Pini & Goran
[2024] FedCFamC1F 401
•13 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pini & Goran [2024] FedCFamC1F 401
File number: MLC 6700 of 2023 Judgment of: MCNAB J Date of judgment: 13 June 2024 Catchwords: FAMILY LAW - PROPERTY –- Division of property following a short marriage – Where the Court finds that contributions to the parties’ assets were largely made by the respondent – Where the Court takes into account the respondent’s poor health – Where there are mutual allegations of family violence – Where there is an absence of corroboratory evidence - Where there are no children to the marriage – Where it is just and equitable to make an order – Where there is no further adjustment pursuant to s 75(2) factors - Where the property will be divided 5 per cent to the applicant and 95 per cent to the respondent Legislation: Family Law Act 1975 (Cth) ss 75, 77, 79, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Dickons & Dickons [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Jabour & Jabour [2019] FLC 93-898
Kennon & Kennon (1997) FLC 92-757
Maine & Maine (2016) 56 Fam LR 500
Martell & Martell [2023] FedCFamC1A 71
Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 88 Date of hearing: 18-19 March 2024 Counsel for the Applicant: Mr Lakshman Solicitor for the Applicant: TFA Legal Counsel for the Respondent: Mr Allen Solicitor for the Respondent: Marcou And Associates Pty Ltd ORDERS
MLC 6700 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PINI
Applicant
AND: MR GORAN
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
13 JUNE 2024
THE COURT ORDERS THAT:
1.Within 60 days (“the due date”) the respondent pay $11,955.06 to the applicant (“the payment”).
2.Contemporaneously with the payment:
(a)The applicant do all such acts and things and sign all such documentation as may be required to renounce in favour of the respondent at the expense of the respondent all of her right, title and interest in the real property situated at and known as C Street, Suburb D, VIC, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the Suburb D Property”);
(b)The respondent be solely liable for and indemnify the applicant against all apportionable rates, taxes and outgoings of the Suburb D Property; and
(c)The applicant is to give instructions for and procure the withdrawal of caveats registered over the Suburb D Property by or on her behalf.
3.In the event that the respondent fails to make the payment to the applicant by the due date, the parties forthwith do all such acts and things to place the Suburb D Property on the market for sale (“the default sale”).
4.For the purposes of the default sale (if applicable):
(a)the respondent is to propose three real estate agents and conveyancers to the applicant in writing within seven days of the date and the applicant is to select one from the list to act as the real estate agent and conveyancer;
(b)the applicant be permitted to obtain information from the real estate agent and conveyancer in relation to the sale, including but not limited to obtaining information about offers made by prospective purchasers; and
(c)the reserve price, sale price and method of sale be agreed between the parties and failing agreement as recommended by the real estate agent.
5.On the completion of the default sale (if applicable), the proceeds of the sale be paid as follows:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Second, to discharge the mortgage and any other encumbrance affecting the property;
(c)Third, so much of the Payment as is then outstanding together with interest thereon at the rate of interest specified by Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, calculated daily from the due date until the date that the payment has been received in full by the applicant;
(d)Fourth, to pay any costs incurred by the applicant in relation to enforcement of these Orders’ provisions for the sale on an indemnity basis; and
(e)Fifth, the balance to the Respondent.
6.Contemporaneously with the payment, with respect to B Pty Ltd and any related entities as well as any other company, partnership, business or trust in which the respondent held any interest during the period of the marriage between the parties (“the Respondent’s Entities”), the respondent pay, be liable for, procure a discharge and release and otherwise indemnify the applicant against any liability in respect of:
(a)Any loss or damage suffered by her in respect of any claim against the applicant by any creditors of the respondent and/or the Respondent’s Entities including any claims upon the applicant in her capacity as a personal guarantor, director and/or shareholder or other office bearer of the Respondent’s Entities;
(b)All guarantees, charges and encumbrances pertaining to any asset to be transferred to the respondent pursuant to these Orders;
(c)All taxation liabilities of the Respondent’s Entities and all personal taxation liabilities of the Respondent including interest, costs, penalties or fines;
(d)Any future taxation liabilities of the applicant with respect to any and all alleged future income paid, distributed or deemed to have been paid or distributed to her by the Respondent’s Entities including interest, costs, penalties or fines;
(e)Any claim against the applicant for any repayment of any funds previously paid to her by the Respondent’s Entities; and
(f)All liabilities of the Respondent’s Entities, past, present or future.
