Geborovich and Geborovich

[2010] FamCA 257

FAMILY COURT OF AUSTRALIA

GEBOROVICH & GEBOROVICH [2010] FamCA 257

FAMILY LAW - PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable – Superannuation

Family Law Act 1975 (Cth) ss 75 & 79

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 258 ALR 14
The State of Queensland v JL Holdings (1997) 141 ALR 353
S & S [2003] FamCA 971
Neocleous & Neocleous (1993) FLC 92-37
In the Marriage of Jacenko (1986) 11 Fam LR 34
In the Marriage of Whitford (1979) 4 Fam LR 754
McMahon and McMahon (1976) FLC 90‑038
Tormsen and Tormsen (1993) 18 Fam LR 232; FLC 92‑392
In the Marriage of Hickey (2003) 30 Fam LR 355
Black and Kelner (1992) FLC 92-287
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414

APPLICANT: Ms Geborovich

RESPONDENT: Mr Geborovich

FILE NUMBER: SYC 317 Of 2008

DATE DELIVERED: 9 April 2010

PLACE DELIVERED: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

PLACE HEARD:  Sydney

HEARING DATE: 29 & 30 October 2009,
19 February 2010 &
12 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:	Mr A. Givney
SOLICITOR FOR THE APPLICANT:	Nash Allen Williams & Wotton

COUNSEL FOR THE RESPONDENT 

HUSBAND:

Mr G. Gersbach

SOLICITOR FOR THE RESPONDENT:

Shepherds The Family Law Specialists

Orders

1.The husband shall within two months of the date of these orders pay the sum of $118,401.00 to the wife.

2.In the event the husband fails or neglects to pay such sum then the husband shall do all acts and things necessary to sell the property at J, in the State of New South Wales and in respect of such sale the following shall apply:-

a)The property shall be sold at the best price reasonably obtainable.

b)In the event the parties cannot agree as to the best price reasonably obtainable and/or the reserve price at auction then the parties shall appoint the President for the time being of the Australian Institute of Valuers or his or her nominee to assess the best price reasonably obtainable and/or reserve price at auction and the parties shall be bound by such assessment and shall equally bear the cost.

c)In the event the property is not subject to a binding agreement for sale within five months of the date of these orders then the husband shall do all acts and things necessary to place the property in the hands of a licensed auctioneer to sell the property within six weeks thereafter.

d)Upon sale the proceeds of sale shall be paid as follows:-

i.In payment of agents commission and legal costs occasioned by the sale.

ii.Payment to the wife of $118,401.00 together with interest dated from 2 months from the date of these orders.

iii.The balance if any to the husband.

3.Each party shall otherwise retain all other assets currently in his or her possession, custody or control, including, but not limited to shares, stock options, funds at bank, motor vehicles, and furniture and effects.

4.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Family Court of Australia shall be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

IT IS NOTED that publication of this judgment under the pseudonym Geborovich & Geborovich is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 317 of 2008

MS GEBOROVICH

Applicant

And

MR GEBOROVICH

Respondent

REASONS FOR JUDGMENT

1.The parties’ relationship spanned 5 years and involved several periods of cohabitation. The parties cannot agree on a settlement of their property.

Applications

2.The wife seeks orders in terms of orders sought in her counsel’s Supplementary Submissions as follows:

1.1.The husband shall within 42 days of the date of these orders pay to the wife the sum of $118,401.00.

1.2.In the event the husband fails or neglects to pay such sum then the husband shall do all acts and things necessary to sell the property at [J] and in respect of such sale the following shall apply:-

1.2.1.The property shall be sold at the best price reasonably obtainable.

1.2.2.In the event the parties cannot agree as to the best price reasonably obtainable and/or the reserve price at auction then the parties shall appoint the President for the time being of the Australian Institute of Valuers or his or her nominee to assess the best price reasonably obtainable and/or reserve price at auction and the parties shall be bound by such assessment and shall equally bear the cost.

1.2.3.In the event the property is not subject to a binding agreement for sale within five months of the date of these orders then the husband shall do all acts and things necessary to place the property in the hands of a licensed auctioneer to sell the property within six weeks thereafter.

1.2.4.Upon sale the proceeds of sale shall be paid as follows:-

1.2.4.1.In payment of agents commission and legal costs occasioned by the sale.

1.2.4.2.Payment to the wife of $118,401.00 together with interest dated from 42 days from the date of these orders.

1.2.4.3.The balance if any to the husband.

3.The husband seeks orders in terms of his Further Amended Response to an Application For Final Orders as follows:

1.That the Wife’s Application filed on 21 January 2008 be dismissed.

2.That the Wife pay the Husband’s costs on an indemnity basis.

IN THE ALTERNATIVE (if leave to proceed under s.44(3) is granted):

1.That the Wife’s Application be dismissed.

2.That the Wife pay $32,000 to the Husband within one month.

3.That the Wife and the Husband each otherwise be declared to have no interest in any property in the ownership, possession or control of the other.

4.That the Wife pay the Husband’s costs of the proceedings on an indemnity basis.

The hearing

4.The matter was listed for hearing over two days commencing on 29 October 2009. At the commencement of the hearing learned counsel for the husband asserted that four days of hearing time were required, not two. He submitted that the Registrar who had fixed the matter for hearing over two days, over the objections of the parties, was wrong to do so. Nearly two hours was lost on the first morning of the trial with objections to evidence.  The wife’s cross-examination was protracted because she used an interpreter for much of her evidence. There were 8 or so affidavits relied on by the husband, filed pursuant to directions made in 2008, of which the wife’s solicitor had no notice. As the hearing progressed, notwithstanding an early start on the second day and the co-operation of counsel for both parties with time limits imposed on them, it became apparent that the hearing would not be completed within the time allocated, would require a further half a day or so. The hearing was adjourned part-heard and the following orders and notations were made:

1.The hearing is adjourned part heard to a date to be fixed in consultation between the legal representatives and the associate to JR Loughnan, estimated time less than one day.

