FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Goncharova & Goncharov (No 2) [2024] FedCFamC1F 803
File number(s): SYC 1111 of 2020 Judgment of: BRASCH J Date of judgment: 26 November 2024 Catchwords: FAMILY LAW – PROPERTY – BALANCE SHEET - Where husband asserts loans to his family which would reduce the pool to a negative - Where loans found to be a sham - Where husband wishes to use 2022 valuations for three overseas properties but apply the current 2024 exchange rate meaning the pool would reduce by $200,000 - Where no evidence underlying assets have altered in value - Where husband transferred money to family overseas and withdrew cash after the wife filed for interim asset preservation orders - Where sums included in the balance sheet - Where husband divested himself of long-held shares in overseas family businesses after the wife applied to have his interests in those businesses valued - Where husband's interests included in the pool - Where wife used funds for living and re-housing after husband stopped voluntary financial support - Where husband sought add backs of those funds - Where living costs money - Where children cost money - Where wife's use of money not added back
FAMILY LAW – PROPERTY – CONTRIBUTIONS - Where husband focused on his direct financial contributions during the relationship - Where parties entitled to live as they lived when together - Where holistic assessment required
FAMILY LAW – PROPERTY – FUTURE NEEDS - Where husband says he should have the vast bulk of the pool so he can maintain himself going forward - Where wife's resources and court ordered sums used on costs of living and children pre-trial
FAMILY LAW – PROPERTY – ORDERS - Where the division of assets and add backs is so close to assessed percentage outcome that no further order made for payment of a comparatively meagre amount of money by one party to the other
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VIII, ss 72, 75, 79, 81, 102C
Foreign Evidence Act1994 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 15.16, 15.17
Cases cited: Adamson v Adamson (2014) 51 Fam LR 626; [2014] FamCAFC 232
Aston & Haymon [2021] FamCAFC 146;
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
Beklar & Beklar [2013] FamCA 327
Best & Best (1993) FLC 92-418
Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95
Bulow & Bulow (2019) FLC 93-885; [2019] FamCAFC 3
Carlson & Fluvium [2012] FamCA 32
C & C [1998] FamCA 143
Chorn v Hopkins (2004) FLC 93-204; [2004] FamCA 633
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Ferraro & Ferraro (1993) FLC 92-335
Fielding and Nichol [2014] FCWA 77
Fields & Smith (2015) 53 Fam LR 1; [2015] FamCAFC 57
G and G (2000) FLC 93-043; [2000] FamCA 1075
Goncharov & Goncharov [2024] FedCFamC1F 731
Grier & Malphas [2016] FamCAFC 84
Harris &…
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- AGLC
- Goncharova & Goncharov (No 2) [2024] FedCFamC1F 803
- Case
- [2024] FedCFamC1F 803
- Decision Date
CaseChat Overview and Summary
The court rejected the husband's claims regarding the application of Country B law to properties owned before the marriage, finding that the jurisdiction was derived from the Family Law Act 1975 (Cth). It found the husband's assertion of loans to his family to be a sham, and dismissed his attempt to apply a 2024 exchange rate to overseas properties to reduce the marital pool by $200,000. The court also dismissed the husband's argument that he should retain a significant portion of the marital assets to maintain himself in the future, given the wife's use of funds for living expenses and the children's costs. The court made no further order for payment between the parties as the division of assets and add backs was close to the assessed percentage outcome.
The court concluded that the husband's interests in the overseas family businesses should be included in the marital pool, despite the husband's attempts to divest himself of these interests post-separation. The wife's use of funds for living and re-housing was not added back to the pool, and the court found that the wife was entitled to live as she did when she was with the husband. The court ordered the husband to transfer his interest in the Suburb E property to the wife and to transfer certain bank account funds to the wife's nominated account. The wife was ordered to transfer her interest in the City P property to the husband. Each party was to retain their respective assets and be solely responsible for their liabilities.
Orders
Orders of the court
SYC 1111 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS GONCHAROVA
Applicant
AND:
MR GONCHAROV
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS THAT:
Suburb E Property
1. Within 30 days from the date of these Orders, the Respondent do all acts and things necessary to transfer to the Applicant the whole of his interest in the property situated at U Street, Suburb E in the state of New South Wales (“the Suburb E Property”), being Lot … in strata plan … at Suburb E Folio identifier ….
CBA Account ending …27
2. Within 7 days from the date of these Orders the Respondent do all acts and things necessary to transfer all funds held in his CBA bank account ending in …27 at 20 August 2024 (being $99,825) to the Wife’s nominated account and pending compliance with this Order, the Husband be restrained from making any debits from that account or otherwise dealing with those accounts including setting up direct debits and withdrawing funds.
The City P Property
3. Within 60 days of the receipt of the payment pursuant to Order 2, the Applicant do all acts and things and sign all documents necessary to transfer to the Respondent all of her right title and interest in the property situated at W Street, City P, Country B to the Respondent.
