Tsvetkova & Peeters
[2025] FedCFamC1A 157
•5 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Tsvetkova & Peeters [2025] FedCFamC1A 157
Appeal from: Tsvetkova & Peeters [2025] FedCFamC2F 304 Appeal number NAA 192 of 2025 File number PAC 1460 of 2022 Judgment of: CHRISTIE J Date of judgment: 5 September 2025 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant sought to adduce evidence that was available to her at the time of trial – Where appellant has failed to explain why this further evidence was not tendered at trial – Where this proposed evidence would not demonstrate any error on the part of the trial judge – Application dismissed.
FAMILY LAW – APPEAL – PROPERTY – Where the appellant alleges the primary judge made various errors of fact and law – Where it was alleged that the primary judge did not have regard to relevant factors – Where each of the primary judge's findings and conclusions were open on the evidence – Where the primary judge’s reasons are adequate – Where no appealable error by the primary judge is demonstrated – Appeal dismissed.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Family Law Act 1975 (Cth) ss 4AB, 79
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Conway & The Queen (2002) 209 CLR 203; [2002] HCA 2
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Shinohara& Shinohara [2025] FedCFamC1A 126
TKWJ v R (2002) 212 CLR 124
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Walters and Walters (1986) FLC 91-733; [1986] FamCA 8
White & Tulloch & White (1995) FLC 92-640; [1995] FamCA 127
Number of paragraphs: 58 Date of hearing: 14 August 2025 Place: Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 192 of 2025
PAC 1460 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS TSVETKOVA
Appellant
AND: MR PEETERS
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application in an appeal is dismissed.
2.The appeal is 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsvetkova & Peeters has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J
This is an appeal against final property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2).
THE TRIAL
The primary judge heard and determined final property proceedings between the respondent husband and appellant wife.
The parties married in mid-late 2016 in Country B, having commenced cohabitation the year prior and separated in mid 2020. They have one child, born in mid 2017.
The primary judge found that the parties had no significant assets or liabilities at the commencement of their relationship.
The parties had intended, prior to separation, to move to Australia. The primary judge noted at [22]:
In preparation for the move to Australia, the husband opened a [C Account] in his sole name into which he transferred the parties’ joint savings of [Country B Currency] 24,429.65 (AUD$44,085.12) or [Country B Currency] 24,850 with an intention to convert the monies into Australian Dollars for use when the parties arrived in Australia. In the event, the husband transferred the money back into [Country B] currency and retained those funds himself. It is common between the parties that the funds in the [C Account] were never received by the wife.
(Footnotes omitted)
While there was some controversy about the application of those funds, it was uncontroversial that they were retained by the respondent. The respondent’s retention of the entirety of the parties’ joint savings is central to the appellant’s dissatisfaction with the primary judge’s orders.
The parties were at issue about the extent of the assets available for adjustment between them at the conclusion of their relationship. The appellant submitted that the Court would find net assets of $138,545 while the respondent submitted the net assets were $6,655. The primary judge found at [65] that the net pool was $71,344 (inclusive of superannuation entitlements valued at $45,069).
The appellant sought an order that the respondent pay her $46,106 and that there be a superannuation splitting order which saw her receive 60 per cent of the respondent’s superannuation. The respondent sought that the appellant’s application be dismissed with the effect that each party retain his or her own property. The primary judge determined that the parties’ net assets and superannuation should be divided so that the appellant received 70 per cent – which could only be achieved by the making of a superannuation splitting order in her favour.
APPLICATION IN AN APPEAL
The appellant filed an Application in an Appeal which was heard simultaneously with the Appeal. The respondent opposed the application. It will be dismissed for the reasons which follow.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives the Court an unfettered discretion to admit further evidence on appeal. However, case law - albeit relating to the predecessor of s 35, being s 93A of the Family Law Act 1975 (Cth) (“the Act”) - has developed some well-known considerations which a court will analyse as part of the decision as to whether to receive further evidence.
The discretion that s 93A(2) confers on the Full Court to receive further evidence on an appeal exists to serve the demands of justice: CDJ v VAJ (1998) 197 CLR 172 at 202 (“CDJ v VAJ”); Hsiao v Fazarri (2020) 270 CLR 588 at [43].
The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ, where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
There is otherwise no statement of principle or factors which in any way constrain the Court’s discretion to admit further evidence.
The appellant filed two affidavits in support of her application to adduce further evidence.
The appellant sought to place before the appellate Court documents which existed at the time of trial but were not before the primary judge. Apart from the general complaint that her lawyers had inadequate time to prepare, there is no reason advanced for the failure to rely on previously filed documents which were plainly available and the documents will not be admitted.
