Goncharova & Goncharov

Case [2021] FamCA 559

FAMILY COURT OF AUSTRALIA

Goncharova & Goncharov [2021] FamCA 559

File number(s): SYC 1111 of 2020
Judgment of: BERMAN J
Date of judgment: 2 August 2021
Catchwords:

FAMILY LAW – SPOUSAL MAINTENANCE – Lump sum – Where the wife seeks interim spousal maintenance by way of lump sum payment – Where the husband seeks that the application be dismissed – Where the wife has primary care of one child and part care of the other – Where the wife is unable to adequately support herself – Where the husband is unemployed but is being financially supported by funds borrowed from his parents – Orders.

FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks litigation funding – Where the husband seeks that the application be dismissed – Where the litigation is complex – Where the wife is unable to meet her legal fees – Where the husband has been able to meet his legal fees – Where a level playing field does not exist – Where each of the parties have an arguable case – Where it is in the interests of justice for an order to be made by way of partial settlement of property – Orders.

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 79, 80, 117(2)

Cases cited:

Ashton & Ashton (1986) FLC 91-777

Barro & Barro (1983) FLC 91-300

Drysdale & Drysdale [2011] FamCAFC 85

Edgar & Strofield (2016) FLC 93-711

Felice & Felice [2011] FamCA 162

Gabel & Yardley (2008) FLC 93-386

Hall v Hall (2016) 257 CLR 490

Maroney & Maroney [2009] FamCAFC 45

McCrossen & McCrossen (2006) FLC 93-283

Medlow & Medlow (2016) FLC 93-692

Stanford v Stanford (2012) 247 CLR 108

Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466

Zschokke & Zschokke (1996) FLC 92-693

Number of paragraphs: 158
Date of hearing: 3 June 2021
Place: Heard in Sydney, delivered in Adelaide
Counsel for the Applicant: Mr Scarlett
Solicitor for the Applicant: Consort Family Law
Counsel for the Respondent: Mr Ford
Solicitor for the Respondent: Nolan Lawyers

ORDERS

SYC 1111 of 2020
BETWEEN:

MS GONCHAROVA

Applicant
AND:

MR GONCHAROV

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

2 AUGUST 2021

THE COURT ORDERS:

1.That by way of lump sum spousal maintenance the husband pay to the wife the sum of FIFTY FIVE THOUSAND ONE HUNDRED AND FORTY DOLLARS ($55,140) on or before TWENTY EIGHT (28) days from the date of this order.

2.That by way of partial settlement of property the husband pay to the wife a further sum of ONE HUNDRED AND EIGHTY THOUSAND DOLLARS ($180,000) on or before sixty (60) days from the date of this order.

3.That in the event that the husband fails to comply with orders 1 and 2 herein then the parties shall do all things necessary and sign all such documents as may be required to cause the property situate at Suburb E in the state of New South Wales to be placed on the market…

Continue reading Goncharova & Goncharov

Sign in free to access the full text

Details
AGLC
Goncharova & Goncharov [2021] FamCA 559
Case
[2021] FamCA 559
Decision Date

CaseChat Overview and Summary

In the matter of *Goncharova & Goncharov*, Berman J of the Family Court of Australia considered applications by the wife for interim spousal maintenance by way of a lump sum payment and for litigation funding, against the husband's application to dismiss these claims. The wife, who has primary care of one child and part care of another, asserted she was unable to adequately support herself. The husband, though unemployed, was receiving financial support from his parents. The wife also sought litigation funding, arguing that a level playing field did not exist as she was unable to meet her legal fees, while the husband had been able to do so, and that the litigation was complex.

The court was required to determine whether to grant the wife's applications for interim spousal maintenance and litigation funding. Specifically, the court needed to assess the wife's need for financial support and her inability to meet her legal costs, in light of the husband's financial circumstances, including his reliance on parental support and his past significant withdrawals from joint accounts. The court also had to consider whether it was in the interests of justice to make an order for interim property distribution to address the disparity in litigation funding.

Berman J reasoned that the wife had an arguable case for both spousal maintenance and litigation funding. The court applied principles relating to interim spousal maintenance, considering the wife's inability to support herself and the husband's capacity to provide support, even if indirectly. Regarding litigation funding, the court recognised the importance of a level playing field in complex litigation where parties have arguable cases, and the wife was demonstrably unable to fund her legal representation. The court also considered the power to make interim property distributions to facilitate litigation.

