmed that since her separation from Mr Twersky she had not sought any work as an interpreter.
Evidence of Mr Twersky
: In a number of respects, Mr Twersky’s evidence may be treated somewhat more summarily than that of
Ms Bondar-Twersky. His evidence consumed virtually all of the third day of the trial and part of day four as the chariot of the litigation ground on remorselessly dragging the parties with it and relentlessly consuming their funds – real and hoped for.
Mr Twersky’s evidence can be considered under three aspects: (a) his relationship with Ms Bondar-Twersky, (b) the issue of contributions, and (c) his assets and their disclosure.
In relation to the evidence generally, Mr Farrar submitted that I probably did not need to make any findings in relation to credit or credibility.[47] I confess to having some difficulty with such a submission, especially since so much of the case was conducted on the basis of the claims regarding contributions made by the wife during the course of the very short marriage. Issues of credit and credibility in such matters, in my view, play a significant role. For my part, therefore, I should state that wherever there is any direct inconsistency between a particular version of events given by Mr Twersky and that of Ms Bondar-Twersky, I prefer the account of Mr Twersky. I accept
Ms Tonkin’s submission that Mr Twersky presented as a witness who was “simple but frank and honest.”[48] I will, of course, come back to issues relating to disclosure of assets by Mr Twersky.
[47] Transcript (26th November 2008) p.136.
[48] Transcript (26th November 2008) p.139.
Concerning his relationship with Ms Bondar-Twersky, Mr Twersky denied that he had ever assaulted her, or that he was ever abusive to her. He confirmed that he had loved her. He contended that he took
Ms Bondar-Twersky shopping regularly, either to the local store at [L] or to Griffith. He also strongly contended that it was his `natural duty’ as husband to provide for his wife. Accordingly, in his view,
Ms Bondar-Twersky did not want for money or anything else. He confirmed, for example, that she had access to a Visa credit card. I accept his evidence in relation to these matters, as I do that there were neighbours only 100 metres away from the farm residence.[49]
[49] See Transcript (25th November 2008) pp.27, 37 & 41.
All of that said, I have little doubt that Mr Twersky’s capacity (a) to live in somewhat more basic and humble circumstance is rather more developed than Ms Bondar-Twersky, and (b) to appreciate any changes in demeanour and disposition of Ms Bondar-Twersky (whatever the cause[s]) was very much less developed than Ms Bondar-Twersky would have liked. None of these comments should be taken adversely by either party. They are intended more as observations on the reality of the dispositions and capacities of each person under the glare of many days in Court, and admittedly many years after the first glow of their fresh relationship had long since passed.
In relation to contributions, I accept Mr Twersky’s evidence that he employed a gardener (part-time) for some time and that there was a working watering system, which had been installed some years before the relationship with Ms Bondar-Twersky commenced. He also accepted that Ms Bondar-Twersky did contribute to `making the house nice’,[50] and that she did water the garden from time to time. I agree with his assessment that her contributions were exaggerated.
[50] See, for example, Mr Twersky’s agreement in this regard at Transcript (26th November 2008) p.109.
Although an inordinate amount of time was spent in cross-examination in looking at photographs of gardens (flower and vegetable), as well as the inside and outside of the house, and cross-examining Mr Twersky in relation to these matters, I accept that the house was (and is) often unkempt, and that Ms Bondar-Twersky did beautify it as best she could. I also accept that a farm house is often if not usually likely to be more dusty (with dust storms and the like) than some other residences and thereby require more attention, if one was so inclined. Mr Twersky was (and is) clearly not overly fussed by tidiness (and not a few other things), whereas Ms Bondar-Twersky, to a significant degree, was.
I confess too that I found some of Ms Bondar-Twersky’s claims, such as the extent of painting that she did around the house and various repair work, as rather stretching belief.
One other item regarding contribution in relation to which I did not understand there to be any great dispute concerned drought relief assistance. Mr Twersky received a benefit of $800 per fortnight in this regard; it would have been $400 per fortnight if he was not married. His evidence was that that assistance, through Centrelink, was still continuing.[51] It was submitted that this was a direct financial contribution by Ms Bondar-Twersky. Doubtless it was, but in the larger scheme of things, quite minimal.
[51] Transcript (25th November 2008) p.42.
