FAMILY COURT OF AUSTRALIA
Dunstable & Idanov [2021] FamCA 40
File number(s): MLC 7400 of 2014 Judgment of: HARTNETT J Date of judgment: 17 February 2021 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – application by the Applicant wife for alteration of property interests – marriage of approximately six years and eight months – three children of the marriage – assessment of contributions – consideration of s 75(2) of the Family Law Act 1975 (Cth) factors – whether orders for property adjustment are just and equitable – where the wife alleges she owned three real properties at the commencement of cohabitation – where the husband had nominal assets and liabilities at commencement of cohabitation – where both parties maintained employment throughout cohabitation with the wife taking brief maternity leave – where the husband accrued considerable debt in part due to gambling – where the wife is a discharged bankrupt – where both parties in good health and with capacity to earn an income – where wife seeks equal division of the parties assets – where asset pool is negative when considering the husband’s credit card debt – where the husband seeks each party be solely liable for assets and liabilities in their possession and ownership including superannuation. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth) ss 75(2),79(1), 79(2), 79(4), 90SM
Cases cited: Bell & Nahos [2016] FamCAFC 244
Bevan & Bevan (2013) FLC 93-545
Dickons & Dickons [2012] FamCAFC 154
Number of paragraphs: 52 Date of last submission/s: 2 August 2020 Date of hearing: 26 November 2019;
2 - 3 June 2020Place: Melbourne Applicant: In person by video link Counsel for the Respondent: Mr Thomas by video link Solicitor for the Respondent: Verduci Lawyers ORDERS
MLC 7400 of 2014 BETWEEN: MS DUNSTABLE
ApplicantAND: MR IDANOV
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
17 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Respondent husband (‘the husband’) pay to the Applicant wife (‘the wife’) the sum of $90,000 (‘the payment’) within 90 days of the date of these orders (‘the due date’).
2.In the event that the whole of the payment has not been made by the due date, then the husband shall sign all documents and do all things necessary to forthwith place the real property situate at and known as T Street Suburb M in the State of Victoria (‘the Suburb M property’) on the market for sale (‘the Suburb M property sale’) with a real estate agent as agreed between the parties in writing, or failing such agreement, as determined by the President of the Real Estate Institute of Victoria on application of the wife (‘the selling agent’).
3.With respect to the Suburb M property sale:-
(a)the reserve sale price shall be as agreed by the parties in writing, or failing such agreement, then at a price nominated by the selling agent;
(b)the parties are to follow…
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CaseChat Overview and Summary
The court was required to determine whether property adjustment orders would be just and equitable, considering the parties' contributions and the factors outlined in section 75(2) of the *Family Law Act 1975* (Cth). This involved assessing the financial and non-financial contributions of each party, the impact of the husband's gambling debt on the asset pool, the wife's bankruptcy, and the future needs and capacities of both parties. The central issue was how to equitably distribute the parties' assets and liabilities, particularly in light of the substantial debt and the wife's pre-existing financial circumstances.
Hartnett J reasoned that a just and equitable outcome necessitated an adjustment in favour of the wife, despite the negative asset pool. The court acknowledged the wife's contributions, including her initial property holdings and her role in the family, while also noting the husband's significant dissipation of assets through gambling. The court applied principles of property settlement under the *Family Law Act*, balancing the parties' contributions and future needs. The court ultimately ordered the husband to pay the wife $90,000 within 90 days. In the event of non-payment, the Suburb M property was to be placed on the market for sale, with proceeds applied first to sale costs, then to discharge any mortgage, and then to satisfy the outstanding payment to the wife, with any balance going to the husband. Further provisions were made for the sale of the Suburb W property if the proceeds from the Suburb M property sale were insufficient to meet the wife's payment, and injunctions were imposed to prevent the husband from dealing with these properties. Each party was to retain their individual superannuation and insurance policies, and be solely liable for their respective debts and liabilities.
Orders
Orders of the court
MLC 7400 of 2014
BETWEEN:
MS DUNSTABLE
Applicant
AND:
MR IDANOV
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
17 FEBRUARY 2021
THE COURT ORDERS THAT:
1. The Respondent husband (‘the husband’) pay to the Applicant wife (‘the wife’) the sum of $90,000 (‘the payment’) within 90 days of the date of these orders (‘the due date’).