2.        The court noted that the unfinished elements of the trial are:

·    any cross-examination of the wife on an affidavit (yet to be filed) in reply  to those affidavits of the husband’s witnesses filed in or about November 2008;

·    re-examination of the wife;

·    cross-examination of two witnesses in the husband’s case; and

·    submissions.

3.Within 14 days the wife’s counsel is to provide to the husband’s counsel a draft of:

·    an agreed chronology;

·    a list of matters about which findings of fact are required; and

·    a list of assets and liabilities.

4.Within a further 14 days thereafter the husband’s counsel is to consider and where appropriate, amend those documents and return them to the wife’s counsel.

5.Not later than 11 December 2009 or such further date as the parties and the associate to JR Loughnan agree the parties are to provide to the associate:

·    an amended costs advice document for the husband;

·    an agreed chronology;

·    an agreed list of matters about which findings of fact are required; and

·    an agreed list of assets and liabilities.

5.The hearing was listed for completion on 19 February 2010.

6.There was correspondence between solicitors and the times for lodging documents were extended by agreement. Nevertheless by 19 February 2010, none of the directions was complied with, save in relation to the husband’s costs advice document. An agreed balance sheet was provided after lunch. Counsel settled on a joint chronology document save for some small amendments to be settled over the days following 19 February 2010 and to be then provided to my associate. There was no agreed list of matters about which findings of fact are required. In the spirit of these proceedings, separate lists were provided.

7.The matter proceeded on 19 February 2010 but at about 4.30 pm counsel for the husband said that he could not complete the case that day. I adjourned the proceedings for submissions to 12 March 2010 for half a day.

8.Rather than the joint Chronology being provided in the days following 19 February 2010, it reached my chambers together with a new Balance Sheet, on 11 March 2010.

9.On 12 March 2010 oral submissions were made and judgment was reserved.

10.Criticism was made of the Registrar who fixed these proceedings for hearing. It is not within my power to review the Registrar’s decision. Indeed, like the Registrar I am a delegate and my power in relation to procedural matters is no greater than that of a registrar. However, I should say something about the criticism lest it be thought to have any merit. These proceedings involve a pool of assets with a net value of less than $1,000,000 and a range of dispute of less than $200,000. Proportionality between the matters at issue, the private and public costs of the proceedings, together with the interests of other cases awaiting determination, require that matters such as this not involve a protracted hearing. The Registrar was fully justified in limiting the hearing time to two days. In my view the approach of the parties to the litigation, particularly that on behalf of the husband, involved a level of exhaustive detail and precision better suited to a taking of accounts on the winding up of a partnership, than the broad exercise of discretion under section 79.

11.In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 258 ALR 14 the High Court departed from its own approach in The State of Queensland v JL Holdings (1997) 141 ALR 353. In Aon the Court was dealing with subordinate legislation of the ACT in relation to the amendment of pleadings. In making decisions in a particular case that might involve the loss of Court time the High Court identified obligations owed by Courts to the public and to other cases waiting for a hearing,. The majority of the High Court said:

….

113.    In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

12.The criticism of the Registrar was not warranted. If anything, the blowout in time was caused by the approach of the parties and my inability to contain the hearing.

Documents read

13.The wife relied on the following documents:

1.Wife’s Initiating Application filed 22 January 2009.

2.Wife’s Affidavit sworn 28 June 2009.

3.Wife’s Affidavit sworn 21 January 2010 and filed 8 February 2010.

4.Wife’s Financial Statement sworn 28 July 2009.

14.The husband relied on the following documents:

Sworn	Filed
1.	Response	06.03.2008
2.	Husband’s Financial Statement	16.07.2009	06.03.2009
3.	Affidavit of Husband	22.07.2009	23.07.2009
4.	Affidavit of Mr WN	27.11.2008	12.03.2009
5.	Affidavit of Mr WN	11.03.2009	12.03.2009
6.	Affidavit of Mr CN	26.10.2009	27.10.2009
7.	Affidavit of Mr WS	06.03.2008	10.03.2008
8.	Affidavit of Ms MI	24.11.2008	25.11.2008
9.	Affidavit of Mr FD	25.11.2008	26.11.2008
10.	Affidavit of Mr ES	25.11.2008	26.11.2008
11.	Affidavit of Ms KT	25.11.2008	26.11.2008
12.	Affidavit of Mr DE	25.11.2008	26.11.2008
13.	Affidavit of Mr NW	26.11.2008	28.11.2008
14.	Affidavit of Ms DN	29.09.2009	02.10.2009
15.	Affidavit of Mr HR	29.09.2009	02.10.2009
16.	Affidavit of Mr LT	19.10.2009	20.10.2009
17.	Affidavit of Ms TR	16.10.2009	23.10.2009

Short history

15.As at the date of the commencement of the hearing the wife was 37 years of age and the husband was 53. They started to live together in April 1994, were married in 2001 and separated in December 2006. The parties’ divorce became final on 3 November 2008.

Issues in dispute

16.I directed that the parties prepare an agreed list of issues about which findings would be required. In the spirit in which these proceedings are conducted, rather than an agreed list I received a list from each of the parties.

17.The findings required by the wife are:

1.What were the parties’ initial contributions?

2.What was the length of the parties’ cohabitation?

3.Did the wife make contributions as a homemaker and if so what was the extent of such contributions?

4.Did the wife assist the husband in locating real estate and otherwise attending to such matters as being present when tradesperson attended homes, visit real estate agents and attend with the husband at various properties for inspection?

5.Did the wife assist the husband with his financial affairs in that did she prepare from time to time MYOB statements and spreadsheets from information provided by the husband and at the direction of the husband and also conduct errands on his behalf and at his request?