7.Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property (including choses in action) in the possession or control of each of them respectively;
(b)Money standing to the credit of either the applicant or the respondent in any bank, building society or investment account shall be the property of the account holder;
(c)Money standing to the credit of the parties in any joint bank, building society or investment account shall be equally divided between the parties, and the parties shall do all such acts and sign all such documents necessary to close such accounts forthwith;
(d)All insurance policies shall be the sole property of the owner named therein;
(e)Each party shall 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 and their individual debts;
(f)Each party shall retain to the absolute exclusion of the other party all right, title and interest in any superannuation entitlements in that party’s name; and
(g)Any joint tenancy of the parties in any property real or personal 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pini & Goran has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
INTRODUCTION
The parties in the matter are:
(a)The applicant Ms Pini aged 38 years; and
(b)The respondent Mr Goran aged 45 years.
The respondent has four children from a previous marriage.
BACKGROUND
The parties were born in Country E. The respondent moved to Australia in 2014 and became an Australian citizen in 2018. The parties were married in Country E in 2019. In late 2019 the parties travelled to two other countries, the applicant deposes that this was to enable her to have enough travel to obtain a visa to visit Australia. The applicant was granted a visitor visa and moved to Australia in 2020, which she says was at the request of the respondent.
In early 2021 the parties moved into a property in Suburb D. The respondent states he provided the funds to purchase the land and for the construction of the home. The respondent says the parties separated on a final basis in December 2021 but remained living under the same roof. This is contested by the applicant who submits that the parties separated when she says she was left stranded by the respondent in Country E in early 2023 after travelling there together.
The applicant states that the respondent destroyed her passport and threatened to kill her if she ever returned to Australia. She did return to Australia and provided a statement to the police that the respondent had committed family violence against her, resulting in an IVO being taken out against the respondent with the applicant named as a protected person. The respondent disputes the applicant’s account and says that there was no family violence with the applicant constructing a narrative which included allegations of family violence in order to secure permanent residency. He states that the applicant did not honestly disclose that her IVO was a cross-application to his already existing interim intervention order naming himself and his children as protected persons dated early 2023.[1]
[1]Respondent’s trial affidavit filed 26 February 2024, at [36].
The respondent has suffered a medical episode which affects his strength and memory.[2] The precise date of the medical episode is unknown[3] although the applicant states that it occurred in mid-2022.[4]
[2]Respondent’s trial affidavit filed 26 February 2024 at [31].
[3]Exhibit R2.
[4]Applicant’s trial affidavit filed 5 March 2024 at [107].
The applicant commenced proceedings by way of an Initiating Application filed on 22 June 2023.
Orders were made on 14 November 2023 for the respondent to pay the applicant urgent spousal maintenance pursuant to s 77 of the Family Law Act 1975 (Cth) (“the Act”) of $6,000 by way of $1,000 a month commencing on 1 December 2023 with the payment to be characterised as part property settlement. The parties were also ordered to attend a Conciliation Conference with a Judicial Registrar on 31 January 2024.
Orders referring the parties for the Conciliation Conference provided for full and frank disclosure of their financial circumstances and for the respondent to obtain a single expert valuation of the Suburb D property. The respondent deposes to receiving the valuation in a report by F Valuers dated 16 January 2024, where the property was valued at $720,000.[5] This report was not provided to the Court and is not contained in any of the material filed by the respondent.
[5] Respondent’s trial affidavit filed 26 February 2024, at [21].
The Judicial Registrar made further orders on 31 January 2024 requiring the parties to make genuine offers of settlement within 28 days pursuant to rules under Division 4.2.2 of the Federal Circuit and Family Court of Australia (Division 1) Rules 2021 (Cth).