2. In the event that the whole of the payment has not been made by the due date, then the husband shall sign all documents and do all things necessary to forthwith place the real property situate at and known as T Street Suburb M in the State of Victoria (‘the Suburb M property’) on the market for sale (‘the Suburb M property sale’) with a real estate agent as agreed between the parties in writing, or failing such agreement, as determined by the President of the Real Estate Institute of Victoria on application of the wife (‘the selling agent’).
3. With respect to the Suburb M property sale:-
(a) the reserve sale price shall be as agreed by the parties in writing, or failing such agreement, then at a price nominated by the selling agent;
(b) the parties are to follow all reasonable recommendations of the selling agent including any recommended repairs and/or improvements with the costs of same to be borne by the husband;
(c) the husband facilitate access to the Suburb M property to the selling agent and for the purposes of all inspection times, private inspections, auctions and any and all other attendances at the Suburb M property including for photography of the Suburb M property by the selling agent or anyone appointed by the selling agent, for advertising or for other purposes as recommended by the selling agent;
(d) upon completion of the Suburb M property sale, the proceeds of sale shall be applied as follows:-
(i) first, to pay all costs, commissions and expenses of the Suburb M property sale;
(ii) second, to discharge the mortgage and any other encumbrances affecting the Suburb M property; and
(iii) third, to pay to the wife the payment or any part thereof remaining outstanding as provided for in order 1 herein together with penalty interest as prescribed in the Family Law Rules 2004 (Cth); and
(iv) the balance, if any, to the husband.
4. In the event that there is a shortfall in the payment to the wife pursuant to orders 1 and 3(d)(iii) herein, then the husband forthwith shall sign all documents and do all things necessary to place the real property situate at and known as V Street Suburb W in the State of Victoria on the market for sale (‘the Suburb W sale’) by a real estate agent as agreed between the parties in writing, or failing such agreement, as determined by the President of the Real Estate Institute of Victoria upon the application of the wife (‘the selling agent’).
5. With respect to the Suburb W sale:-
(a) the reserve sale price shall be as agreed by the parties in writing, or failing such agreement, then at a price nominated by the selling agent;
(b) the parties are to follow all reasonable recommendations of the selling agent including any recommended repairs and/or improvements with the husband to pay for the costs of same;
(c) the husband facilitate access to the Suburb W property to the selling agent and for the purposes of all inspection times, private inspections, auctions and any and all other attendances at the Suburb W property including for photography of the Suburb W property by the selling agent or anyone appointed by the selling agent, for advertising or for other purposes as recommended by the selling agent;
(d) upon completion of the Suburb W sale, the proceeds of sale shall be applied as follows:-
(i) first, to pay all costs, commissions and expenses of the X Town sale;
(ii) second, to discharge the mortgage and any other encumbrances affecting the Suburb W property;
(iii) third, to pay to the wife the payment or part thereof remaining outstanding as provided for in order 1 herein together with penalty interest as prescribed in the Family Law Rules 2004 (Cth); and
(iv) the balance, if any, to the husband.
6. The husband be and is hereby restrained by injunction from assigning, further encumbering, transferring or otherwise dealing with in any way whatsoever the husband’s interest in the Suburb W property and the Suburb M property save as provided for in these orders or without the prior written consent of the wife.
7. In the event either of the parties refuse or neglect to execute a deed and/or instrument in compliance with the provisions of these orders, a Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Act to execute all deeds and/or instruments in the name of either of the parties and do all acts and things to give validity and operation to the deeds and/or instruments.
8. There is liberty to the parties to make application to the Court in respect of the operation of orders 2 to 6 herein, including the obtaining of any ancillary orders.
9. Any money standing to the credit of either the husband or the wife in any bank, building society or investment account shall be the property of the account holder.
10. Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.
11. All insurance policies shall be the sole property of the owner named thereunder.
12. Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
13. Each party shall be solely liable for and indemnify the other in respect of their individual debts.
14. Any joint tenancy of the parties in any property real or personal is hereby severed.
15. Otherwise all extant property applications are 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
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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