Naoumova & Severijns

Case [2024] FedCFamC1F 580

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Naoumova & Severijns [2024] FedCFamC1F 580

File number(s): SYC 5811 of 2022
Judgment of: BEHRENS J
Date of judgment: 30 August 2024
Catchwords: FAMILY LAW – INTERIM PROPERTY – SPOUSAL MAINTENANCE – Where the Applicant seeks an interim property distribution and spousal maintenance – Where an order for interim property distribution is made – Where the Court is not satisfied that the Applicant is unable to support herself adequately – Where no order is made for spousal maintenance.
Legislation:

Family Law Act 1975 (Cth) ss 90SB, 90SD, 90SF, 90SM, 90SK, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 5.08
Cases cited:

Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Redman and Redman (1987) FLC 91-805; [1987] FamCA 2

Ruslan & Ruslan [2024] FedCFamC1F 50
Division: Division 1 First Instance
Number of paragraphs: 46
Date of hearing: 13 August 2024
Place: Sydney
Counsel for the Applicant: Mr Todd
Solicitor for the Applicant: Broaden Legal
Counsel for the Respondent: Mr Dura SC
Solicitor for the Respondent: JC Legal Practice

ORDERS

SYC 5811 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS NAOUMOVA

Applicant
AND:

MR SEVERIJNS

Respondent

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

30 AUGUST 2024

THE COURT ORDERS THAT:

1.The Applicant’s application for maintenance contained in her Amended Application in a Proceeding filed 25 July 2024 is dismissed.

2.Within 21 days of the date of these orders, the First Respondent shall pay into the Applicant’s solicitor’s trust account the sum of $136,400 by way of interim property distribution pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”), with such sum to be applied only by way of legal costs and disbursements.

3.In the event either party seeks a costs order in their favour in respect of the Amended Application in a Proceeding filed 25 July 2024:

(a)That party must file and serve an Application in a Proceeding and affidavit within 14 days of the date of these orders; 

(b)The other party must file a Response to Application in a Proceeding and an affidavit within 14 days thereafter; 

(c)Within a further 14 days both parties shall file brief written submissions and will indicate in those written submissions whether that party agrees for the costs matter to be dealt with in chambers based on the material filed; and

(d)If there is no agreement between the parties as to the matter being dealt with in accordance with paragraph (c) then the Application in a Proceeding will be listed before Justice Behrens on a date to be advised.

4.This matter is allocated to the docket of Justice Behrens and is listed in a callover in the first half of 2025 on a date to be advised for allocation of trial dates.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy…

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Naoumova & Severijns [2024] FedCFamC1F 580
Case
[2024] FedCFamC1F 580
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Naoumova, the applicant, sought an interim property distribution and spousal maintenance from Mr Severijns, the first respondent, following the breakdown of their de facto relationship. The court had to decide whether to grant an interim property distribution and whether to make a spousal maintenance order. The court also needed to consider the financial circumstances and obligations of both parties under the Family Law Act 1975 (Cth). Ms Naoumova argued that she required spousal maintenance due to her employment and financial needs, while Mr Severijns contested this claim, stating that she could support herself adequately. The court examined the financial statements and affidavits from both parties to assess their respective financial situations. The court found that, although the parties had substantial assets, Ms Naoumova could adequately support herself through her employment and thus did not require spousal maintenance. However, the court did order an interim property distribution to Ms Naoumova, directing Mr Severijns to pay $136,400 into her solicitor's trust account for legal costs and disbursements. The court further set out procedures for any future costs applications and allocated the matter for trial date allocation.

The final orders of the court were that the application for maintenance was dismissed, an interim property distribution of $136,400 was ordered to be paid into Ms Naoumova’s solicitor’s trust account, and specific procedures for handling any future costs applications were outlined. The matter was also listed for allocation of trial dates.

Orders

Orders of the court

SYC 5811 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS NAOUMOVA

Applicant

AND:

MR SEVERIJNS

Respondent

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

30 AUGUST 2024

THE COURT ORDERS THAT:

1. The Applicant’s application for maintenance contained in her Amended Application in a Proceeding filed 25 July 2024 is dismissed.

2. Within 21 days of the date of these orders, the First Respondent shall pay into the Applicant’s solicitor’s trust account the sum of $136,400 by way of interim property distribution pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”), with such sum to be applied only by way of legal costs and disbursements.

3. In the event either party seeks a costs order in their favour in respect of the Amended Application in a Proceeding filed 25 July 2024:

(a) That party must file and serve an Application in a Proceeding and affidavit within 14 days of the date of these orders;

(b) The other party must file a Response to Application in a Proceeding and an affidavit within 14 days thereafter;

(c) Within a further 14 days both parties shall file brief written submissions and will indicate in those written submissions whether that party agrees for the costs matter to be dealt with in chambers based on the material filed; and

(d) If there is no agreement between the parties as to the matter being dealt with in accordance with paragraph (c) then the Application in a Proceeding will be listed before Justice Behrens on a date to be advised.