6.Is the husband being truthful in asserting the number of times he informed the wife he wanted to end the relationship?

7.Is the fact of the consistent moving of the parties because of the husband’s working commitments and the purchase and sale of homes a relevant consideration in assessing:-

7.1Whether the wife should have obtained employment.

7.2Whether such moving enhancing the wife’s asserted contribution as a homemaker.

8.The husband’s assertion the wife owns an interest in an apartment in Moscow.

9.The impact of Section 75(2) factors being:-

9.1The age differential.

9.2The working capacity of each of the parties.

9.3The difference in the asset position of the parties after assessing the parties’ contributions.

18.The findings required by the husband are:

HUSBAND’S LIST OF FINDINGS OF FACT REQUIRED

1.   THE ASSET POOL

1.1.The asset pool at hearing.

1.2.Whether either party has failed to disclose assets.

1.2.1.Whether the Wife has assets in Australia that she has failed to fully or adequately disclose.

1.2.2.Whether the Wife has assets in Russia that she has failed to fully or adequately disclose.

1.2.2.1.Whether the Wife should be found to have any interests in an apartment or apartments in Russia.

1.2.3.Whether any allowance or arbitrary findings should be made as to the possible value of any such undisclosed property. 

1.3.Whether and, if so, what assets should be added back to the asset pool.

1.3.1.Whether the interim costs paid by the Husband to the Wife should be added to the pool.

2.   THE PERIOD AND NATURE OF COHABITATION

2.1.The period of cohabitation

2.2.Whether the parties cohabitated continuously.

2.3.The nature of the parties relationship

2.3.1.Whether the Wife participated in the relationship for the purpose of securing Australian residence and/or citizenship

2.3.2.Whether the Wife threatened or made false claims about the Husband to cause him to allow her to continue to reside with him although they were not in a genuine marital relationship.    

3.   CONTRIBUTIONS MADE

3.1.The initial contributions made by each party

3.1.1.Whether the Wife made any initial contributions.

3.1.2.Whether the Wife brought US$ cash funds to New Zealand as she asserts.

3.2.The financial contributions made by each party

3.2.1.Whether the Wife made any financial contributions other than to her own support at times when the parties when the parties were living separately.

3.2.2.Whether the Wife should have obtained employment and made financial contributions from any income earned when the parties were living in the same home.  

3.3.The non financial contributions made by each party.

3.3.1.Whether the Wife made any non financial contributions.

3.3.2.Whether the Wife worked for the Husband or his company.

3.3.3.Whether the Wife assisted the Husband in relation to his real estate investments.

3.3.4.Whether the Husband made any non financial contributions.

3.4.The homemaker and welfare contributions made by each of the parties.

3.4.1.Whether the Wife carried out any homemaking functions

3.4.2.Whether the Husband carried out any homemaking functions

3.4.3.Whether the Husband assisted the Wife to secure Australian residency.

3.4.4.Whether the Husband assisted the Wife in learning to use MYOB.

4.   FUTURE NEEDS AND CIRCUMSTANCES

4.1.The working and earning capacity of each party.

4.2.The reasonable standard of living for each of the parties in all of the circumstances.

5.   CREDIT ISSUES

5.1.Whether the parties have been truthful.

5.1.1.Whether the Wife has lied about her cash funds, overseas property interests, the contributions she has made, where the parties stayed together, the dealings she had with people and/or her work history.

5.1.2.Whether the Court should find that the Wife has been so untruthful that it should not be unduly cautious in making findings against her.

5.1.3.Whether or not findings should be made that may have the effect of inflating the size of the pool of matrimonial assets. 

6.   JUST AND EQUITABLE OUTCOME

6.1.Whether it would be just and equitable to make any adjustment in favour of the Wife in circumstances where she has failed to make full and frank disclosure.

1.    Date of commencement of cohabitation and length of cohabitation.

Children

19.There are no children of the marriage. The husband has adult children from an earlier relationship.

Background facts

20.I required that the lawyers prepare an agreed chronology. On 19 February 2010 I was told that counsel would resolve a couple of outstanding issues and then provide me the chronology.  

21.On 11 March 2010, the day before the last hearing date, I received the agreed chronology. The document is an attachment to these reasons. I make findings in accordance with the facts agreed in that document.

The period of cohabitation and the nature of the marriage

22.The parties lived under one roof for various periods between 22 November 2001, when they first lived together in New Zealand and December 2006, when they were working for the same employer in Y, Russia. It is the wife’s case that in aggregate, the parties lived together for about 3 years. The husband would have it that they were under one roof for a total of about 2½ years. It is neither possible nor necessary to make a finding between those positions. On the whole the husband is more reliable in relation to facts and figures. It may be that his estimate is closer to the mark.

23.There is reference in the submissions on behalf of each of the parties to this being an unusual marriage. The husband would have it that this was not a marriage in the accepted sense of that word. He says that within a few days of the parties first living under one roof in New Zealand, he formed the view that the marriage would not work and from that time he consistently desired to terminate. That is not a credible contention. There were countless opportunities over the next 5 years to sever his physical links with the wife and he did not take those opportunities. He told the wife about his accommodation in Australia, New Zealand and Russia and paid for her travel on many occasions between countries and locations. He facilitated or at least, did not prevent, communication directly between the wife and his accountants and various real estate agents. He took no legal action, nor did he pursue advice as to how the relationship might be terminated. The husband has lived and worked all over the world and is sophisticated and determined. Whatever he may have said to the wife from time to time, it beggars belief that for five years he was unable to terminate a relationship he consistently wanted to end.

Credit and Submissions

i)The evidence of the witnesses

24.The only witnesses called for cross-examination were the parties.

