Popovski & Mabon

Case [2024] FedCFamC1F 270

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Popovski & Mabon [2024] FedCFamC1F 270

File number: SYC 7140 of 2018
Judgment of: ALDRIDGE J
Date of judgment: 24 April 2024
Catchwords: FAMILY LAW – PROPERTY – Application for final property orders – Small property pool – Add backs for interim distributions of property – Where the husband terminated the wife’s access to funds following separation – Where the wife obtained various personal loans for living expenses and legal fees – Loans for post-separation living expenses included as liabilities of the parties – Husband provided financial support for the family up to separation – Wife was and remains virtually the sole carer of the children – Net assets to be divided 60 per cent to the wife and 40 per cent to the husband.
Legislation: Family Law Act 1975 (Cth) s 79
Cases cited:

Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCA 45

NHC and RCH (2004) FLC 93-204; [2004] FamCA 633

Division: Division 1 First Instance
Number of paragraphs: 61
Date of hearing: 11 March 2024
Place: Sydney
Counsel for the Applicant: Mr Stapleton
Solicitor for the Applicant: Robertson Saxton Osborne Lawyers
Counsel for the Respondent: Ms Cantrall
Solicitor for the Respondent: Long Saad Woodbridge Lawyers

ORDERS

SYC 7140 of 2018

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

MR POPOVSKI

Applicant
AND:

MS MABON

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

24 APRIL 2024

THE COURT ORDERS THAT:

SALE OF THE SUBURB B PROPERTY

1.The property situated at C Street, Suburb B New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier … (“Suburb B Property”), be sold forthwith by public auction and for that purpose the following sale provisions shall apply, unless otherwise agreed by the parties in writing:

(a)The Suburb B property shall be listed for sale by public auction with Ms AA of BB Limited the costs of and incidental to such appointment to be borne by the husband.

(b)The parties will engage D Conveyancers to undertake the conveyance of the Suburb B Property.

(c)The auction shall take place within 28 days of the date of these orders.

(d)The parties will not, without the consent of the other, cause any other agency agreement to be effected or binding on the parties.

(e)A reserve price shall be fixed by written agreement between the parties, and failing such agreement, within 14 days of the auction date being set the reserve price will be determined by Mr E of F Valuers, the cost of such valuation to be paid by the parties from their controlled monies account with National Australia Bank account number …00.

(f)The husband will not encumber or otherwise deal with the Suburb B property without the prior written consent of the wife.

(g)The wife shall provide access to the Suburb B property at all reasonable times to prospective purchasers and the agent, or his or her representative.

(h)The wife shall maintain the Suburb B property…

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AGLC
Popovski & Mabon [2024] FedCFamC1F 270
Case
[2024] FedCFamC1F 270
Decision Date

CaseChat Overview and Summary

The case of Popovski & Mabon involved a property settlement dispute between Mr Popovski and Ms Mabon following their separation and subsequent divorce. The main assets to be divided were a property in Suburb B, New South Wales, and some superannuation. The court had to determine the appropriate division of these assets, taking into account various factors such as contributions to the relationship, care of the children, and post-separation financial support. The wife had been the primary caregiver for the children and had also provided most of their financial support since the separation. The husband had contributed to the relationship through his employment and had provided financial support for the family until the separation.

The court found that the wife had made 55 per cent of the relevant contributions up to the time of the hearing, while the husband made 45 per cent. The court also considered the future needs of both parties, with the wife likely to remain the primary carer for the children and the husband retaining most of the superannuation. Given these factors, the court ordered that the net assets be divided 60 per cent to the wife and 40 per cent to the husband. The Suburb B property was to be sold, with the proceeds divided according to this ratio. The wife was to receive $787,379.90 and the husband $212,620.10. Any excess proceeds above these amounts were to be divided 60 per cent to the wife and 40 per cent to the husband, while any shortfall would be borne in the same proportion.

The court also addressed various other issues, including the inclusion of certain loans and liabilities in the property pool, the care of the children, and the financial support provided by the wife's mother and Mr P. The court found that the wife's loans from her mother should be considered a liability of the parties, and that the financial support provided by Mr P should be taken into account in assessing the wife's future needs. The court further ordered that each party was solely responsible for any tax liabilities or other liabilities incurred in their sole name or in the name of any entity in which they had an interest, and that they indemnify each other in respect of such liabilities.