In sum, given the very short duration of the marriage, and given the significant levels of exaggeration on Ms Bondar-Twersky’s part regarding contribution, in the circumstances, the assessment of contributions overwhelmingly favours Mr Twersky on direct, financial contributions. In relation to indirect contributions, there is no question that Ms Bondar-Twersky carried many different weights here, but some of them were of her own making. Mr Twersky properly conceded that Ms Bondar-Twersky beautified the house. But her contributions, over the brief life of the marriage, were quite modest, at best.
Disclosure
It is a clear and long-standing principle that parties to property proceedings have a duty to make full and frank disclosure of their respective financial affairs.[52] It was contended by Mr Farrar that
Mr Twersky had not complied with this principle. This had, in his view, resulted in two things. First, it had lessened (admittedly not by a vast amount) the size of the asset pool. Secondly, it had caused
Ms Bondar-Twersky to incur more legal costs because it required
Mr Farrar (and obviously his industrious `team’) to ferret out details of assets that had not been disclosed. Subject to what is said below, there can be little argument about the former. As to the latter, there is doubtless some truth in the submission, but without putting too fine a line on it, costs of the magnitude indicated can only be considered, in my view, as remarkably disproportionate. I comment further on “costs” later in these reasons.
[52] See In the Marriage of Weir (1992) 16 Fam LR 154 (Nicholson CJ, Strauss & Nygh JJ); In the Marriage of Hickey (2003) 30 Fam LR 355 at p.370 [40] “… each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto.” Cf. the judgment of the Full Court (Finn, Coleman & Boland JJ) in Z v Z (2006) 34 Fam LR 296. See also Chapter 13 of the Family Law Rules2004.
It is indisputable that the greater, indeed insuperably so, financial contribution to the marriage was made by Mr Twersky. Rightly, Mr Farrar conceded at the outset that Mr Twersky had no beneficial interest in two of the three “family properties”, namely the properties known as “Property P” and “Property M.” They are the subject of a family trust.[53] Mr Farrar also helpfully conceded that “we could spend a lot of time, and in my view, unnecessarily in analysing that.” His invitation to the Court, at the outset of the hearing, was that although not owned, these two properties should be treated as a “financial resource.”[54]
[53] The trust deed was annexed to Mr Twersky’s affidavit of 10th June 2008, annexure B.
[54] The concessions and submissions outlined in this paragraph are found at Transcript (30th June 2008) p.4.
By the end of the trial, the following may be said with modest confidence in relation to the asset pool (which I tabulate below) and in the light of the cross-examination of Mr Twersky.
First, by way of general example of Mr Twersky’s somewhat “relaxed” approach to his assets, he stated that he considered AWB (Australian Wheat Board) and Graincorp to be one and the same. Mr Farrar, quite properly and directly, corrected him.[55] I note this because, on more than one occasion, it was plainly evident that Mr Twersky’s attention to detail – across the board – was not his strong suit. If one was to be a touch colourful (without being hypercritical) one might be tempted to say that the disarray of machinery and other things on the farm
(Mr Farrar described the area around the farm house as a `junk heap’)[56] reflected the disarray in matters of accounting and related things. This is also to say that I took Mr Twersky’s evidence as essentially truthful, and where there were omissions, it was due more to negligence than to any intention to deceive the court, to make Mr Farrar’s life any more difficult than it usually is, or to deprive Ms Bondar-Twersky of anything to which she would be justly entitled, according to the determination of the Court.
[55] Transcript (26th November 2008) p.95.
[56] Mr Twersky readily acknowledged that he was not “the tidiest man.” Transcript (25th November 2008) p.20.
Three matters are set out in the schedule of assets that were not originally disclosed. In my view, they should be included in the assets of Mr Twersky. They are funds in a Commonwealth Bank Streamline account ($18,728), funds held in a Resources Credit Union ($1615), and a 2004 ATO tax refund for 2004 ($11,700).
Another item that was not immediately in view, other than by some digging, was a sum of $48,073, held at the time of separation in a NAB account and which sum included the proceeds of sale of AWB shares. In fact, this sum was disclosed as income in the profit and loss account of Mr Twersky for the year ended 30 June 2004, which was annexed to his Financial Statement filed on 16th June 2008. Rather than an “asset” it was and should be treated as income. According to his evidence,
Mr Twersky – literally and metaphorically – ploughed that money back into the farm. In my view, the sum in question should not be included in the asset pool.