25.The wife is not a good witness. English is not her first language and that caused substantial problems with her evidence. She said that the expression of her written evidence was not always accurate. For example she deposed to having no right to sell the Moscow apartment occupied by her first husband and yet agreed in cross-examination that she had a right to sell that apartment. In cross-examination she agreed with some propositions only to reject the same propositions moments later. She failed to answer the question asked on many occasions, going into great detail about matters not relevant to the question. The wife said she signed a real estate agency agreement in Australia and then said that she was present in Australia when the form was completed but signed it in New Zealand. In seeking to explain how she came to have savings at the commencement of the marriage, the wife gave evidence to the effect that prior to that time she was in continuous employment and always well paid. In cross-examination however, she conceded that she was out of work from 8 June 2000 to 1 March 2001. The wife says that although her Russian workbook shows her not working from 17 August 1992 to 15 January 1996 she had work of the nature of cleaning and selling goods.

26.The husband was a careful witness during cross-examination. He has maintained good records, has a good memory and made some concessions against his own interest. For example he readily conceded that the copies of emails he sought be entered into evidence were selected to support his case and that he omitted emails which he considered would be harmful to his case – ‘because they might be misinterpreted’.

27.Unfortunately, because he made a declaration in 2003[1] in support of the wife’s visa application in terms diametrically opposed to his evidence in these proceedings, the husband is not a credible witness. It is his case that he made a false statement.  More than that, the husband’s evidence before me is that he had a work colleague make a false declaration[2] at about that time. Ironically the latter declaration includes “I could not imagine either [the husband] or [the wife] being decetive (sic) or placing themselves in a position where their integrity could be questioned”. And later: “I base this statement on the regularity of our contact, the fact that [the husband] and I often discuss family philosophy, family values and the importance of honesty and integrity.”

[1] Annexure D to the wife’s affidavit

[2] Exhibit 12

28.The damage to the husband’s credibility, when it is his own case that he has made and procured false statements, is obvious. Because the parties’ relationship persisted for five years and in different parts of the globe, I cannot be confident as to whether it was the earlier declarations or the husband’s evidence in the proceedings before me, that is false.

29.Further, the husband’s evidence is coloured by his view of the wife’s motivation and of the parties’ relationship.  Unfortunately the facts do not support a finding that his view is entirely correct.

Submissions

30.The written submissions on behalf of the wife are:

Asset Pool

1.There are a number of difficulties in assessing the asset pool including:-

1.1.What methodology if any the husband had in assessing the value of his superannuation fund.

1.2.At paragraph 115 of the husband’s Affidavit the husband says as of 6 October 2006 he had approximately $723,000.00 in bank accounts.  In the same paragraph he says that he had loan debts of $338,000.00 [whatever that may mean] and on 10 October 2006 had only $234,000.00 in bank accounts.   

1.3.The wife served an Application on the husband on 31 January 2009 and on that day he withdrew the following sums from various accounts:-

$6,974.29

$20,000.00

$1,000.00

1.4.As well as the above withdrawals the wife expresses concern about the quantum of monies withdrawn from various accounts conducted by the husband at paragraph 54 of her Affidavit.

1.5.At paragraphs 266 and 267 the husband gives a meticulous breakdown of expenditure by him during the course of the marriage down to the cent.  It will be contended during the case that during the course of the parties’ marriage the husband kept meticulous records as to monies that he sought to reclaim from his various employers from time to time.  The meticulous record keeping indicated in the paragraphs and probably in the evidence stands in star contrast to the husband’s failure to properly account for monies that he had as of 10 October 2006 and subsequent. 

1.6.There seems little doubt that the husband had $450,000.00 received from his last employer nett after one year of employment and he has not accounted for such sums in his Affidavit although it is submitted he well knows how these monies if it were expended it at all.

1.7.The husband has not served an updated Financial Statement.

2.Accordingly it is likely that there will be a submission at the conclusion of the proceedings that the Court look at adding back sums or taking into account the husband’s failure to make a full disclosure under Section 75(2)(O).

3.The Court is asked to look at the asset pool on the basis of including the superannuation entitlements.

4.The wife’s assessment of the value of [L] Pty Limited is based upon a Financial Statement of the company which shows a bank balance of $140,000.00.

Contributions

5.At the time the parties married the husband was well established in life.  He owned a property at [A] subject to a mortgage and gives evidence [that he had substantial sums in savings and in a superannuation fund]. There seems no corroborative evidence that the husband’s assertion as to monies held in [L] Pty Limited totalling $280,630.00.  The wife’s assessment of contributions is based upon acceptance by the Court of the assertions made by the husband as to his asset position at the commencement of cohabitation.  If it is found that the husband’s assertions as to his asset position at the commencement of cohabitation are significantly exaggerated then it is submitted that the wife’s contribution would be greater than as is submitted at the conclusion of these submissions.

6.The wife’s contributions during the course of five years of cohabitation are of a homemaking contribution.

7.The wife also carried out bookkeeping and secretarial services for the husband.  Notwithstanding the husband’s denials it will be submitted through the tender of documents and cross-examination of the husband that notwithstanding the husband’s denial the wife made a significant contribution as to bookkeeping and secretarial services and was an integral part of maintaining the records of [L] Pty Limited. 

8.The wife also made contributions by way of maintaining various properties purchased during the course of the parties marriage.

9.This period of cohabitation asserted does not fall into the category of “a short” marriage.  As such weight must be given to the various contributions made by the wife as against the overwhelming financial contribution made by the husband both during the course of the parties’ cohabitation and at the commencement of cohabitation.

10.Throughout the course of his Affidavit the husband indicates a constant stream of evidence relating to him telling the wife that he wanted separation and endless discussions in relation to separation.  The wife concedes that from time to time the husband did demand a divorce in circumstances where such a demand was not warranted.  If it be the case that the husband was demanding a divorce and/or separation for no apparently reason and then moving on with the parties relationship it would seem that the wife’s contribution as a homemaker may well be somewhat enhanced by virtue of the inconsistent behaviour of the husband.

