Lavrenty & Signe - [2024] FedCFamC1F 131

Federal Circuit and Family Court of Australia (DIVISION 1)
FIRST INSTANCE

Lavrenty & Signe [2024] FedCFamC1F 131

File number:	SYC 6971 of 2021
Judgment of:	CAREW J
Date of judgment:	15 April 2024
Catchwords:	FAMILY LAW PROPERTY SETTLEMENT – s 90SB – Where the parties are in dispute as to the weight to be given to the applicant’s initial contribution, whether money owing to the respondent’s mother is a loan requiring repayment, whether the respondent’s outstanding employment income fees and a tax liability should be included in the balance sheet, and how issues relating to a self-managed superannuation fund should be resolved – Where the respondent’s outstanding fees and tax liability will be taken into account pursuant s90SF(3) but not included in the balance sheet – Where there is an absence of proof that the respondent’s mother made a loan to the applicant and respondent such that it should be deducted from the balance sheet – Where concession by the applicant that a payment was received by her will be treated as a contribution by the respondent – Where costs associated with the report about the self-managed superannuation fund and compliance with its recommendations will be borne equally by the parties – Where the property pool will be divided in the proportion of 67/33 in favour of the applicant. FAMILY LAW – CHILDREN – Where by the end of trial the parties had reached agreement on parental responsibility and that the child should live with the applicant – Where the parties are in dispute about how much time the child should spend with the respondent – Where there are concerns about the risk posed to the child by the respondent’s extended family – Where the respondent is now motivated to take any necessary steps to ensure the applicant has more confidence in his commitment to keeping the child safe – Where both parties impressed as being committed to the child and wanting what is best for her – Where the parenting order proposed by the ICL and adopted by the respondent meets the right balance between ensuring the child has a meaningful relationship with the respondent and creating obligations on the respondent to take certain steps to ensure any risk to the child is ameliorated – Where there will be a gradual increase to the child spending time with the respondent each alternate weekend.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AA, 4AB, 43, 44, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65D, 65DAA, 65DAC, 90SB, 90SF, 90SM, 121 Superannuation Industry (Supervision) Act 1993 (Cth) ss 17A, 42
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Biltoft & Biltoft (1995) FLC 92–614 Clauson & Clauson (1995) FLC 92–595 Eastley & Eastley (2022) FLC 94–094Gao & Wang (2016) FLC 93–735 Hoffman & Hoffman (2014) FLC 93–591 Isles and Nelissen (2022) FLC 94-092 Jabour & Jabour (2019) FLC 93–898 Johnson & Page (2007) FLC 93–344 Lovine…

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.

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Details

AGLC: Lavrenty & Signe [2024] FedCFamC1F 131
Case: [2024] FedCFamC1F 131
Decision Date: 15 April 2024

CaseChat Overview and Summary

The parties involved in this case were a couple, referred to as Lavrenty and Signe, who were in the process of settling their property matters post-divorce. They were before the Family Court of Australia, which was tasked with determining the financial arrangements between the two. The primary disputes included the valuation of the applicant's initial financial contributions, whether money owed to the respondent's mother constituted a loan, the inclusion of the respondent's outstanding employment income fees and tax liabilities in the balance sheet, and the resolution of issues concerning a self-managed superannuation fund.

The court had to address several intricate legal issues. It had to determine the appropriate weight to assign to the applicant's initial financial contributions and assess whether the debt owed to the respondent's mother should be considered a loan that needed repayment. Furthermore, the court needed to decide whether the respondent's outstanding employment income fees and tax liabilities should be included in the balance sheet. Lastly, the court needed to resolve the issues surrounding the self-managed superannuation fund, including the costs associated with the report and compliance with its recommendations.

After considering the evidence and arguments presented, the court ruled that the respondent's outstanding fees and tax liabilities would be taken into account under section 90SF(3) but would not be included in the balance sheet. The court found insufficient evidence to prove that the respondent's mother had made a loan to the applicant and respondent, and thus it should not be deducted from the balance sheet. The court also noted that the applicant's concession that a payment was received would be treated as a contribution by the respondent. The costs associated with the report about the self-managed superannuation fund and compliance with its recommendations were to be borne equally by the parties. The court decided that the property pool should be divided in the proportion of 67/33 in favor of the applicant. The court also determined that the child should live with the applicant, and there would be a gradual increase in the time the child spends with the respondent each alternate weekend.

The final orders of the court were that the property pool would be divided in the proportion of 67/33 in favour of the applicant, the respondent's outstanding fees and tax liabilities would be taken into account but not included in the balance sheet, the loan from the respondent's mother would not be deducted from the balance sheet, the costs for the self-managed superannuation fund report and compliance would be shared equally, and the child would live with the applicant with a gradually increasing time spent with the respondent.

Orders