4. This matter is allocated to the docket of Justice Behrens and is listed in a callover in the first half of 2025 on a date to be advised for allocation of trial dates.

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

These reasons for judgment deal with an Amended Application in a Proceeding filed 25 July 2024 (“the Application”).BACKGROUND The applicant and first respondent in these financial proceedings are Ms Naoumova and Mr Severijns. There is a dispute between them as to when their de facto relationship commenced. Ms Naoumova says that it commenced in 2014 and broke down in 2021 and therefore was of about seven years’ duration. Mr Severijns says that it commenced in 2018 and agrees that it broke down in 2021 – so a de facto relationship of about three years’ duration. Ms Naoumova and Mr Severijns were ordinarily resident in New South Wales during their de facto relationship. They do not have any children. Ms Naoumova is 35 years old and Mr Severijns is 43 years old. Ms Naoumova is employed as a finance professional. Mr Severijns operates businesses. The parties agree that the net value of their assets is a little over $6 million, although there are considerable disputes about the ownership and value of various items on the balance sheet. The balance sheet includes claimed add-backs in Ms Naoumova’s column of about $633,000 and add-backs in Mr Severijns’s column of about $700,000. Ms Naoumova commenced the substantive proceedings on 19 August 2022. She joined Mr Severijns’s parents, Mr Jelen and Ms Utkina, to the substantive proceedings by her Initiating Application. They are the second and third respondents to the substantive proceedings. Ms Naoumova seeks final orders in respect of a property which Mr Severijns transferred to the second and third respondents after separation. The second and third respondents were excused from attending in relation to the Application as no orders were sought against them. Ms Naoumova first sought interim spousal maintenance and a partial property settlement by way of an Application in a Proceeding filed 22 September 2023. That Application was listed for interim hearing on 18 December 2023. The parties were able to reach agreement on that occasion and an order for Ms Naoumova to receive $40,000 by way of partial property settlement was made by consent. The parties also agreed to attend mediation, and that occurred in 2024, but the matter did not resolve. Ms Naoumova then filed an Amended Application in Proceeding on 25 July 2024 seeking that Mr Severijns pay her interim periodic maintenance in the sum of $1,804 per week and that he pay to her solicitor’s trust account an amount of $143,000 “as legal funding”. The Case Outline filed on her behalf on 12 August 2024 clarified that the order for “legal funding” was sought pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) or, in the alternative, pursuant to s 117 of the Act. MATERIAL BEFORE THE COURT Case Outlines on behalf of, respectively, Ms Naoumova and Mr Severijns were filed on 12 August 2024 and relied upon. In support of her case Ms Naoumova relied upon the following documents:(1)Second Further Amended Initiating Application filed 25 July 2024;(2)Amended Application in a Proceeding filed 25 July 2024;(3)Her affidavit filed 25 July 2024 (excluding annexures);(4)Financial Statement filed 25 July 2024;(5)Affidavit of Mr B filed 25 July 2024; (6)Affidavit of Ms C filed 8 February 2023; and(7)Documents tendered during the proceedings and marked as Exhibits W1–W4.

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

The Court’s power to make a maintenance order after a de facto relationship has broken down is found in s 90SE of the Act. Section 90SF sets out the matters to be taken into consideration in relation to maintenance as follows:90SF Matters to be taken into consideration in relation to maintenance(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:(a) only to the extent that the first‑mentioned party is reasonably able to do so; and(b) only if the second‑mentioned party is unable to support himself or herself adequately whether:(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or(iii) for any other adequate reason.Note: For child of a de facto relationship, see section 90RB.(2) In applying this principle, the court must take into account only the matters referred to in subsection (3).(3) The matters to be so taken into account are:(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and(d) commitments of each of the parties that are necessary to enable the party to support:(i) himself or herself; and(ii) a child or another person that the party has a duty to maintain; and(e) the responsibilities of either party to support any other person; and(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:(i) any law of the Commonwealth, of a State or Territory or of another country; or(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and(g) a standard of living that in all the circumstances is reasonable; and(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and(l) the need to protect a party who wishes to continue that party’s role as a parent; and(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and(n) the terms of any order made or proposed to be made under section 90SM in relation to:(i) the property of the parties; or(ii) vested bankruptcy property in relation to a bankrupt party; and(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:(i) a party to the subject de facto relationship (in relation to another de facto relationship); or(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:(i) a party to the subject de facto relationship; or(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.