11.It is submitted that the wife’s contributions are 15 per centum to the husband’s 85 per centum.

Section 75(2)

12.The submissions as to the husband’s failure to make a full disclosure are repeated and it may be the case that an adjustment will be sought by virtue of the husband not keeping the Court and/or the wife informed as to expenditure of significant sums of money post separation. 

13.There is a significant age discrepancy between the parties.  The wife has obtained employment and is likely to have a long working life ahead of her as opposed to that of the husband.  However the husband has shown that he is well capable and certainly was well capable until the time of separation of earning substantial income. 

14.The husband asserts that he is unable to obtain employment and gives some evidence of attempts he has made to obtain employment.  Bearing in mind that the husband has been a significant income earner and has always been in employment until the time of the parties’ separation it is submitted that the husband’s assertions in regard to his prospects of employment should be guarded and even probably considered with some suspicion.

15.If the Court is inclined to the view that the husband is not being forthright about his capacity for employment then it is submitted that the Section 75(2) factors will be more significant than is proposed here. 

16.A significant factor between the parties is the difference in the amount each will receive by virtue of their contribution based entitlement.  It is submitted that because of this discrepancy it is submitted that there would be an adjustment in favour of the wife of 7.5 per centum, representing approximately $70,000.00 of the asset pool.

Overall Result

17.It is thus submitted that by virtue of contribution based entitlement and adjustment the wife is entitled to 22.5 per centum of the asset pool.  This would mean that the husband will receive $729,627.00 and the wife $211,827.50. 

It is submitted that this is a just and equitable result bearing in mind the various contributions and the present position of the parties as of today. 

31.The supplementary submissions on behalf of the wife are as follows:

1.Cohabitation

The wife maintains the parties were married [and thus committed to the marriage] from its date […] November 2001 until separation in 2006.  The parties did not share accommodation on a day to day basis during the times the husband worked in New Zealand and the husband owned property in Australia.  The wife lived at various times separately from the husband in Australia whilst he worked in New Zealand [and for a period 17 February 2002 to 2 April 2002 in Russia].

The wife lived in Russia from April 2005 and says the parties resumed living together in Russia in December 2005.  The emails travelling between the parties in that period do not indicate an intent of separation.

The husband left the parties accommodation in [Y] in February 2006.  The parties then do not have appeared to have shared accommodation to any significance until October 2006, again in [Y] when they separated in December 2006. 

2.Husband’s Contention

The husband contends he was unhappy from the start of the marriage and he wanted to separate.  The husband has a fixed view the wife made no contribution to the marriage and in fact was a drain on it.  The husband has an inflexible view and does not take into account in this view contributions recognised by the Act.

3.Important Pieces of Evidence

3.1.The husband’s Statutory Declaration declared 14 November 2003 [Exhibit D]. 

This is the Statutory Declaration the husband declared in support of the wife’s Application for residency.  The husband says the whole of the document is untrue.  Part of the document states:-

“…for work and lifestyle [the wife] will travel between Australia and New Zealand to maintain our home, car and other matters…”

The husband says this document is a fraud and was brought about on the basis of a bargain reached between the parties. 

3.2.Mr. [MS’s] Statutory Declaration [Exhibit 12]

Mr. [MS] [now deceased] declared the Statutory Declaration in support of the wife’s Application for residency at the request of the husband.  The husband says this document is false.  The husband does not lead evidence as to why Mr. [MS] would declare a false document.

3.3.Email to Husband from wife re bookkeeper [Exhibit 2]

3.4.Email re sending MYOB attachments from wife to husband [Exhibit 2]

3.5.The husband’s oral evidence to the effect:-

3.5.1.The husband acknowledged that he had seen the emails and had possession of the emails referred to above.

3.5.2.He only chose emails that he was of the view that assisted his case [it follows then that he chose the above emails not to be included as part of his case.]

3.6.The husband thus did not make a full disclosure of documents.

4.Credit

It is submitted that the husband when comparing his oral evidence and the above evidence with his Affidavit that he simply lacks any credibility.

5.Wife’s Finding of Facts

5.1.Initial Contributions

The husband made the overwhelming contributions.  The wife says she had $20,000.00 this is disputed.  Not much turns on it.  It is submitted that the Court would accept the wife’s evidence over the husband’s evidence.

5.2.Length of Parties Cohabitation

It is submitted the cohabitation is as is referred to above. 

5.3.Wife Contributions as Homemaker

5.3.1.It is difficult to understand the husband’s concept as to homemaker contribution.  Even on his own case she was with him meeting various tradespeople and real estate agents, travel with him, looked after his properties whilst he was in New Zealand.  The husband says the wife never cooked.  The wife actually produces a photograph showing a cake that she cooked.  The husband says the cake was bought.  Again the Court is dealing with the husband’s closed mind and his evidence should not be accepted.

5.3.2.It is interesting that the concept of homemaker is not necessarily defined in the Act or in Case Law but in the circumstances of this case part of the homemaking involved the parties living separately so assets could be maintained and the husband’s work indirectly supported by the wife by not living with him.

6.Assisting Husband’s Financial Affairs

The Court has the benefit of the wife’s sworn evidence, her oral evidence which established her intimate knowledge of the manner in which the husband maintained his books [references made to his stamps] and further the emails contained in Exhibit 2. 

7.Husband informing Wife that he wanted to end the Relationship

It is perhaps not unusual that from time to time parties to a marriage make comments to each other as to separation.  The husband’s Affidavit seems to indicate that on a regular basis he told the wife he did not want to live with her and wanted her out of his life.  Notwithstanding this the parties clearly continued to go out, travel together and make arrangements together and continued to send emails to each other.  It is thus submitted that although the husband may have on occasions informed the wife that he wanted a separation that he did not commit to a separation until it actually occurred by agreement in December 2006. 