Some other matters should be mentioned in relation to disclosure.
Mr Twersky conceded that he had exaggerated the date of some farm machinery so as to secure further finance.[57] He also agreed that he had slightly inflated the values of some machinery, such as a “header”, when seeking funds from Elders.[58] He seemed to suggest that such was the not unusual way things were done `in the country.’
[57] Transcript (26th November 2008) p.98.
[58] Transcript (26th November 2008) p.102.
I should also note that in the schedule of farm machinery for which
Mr H provided a valuation, Mr H also conceded that there were some items that he had either missed or had got the dates wrong. Indeed, he admitted that there was some imprecision in the valuation. Given the state of the property in a number of respects, one can readily understand how some things might get “missed.” Mr H conceded that the value of the two Kenworth trucks noted in the schedule might be worth, respectively, $18,000 and $15,000, approximately double their stated value.[59]
[59] Transcript (25th November 2008) p.66.
According to an amended list of assets and liabilities, prepared after
Mr Twersky’s cross-examination, “plant and equipment” was agreed by both sides as being worth $221,300.
Also to be included in the asset pool, following a proper concession by Ms Tonkin, was $16,000 of “add-backs” in relation to Mr Twersky’s expended legal fees.[60]
[60] Transcript (26th November 2008) p.138. This is to be contrasted to Mr Twersky’s evidence where he thought that he had paid in the vicinity of $30,000 in legal fees. Transcript (26th November 2008) p.106. I take this to be another instance where his attention to details of this kind confirmed that such things were not his forte.
The final matter to note, in relation to which I did not understand there to be any disagreement, was that Mr Twersky was advised of two things. First, the Property W property was likely to be sold, either voluntarily by Mr Twersky or by one of his mortgagees. Shortly before the resumption of the trial in late November 2008 he had been asked by Elders to attend a mediation in relation to the sale of that property. It may be now the case that that property has been sold. Secondly, he had been advised by solicitors acting on behalf of the beneficiaries of the trust that he could stay at one of the other properties (either Property P or Property M) for a nominal rent. Thus, he confirmed that he would have a roof over his head.[61] He also said that he could do some contract harvesting, using his own equipment, but which would be likely for only a couple of months, because such work was seasonal.
[61] The letter from the solicitors for the beneficiaries became Exhibit N. Mr Twersky cross-examination in relation to his living situation and harvesting capacities is set out at Transcript (25th November 2008) pp.79 ff.
In the light of the above discussion, the asset pool looks as follows:
| Assets | Value | Liabilities | Value |
| "Property W" [L] | $1,480,000.00 | Elder's Bank Ltd | $855,451.00 |
| Property L, [L] | $50,000.00 | Forbes Livestock | $40,392.00 |
| Livestock | $116,550.00 | Credit Card debts | $37,832.00 |
| Plant and equipment | $221,300.00 | ||
| Motor vehicles | $5,000.00 | ||
| Husband's chattels | $5,000.00 | ||
| Proceeds from Incitec shares | $23,195.00 | ||
| Proceeds from sale of cattle float | $5,000.00 | ||
| Wife's chattels | $800.00 | ||
| Addbacks: | |||
| Commonwealth Bank Streamline Account | $18,728.00 | ||
| Resources Credit Union account | $1,615.00 | ||
| Husband's 2004 ATO tax refund | $11,700.00 | ||
| Husband's Legal Fees | $16,000.00 | ||
| TOTAL | $1,954,888.00 | $933,675.00 | |
| NET ASSETS | $1,021,213.00 |
VI. Findings: contributions and section 75(2)
In the light of the detailed discussion of the evidence above, the following is essentially a summary of relevant findings.[62]
[62] In the assessment and determination of contributions I am mindful of the Full Court’s observation in Zyk and Zyk [1995] FLC 92-644 at p.82,517 where the Court said: “How and to what extent that exercise is to be done is a difficult problem and one which is not susceptible of precise analysis.”
As already stated, the direct financial contributions to the marriage overwhelmingly favour Mr Twersky. The indirect contributions by
Ms Bondar-Twersky were very modest. While not under-estimating her role and contribution as home-maker, given the period of co-habitation, any adjustment must be quite modest also. Her earning capacity, in my view, was already very limited when she came to Australia. The effect of any orders on her earning capacity is negligible, at best.