Orders

Orders of the court

SYC 7140 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR POPOVSKI

Applicant

AND:

MS MABON

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

24 APRIL 2024

THE COURT ORDERS THAT:

SALE OF THE SUBURB B PROPERTY

1. The property situated at C Street, Suburb B New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier … (“Suburb B Property”), be sold forthwith by public auction and for that purpose the following sale provisions shall apply, unless otherwise agreed by the parties in writing:

(a) The Suburb B property shall be listed for sale by public auction with Ms AA of BB Limited the costs of and incidental to such appointment to be borne by the husband.

(b) The parties will engage D Conveyancers to undertake the conveyance of the Suburb B Property.

(c) The auction shall take place within 28 days of the date of these orders.

(d) The parties will not, without the consent of the other, cause any other agency agreement to be effected or binding on the parties.

(e) A reserve price shall be fixed by written agreement between the parties, and failing such agreement, within 14 days of the auction date being set the reserve price will be determined by Mr E of F Valuers, the cost of such valuation to be paid by the parties from their controlled monies account with National Australia Bank account number …00.

(f) The husband will not encumber or otherwise deal with the Suburb B property without the prior written consent of the wife.

(g) The wife shall provide access to the Suburb B property at all reasonable times to prospective purchasers and the agent, or his or her representative.

(h) The wife shall maintain the Suburb B property in a reasonable condition.

(i) Any repairs as recommended by the agent will be met by the husband.

(j) In the event a prospective purchaser makes a bid on the Suburb B property prior to the proposed date for auction, the parties may agree on a price and to sell to such a purchaser in writing. In the event the parties are unable to agree on a price then the Suburb B property shall proceed to auction.

(k) In the event that the Suburb B property fails to be sold at the auction referred to above, the property shall be resubmitted to auction at a reserve price 10 per cent lower than at the previous auction and shall continue to be resubmitted for auction every four weeks until such time the Suburb B property is sold.

2. The parties shall cause the proceeds of sale of the Suburb B property to be applied in the following order and priority:

(a) Payment of the agent’s commissions and advertising or other expenses payable on the sale;

(b) Payment of the legal costs and outlays relating to the sale; and

(c) Payment of the balance to the parties such that the wife receives $787,379.90 and the husband receives $212,620.10.

(d) In the event that the net proceeds exceed the total payments to be made under this order then the excess is to be divided so that the wife receives 60 per cent of the excess and the husband 40 per cent.

(e) In the event that the net proceeds of sale are insufficient to permit the payments in Order 2(c) to be made, the shortfall shall be borne by the wife as to 60 per cent and the husband 40 per cent.

OTHER PROPERTY

3. The parties are otherwise entitled to retain sole legal and beneficial ownership to the exclusion of the other of:

(a) All items of property, both real and personal, including but not limited to real estate, motor vehicles, bank accounts, money, shares, furniture, furnishings, jewellery and personal effects presently in the possession of each of them;

(b) Any insurance policies held in their respective name; and

(c) Any entitlements under any superannuation fund of which they are or have been a member.

4. The wife is solely responsible for and shall pay any tax liability or other liability incurred in her sole name or in the name of any entity in which she has an interest and shall indemnify the husband and keep him indemnified with respect to any such liability.

5. The husband is solely responsible for and shall pay any tax liability or other liability incurred in his sole name or in the name of any entity in which he has an interest and shall indemnify the wife and keep her indemnified with respect to any such liability.

IMPLEMENTATION

6. The parties do all acts and things and sign all documents necessary to give effect to these orders.

7. In the event either party refuses or neglects to sign any deed or instrument to give effect to these orders, within seven days of being requested to do so, the registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign such document on behalf of such party to give effect to the operation of the deed or instrument.

8. The parties have liberty to restore this matter in relation to the implementation of these orders upon seven days notice to the Court and to the other party.