8.Impact of the Parties Transient Lifestyle

The reference made in the Statutory Declaration of the husband’s above encapsulates the nature of the parties’ marriage.  The husband it would appear has regularly travelled to different parts of the world with respect to his employment.  When the husband complains the wife does not work again reference is made to the above Statutory Declaration.  It was simply not possible for the wife to work.  The wife’s homemaker contribution is enhanced by the facts firstly she travelled from Russia and made a new home in Australia [leaving her mother in Moscow] to be a significant contribution and secondly her regular travel prevented her from settling down and obtaining regular employment.

9.Wife’s Apartment in Moscow

9.1.The wife has an entitlement to occupy an apartment in Moscow [together with her estranged husband].  At Annexure “J” [page E60] of the wife’s Affidavit the following paragraph is contained in the judgment of the [Z] Local Court in respect of the Application of the wife and her former husband to obtain separate residential premises:-

“In accordance with Articles 85 and 86 of the Russian Housing Law persons are relocated from residential premises to other residential premises under Social Assistance Rental Agreements in those cases when their current residential premises are due to be demolished.  If the building that contains the residential premises occupied under a Social Assistance Rental Agreement, it is due to be demolished and the persons being relocated from the premises are provided with an alternative accommodation by the government authority or local authority that made the decision to demolish the building under a Social Assistance Rental Agreement.”

9.2.Thus the wife and her former husband are subject to a rental agreement and do not have property or ownership of the apartment.  The wife cannot live in the residence because her former husband lives there and not unexpectedly he doesn’t want her to live there and she doesn’t want to live there.  The wife’s oral evidence is that her former husband does not wish to apply to obtain property in the apartment. Accordingly the apartment is not property, not a resource and cannot even be used for the wife’s own accommodation. 

10.Section 75(2) Factors

This question involves another credit issue in that does the Court accept the husband has not been able to obtain employment.  It is submitted that the husband could have provided a lot more evidence to the Court of endeavours to obtain employment and it is more likely than not that he is awaiting the outcome of proceedings before really pursuing his career again.  It is submitted that there be an adjustment in favour of the wife of 5 per centum.

Overall Result

It is submitted that the overall result is that the husband will receive 80 per centum and the wife 20 per centum.  The wife’s contribution is put at 15 per centum and would have been greater if it had been the case that the parties actually lived together for the whole period of cohabitation and as such the lack of living together is factored into [or probably factored out of] the 15 per centum.

11.Effect of Orders

Wife receives 20 per centum of $885,776.00              $177,151.00

Wife receives:-

ANZ Account                  $1,446.00

ANZ Account  6,000.00

Funds in Russia                 4,000.00

2006 Barina motor vehicle 10,500.00

Wife’s furniture                5,000.00  

Superannuation                 7,670.00

Interim costs  15,000.00

Wife’s paid costs            26,229.00

Payment by husband     118,401.00     $194,246.00

Less loans and credit cards  17,095.00    $171,151.00

Husband receives 80 percent of $885,776.00             $708,625.00

Husband receives:-

[K property]  $315,000.00

[J property]  380,000.00

ANZ Account  4.00

ANZ Account  1.00

Husband’s paid costs      49,300.00

1992 Toyota Hi-Ace         1,000.00

Husband’s furniture         2,650.00

[L] Super Fund              165,000.00     $912,955.00

Less

ANZ Credit Card                  163.00

HSBC Credit Card                543.00

Line of Credit                  85,243.00

Payment to wife            118,401.00       204,350.00    $708,605.00

12.Orders Sought

12.1.The husband shall within 42 days of the date of these orders pay to the wife the sum of $118,401.00.

12.2.In the event the husband fails or neglects to pay such sum then the husband shall do all acts and things necessary to sell the property at [J] and in respect of such sale the following shall apply:-

12.2.1.The property shall be sold at the best price reasonably obtainable.

12.2.2.In the event the parties cannot agree as to the best price reasonably obtainable and/or the reserve price at auction then the parties shall appoint the President for the time being of the Australian Institute of Valuers or his or her nominee to assess the best price reasonably obtainable and/or reserve price at auction and the parties shall be bound by such assessment and shall equally bear the cost.

12.2.3.In the event the property is not subject to a binding agreement for sale within five months of the date of these orders then the husband shall do all acts and things necessary to place the property in the hands of a licensed auctioneer to sell the property within six weeks thereafter.

12.2.4.Upon sale the proceeds of sale shall be paid as follows:-

12.2.4.1.In payment of agents commission and legal costs occasioned by the sale.

12.2.4.2.Payment to the wife of $118,401.00 together with interest dated from 42 days from the date of these orders.

12.2.4.3.The balance if any to the husband.

32.The written submissions on behalf of the husband are:

6.1      LEAVE TO PROCCED

Subsection 44(3) of the Act provides, inter alia, that proceedings for orders under s.79 shall not be instituted without leave of the Court after the expiration of 12 months from when a divorce decree has taken effect.  Subsection 44(4) provides that the Court shall not grant that leave (whether before or after commencement of the proceedings) unless it is satisfied that hardship would be caused to a party if that leave were not granted. 

The parties divorce became final on 16 January 2007.  The Husband asserts that they applied jointly for divorce in Russia on the basis that there were no children of the marriage and that there was no dispute between them in relation to property matters.  The Wife filed her application in Australia on 21 January 2008.

The Husband opposes the Wife being granted leave to proceed with her application out of time.  The authorities provide that an applicant for leave must show that a party would suffer substantial detriment if leave were not granted.  The mere loss of the right to litigate is not hardship. 

The period of delay is not of significance but there must always be a satisfactory explanation for the delay in commencing proceedings.  The onus is on the Wife to explain the delay and satisfy the Court.  The Wife’s evidence does not touch on the issue of delay.