During the trial the appellant sought and obtained a copy of the respondent’s tax return for the year ended 30 June 2023. The appellant did not tender that document before the primary judge. The appellant submitted that it was oversight on the part of her legal representatives faced with a high volume of material in a short period. That may well be the case, but having specifically sought and obtained the document, the failure to tender it is not explained. Further, I am not persuaded that the appellant has established that tender of the tax return on appeal would demonstrate error by the primary judge.
The material contained in the appellant’s proposed further evidence, particularly in the affidavit filed 2 July 2025 is not undisputed. The appellant’s affidavit contains supposition about the respondent’s financial affairs post-order in aid of the conclusion that his asset position at trial must have been healthier than the primary judge found. It will be rejected.
THE APPEAL
Ground 1-Material Error of Fact: Failure to Consider Relevant Evidence Regarding Separation Circumstances
The law in respect of errors of fact is well settled.
The appellant submitted that the following finding was in error:
[16] …. The parties were living in [Country B], and moved to Australia in [mid] 2021, eleven months after their separation under the same roof.
The appellant contended that the primary judge mistakenly concluded that the parties lived separately under the one roof for eleven months. I read the sentence as a conclusion that the parties moved to Australia 11 months after their separation under the one roof. No error is established.
Ground 2 - Error of Law: Failure to Apply s 4AB Family Law Act 1975 (Economic Abuse)
The appellant submitted that the primary judge should have made a finding that she was the target of family violence by the respondent, in line with the definition in the Act (as it applied at the time of hearing):
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(Emphasis added)
The appellant submitted that the retention of the parties’ joint savings was economic abuse.
The primary judge found at [29]:
…no evidence was presented at the Final Hearing to establish family violence perpetrated by either party.
The appellant made the submission that the primary judge was in error for failing to find that the respondent’s conduct was family violence notwithstanding a failure to advance the case at trial by way of any evidence. A party is bound by their conduct of the trial.
The appellant contends that late legal representation impacted on her presentation of the case. It is well settled that incompetent representation is not an independent ground of appeal, it is necessary to establish that the incompetence resulted in an unfair trial or a miscarriage of justice: TKWJ v R (2002) 212 CLR 124. Neither is established here. Even, if the appellant were able to demonstrate that the failure to make submissions, tender documents or make submissions about family violence was an error by her lawyer, the primary judge found that the justice of the case required him to account for the fact that the respondent had retained the parties’ joint funds. It is not apparent how the failure to make a finding that the same conduct may also have been an example of family violence would have affected the orders ultimately made. No error is demonstrated.
Ground 3 - Material Error of Fact: Capacity to Repay & Undisclosed Funds
The majority of the submissions of the appellant on this topic focused on:
(a)the capacity of the respondent to obtain (and perhaps repay) a personal loan; and
(b)the expenditure of the respondent post-separation – as referred to in the Application in an Appeal to adduce further evidence.
Capacity to repay
At trial the appellant was seeking that the respondent pay her $46,106. The primary judge found the respondent had minimal assets and at [64(h)]:
[T]he husband…owns no property that he could give as security for a borrowing, nor is there evidence of his ability to raise such a sum by way of an unsecured loan.
The appellant submitted that the respondent had already obtained a personal loan in the sum of $50,000 and further that this loan had a balance of $23,581 at trial demonstrating both a capacity to borrow and a capacity to repay.
I accept that there is evidence that the respondent had been able to obtain a personal loan. However, the difficulty with the argument is that the primary judge would have been in error if he had ordered the respondent to make a payment in reliance upon borrowing.
In Walters and Walters (1986) FLC 91-733 at 75,344 the Full Court was similarly dealing with a submission to the effect that the Court could, in the exercise of its power under s 79, require a spouse to make a payment to their spouse from borrowings:
“In support of his submissions in relation to this aspect of the appeal, counsel for the wife referred to and relied upon certain passages from the judgment of the Full Court, constituted by Asche, Fogarty and McGovern JJ., in the case of Collins and Collins (1977) FLC ¶90-286 at pp. 76,536 and 76,539. I have read those passages and indeed other passages in that judgment, and in my opinion none of those passages assist counsel for the wife's argument in this case. Those passages do not assert, nor is there any other authority, of which I am aware, which so asserts that this Court in exercising its power under sec. 79 of the Family Law Act has power to make an order for the payment of a lump sum when there is neither property available from which such a sum could be raised, either by sale, mortgage or otherwise, nor any fund of money existing from which it could be paid, but only a capacity to borrow in the future. A capacity to borrow money is not property and counsel for the wife did not submit to the contrary.
Whilst it is certainly stated in that case, relying upon a statement by former Chief Justice Barwick in Sanders v. Sanders (1967) 116 C.L.R. 366 at p. 375 that the power of the Court under sec. 79 is “extensive and flexible”, in my opinion there is no power to convert a capacity to borrow money into property. The simple fact of the matter is that his Honour's orders had the effect of transferring to the wife the only property of the parties that there was and is in existence. The fact that the husband may have a capacity to borrow money does not assist, in my opinion, in the making of an order under sec. 79.”
