FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mesic & Lazar [2024] FedCFamC2F 1225
File number(s): DGC 3357 of 2020 Judgment of: JUDGE JENKINS Date of judgment: 9 September 2024 Catchwords: FAMILY LAW – property proceedings – length of relationship – short de facto relationship – initial contributions – inheritance – loans – post-separation contributions – impact of short relationship on earning capacity – unreliable witness Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AA, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r. 8.15
Cases cited: AJO & GRO [2005] FamCA 195
Aleksovski & Aleksovski (1996) FLC 92 705
Anson & Meek [2017] FamCAFC 257
Bevan & Bevan [2013] FamCAFC 116
Bonnici & Bonnici [1991] FamCA 86
Clauson & Clauson [1995] FamCA 10
D & D [2003] FamCA 473
Dickons & Dickons [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Fairbairn v Radecki [2022] HCA 18
Figgins & Figgins [2002] FamCA 688
Flanagan v Sobek(Deceased) [2014] FamCA 696
Harris & Harris [1993] FamCA 49
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Jabour v Jabour [2019] FamCAFC 78
Jones v Dunkel (1959) 101 CLR 298
Lee Steere & Lee Steere [1985] FamCA 57
Martin & Newton [2011] FamCAFC 233
Primrose Meadows Pty Ltd v River View Pty Ltd [2019] VSC 263
Robb & Robb [1994] FamCA 136
Rosati & Rosati [1998] FamCA 38
Stanford v Stanford [2012] HCA 52
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Division: Division 2 Family Law Number of paragraphs: 132 Date of last submission/s: 27 June 2024 Date of hearing: 5, 26 & 27 June 2024 Place: Dandenong Counsel for the Applicant: Mr Howe Solicitor for the Applicant: Elvin Lawyers Counsel for the Respondent: Ms Marshall Solicitor for the Respondent: Altona Legal ORDERS
DGC 3357 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MESIC
Applicant
AND: MS LAZAR
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
9 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.It is declared that the parties were in a de-facto relationship pursuant to section 4AA of the Family Law Act 1975 (Cth) from December 2012 until May 2020.
2.Within 120 days (“the date”) the Applicant husband (“the husband”) pay to the Respondent wife (“the wife”) $571,476.25 (“the payment”).
3.If the payment is not paid by the date, the property at B Street, Suburb C, be sold altogether out of Court by the Applicant (“the sale”) and the proceeds of sale be distributed:
(a)Firstly, to pay costs and commission of sale;
(b)Secondly, to discharge any encumbrances on the property;
(c)Thirdly to pay any Capital Gains Tax and/or Goods and Services Tax arising from the sale;
(d)The balance be divided as follows:
(i)So as to effect a 75 percent division of the total non-superannuation asset pool to the husband; and
(ii)25 percent division of the total…
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- Mesic & Lazar [2024] FedCFamC2F 1225
- Case
- [2024] FedCFamC2F 1225
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the relationship was a de facto relationship, the proper quantification of the assets, and the impact of the short relationship on the parties' earning capacity. The court also had to consider the initial contributions of each party, inheritance, loans, and post-separation contributions. The court found that Ms Lazar was an unreliable witness, which influenced the weight given to her testimony.
The court held that the parties were in a de facto relationship from December 2012 until May 2020. It ordered Mr Mesic to pay $571,476.25 to Ms Lazar within 120 days. If the payment was not made, the property at B Street, Suburb C, was to be sold, and the proceeds distributed according to the terms set out in the orders. The court also ordered an equal division of cash in joint accounts and severed any joint tenancy in any real or personal estate.
Orders
Orders of the court
DGC 3357 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MESIC
Applicant
AND:
MS LAZAR
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
9 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. It is declared that the parties were in a de-facto relationship pursuant to section 4AA of the Family Law Act 1975 (Cth) from December 2012 until May 2020.
2. Within 120 days (“the date”) the Applicant husband (“the husband”) pay to the Respondent wife (“the wife”) $571,476.25 (“the payment”).
3. If the payment is not paid by the date, the property at B Street, Suburb C, be sold altogether out of Court by the Applicant (“the sale”) and the proceeds of sale be distributed:
(a) Firstly, to pay costs and commission of sale;
(b) Secondly, to discharge any encumbrances on the property;
(c) Thirdly to pay any Capital Gains Tax and/or Goods and Services Tax arising from the sale;
(d) The balance be divided as follows:
(i) So as to effect a 75 percent division of the total non-superannuation asset pool to the husband; and
(ii) 25 percent division of the total non-superannuation asset pool to the wife.
4. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all property (including choses in action) owned by or in the possession of such party as at the date of these orders.
(b) Each party forego any further claims they may have to any other superannuation benefits belonging to or earned by the other.
(c) Insurance policies remain the sole property of the owner named therein.
(d) Cash in any joint accounts is to be divided equally between the parties.
(e) Any monies or liabilities held in any bank or credit accounts remain the sole property of the owner named in whose name the accounts are held.
(f) 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.
(g) Each party remain responsible for any debts in that party’s name.
(h) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
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
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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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