On 6 March 2024 the applicant’s former solicitors sought leave to intervene for fees owed to them of $74,913.85[6] and filed an accompanying Application in a Proceeding.[7] Shortly prior to trial, the solicitors indicated that they did not wish to press the application and leave was given for the filing of a Notice of Discontinuance on 14 March 2024.
[6]Applicant’s trial affidavit filed 5 March 2024, at [29].
[7]Applicant’s trial affidavit filed 5 March 2024, at [29].
The hearing commenced on 18 March 2024 with both parties having legal representation appointed pursuant to s 102NA of the Act.
The affidavit evidence of the parties was lacking in detail in relation to their financial dealings, the value of assets and the expenditure of each party.
The respondent sought orders dismissing the application on the grounds of the applicant’s alleged non-compliance with trial directions made on 14 November 2023. That application was dismissed by the Court. Both parties have failed to comply with directions and the Court makes orders in this matter doing the best it can on the evidence available to it. Any adjournment of the matter would have involved further expenses (likely funded by the public purse) and the benefits to either party in adjourning the matter was limited. No party sought an adjournment.
EVIDENCE:
The applicant relies upon:
(1)Outline of Case filed 15 March 2024;
(2)Affidavit filed 5 March 2024, 12 October 2023 and 16 March 2023; and
(3)Amended Initiating Application filed 5 March 2024.
The respondent relies upon:
(1)Trial affidavit filed 26 February 2024; and
(2)Amended Response to Initiating Application filed 26 February 2024.
THE PARTIES’ PROPOSALS
By her Outline of Case filed 15 March 2024, the applicant sought a 75 per cent distribution of the parties’ assets in her favour which included an adjustment of 5 per cent for s 75(2) factors. This was raised with her counsel on the first day of the trial, where he conceded that this was an error and after some deliberation confirmed that the orders sought are those set out in her Amended Application filed 5 March 2024. This provides inter alia:
(1)Within 60 days of the Court sealing these Orders, the Respondent pay the Applicant the sum of $156,750.
On the second day of the hearing, counsel for the application addressed the Court stating that she was instead seeking a distribution of 20 per cent in the respondent’s favour.
By his Amended Response filed 26 February 2024 the respondent sought orders that:
(1)Each party retain their own property, chattels, superannuation and bank accounts in their names.
(2)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(3)The applicant reimburse the respondent 50% of the valuation fee for the former matrimonial home paid by the respondent at first instance.
(4)The applicant pay the respondent’s costs of and incidental to these proceedings.
However, in his Outline of Case filed 12 March 2024, the respondent sought a 90/10 split in his favour with an adjustment of 5 per cent in his favour taking into account s 75(2) factors, rendering a 95/5 split.
Notwithstanding the terms of his Outline of Case, by way of final submissions before the Court, counsel for the respondent submitted that this was a classic Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) case where the justice and equity of the case did not require a further adjustment to the parties’ interests beyond the respondent paying the court-ordered $6,000 to the applicant. As noted above, this order was made in November 2023, payable at $1,000 a month. In the orders the payments were characterised as a part property settlement.
He also seeks orders for the removal of caveats on the title of the property lodged by the applicant and her former solicitors.
LEGAL PRINCIPLES – PROPERTY
In respect to the parties’ dispute regarding the division of their property in these proceedings, s 79 of the Act sets out the following:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In exercising that discretion, the Court is required to take into account the matters set out in s 79(4) of the Act, as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The High Court in Stanford at [35] confirmed that before an order is made adjusting the parties’ property, the Court is required to make a determination that it is just and equitable to do so. That determination is to be made not as a discrete or preliminary issue, but the Court must consider the matters set out in s 79(4) of the Act.
In Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143, the Full Court held at [39] that, in considering the matters set out in section 79(4) of the Act, the preferred approach was to adhere to the following four steps:
(a)Identify and determine the value of the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(b)Identify and assess each of the parties’ financial and other contributions up until the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(c)Assess how future and other events may have a financial impact on either of the parties, such as their age and state of health and their income and property or financial resources (known as the s 75(2) factors); and
(d)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
ASSET POOL
The evidence surrounding the asset pool of the parties was largely inconsistent and contested by the parties.