To the extent that the appellant relies upon the fact that the respondent had capacity to borrow the ground is misconceived.
Non-disclosure
The primary judge plainly considered the fact that the respondent had failed to make full and frank financial disclosure. It is the subject of discussion at [26] and [33] of the reasons for judgment.
The trial judge made a finding which favoured the appellant at [80]:
The husband patently failed to make full and frank disclosure in his Financial Statement and made very late disclosure during his cross-examination relating to his undisclosed bank accounts with [D] Bank, [E] Bank, [F Bank], and [G Bank], and his joint account with [H] Bank with Ms [J]. No up-to-date balances for those accounts were available in the evidence, and his failure to disclose together with the uncertainty as to the overall value of such accounts is a circumstance warranting an adjustment in favour of the wife.
The finding of non-disclosure was taken into account (together with other factors) by the primary judge in making the 20 per cent adjustment to the appellant. It cannot be concluded that the primary judge failed to take the respondent’s non-disclosure into account and accordingly this ground must fail.
Ground 4 - Error of Law: Failure to Apply Trevi v Trevi and Equitable Principles to Add backs
The respondent retained the parties’ joint savings, and the appellant submitted they ought be included as notional property of the respondent when determining the pool of assets against which the Court should consider her application for an adjustment.
The primary judge was not obliged by the terms of the Act to treat property no longer in the possession of either party as notional property of the party who had enjoyed the benefit of that property. The overriding duty of the primary judge was to make orders which were just and equitable as between the parties.
The appellant submitted that the primary judge did not apply the principles derived from the Full Court’s decision in Trevi & Trevi (2018) FLC 93-858 (“Trevi”).
The respondent retained the parties’ joint funds at separation (approximately $44,085) and they had been dissipated by the time of trial. The trial before the primary judge took place prior to 10 June 2025, being the date on which amendments to Part VIII of the Act specifically affecting s 79(3)(a)(i) raised the issue of whether the Act precludes inclusion of assets which neither party retains at trial: Shinohara& Shinohara [2025] FedCFamC1A 126.
The primary judge said at [64(h)]:
…To add the sum of $44,085 back to the property would be contrary to the wording of section 79 of the Act and contrary to the ratio decidendi of the High Court’s decision in Stanford at [37], where the Court referred to “the existing legal and equitable interests of the parties in the property.”. However, I consider that the issue is property to be considered under section 79(4)(e) when considering matters that may justify an adjustment between the parties under 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”. Additionally, if that sum were to be added back to the property and an order was made as sought by the wife for the husband to pay to her the sum of $46,106 within 60 days, wherewith those monies come from? On the evidence I have found that no capital sum beyond his savings of $1,867 (as per my findings in paragraph 64(c) above) is held by the husband and he owns no property that he could give as security for a borrowing, nor is there evidence of his ability to raise such a sum by way of an unsecured loan.
(Footnote omitted)
It can be seen that a number of matters informed the primary judge’s determination not to include the joint savings funds. Firstly, that his duty was to consider the existing property of the parties. Secondly, that he was entitled to consider any act or circumstance which the justice of the case required and thirdly, the practicalities of ordering that the respondent make a payment when he did not have the property available to comply with the order.
In declining to addback those funds no longer in the respondent’s possession, the primary judge was acting in accordance with, rather than contrary to, the principles set out in Trevi.
The primary judge said:
78. The husband retained the entirety of the parties’ joint savings that he had withdrawn from their joint account and deposited the monies into the [C Account], approximately $44,000 in Australian Dollars. The husband expended the bulk of the money on his legal fees relating to the [Country B] family law proceedings, on travel expenses for himself and, he asserts [X “the child”], and on living expenses when he migrated to Australia. Despite her repeated efforts to recover her equal share of the joint savings funds, she never received it.
79. I find that this is a matter in which the justice of the case requires such circumstances to be taken into account, and I find that there should be an adjustment in favour of the wife. Given that the property, inclusive superannuation, has a value of $71,344, I find that the justice of the case requires that the husband’s retention of not only his half share of the joint savings, but the wife’s half share requires a significant adjustment in her favour.
This approach was entirely consistent with the principles in Trevi. No error is demonstrated.
Ground 5 - Error in Law and Fact: Failure to Address Trust Account Funds
The appellant submitted the primary judge failed to take into account $20,000 in the trust account of the respondent’s lawyers as at the date of a costs notice and that this failure constitutes error.
The respondent was asked about the $20,000 in cross-examination and indicated that to the best of his memory it came from the F Bank loan. The primary judge did not include the loan as a liability of the respondent, and accordingly, it would have been an error to have included the funds which were sourced from the loan.
