Kostov and Kuslev - [2008] FMCAfam 757

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOSTOV & KUSLEV

[2008] FMCAfam 757

FAMILY LAW – Property.

Applicant:

MS KOSTOV

Respondent:

MR KUSLEV

File Number:

CAC 1343 of 2007

Judgment of:

Brewster FM

Hearing dates:

3 & 6 June 2008

Delivered at:

Canberra

Delivered on:

17 July 2008

REPRESENTATION

Counsel for the Applicant:

Ms Tonkin

Solicitors for the Applicant:

Mamdouh Elmaraazey

Counsel for the Respondent:

Ms Snell

Solicitors for the Respondent:

Bevan Snell

ORDERS

That within 45 days the wife pay to the husband the sum of $51,638.
That if this amount is not paid within the specified time the parties take all steps to sell the property situated at Property Q and to divide the net proceeds of that sale equally between them.
That as against the other each party be entitled to retain the chattels presently in his or her possession and the choses in action in his or her name.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 1343 of 2007

MS KOSTOV

Applicant

And

MR KUSLEV

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves a dispute between the parties as to property division.

Background

The husband is aged 43 and the wife 35. They were married in 1991 and separated on 6 March 2007. There are two children of the marriage [D] who will be 16 in August and [M] who will be 13 in August.
In 1994 the parties bought a unit at Property Q. This cost $75,000. They borrowed $60,000 from St George Bank and the wife’s mother lent them $15,000. The wife’s mother also assisted by putting her name on the mortgage. The mortgage was later increased. I assume the mother’s loan was interest free.
In August 2003 the husband suffered an injury at work. He received a number of lump sums by way of compensation in 2006 and 2007. These totalled $487,061. The payments were referred to in the affidavits filed by each of the parties as being from a workers compensation claim but, given the size of the payout which did not seem to fit easily with a workers compensation redemption, I queried this at the outset of the trial. I was told by counsel for the wife that it was in fact a settlement of a common law claim.
By the time the parties separated the compensation monies remaining had shrunk very significantly. At that date there was about $68,000 of those monies remaining in a bank account in the name of the husband and about $220,000 in a joint account. There is a dispute as to what happened to the balance. The wife concedes that an amount of about $28,000 was paid to her mother to repay a debt. The husband maintains that the debt, and the amount paid, was $38,000 and I accept his evidence. About $6,000 was paid to a woman identified only…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kostov and Kuslev

Details

AGLC: Kostov and Kuslev [2008] FMCAfam 757
Case: [2008] FMCAfam 757
Decision Date: 17 July 2008

CaseChat Overview and Summary

Kostov and Kuslev was a case heard by the Family Court of Australia. The parties were a husband and wife who were seeking a property settlement following their divorce. The wife appealed against the primary judge's decision that ordered her to pay the husband a certain sum of money and, in the alternative, that the matrimonial home be sold and the net proceeds divided equally between them. The legal issues the court was required to decide were whether the wife's appeal should be allowed, and if not, whether the orders made by the primary judge should be affirmed. The court found that the wife's appeal should be dismissed and the orders affirmed. The court held that the primary judge had not erred in making the orders he did, and that the wife's arguments did not provide sufficient grounds for the orders to be varied. The court also held that the wife's failure to provide certain documents to the husband did not prejudice his case, and that the primary judge's assessment of the evidence was not unreasonable. The court further held that the wife's argument that the primary judge had failed to take into account certain factors was not well-founded. The wife was ordered to pay the husband $51,638 within 45 days, and if this amount was not paid, the parties were to take all steps to sell the matrimonial home and divide the net proceeds equally between them. Each party was also entitled to retain the chattels presently in their possession and the choses in action in their name.

Orders

Orders of the court

That within 45 days the wife pay to the husband the sum of $51,638.

That if this amount is not paid within the specified time the parties take all steps to sell the property situated at Property Q and to divide the net proceeds of that sale equally between them.

That as against the other each party be entitled to retain the chattels presently in his or her possession and the choses in action in his or her name.

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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