On the first day of the trial, counsel raised that there continued to be a disagreement regarding the parties’ property pool. However, after a brief adjournment in the morning, and when the matter returned shortly before the lunch adjournment, counsel indicated that they had reached an agreement regarding the property pool and valued it at $359,101.21. That comprised of the net value of the matrimonial home, a car, bank accounts and superannuation.
The parties did not seek orders regarding superannuation.
CONTRIBUTIONS
The Court is required to make an assessment of the nature and quality of the totality of the party’s contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In Dickons & Dickons [2012] FamCAFC 154 at [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour (2019) FLC 93-898 at [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306 at [347] (Harper J), which restates the need to holistically assess contributions following Dickons, and that “all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.”
Prior to the Relationship
Prior to moving to Australia, the applicant was an educator in Country E for some 13 years and did have savings, but she did not contribute any of those savings to the relationship.
The respondent created a discretionary family trust for the benefit of his first wife and four children. B Pty Ltd is trustee with the trust deed being executed on 9 December 2016. The applicant is not making any claim to any assets subject to the trust.
The respondent purchased the plot of land in 2017 at C Street, Suburb D. The respondent also purchased Motor Vehicle 1 after receiving money from insurance due to an accident prior to the relationship.
Contributions during the course of the parties’ relationship
There is a dispute regarding the length of the parties’ relationship. The respondent says the parties separated in late 2021 and were divorced under religious law in early 2023. This is disputed by the applicant who claims the document is a forgery. The respondent sought to produce evidence from a person in Country E who was a friend of his that deposed to the divorce being regular and valid. The applicant exhibited a document from November 2023 that she says proves that the divorce was never registered in Country E.[8] I am not in a position to determine that issue.
[8][8] Exhibit A6.
The applicant remained steadfast in her submission that the parties remained together until early 2023. She produced to the Court a bank statement to establish that she had paid for a ticket for hiring a vehicle for the respondent and one of his children in Region H in December 2022, totalling $132. She says that the parties visited Region H with three of the respondent's children. The applicant by her trial affidavit at [39] says that she and the respondent holidayed overseas in late 2022, but when giving evidence stated that this was a mistake.
The applicant also produced a bank statement where she had paid for a visa to visit another country in early 2023 in the amount of $300 from her ANZ account. She says that she was then ambushed by the respondent at Melbourne Airport when, instead of giving her a boarding pass to that country, he gave her a ticket to Country E.
When asked about the trip to Country E and whether the couple were still together, the respondent stated that they were travelling to Country E to tell the families they were getting divorced. He denies that they planned to holiday in another country, stating that it is common for flights to Country E to stopover in that country. He says that he had purchased return tickets to Melbourne. He was unable to produce evidence of this. The accounts of both parties were not fully explained and it is unnecessary to make any conclusions or findings as to the events leading to the trip in Country E and the wife’s return. The evidence as produced does not allow me to make any findings.
I find that having regard to the enmity between the parties, that the parties separated in late 2021 but lived under one roof. Travel that did occur was not as a couple.
Direct Financial Contributions
The respondent gives evidence that he bore the cost of construction of the matrimonial home at the Suburb D property. The applicant says that the building contract totalled $222,944 and was signed in 2020, with the respondent using money he earned during their relationship. I find this implausible given that the parties were married in 2019. He would not have had the capacity to accumulate those funds between 2019 and late 2020. I find that the respondent made all the financial contributions to the purchase of the land and the construction of the matrimonial home. The respondent also paid the mortgage and costs associated with the property.
The respondent stated that after the parties separated in December 2021, he continued to pay the applicant around $1,000-$1,500 a month from the period of 10 February 2022 to 7 November 2022 amounting to around $20,000 as a result of their financial separation. The applicant says that these amounts were not in relation to financial separation but were for groceries/household expenses. The evidence from the parties in relation to this is vague, but I accept that the respondent did pay the applicant about $1,000-$1,500 periodically and that the applicant did spend some of these funds on groceries and household expenses as well as personal expenses.