The ages and health of the parties has already been traversed. Neither is in robust health, especially Ms Bondar-Twersky. In almost every respect, she has the harder road to hoe in the future than does
Mr Twersky, especially in the light of her depression and other health conditions. She has less financial resources available to her than does Mr Twersky. As indicated, however, Ms Bondar-Twersky has government housing provided as well as a disability pension.
Mr Twersky will have a roof over his head and the prospect of some contract harvesting work, subject always to the vagaries of the drought. He will also have responsibility for any debts attaching to the properties.
As for their “standards of living” [(s.75(2)(g)], Mr Twersky’s standard is somewhat basic, while Ms Bondar-Twersky’s standard is coloured by the difficult circumstances in which she now finds herself. Her current neighbourhood clearly causes her distress. However, I understand that she can, and has, sought other accommodation. The sooner that happens the more settled she will become.
Subject to what is said below, other than what has been addressed, no other matters prescribed by s.75(2) are relevant to these proceedings.
It remains to consider s.75(2)(o), which I take to be the section under which Mr Farrar invites the Court to consider the impact of the costs incurred (but not yet paid) by his client on any final order by this Court.
VII. Costs and section 75(2)(o)
Three cases are immediately relevant. First, in the High Court case of Penfold v Penfold,[63] Murphy J referred to “exceptional” cases where there had not been adequate disclosure and which, under s.117, costs should be awarded.[64] In that case, the `exceptional circumstances’ included giving false evidence, and fabricating evidence. Matters of this criminality were not present in this case. And, as is clear, that concerned s.117, not s.75(2)(o).
[63] (1980) 144 CLR 311.
[64] (1980) 144 CLR at p.317.
Secondly, in In the Marriage of Farnell,[65] with pellucid clarity, Kay J stated: “In my view a trial judge is in a poor position to determine what each party ought reasonably have incurred by way of costs. … In my view the proper time for considering the impact of costs is when considering applications under s.117 after the proceedings have concluded.”
[65] (1996) 20 Fam LR 513 at p.535.
Thirdly, this direct statement of Kay J was cited approvingly by the Full Court (Finn, Kay & May JJ) in NHC v RCH.[66]
[66] (2005) 32 Fam LR 518 at p.526 [35].
Because I have already made comments earlier in these reasons, as well as having referred to three important cases (Penfold, Farnell, and NHC v RCH), three additional observations only are necessary in relation to the “costs” submission.
First, in Maguire & Richter, Brown FM referred to legal fees that totalled $22,500 and $17,000 as “substantial.” Later in his judgment, at [283], Brown FM referred to the litigation as incurring “ruinous expense.” His Honour observed that the total costs in those proceedings approximated the amount sought by the wife. If he considered the fees of $22,500 and $17,000 as “ruinous”, how his Honour would describe the fees proposed in the current litigation on behalf of Ms Bondar-Twersky ($80,000) would doubtless be even more direct. I will refrain from supplying any number of adjectives that might otherwise apply here.
Secondly, Brown FM also referred, at [317], to situations where the costs of the litigation “grow to the point where they are out of proportion to the magnitude of the issues involved.” In this regard, his Honour referred to the “Best Practice Guidelines for Lawyers Doing Family Law Work” (August 2004), published by the Attorney-General’s Department. Those guidelines were produced by the Family Law Section of the Law Council of Australia and the Family Law Council. Guideline 1.2 in Part 7 states: “In respect of matters relating to financial issues, the principles of proportionality should be borne in mind at all times. It is undesirable for the legal costs involved in any case to be disproportionate to separating couples’ financial position.” I respectfully agree with his Honour’s comments. Accepting unequivocally Kay J’s remarks in Farnell about the difficulty in assessing reasonable costs and when costs arguments should occur, nonetheless, in my view, most unfortunately in the circumstances of this case, the costs on Ms Bondar-Twersky’s side, as I have already indicated, by any measure, are disproportionate to the issues involved.
And in any event, I am bound by the observations of the Full Court in Farnell and in NHC to the effect that the proper time to consider costs is in relation to s.117 of the Act.