Whether it would cause hardship or prejudice to the respondent is relevant to the exercise of the discretion to grant leave.  The Husband had organised his affairs on the basis that there would be no claim against him by the Wife.  The Husband has relied upon assurances given by the Wife throughout the marriage that she would not make any claim against his property (and by him that that he would not make any claim against her except for the repayment of acknowledged debts) if he supported her in securing Australian residency and citizenship.  The Wife, with the Husband’s support became a permanent resident and subsequently an Australian citizen.

Even if the Wife is not granted leave to proceed, the Husband as a respondent to her application is entitled to proceed with his cross application. The authorities provide that the time limit under s.44(3) does not apply to cross applications to an application made out of time: ANGER & ANGER [1981] 8 Fam LR 333.

Provided the Wife is ordered to pay his costs of the proceedings, the Husband will not seek to proceed with his cross application for adjustive property orders.  He seeks that his costs be paid on an indemnity basis.

6.2 THE EVIDENCE

If the Wife’s application proceeds, it will be asserted that significant parts of the Wife’s affidavit evidence are fabricated or so exaggerated that the Court will find her to be a wholly unreliable witness.  The Husband further anticipates that the Court will find that the Wife has failed to make full and frank disclosure, and withheld information to the extent that the Court will be unable to make findings in relation to significant factual issues.  It is likely to be submitted that a finding should be made that the Wife has intentionally misled the Court or has consciously concealed aspects of her financial position. 

The Husband relies on the authorities that set out in clear and unequivocal terms the onus on parties to make a full and frank disclosure of all their financial circumstances (see Black v Kelner (1992)FLC 92-287).   Such responsibility is also embodied in Chapter 13 of the Family Law Rules and in particular in Rule 13.04.

The obligation to make a full and frank disclosure is critical to the function of the Court’s jurisdiction.  It is fundamental in making any Order that is just and equitable for a full disclosure to be made of all of the circumstances which are relevant to a parties’ true financial position, both presently and in the foreseeable future.  In the event that the Court does find that the Wife has failed to make full and frank disclosure, it will be urged upon it that it should not be unduly cautious in making findings against the Wife (see Weir v Weir (1993) FLC 92-338), even if those findings may have the effect of inflating the size of the pool of matrimonial assets.  (see Milankov (2002) FLC 93-095).

In particular the Husband asserts the Wife has failed to disclose the details of her interest in one or more apartments in Moscow and/or the disposal of them.

6.3 CONTRIBUTIONS PURSUANT TO SECTION 79(1) – (4)

This was a short and very unusual marriage.  The parties lived apart for significant periods.  The Wife did not work for most of the period although she did at a time when they were living separately in the same accommodation provided by the Husband’s employer.  They parties negotiated their financial arrangements prior to marriage.  They divorce in Russia on the basis that there were no property issues between them.  

Section 79(4) (a)

Financial contributions made directly or indirectly by or on behalf of a party or a child of the marriage, to the acquisition, conservation or improvement of any property of the parties or any of them.

·At marriage (the commencement of cohabitation) the Husband had the property set out in paragraph 166 of his primary affidavit.  His net initial contribution to the marital property pool was valued at about $998,972. 

·His property consisted of a home and investment properties that he used to generate rental income or for development and resale for profit as part of his usual means of deriving his income.

·The joint asset pool (without consideration of possible add backs or liability for legal fees) is now valued at about $959,121.  

·The Wife made minimal initial financial contributions.  On her version she had savings of “approximately $20,000” in US dollars.  The Husband disputes that assertion.  The Wife did not disclose those funds to the Husband and he paid $1,200 for the Wife’s unsuccessful Australian Visa application in Moscow on the basis that she had no funds. 

·The Husband made ongoing financial contributions to the acquisition, conservation and improvement of his properties throughout the marriage in addition to fully supporting the Wife financially for the majority of the period.

·The Husband asserts he in effect made a direct financial contribution to what became the Wife’s property after they had filed for divorce by giving her $17,000 to transfer to Australia for him.  Despite her promise to give those funds back to him, the Wife kept that sum for herself.

·The Wife did not contribute any of her alleged savings or the income she earned during her period of employment during the marriage, being for about 20 months in Russia in 2005-2006, to the acquisition, conservation or improvement of any property except possibly as savings she has retained for herself. 

·The Husband asserts that the Wife told him she had interests in 3 apartments in Moscow prior to marriage.

·The Wife has either retained whatever property rights or interests that she had at the commencement of the marriage or acquired during it.

·The Husband asserts that the Wife has received an interest in a privatised apartment property in Moscow that she has realised but failed to disclose to the Court.  This is demonstrated by the expert evidence of a Russian property lawyer. 

·The value of the Wife’s interest is unknown and cannot be determined without disclosure by the Wife.  She has prevaricated and avoided disclosure of the value of her Moscow property interests or the proceeds from them.  

·There is further evidence suggests that the Wife has also acquired an interest in an apartment in Moscow previously occupied by her mother.  The Wife has not disclosed that interest.  

Section 79(4) (b)

The contribution, (other than financial contributions) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage.  

·The Husband performed the vast majority of the domestic chores involved in the care and maintenance of the properties owned by him during the relationship. 

·The Husband made all of the non-financial contributions made towards the acquisition conservation and improvement of the properties he owned or acquired during the marriage.

·The Husband carried out or arranged all of the necessary work involved in buying and selling the residential properties he acquired and sold, renovating and renting out the properties he owned.

·Despite her broad assertions to the contrary, the Wife played next to no non-financial role in the acquisition, maintenance or improvement of the Husband’s properties.   

·The Husband’s capacity to make the direct and indirect financial contributions he made to the acquisition, conservation or improvement of property during the parties relationship was not enhanced or facilitated in any way by the Wife.

·The Wife did not play any role in the operation of the Husband’s company or his employment as she asserts.