The respondent claimed that the applicant took an estimated $10,000 worth of jewellery when they separated. He says that the applicant also showed him a bag containing $34,000 cash which he says were funds the applicant accumulated during the marriage. When the respondent was asked how he knew it was $34,000, he said the applicant told him, but he did not begrudge her regarding the money as in Country E culture he is obligated to ensure she is comfortable as she had moved to Australia and this would be the expectation of their families. He submits:
I wanted her to keep the jewellery and cash and that would help her to settle in Australia as an independent person and we haven't tried to report it or claim it back.
There is no available evidence regarding the value of the property taken by the applicant and it was not established that it had been taken by her.
The applicant had made a very limited financial contribution to the relationship and the applicant conceded when cross-examined that she had contributed “not a penny” of her savings from her 13 years as an educator in Country E to the property pool or to meet expenses through the course of the relationship.
Non-Financial Contributions
The applicant was unable to work until her spousal visa was granted in June 2022, but states that she assisted in looking after the respondent’s four children and that this was a relatively full-time role.
The respondent gave evidence that court orders stipulated that the children lived with his ex‑wife during the week and therefore the children were only at their residence on the weekends and for half of the school holidays. He concedes, however, that the applicant made contributions to the welfare of the children, upkeep, maintenance and conservation of the property, but not to the extent that she asserts.
The applicant states she operated the parties’ business shortly after obtaining her spousal visa in June 2022. The respondent claims it was for a short period of time of about four months, the applicant claims it was for slightly longer.
Annexed to the respondent's trial affidavit is an ANZ bank statement in the name of the applicant for the period of 21 December 2022 to 21 February 2023. It has two entries labelled in relation to the business in the amounts of $190 and $85. The respondent gave evidence that the applicant was doing ‘cash work’ and that she retained the cash. The applicant denies this and says the money she was paid for her work at the business went towards expenses for the family. In any case, I do not find this to be a significant contribution. It is agreed by both parties that the applicant did make contributions to the business by way of her working there. The respondent argues that the applicant benefited from him providing her with a job at the business as it led to further employment at another business whilst being able to study in Australia and obtain employment in another industry.
Taking into account the financial and non-financial contributions of the parties, I find that the respondent has made 95% of the contributions and the applicant 5%.
I note that the respondent had proclaimed that a 10 per cent adjustment to the applicant was just and equitable, however, that was retracted. Having regard to the evidence, I conclude that an adjustment of 5 per cent is reasonable given that the respondent has made all the contributions to the acquisition of the divisible assets and the non-financial contributions of the applicant occurred over a short period.
Relevant s 75(2) factors pursuant to s 79(4)(e)
Section 75(2)(a) the age and state of health of each of the parties
The applicant is 38 years of age and will shortly complete her studies to become an educator. She is in good health save for a medical condition. It appears she is receiving appropriate treatment and deposes to being unable to undertake heavy lifting. Her evidence was that this does not affect her work in education. The applicant claims she is in a precarious situation which she blames on the respondent and his treatment of her in the form of family violence which left her without stable housing or income, however, she has been able to work several jobs and study part-time successfully whilst being involved in court proceedings.
The respondent is 45 years of age and a professional who undertakes contract work. He has had to reduce his work having recently suffered a medical episode. He has reduced capacity to carry out daily tasks and is currently undergoing rehabilitation for the medical episode. He gave evidence that his current income is significantly reduced due to the medical episode he suffered.
The respondent gave evidence that the medical episode affects his strength and memory. He was referred to the G Health Service in early 2024 by Dr J of K Medical Centre for ongoing weakness with nil significant improvement with physiotherapy. The date of the medical episode was listed as unknown.
The respondent gave evidence that in late 2023 he was referred to a care program for younger people whose capacity for independent living is at risk. He also states he has 10 upcoming sessions for a program designed to help medical episode survivors regain function. A letter from Dr L (Consultant Specialist at M Hospital) dated early 2023 notes that the respondent is a patient of the Outpatient Clinic at M Hospital. This letter relevantly states:
[Mr Goran] suffered from a [medical episode], which had affected his […] strength and his memory and thinking skills. Because of the [medical episode], he has been recommended to participate in outpatient rehabilitation services, which requires him to have multiple visits to the hospital during the week. He will also have other medical specialist appointments. This is likely to be required for the next 6 to 12 months and I would appreciate your consideration in allowing him medical leave during this time.