Thirdly, as already indicated, there is a significant precedential risk, should I accede to the submission that I should take into account the costs that will be taken from any award the Court determines should be made in Ms Bondar-Twersky’s favour.
In my view, such a course would be a dangerous precedent, which should not be encouraged, still less promoted, by the Court. There is the immediate risk that it would encourage, if not entitle, all solicitors to charge more to clients on the basis that those fees will bolster the position of their client in the court’s consideration of s.75(2) factors. Clients that could afford higher-charging lawyers would potentially be in an unfairly advantageous position compared to clients (including one’s former spouse) who are funded by the public purse.
Moreover, those firms, for whatever legitimate reason, which charge higher rates than firms that do not (for example, because of lower overheads), will necessarily do better financially than law firms and practitioners that charge less. Such a result, in my view, would be unjust, bordering on the iniquitous and odious. Among other things, to accept such a proposition as advanced here would have the direct effect of requiring Mr Twersky to bear Ms Bondar-Twersky’s costs even before any formal application under s.117 might be made. This, as
Kay J implied in Farnell in the passage already quoted, such a course would pre-empt any application under s.117. Hence his Honour’s unequivocal direction that the appropriate time to consider costs is at the end of the trial under s.117 of the Act.
Indeed, in the current case, rather than seek to have the Court consider their costs in making any award in favour of their client, and in the light of her plight (not to mention in the interests of justice), it is always open to the solicitors for Ms Bondar-Twersky to reconsider the estimate of the fees that they propose extracting from the award.
For the above reasons, in my view, the submission in relation to costs and s.75(2)(o), should be rejected.
The Kennon submission
At the close of the trial Mr Farrar submitted that there was ample or sufficient evidence for the Court to recognise that Ms Bondar-Twersky’s contributions were made the more arduous because of the actions of Mr Twersky, thus inviting the Court to apply the principles set out in In the Marriage of Kennon.[67] In my view, the evidence fell very significantly short of being able even to approach the stipulations prescribed by the Full Court in Kennon, where Fogarty and Lindenmayer JJ referred to “… a course of violent conduct.”[68] I cannot and do not accept that there was “violent conduct” on the part of
Mr Twersky, let alone any such course of it.
[67] (1997) 22 Fam LR 1.
[68] Ibid., at p.24.
In saying this, I do not doubt that because of his less than urbane nature and somewhat off-hand but by no means offensive country cragginess (I intend no criticism by these comments), there were occasions and circumstances when Ms Bondar-Twersky mis-understood and or
mis-interpreted what was said and perhaps what was inadvertently done. Such difficulties would be compounded by Ms Bondar-Twersky’s patent but genuinely fragile disposition. Put another way, the issues in this regard, and more generally, have less to do with
Mr Twersky’s actions and more to do with undue or heightened sensitivity on the part of Ms Bondar-Twersky. Through the prism of her own fragility, matters became, and to some degree seemingly remain so, distorted and exaggerated, including her contributions to the very short marriage with Mr Twersky.
IX. Conclusion: Just and equitable
It remains to consider whether the orders in this matter are “just and equitable” in accordance with the prescription under s.79(2). It is clear that this Court, and others like it, cannot, and must not, engage in social engineering. Among other things, whatever the understandably difficult life that lays before both parties, but perhaps especially Ms Bondar-Twersky, it would be unjust, in my view, for Mr Twersky to bear a disproportionate award in Ms Bondar-Twersky’s favour given the extremely short length of the relationship between the parties. Only that which is supported by the evidence should be made.
Should it need to be said again, in the light of their ages and circumstances one cannot but be concerned at the current and future situation of both parties, and especially Ms Bondar-Twersky. One would be genuinely hard-hearted not to empathise with both of them, for obvious reasons, in their more senior years. However, courts are required to determine matters on the facts and in accordance with the law. The prescriptions of the legislation in Part VIII of the Act take account of the extremely diverse circumstances that confront individuals as they seek to deal with life post-separation. Similarly, the legislation invests judicial officers with a very broad discretion. The breadth of that discretion has been long recognised and confirmed by the High Court.[69]
[69] See, for example, Mallet v Mallet (1984) 156 CLR 605, Gibbs CJ at pp.607-608; Wilson J at p.636, and Deane J at p.639.