106A Order
4. That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Applicant’s Assets
5. The Applicant Wife will receive / retain the following:
(a) All of U Street, Suburb E NSW
(b) CBA Account ending …18
(c) CBA Account ending …27
(d) CBA Account ending …20
(e) Her member account with Super Fund 1
(f) CBA EURO Foreign currency Account ending …27
Respondent’s Assets
6. The Respondent Husband will receive / retain the following:
(a) All of W Street, City P
(b) X Street, Suburb H
(c) V Street, Suburb H, house and block of land
(d) His interests in F Company and G Company
(e) Motor Vehicle 1
(f) CBA Account ending …38
(g) CBA Account ending …57
(h) CBA USD Foreign currency Account ending …35
(i) R Bank Account ending #7864
(j) Funds transferred to Country B
(k) Cash somewhere in Australia
(l) His member account with Super Fund 2
Other
7. That except as otherwise provided in these Orders, the Wife be solely, legally and beneficially entitled to the exclusion of the Respondent, to all property of whatsoever nature and kind in her ownership, possession and/or control as at the date of these Orders.
8. That except as otherwise provided in these Orders, the Husband be solely, legally and beneficially entitled to the exclusion of the Applicant, to all property of whatsoever nature and kind in his ownership, possession and/or control as at the date of these Orders.
9. Each party hereby forgoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
10. That each party be responsible for any liabilities in their own names including but not limited to, credit cards.
11. That each party 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.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Finally, it is common ground that in order to get money out of Country B, it cannot be transferred from your own Country B bank account to your own bank account elsewhere. It must come from a family member or other person and be called a donation. Thus, just because a family member is identified as the transferer of funds, that does not mean they are the original source of the funds. Items 21 and 22 – two loans said to arise between the husband and his parents during the marriage, and varied post-separationLoan 1 –November 2014, varied April 2016 and late 2020 The entirety of the husband’s evidence with respect to the 2014 loan agreement and the 2016 and 2018 variations is set out at paragraphs 45 to 48 of his affidavit filed 9 August 2024, plus corresponding annexures. To say the evidence is scant is an understatement. The husband deposed that the 2014 agreement was for USD$1.8 million to mature in late 2020 with interest at 0.01% per annum. The husband said the loan was to be repaid at maturity unless the lenders requested earlier payment. He said the 2014 Agreement was varied in April 2016 with an amended maturity date of late 2026 and loan amount amended to USD$1,637,018 to assist with the purchase of the Suburb E property for the sum of $1,775,000. 00. This variation allowed his parents to register an encumbrance on the property title. He said the 2016 variation was varied by an agreement in late 2020, with a new interest rate of 3 per cent per annum to apply from 1 January 2021. The husband’s evidence concluded:There is an outstanding amount of $1,637,018 USD and at the exchange rate of $1 USD to $1.53 AUD as of 28 July 2024, an amount of $2,504.638 AUD plus interest on the 2014 Loan Agreement.(Affidavit of [Mr Goncharov] filed 9 August 2024, paragraph 48) It is the wife’s case the first she knew of this loan was when the husband filed his affidavit and financial statement in these proceedings on 19 May 2020, where he asserted a debt to his parents of $2.945 million. He also deposed to the texts of demand from his parents on 9 and 10 May 2020 calling in “100%” of the loans. Curiously, the husband’s transfers of funds began on 8 May 2020, a day before one demand and two days before the other. The husband confirmed in cross-examination that with respect to the 2014 agreement:(a)He entered into the 2014 loan before they left Country B in late 2016, and he is the borrower and his parents are the lenders;(b)His affidavit said nothing about any discussions with the wife about: borrowing USD$1.8 million; how they might pay for it; what the interest rate might be; and, time to pay;(c)He had never borrowed USD $1.8 million before and it was a “significant” transaction;(d)His affidavit said nothing about any discussions with his parents about: the loan; whether he could afford to borrow the money; rates, penalty rates and terms; (e)When the copy attached to his affidavit was certified on 9 June 2020 by a JP in NSW, he had the originals at that time because he asked his parents to send him the originals from Country B for the certification, and they did; (f)He shipped the documents back to his parents in June 2020;(g)Since then, he had asked his parents to send the originals again but they said no because there was no order for forensic examination (even though they were provided for certification without court order and again have been sent somewhere in Australia for the trial without court order);(h)The originals were in Australia as he gave evidence at trial but, “I need to ask my parents where they sent them. They sent – they told me that I can receive the documents today”;(i)The wife first asked for the original loan agreement and variations on 29 June 2020 and again on 20 November 2020, but he did not provide them;(j)The law of the contract is Country B;(k)Country B Legislation would guide any disputes;(l)He has no evidence how the agreement might be enforced in Country B or in Australia; and(m)He entered into the loan prior to moving to Australia where he had no job.