The applicant denies the severity of the medical episode and its affects, however, there is no evidence in contradiction of the report from his treating doctor.
Section 75(2)(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;
The applicant lists her current income in her Financial Statement of 5 March 2024 as $468 per week where she is employed by N Organisation. She does not currently own property. She is not encumbered by a mortgage and has no children.
The applicant alleges that she suffers from ongoing harm from alleged family violence. Counsel for the applicant raised a letter from O Support Service[9] which states that the applicant has been a victim of family violence perpetrated by the respondent. However, there is no evidence of ongoing psychological trauma suffered by the applicant. She is not receiving any treatment relating to the alleged abuse and there is no evidence that it has hindered her capacity for employment.
[9] Exhibit A5.
The applicant is capable of working full-time and bank statements showed to the Court from 2023 demonstrated that at one stage in 2023 she was working two jobs and in receipt of a Centrelink benefit for studying, totalling in excess of $1,000 a week.
The respondent did not file a current Financial Statement, with the most recent Financial Statement from August 2023 listing his average weekly income at $1,610 and his expenditure at $1,602.
He gave evidence that his income has dropped significantly since having a medical episode in 2023 and that he is living off a personal loan from the bank stating, “this is not a sustainable way to live but I do not have any other option”.[10]
[10]Respondents trial affidavit filed on 26 February 2024 at [35].
I accept that the respondent’s capacity to earn income has reduced as a result of the medical episode, although he is undergoing rehabilitation and the outcome is unknown. He did produce a letter from his specialist, along with details of the rehabilitation services he is currently attending.
The respondent gave evidence that he used to earn $100,000 and he was able to undertake jobs where he would earn around $5,000 per contract, but he has had to cut back on much of his larger professional work. He has also employed someone to take over the business as a way of generating passive income. The details of any profit generated from the business was not produced. The respondent stated that the income was about $200 per week.
The respondent owns the Suburb D property which was valued in January 2024 at $720,000.
Section 75(2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years.
The respondent has four children under the age of 18 who stay with him on weekends and for half of the school holidays. I accept that he will have to commit ongoing funds in his maintenance of the children and that he has a decreased earning capacity whilst he is engaged in rehabilitation for the effects of a medical episode.
The respondent gave evidence that he is currently in arrears of child support payments which total $2,378.90.
Section 75(2)(d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person.
The applicant does not have any dependents or parents she supports.
The respondent pays $275 a week in child support and he also provides care and support to his elderly parents.
Subsection 75(2)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or 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
The applicant says at [101] of her affidavit that she is currently in receipt of a Centrelink payment, however, her Financial Statement filed on the same day reports to not receiving any government benefits. Her evidence regarding Centrelink benefits is vague, but it appears that she was receiving about $700 a fortnight.
The respondent is in receipt of family tax benefit payments from Centrelink in the amount of $110.50 a week as of 18 August 2023 which assists with the upbringing of the children, such as paying for uniforms and other costs associated with raising children. The children live with the respondent on weekends and for half the school holidays.
He has a discretionary family trust, B Pty Ltd, but there is no evidence that he is a beneficiary and no orders were sought by the applicant in respect of it.
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
The applicant seeks to have family violence considered in this case as a factor or circumstance the Court must consider.
The applicant sets out various instances of family violence, particularly the trip to Country E in early 2023 which she says lead to separation and where the respondent threatened to kill her.
She accuses the respondent of creating a fake email and sending emails purporting to be from her threatening to withdraw her visa in Australia. The applicant also made accusations about the respondent sending sexual photos of her to her brothers, but she was unable to produce these. I accept that producing such photos may be a matter of cultural sensitivity and that there are reasons as to why she would not wish to produce such photos. However, no evidence was produced from her brothers that they had received emails with sexually explicit content involving the applicant. Allegations that the respondent had forced the applicant to consume alcohol were denied.
