FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rimac & Rimac [2021] FedCFamC1F 333
File number(s): SYC 1540 of 2014 Judgment of: MCCLELLAND DCJ Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – PROPERTY – Settlement in relation to a marriage – Where the parties received significant damages settlements as a result of a motor vehicle accident – Where damages settlements formed part of the matrimonial asset pool – Husband’s financial affairs managed by NSW Trustee & Guardian – Where the wife was engaged as the husband’s full time carer – Where the husband has failed to make full and frank disclosure of assets and liabilities – Husband’s provision of a significant loan to his nephew – Add backs – Husband acted recklessly, negligently and wantonly with matrimonial assets – Where it is just and equitable for a property adjustment to be made – Property adjustment made in wife’s favour with respect to s 75(2) factors Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4)
Evidence Act 1995 (Cth) s 140(2)
Cases cited: Briese and Briese (1986) FLC 91-713
Briginshaw v Briginshaw (1938) 60 CLR 336
Carroll, Robyn and Hugh PK Kopsen, “The Importance of Full and Frank Disclosure in Family Law Financial Proceedings and the Many Consequences of Non-Disclosure” (2017) 45 Federal Law Review 97
Coghlan and Coghlan (2005) FLC 93-220
DJM v JLM (1998) FLC 92-816
Efthimiadis & Efthimiadis (1993) FLC 92-361
Goddard Elliott v Fritsch [2012] VSC 87
Graf-Salzmann & Graf [2015] FCWA 68
Griffiths v Kerkemeyer 139 CLR 161
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Kildea v Kildea (2007) 38 Fam LR 347
Kowaliw & Kowaliw (1981) FLC 91-092
Livesey v Jenkins (1985) 1 All ER 106
Manolis v Manolis (No 2) [2011] FamCAFC 105
McKenzie v McKenzie [1970] 3 All ER 1034
Omacini and Omacini (2005) FLC 93-218
Petruski v Balewa (2013) 49 Fam LR 116
Rimac & Rimac [2020] FamCA 675
Rimac & Rimac (No. 2) [2020] FamCA 919
Re R [..] NSWSC
Stanford v Stanford (2012) 247 CLR 108
Townsend & Townsend (1995) FLC 92-569
Trevi & Trevi (2018) FLC 93-858
Division: Division 1 First Instance Number of paragraphs: 201 Date of hearing: 3–5 May 2021 Place: Sydney (via videolink) Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Hughes & Taylor The Respondent: Self-represented litigant with Mr C Rimac (McKenzie friend) ORDERS
SYC 1540 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RIMAC
Applicant
AND: MR RIMAC
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS THAT:
1.Within 28 days of the date of these Orders, the Husband shall do all acts and sign all documents necessary to transfer to the Wife the whole of his right, title and interest in the property situated at D Street, Suburb B, being the property contained in Folio Identifier …, at the expense of the Wife.
2.The Husband forthwith deliver up to the Wife's solicitor the original…
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CaseChat Overview and Summary
The legal issues before the court included whether the husband had made financial contributions to the wife during their cohabitation and marriage, and whether the husband had made full and frank disclosure of his financial circumstances as required by the Family Law Act and the Family Law Rules 2004. The court had to determine whether the husband had retained possession of settlement monies from a previous litigation and whether this impacted the division of the parties’ property.
The court found that the wife was a credible witness who had provided documentary evidence to support her assertions. The husband, on the other hand, was found to be an unimpressive witness who gave inconsistent evidence. The court preferred the evidence of the wife and found that the husband had not provided any evidence to support his claim that he had made financial contributions to the wife. The court also found that the husband had not made full and frank disclosure of his financial circumstances, including his retention of settlement monies from a previous litigation. The court drew adverse inferences against the husband for his failure to comply with his obligations of disclosure.
The court made orders in favour of the wife, including an order that the husband transfer his interest in the D Street property to the wife. The court also made orders in relation to the division of the parties’ other assets. The parties were invited to make written submissions as to costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
His Honour further stated at 75,181:In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.(Emphasis added) In terms of the parties’ statutory obligation of disclosure, the following rules of the then applicable Family Law Rules 2004 (“the Rules”) are relevant. Rule 13.01(1) of the Rules relevantly provided that:Subject to subrule (3), each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner. Further, Rule 13.04(1)(a) provided that “[a] party to a financial case must make full and frank disclosure of the party's financial circumstances.” Clause 1 of Part 1 of Schedule 1 of the Rules relevantly provided that:(1)Each prospective party to a case in the Family Court of Australia is required to make a genuine effort to resolve the dispute before starting a case by:…(c) complying, as far as practicable, with the duty of disclosure. Further, clause 6 of Part 1 of Schedule 1 of the Rules relevantly provided that:(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to: …(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute. Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part). (Emphasis added) The fact that the obligation of disclosure exists as a duty to the Court, as well as to the other party, is significant. It is also significant that the obligation is in respect to the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents. Of significance in the context of these proceedings is that the obligation of disclosure included an obligation to disclose “any disposal of property” that may “affect, defeat or deplete a claim”: Rule 13.04(1)(g). In this matter, as a result of the inadequacy of the husband’s disclosure, I infer that he retains possession and control of the substantial portion of settlement monies he received from the litigation he commenced in respect to personal injuries he sustained a motor vehicle accident. In so inferring, I note that the authorities confirm that there can be evidentiary findings made as a result of a party’s failure to comply with their obligations of disclosure. Robyn Carroll and Hugh PK Kopsen, “The Importance of Full and Frank Disclosure in Family Law Financial Proceedings and the Many Consequences of Non-Disclosure” (2017) 45 Federal Law Review 97, usefully summarised some of the relevant authorities dealing with that issue at pages 109–110, as follows:As a consequence of the rule, the Full Court of the Family Court has found that the failure by a party to disclose relevant financial information may lead the court to draw adverse inferences against that party, provided there was material upon which such an inference could be based. Many instances exist where such inferences have been drawn by the court. In Hall v Hall, for instance, an adverse inference was drawn from the failure of a wife to lead evidence to explain why she had not received financial support once she was aware it was available to her at the discretion of the executor of her late father’s will.(Footnotes omitted)