Paulauskas & Bengochea

Case [2025] FedCFamC1F 238

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Paulauskas & Bengochea [2025] FedCFamC1F 238

File number(s): ADC 4963 of 2023
Judgment of: KARI J
Date of judgment: 11 April 2025
Catchwords: FAMILY LAW – PROPERTY – SUMMARY DISMISSAL - Where the de facto wife asserts that farming land owned by the third respondent as trustee of a discretionary trust is held on constructive trust for the spouse parties – Where the second and third respondents seek a summary dismissal of the de facto wife’s claim regarding the farming land – Where the second and third respondents assert that the de facto wife’s claim has no reasonable prospect of success – Where no particulars are pleaded in relation to the de facto wife’s claim against the third respondent – Where the de facto wife’s claim against the third respondent has no reasonable prospect of success –Where the second respondent has maintained ultimate control of the trust – Where the de facto wife’s claim has no reasonable prospects of success – Where the de facto wife’s claim in relation to the second and third respondents is summarily dismissed  
Legislation:

Family Law Act 1975 (Cth) s 102QAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06

Cases cited:

Ebner & Pappas (2014) FLC 93-619

Gong & Zao [2021] FamCAFC 110

Khalif &Khalif and Anor [2020] FamCA 39

Lindon v The Commonwealth (No 2) (1996) 136 ALR 251

MT v SE [2025] SASCA 8

Division: Division 1 First Instance
Number of paragraphs: 72
Date of hearing: 7 November 2024
Place: Adelaide
Counsel for the Applicant: Ms Ross
Solicitor for the Applicant: Mildwaters Lawyers
Counsel for the First Respondent: Mr Dillon
Solicitor for the First Respondent: Douglas Hoskins Legal
Counsel for the Second and Third Respondents: Mr Bullock
Solicitor for the Second and Third Respondents: Adelta Legal
Solicitor for the Fourth Respondent: Did not participate

ORDERS

ADC 4963 of 2023

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

MS PAULAUSKAS

Applicant
AND:

MR BENGOCHEA

First Respondent

MS CVETKOVA

Second Respondent

BENGOCHEA PTY LTD

Third Respondent

V PTY LTD

Fourth Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

11 APRIL 2025

THE COURT ORDERS THAT:

1.The final orders sought at paragraphs 1, 2, 5, 6, 7, and 11 of the applicant de facto wife’s Amended Initiating Application filed 26 February 2024 be dismissed.

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…

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Details
AGLC
Paulauskas & Bengochea [2025] FedCFamC1F 238
Case
[2025] FedCFamC1F 238
Decision Date

CaseChat Overview and Summary

In the matter of ADC 4963 of 2023, the de facto wife, Ms Paulauskas, sought relief against her former partner, Mr Bengochea, and related entities in the Federal Circuit and Family Court of Australia. The de facto wife sought a range of orders against Mr Bengochea, Ms Cvetkova, Bengochea Pty Ltd, and V Pty Ltd, including claims regarding a farming property held by the third respondent. Mr Bengochea and Bengochea Pty Ltd applied for the de facto wife's claims against them to be summarily dismissed on the basis that they had no reasonable prospect of success. The primary legal issue before the court was whether the de facto wife's claims had any reasonable prospect of success and should be summarily dismissed. This involved assessing the merits of the claims, the evidence presented, and the likelihood of the de facto wife succeeding if the case proceeded to a full hearing.

The court found that the de facto wife's claims against the third respondent, Bengochea Pty Ltd, had no reasonable prospect of success due to the absence of particulars and specific evidence. Regarding the second respondent, Ms Cvetkova, the court held that the de facto wife's claim was unlikely to succeed because Ms Cvetkova had maintained ultimate control of the trust. As for the husband, Mr Bengochea, the court concluded that the de facto wife's claim was not likely to succeed. Consequently, the court dismissed the de facto wife's claims against all respondents.

The final orders of the court were that the de facto wife's claims against Mr Bengochea, Ms Cvetkova, and Bengochea Pty Ltd were dismissed. The court directed that the final orders sought at paragraphs 1, 2, 5, 6, 7, and 11 of the de facto wife's Amended Initiating Application filed on 26 February 2024 be dismissed. This decision was subject to any minor corrections in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

ADC 4963 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS PAULAUSKAS

Applicant

AND:

MR BENGOCHEA

First Respondent

MS CVETKOVA

Second Respondent

BENGOCHEA PTY LTD

Third Respondent

V PTY LTD

Fourth Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

11 APRIL 2025

THE COURT ORDERS THAT:

1. The final orders sought at paragraphs 1, 2, 5, 6, 7, and 11 of the applicant de facto wife’s Amended Initiating Application filed 26 February 2024 be dismissed.

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 relate to the Summary Dismissal application that has been made by the second respondent and Bengochea Pty Ltd in the Amended Response filed 22 May 2024, and by the husband in his Response filed 5 December 2023, in relation to the substantive relief sought by the de facto wife against the second and third respondents.BACKGROUND In relation to the de facto relationship parties:(a)Both the de facto husband and the de facto wife were born in 1977, and they are both 48 years old.(b)The de facto wife says that the de facto relationship commenced in 2000, whereas the de facto husband asserts that cohabitation began in late 2001.(c)The de facto relationship ended on 28 May 2023.(d)There are two children of the de facto relationship, Mr D, who is 19 years old and X, who is 14 years old. Aside from the contentious farming land, the agreed matrimonial property that is legally and beneficially owned by the parties is relatively modest; comprising of a property in Town C which is subject to a mortgage, together with modest savings, motor vehicles, furniture and effects, and superannuation entitlements. As best can be understood from the parties’ respective financial statements (the de facto wife’s filed 23 October 2023 and the de facto husband’s filed 5 December 2023), the net assets of the parties (excluding the contentious farming land and inclusive of their superannuation entitlements) has a net value of approximately $100,000. THE PROCEEDINGS The proceedings were commenced by the de facto wife when she filed an Initiating Application on 23 October 2023. The de facto husband, the second respondent, Bengochea Pty Ltd and V Pty Ltd were all named as respondents to that application. The de facto husband filed a Response on 5 December 2023. The second respondent and Bengochea Pty Ltd filed a Response on 13 December 2023. It would appear that the naming of V Pty Ltd as a respondent to the proceedings by the de facto wife was otiose; particularly as the parties are the Directors of that entity and no specific orders are sought by the de facto wife in relation to it.DOCUMENTS RELIED UPON Preparatory to the hearing of the summary dismissal application, the parties each filed an Outline of Case, setting out the documents that they relied upon, a Summary of Argument, and, in a separate document, a list of authorities upon. Pursuant to her Outline of Case file 6 November 2024, the second respondent relies on the following documents:(a)Her Amended Response to the Amended Initiating Application filed 22 May 2024;(b)Her affidavit filed 13 December 2023; and(c)Her further affidavit filed 4 November 2024. Pursuant to her Outline of Case file 6 November 2024, the de facto wife relies on the following documents:(a)Her Amended Initiating Application filed 26 February 2024;(b)Her Statement of Claim filed 26 February 2024;(c)Her initial affidavit filed 23 October 2023;(d)Her Financial Statement filed 23 October 2023; and(e)Her further affidavit filed 23 April 2024.

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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