The evidence was equivocal as to whether those funds were ultimately paid to the respondent’s then solicitors or returned to the respondent. However, given they came from borrowings which were not included in the calculation of the parties’ net assets and there was no evidence capable of establishing that they were held by the respondent at the time of trial. No error has been demonstrated.
Ground 6 - Material Error of Fact and Law: Failure to Consider Calderbank Offer (Lacuna in Judgment)
The appeal ground is misconceived. The appellant had 28 days after the final orders to make an application for costs of the trial before the primary judge. No application was made. The fact that the appellant foreshadowed a potential costs application did not make it incumbent upon the primary judge to hear and determine a costs application which had not yet been prosecuted.
Ground 7 - Miscarriage of Justice: Reliance on Misleading Financial Statement
The primary judge had before him a financial statement which had been executed by the respondent on 19 January 2024. The financial statement was the subject of an interchange between the primary judge and the respondent on the first day of trial when he told the primary judge:
…for some reason, when I uploaded it to the court, only half of the pages were uploaded. I’m not too sure. So I tried to re-upload it today.
(Transcript 29 January 2024, p.4 lines 1-3)
The respondent provided the Court with a 12-page document in substitution for the earlier filed 6-page document. The appellant’s contention on appeal was that they were two different documents and, she contended the 12-page document had not been appropriately witnessed. If, as she submitted, it was not appropriately sworn or affirmed, then it followed that it was not a document upon which the primary judge ought to have relied.
The appellant did not assert any impropriety in the execution of this document at trial and has not established any impropriety on appeal. This ground is not established.
Ground 8 - Error of Law: Failure to Consider Relevant Evidence – Country B Separation Agreement
The primary judge said at [21]:
Prior to moving to Australia, the parties entered into a Separation Agreement, but the terms of that agreement did not make their way into evidence.
A draft “Separation Agreement” was in evidence before the primary judge. The statement of the primary judge was accurate in so far as it said that the terms of a concluded Separation Agreement were not in evidence. It is not plain whether the parties did in fact conclude a Separation Agreement and if so, what legal status it enjoyed. Since there was no discussion before the primary judge about whether a legally binding agreement in Country B prevented him from exercising jurisdiction it appears safe to assume that no Country B Separation Agreement had the force of law. In any event, any agreement was immaterial to the disposition of the competing applications: Conway & The Queen (2002) 209 CLR 203. The parties did not execute the agreement which was in evidence. In the absence of a binding court order or Financial Agreement, the primary judge was obliged to consider the statutory matters and arrive at an order which was just and equitable. It is difficult to see how an agreement which was never concluded was relevant to the assessment of the parties’ contributions. The primary judge was acutely aware that the respondent had retained the whole of the parties’ savings to the exclusion of the appellant. It is difficult to understand how a failure to take into account a particular point in the parties’ negotiations would amount to error.
Ground 9 - Error of Law and Fact: Failure to Consider Respondent's Acknowledged Obligation to Repay Joint Funds
In a recital to parenting orders in Country B (Exhibit A8) dated 12 May 2021 the following appears:
AND UPON the Court suggesting in relation to the [C Account] which contained the parties' joint savings that the father should provide a schedule setting out how all of the funds spent from that account since separation have been spent and for the parents to agree which expenditure properly related to joint expenses. The parties subsequently agree the sum which is owed to the mother as her share of the joint funds minus her share of any joint expenses and that the father should pay the sum owed to the mother and should consult the mother on how it shall be paid.
The appellant also relied upon comments by the lawyer appearing for the respondent in the proceedings in Country B which acknowledged his retention of the parties’ joint funds and his intention to repay that which was required.
This appeal ground suffers from the same defect as Ground 8, namely while the parties’ intentions or negotiations or offers may be material to questions of costs, they do not inform the assessment by the Court of what orders are just and equitable, and the primary judge will not be in error for failing to have regard to such acknowledgments by the making of orders which hold the parties to previous representations.
Ground 10 - Error of Law and Fact: Potential Non-Disclosure of Inheritance or Financial Expectation
In the Appellant’s Summary of Argument she stated the respondent may have received an inheritance post-trial and his failure to make disclosure of same during the trial was a breach of the requirements for full and frank financial disclosure. There is no evidence to suggest that the respondent was in possession of an inheritance at the time of trial.
A judge will not be in error for failing to take into account a potential inheritance: White & Tulloch & White (1995) FLC 92-640. The matters which the Court is required to consider are set out in the Act. The fact that one or other of the parties may in due course inherit is not a specific statutory consideration. If, on the facts of the case, there is an inevitability about inheritance in the very near future this may be relevant to an assessment of a party’s financial position in the future and the requirement to make disclosure may be engaged. That is not the position here. No error is established.
COSTS
Each party appeared on his or her own behalf at the appeal. No party sought a costs order. Accordingly, there will be no order as to costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 5 September 2025
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