Similarly, as many cases have confirmed, simply to give a percentage figure, particularly in short marriage cases, can inappropriately distort what the Court intends. And, in any event, it is the dollar figure that is the most important element for the parties to consider in the light of their circumstances – now and in the future.[70]
[70] See, for example, the comments of the Full Court in Russell v Russell (1999) FLC ¶92-877 at p.86,438 [80]: “… under s.79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that in what his Honour has termed “the fourth stage”, that is the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.” Emphasis in original. Comments to similar effect can be found also in the more recent decision of the Full Court in Noetel and Quealey (2005) FLC ¶93-230 at p.79,805.
In arriving at the “just and equitable” award in this case, I am mindful of Finn J’s sage and logical observations in Farmer & Bramley,[71] where her Honour said:
…it has to be said, that it is not generally possible in the exercise of the discretion under s.79 to say or to ascertain why a particular award is ultimately arrived at. Given that awards under s.79 are virtually never calculated with mathematical precision, no amount of enumeration of, or indeed of evaluation of, contributions, or of the s.75(2) matters, or indeed of any of the matters listed in s.79(4), can ever explain exactly why a particular figure, or more usually a percentage, is eventually arrived at (other than that it is within the recognised “range”). Absent a strict mathematical approach, the reasons for judgment requirement ultimately becomes impossible of total fulfilment in the jurisdiction under s.79.
[71] (2000) FLC ¶93-060 at p.87,947.
In all the circumstances, in my view, having regard to the very short duration of the marriage, and in the light of all the evidence, a just and equitable award is that Ms Bondar-Twersky should be paid $112,333, which represents approximately 11% of the net asset pool of $1,021,213. Otherwise I make orders as sought by the husband,
Mr Twersky. The amount awarded will need to be adjusted in the light of what Mr Twersky has already paid pursuant to orders made on
1st July 2008by way of property settlement.
Unless otherwise advised, I propose making orders that each party is to pay their own costs. If either of them wishes to make submissions in relation to a different costs order, they are to do so within 21 days of the date of these orders.
I certify that the preceding one hundred & five (105) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 6 March 2009
For the purposes of these reasons, for the sake of convenience only, I will refer to the applicant as
Ms Bondar-Twersky.
Some of the matters relating to the sale of her Ukrainian apartment are set out in her affidavit of 25th May 2008, particularly pars.1-4. The sum of $40,000 was significantly contested; Mr Farrar contended that it was a significantly lesser amount. See also the discussion with Ms Tonkin (Counsel for
Mr Twersky) at Transcript (30th June 2008) p.11. Later in cross-examination, Ms Bondar-Twersky confirmed that upon the sale of her apartment in the Ukraine on 25th August 2005 the proceeds of sale were paid to her in two separate amounts, each of $US20,000. According to her testimony, they were deposited in the First Ukrainian International Bank. Transcript (30th June 2008) p.83-85. Bank statements in relation to these payments were not disclosed. Transcript (30th June 2008). Some other documents relating to this property transaction were annexures A, B & C to Ms Bondar-Twersky’ affidavit of 25th June 2008. In her closing submissions, Ms Tonkin indicated that she did not include the proceeds of sale of this apartment in the pool of assets. See Transcript (26th November 2008) p.137. I otherwise agree with her comments in relation to Ms Bondar-Twersky’s evidence in this regard.
Nor was this the only instance of such language used by Ms Bondar-Twersky. A series of such correspondence, all with similar expressions of affection, are annexed to Mr Twersky’s affidavit of
.
10th June 2008
See Ms Bondar-Twersky’ affidavit of 23rd May 2008, par.39 and Transcript (30th June 2008) p.69. Ms Bondar-Twersky contended that rather than a holiday or some such enterprise it was necessary for Mr Twersky to send her away and that in fact Mr Twersky coerced her to go back to the Ukraine with Mr W. As it happened, Mr W went with Ms Bondar-Twersky to the Ukraine but only stayed two weeks. His hope or intention to secure a marriage partner did not prove fruitful. However, after
Mr W’s return to Australia Mrs Twersky stayed on in the Ukraine for just on three months. Transcript (30th June 2008) p.70. This hardly suggests that she was coerced – on any front. And later in her evidence Ms Bondar-Twersky again referred to second-hand clothes and “…cheap stuff from Big W.” Transcript (30th June 2008) p.78.
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