The applicant says that such violence rendered her contributions during the marriage increasingly difficult stating:[11]
All of this family violence made it much harder for me to make the contributions that I did.
The way that [Mr Goran] belittled me in front of the children meant that I found it much harder to work with them…
The surveillance throughout the home made all my work inside the house more stressful.
[11] Applicant’s trail affidavit filed 5 March 2024, at [144][148].
The evidence as produced did not support a finding that any family violence made the applicant’s contributions more difficult or onerous. Whilst I acknowledge that the raising of a Kennon[12] argument does not require ‘expert’ evidence and can be inferred from lay evidence (see Martell & Martell [2023] FedCFamC1A 71), I must find that the violence had impact upon the applicant’s contributions (see: Maine & Maine (2016) 56 Fam LR 500).
[12] Kennon & Kennon (1997) FLC 92-757.
The Court acknowledges that an IVO was taken out against the respondent, but the evidence presented in Court did not lead me to conclude that the respondent had committed the family violence as alleged by the applicant. The Court is unable to conclude that there was family violence which had an impact on her contributions. There was also no mention of sexual violence in the IVO.
The respondent denies the accusations and insists that he was the victim of family violence perpetrated by the applicant. He gave evidence that the applicant had concocted a web of lies, said derogatory things about his daughter during the relationship and that one of the main reasons the relationship ended between the applicant and respondent was due to the applicant denigrating his children from a previous marriage. The respondent said the applicant falsified accusations of family violence as it was the only way she could stay in Australia once he withdrew sponsorship of her partner visa. He said that he did not threaten to retract his sponsorship as he was legally able to do so.
He says he received several threatening emails from the applicant which included threats such as:[13]
Think hundered time before start Divorce things because I will show you what I can do… You will regret this day.
[13] Respondent’s trial affidavit filed 26 February 2024, Annexure MG-1.
The applicant denies sending such emails and says that the respondent ‘hacked’ into her account and sent them to himself.
The respondent further claims that it was the applicant who committed family violence on him by way of her “aggressive mannerisms” and he was subjected to both emotional and psychological abuse throughout their relationship.
There has been no independent investigation of the claims made by either party and insufficient evidence has been produced to establish the claims made by either party. In his evidence at trial, the respondent deposed to having the email regarding the applicant’s visa withdrawal under investigation. It was not clear who was conducting the investigation or the ambits of such an investigation.
Given the nature of the allegations by the applicant, I am unable to conclude that the respondent has committed family violence as alleged, nor can I conclude that the applicant has perpetrated family violence as described by the respondent.
Counsel for the applicant submitted that, unlike the respondent, the applicant does not have a support network in Australia. I accept this; however, the applicant is now a permanent resident in Australia and has been able to study and work and obtain a qualification in education. She is still relatively young at 38 years of age. She has a capacity to work and has no dependents and she is in a position to support herself through employment. Evidence was given that the respondent has to support his elderly parents in conjunction with his children.
In these circumstances, I will not make any adjustments having regard to the s 75(2) factors.
CONCLUSION
Having regard to all the matters, the respondent’s income is limited due to a medical episode, he has responsibility for four children and is currently paying child support and significant mortgage payments. He is currently in arrears of the child support payments. It appears that his income does not support his expenses.
Given the financial contributions of the respondent, I find that it is just and equitable for the division of the assets of the parties to the marriage to be 95 per cent to the respondent and 5 per cent to the applicant. I make no further adjustment having regard to s 75(2) factors on the basis that the applicant is in a position to support herself financially given her capacity to work. This amounts to $17,955.06 for the applicant.
The orders made on 14 November 2023 provided for a payment of $6,000 to be treated as a part property settlement which leaves a settlement sum of $11,955.06.
The 14 November 2023 orders provided for the respondent to be reimbursed 50 percent of the costs of the single expert valuation by the applicant. The respondent did not adduce any evidence establishing the costs of the report to give effect to those orders.
I will make orders giving effect to my findings.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 13 June 2024
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