·The Wife benefited by a distribution from the Family Trust operated by the Husband that went towards her expenses.

Section 79(4) (c)

The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any of the children of the marriage, including any contribution made in the capacities of homemaker and parent.

·The Husband supported the Wife’s application for Australian residence in accordance with agreements reached between them and persisted with that support to the point of the Wife firstly attaining permanent residence and ultimately Australian Citizenship.

·The Husband and Wife mostly performed their own domestic chores during the relationship when they were not in accommodation provided by the Husband’s employers or as part of his contracting work.  They did their laundry separately when not done by others.

·The Parties usually ate out at the expense of the Husband or his employers for significant periods.  Otherwise they cooked and ate separately.  On the occasions they ate together the Husband cooked all but 2 of those meals.

·The Husband provided accommodation for the Wife at all times when they were together and also at some times when they were living separately at the same locations.

Section 79(4) (d)

The effect of any proposed order upon the earning capacity of each party to the marriage.

·The outcome of the division of the asset pool will impact on the income of the parties to the extent that the property they each end up holding will allow them to generate income by investment.

·The pool of property available will mean that the Husband will inevitably earn less than he did prior to cohabitation. 

·Any property received by the Wife could only enhance her earning capacity in circumstances where she now earns significantly more than she did before marriage or during the marriage.  Her capacity to earn income has been substantially enhanced.

Section 79(4) (e)

a)The matters referred to in subsection 75(2) so far as they are relevant.

·These matters, so far as they are relevant, are referred to below in relation to Subsection 75(2).

Section 79(4) (f)

Any order made under this Act affecting a party to the marriage or a child of the marriage.

·Not relevant.

Section 79(4) (g)

Any Child Support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage.

·Not relevant.

b)

THE HUSBAND SUBMITS THAT HIS CONTRIBUTIONS UP TO THE DATE OF HEARING TO THE ASSETS KNOWN TO HAVE EXISTED PRIOR TO SEPARATION SHOULD BE ASSESSED TO BE 100%. 

HE FURTHER SUBMITS THAT THE WIFE HAS, WITH THE BENEFIT OF THE CHANGES IN HER CIRCUMSTANCES THAT HAVE OCCURRED DURING THE MARRIAGE HAD HER EARNING CAPACITY AND PROPERTY POSITION SUBSTANTIALLY IMPROVED. 

6.3      FACTORS TO BE CONSIDERED PURSUANT TO SECTION 75(2)

Section 75(2) (a)

The age and state of health of each of the parties;

·The Wife is 37 years and is in good health.   

·The Husband is 53 years and is in good health.

Section 75(2) (b)

The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

·The Wife:

onow has an income of about $50,000 per annum received by way of salary from her current employment;

ohas superannuation she asserts to be valued at $7,670 that she has accumulated in less than 2 years.

oThe Husband asserts that the Court should find that she probably has other significant assets she has not disclosed to the Court.

·The Husband:

oowns property worth less than he started with without in any way being wasteful or careless;

ohas a current income of about $21,000 per annum received by way of rent; 

ohis prospects of employment are limited;

ohe has substantial debt; and

ohe has superannuation valued at $180,133.

Section 75(2) (c)

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

·Not relevant

Section 75(2) (d)

c)   Commitments of each of the parties that are necessary to enable the party to support;

d)     i.    himself or herself; and

ii.         a child or another person that the party has a duty to maintain;

·Neither party has a duty to maintain any other adult person, except to the extent that the Court might consider they each have a responsibility to contribute to the support of the other in the adjustment to be made for their future needs.

Section 75(2) (e)

The responsibilities of either party to support any other person;

·Not relevant beyond the responsibilities referred to in (d) above.

Section 75(2) (f)

Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under –

i.          any law of the Commonwealth, of a State or Territory or of another country; or

ii.         any superannuation fund or scheme, whether the fund or scheme was  established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;

·Neither party is entitled to Commonwealth or other welfare benefits so far as the Wife is aware.

·Both parties have superannuation.  The Husband’s is of more value than the Wife’s. The Husband’s superannuation has been accumulated over a long period and he is much closer to retirement age than the Wife and is much more likely to need to rely on his superannuation to support himself in the foreseeable future. 

Section 75(2) (g)

Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

·It is submitted that in all of the circumstances the parties can each enjoy a reasonable standard of living if the orders proposed by the Husband are made.

Section 75(2) (h)

The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

·Not relevant.

Section 75(2) (j)

The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

·The Husband’s financial support of the Wife during the marriage and his support of her in attaining Australian residence and citizenship has significantly contributed to the Wife’s enhanced circumstances and capacity to earn income to support herself and accumulate wealth.

·The Wife has not contributed in any significantly supportive way to the Husband’s income, earning capacity or financial circumstances.

Section 75(2) (k)

The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.

·This has been a very unusual marriage of just 5 years but where the parties lived separately although in the same locations for substantial parts of that period. 

“In Nelson and Nelson (1995) 184 CLR 538 the High Court dealt with the proper approach for Courts faced with prior inconsistent representations made or said to have been made falsely and for the advantage of the person making the representation. Toohey J said^[12]:
“Although the public policy in discouraging unlawful acts and refusing them judicial approval is important, it is not the only relevant policy consideration. There is also the consideration of preventing injustice and the enrichment of one party at the expense of the other.”
Deane and Gummow JJ identified different levels of illegality. McHugh J discussed the dictum that ‘no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act’ and said:
“The principle contained in this dictum applies both in law and equity. But it is subject to exceptions which allow relief to be granted despite the presence of illegality. “
 McHugh J went on to describe limited circumstances where the court should refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose. In In the Marriage of Jordan (1996) 21 Fam LR 382 Chisholm J discussed the authorities in relation to this issue and albeit without reference to Nelson, which was decided at a similar time, concluded that the relevant proposition arising from the authorities is:
"When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations." ”