COSTS

9. In the event of any application for costs, the parties are to file written submissions of no more than five pages as to what costs order should be made within 28 days of the date of these orders.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These are property proceedings between Mr Popovski (“the husband”) and Ms Mabon (“the wife”), who are 52 years and 44 years old respectively. The assets to be divided consisted mainly of a property in Suburb B and some superannuation.BACKGROUND The parties commenced a relationship in 2003, commencing cohabitation later that year. The parties were married in 2007 and at some time during that year, began to live in City G. The parties’ first child was born in 2008. In 2009 the parties moved to Country H for the husband’s employment and in 2010 purchased property there. The family moved to Australia in 2011. At the time, the husband owned a property in Suburb J. It is agreed for the purpose of these proceedings that the husband’s initial financial contribution was his interest in the Suburb J property, which the parties have agreed as being worth $49,000. In 2012 the parties’ second child was born. The Suburb J property was sold in early 2012. In that same year a property in Suburb L was purchased which became the matrimonial home. In 2015 the parties received financial assistance from the wife’s mother in loans of $60,960 and $53,985. In mid-2017, the husband moved to Country K for work with the wife and children remaining at the Suburb L property. The husband returned from Country K in mid-2018. It is agreed that the parties separated on 19 April 2018. In late 2018, the property in Country H was sold and the proceeds were used to pay the balance of the purchase price of a property in Suburb B, New South Wales that the parties had bought off the plan in 2014. A loan to assist in paying the balance of that property was also obtained and secured over the Suburb L property. In early 2019, the purchase of the Suburb B property settled and the wife and children moved in. The Suburb L property was sold in mid-2019. The net sale proceeds after the payment of the mortgage were approximately $195,000. Each of the parties received $50,000 from that sum as an interim payment. The balance was used largely to pay outstanding fees for the husband’s supervision costs of spending time with the children and arrears of spousal maintenance. At some stage, apparently by agreement, a further $29,451 was paid to each of the parties. The parties were divorced in late 2019. PROCEEDINGS Although the wife initially sought a child support departure order, that application was not pressed at the final hearing leaving only the property settlement dispute to be resolved. The parties agreed that the circumstances were such that it was just and equitable for their property to be divided.The property to be divided Whilst the affidavits of the parties are replete with evidence directed to many disputes as to what property was properly available for division, sensibly at the hearing, most of those were resolved. It is not therefore necessary to deal with the husband’s contentions that a property in Country K was beneficially owned by the wife. It follows that there is no dispute as to the assets to be divided. I have excluded from those assets bank balances under $100. I have included the husband’s M Bank accounts in the sum inserted in the joint balance sheet by him, on the basis that he presumably knows more about what is in his bank accounts than the wife. For the same reason, his liability to N Financial Services will be in the sum he put forward in the joint balance sheet, not that suggested by the wife.

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

I have included the wife’s loan from her mother as a liability of the parties. Therefore that is not something that can be taken into account in assessing the relative contributions of the parties, other than to take into account the fact that it was interest free and a ready form of finance when other forms of finance may not have been available. Post-separation contributions Since separation the wife has had almost the sole care of the children. Even on the husband’s return to Australia the children have spent very little time with him. Currently, the eldest child does not see the father at all and the younger child spends time with him during the week and overnight every second or third weekend for one night. The overnight time ceased in late 2023. In addition to being virtually the sole parent to the two children, one of whom has some behavioural difficulties, the wife has provided the bulk of the financial support for them. Particular weight must be given to the care and support of the children for nearly six years. Since the separation the husband has paid child support as assessed. The evidence reveals significant disagreements between the parties about the child support assessments and the assessments have changed from time to time as a result. In 2019 the husband paid spousal maintenance for a year. For the last three years the wife has been employed at a franchise for 20 hours per week. The franchise in which the wife works is owned by Z Pty Ltd, a company owned by Mr P. When it was initially incorporated, the wife was the company’s sole director, but her unchallenged evidence was that that role ceased when the company began trading after acquisition of the franchise. She is not a shareholder in the company. Mr P pays the strata levy, council rates, water rates and electricity and gas bills in relation to the Suburb B property where the wife and children reside and contributes about $250 a week to the household expenses. Since separation, the husband has lived in rented accommodation, whilst the wife and the children have had the benefit of living in the Suburb B property without rent, but as I have said, the outgoings are paid by Mr P. Taking these matters into account, I assess the wife as having made 55 per cent of the relevant contributions up to the time of hearing and the husband 45 per cent. Future needs As to future needs, the wife will remain the primary carer for the children, which in the case of the younger child, will be for another six years. The wife will receive some financial support from the husband, but it is likely to fall short of their actual expenses. As the children get older, the wife’s capacity for full-time work will improve and it is her hope to retrain as a health professional. It is likely that she will continue to receive some financial support from Mr P. The husband is somewhat older than the wife. He will retain his superannuation, which is almost all of the superannuation held by the parties. The property pool cannot be described as at all large. It is somewhat artificially inflated by the add backs, which are not property but a recognition of property had and spent, which account for nearly 15 per cent of the total net property.