The court ordered the husband to pay the wife $55,140 by way of lump sum spousal maintenance within 28 days. Additionally, the husband was ordered to pay a further $180,000 by way of partial settlement of property within 60 days. In the event of non-compliance with these orders, the parties were directed to take steps to market and sell the property at Suburb E. The proceedings were also listed for a Registrar to determine discovery and the appointment of experts to value the husband's shares in two companies. The husband was also ordered to file and serve an amended response detailing his final orders sought.

Orders

Orders of the court

SYC 1111 of 2020

BETWEEN:

MS GONCHAROVA

Applicant

AND:

MR GONCHAROV

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

2 AUGUST 2021

THE COURT ORDERS:

1. That by way of lump sum spousal maintenance the husband pay to the wife the sum of FIFTY FIVE THOUSAND ONE HUNDRED AND FORTY DOLLARS ($55,140) on or before TWENTY EIGHT (28) days from the date of this order.

2. That by way of partial settlement of property the husband pay to the wife a further sum of ONE HUNDRED AND EIGHTY THOUSAND DOLLARS ($180,000) on or before sixty (60) days from the date of this order.

3. That in the event that the husband fails to comply with orders 1 and 2 herein then the parties shall do all things necessary and sign all such documents as may be required to cause the property situate at Suburb E in the state of New South Wales to be placed on the market by private treaty or public auction upon such terms and conditions as the parties may agree but in default of agreement as may be ordered.

4. That the proceedings be listed for hearing before a Registrar to determine matters of discovery and the appointment of an appropriately qualified single expert or experts to enquire into and report as to the value to be attached to the husband’s 15 per cent share in each of F Company and G Company being limited liability companies.

5. That on or before twenty one (21) days from the date of this order the husband file and serve an amended response particularising the final orders sought.

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

By Further Amended Response to an Application in a Case filed 31 May 2021, the husband seeks that the wife’s Amended Application in a Case be dismissed.BACKGROUND The parties were married in Country B and moved to Australia in 2014. There are two children to the relationship, X who is 16 years of age and Y who is 10 years of age. The parties purchased the Suburb E property in 2016 for $1,775,000. The parties separated in August 2019. The wife left the Suburb E property and moved to nearby rental accommodation. Y resides primarily with the mother whereas X moves between the parties’ separate households. The proceedings commenced on 20 February 2020. On 10 July 2020, Judge Monahan delivered judgment in respect of the wife’s application that she have sole use and occupation of the Suburb E property but in the alternative that the husband do pay her the sum of $150,000 to be categorised at a final hearing.[2][2] See Goncharova & Goncharov [2020] FCCA 1880. In default of payment of the sum, the wife sought that the Suburb E property be placed on the market for sale. The husband also sought orders for sole use and occupation of the Suburb E property and opposed the provision of any lump sum to the applicant. His Honour’s determination of the interim applications can be summarised as follows:(a)The husband have the sole right to use and occupy the Suburb E property to the exclusion of the wife;(b)The husband meet all applicable outgoings including water, electricity and council rates and be responsible for the day to day care and maintenance of the property;(c)The husband pay the wife the sum of $70,000 within 14 days in such manner as the wife directs in writing;(d)All extant applications be transferred to the Family Court of Australia; and(e)The husband serve a copy of the orders made on 24 June 2020 and a copy of the orders of 10 July 2020 to Mr C Goncharov and Ms D Goncharova (“the husband’s parents”). I refer to his Honour’s helpful discussion of the background and procedural history as adequately set out in his judgment.[3][3] Ibid. Relevant to the current application is the basis upon which his Honour determined that the husband should pay the wife the lump sum of $70,000. It appears that the wife did not seek to identify the head of power pursuant to which she sought the lump sum of $150,000. His Honour considered that the Court had power under ss 79 and 80 of the Family Law Act 1975 (Cth) (“the Act”) or in the alternative to an interim property distribution an order under s 117(2) of the Act for litigation funding.[4] [4] Barro & Barro (1983) FLC 91-300. The wife argued that the husband had effective control of the assets and resources of the parties. His Honour referred to subpoenaed documents to show that from 26 September 2019 to 31 May 2020 the husband was able to make significant deposits and withdrawals from various accounts controlled by him. In particular, his Honour found that the balance of the husband’s M Bank account went from $219,451.40 on 1 May 2020 to $135.50 in May 2020. His Honour recorded the husband’s concession that he had withdrawn approximately $205,000 from this account in a two week period between the wife filing her application and the husband filing his response. [5][5] Goncharova & Goncharov [2020] FCCA 1880 at [76]

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.