VIDUKA & COLAK

FAMILY COURT OF AUSTRALIA

VIDUKA & COLAK

[2021] FamCA 49

FAMILY LAW – PROPERTY – where the wife made the superior financial contribution at the commencement of the relationship – where the wife wrongfully removed the children from Croatia to Australia resulting in Hague Convention proceedings brought by the husband – where the husband has not worked since 2016 upon returning to Australia from Croatia – where the husband suffers from a heart condition – where the wife has retained exclusive occupation of the home – where the wife’s family have assisted in paying down the mortgage on the home – where the wife has been the primary carer of the two children of the relationship – order made for home to be sold – order for the wife to receive 62.5 per cent of the nett asset pool and the husband 37.5 per cent.

Family Law Act 1975 (Cth) s 75(2), s 79.

Bevan & Bevan (2014) FLC 93-572
Coghlan & Coghlan (2005) FLC 93-220
Ferraro & Ferraro (1993) FLC 92-335
Pierce & Pierce (1999) FLC 92-844
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Viduka

RESPONDENT:

Mr Colak

FILE NUMBER:

SYC

6669

2014

DATE DELIVERED:

18 February 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

1, 2, 3 July 2020 and 4 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Spain

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Litigant in Person

Orders

That all prior Orders be and are hereby discharged.
That within 30 days of the date of delivery of this judgment the parties to have engaged a real estate agent to cause the sale of their property at T Street, Suburb F being the whole of the land in folio identifier Lot … in Deposited Plan … (“the Suburb F property”) and to retain a conveyancer or solicitor.
That within 42 days of the date of these Orders the wife undertake and have completed any repairs or maintenance to the Suburb F property necessary to maximise the parties’ sale price and as referred to in Mr Z’s Report, with one half of the costs expended in this endeavour up to $50,000 in total to be deducted from the husband’s share of the proceeds of sale of the Suburb F property.
That for the purposes of Order 3 herein, the wife is to produce receipts for payment of any costs incurred to the husband to verify the payments made 14 days after the home is placed on the market for sale.
That for the purpose of the sale of the Suburb F property the following should apply in the event the parties are unable to agree within 14 days of the date of delivery of this judgment regarding Order 2 herein:
(a)That the wife nominate three (3) real estate agents to act on the sale, with the husband to select one within seven (7) days of receiving the said nominations.
(b)That the wife nominate three (3) solicitors/conveyancers to act on the sale, with the husband to select one within seven (7) days of receiving the said nominations.
That within 14 days after the wife has complied with Order 3 herein the parties to do all acts and things necessary to list the Suburb F property for sale by way of auction for a reserve as agreed and failing agreement as recommended by the selling agent.
The net proceeds of sale to be disbursed as follows:
(a) In payment of the agent’s commission and selling costs;
(b)In payment of the solicitor’s fees and disbursements in respect of acting on the sale;
(c) In discharge of the mortgage secured on the property;
(d)The wife to receive 62.5 per cent of the net proceeds of sale;
(e)The balance of the proceeds of sale to be paid to the husband less the following amounts:
(i)The sum of $10,000 being the wife’s costs of the appeal from the Hague decision; and
(ii)50% of the wife’s costs in complying with Order 3 herein.
That should the Suburb F property not be sold by way of auction the parties to list the property for sale by way of private treaty at an agreed price and, failing agreement, as nominated by the agent with conduct of the sale and Order 7 herein to apply to the net proceeds of sale.
That unless specified in these Orders, the parties otherwise retain all other items of property, assets and superannuation in their respective names, possession and/or control whether in Australia or overseas.
That the wife be responsible for and indemnify and keep indemnified the husband from and against all liabilities owing to:
(a)       Mr FF;
(b)       Mr BB;
(c)       Mr AA;
(d)       Mr GG;
(e)       Ms CC & Mr CC;
(f)        Mr EE;
(g)       Mr HH;
(h)       Mr JJ;
(i)        Ms KK;
(j)        Ms LL;
(k)       Ms MM.
That the husband be responsible for and indemnify and keep indemnified the wife from and against all liabilities he asserts are owing to:
(a)The Australian Taxation Office and Australian Government inclusive of but not limited to:
(i)HECS/HELP/Financial Supplement Debt;
(ii)Centrelink;
(iii)Child Support Agency.
(b)       NN Bank inclusive of all credit card liabilities;
(c)       Ms PP;
(d)       Mr QQ;
(e)       Ms RR;
(f)        Health Insurance – Family Health Insurance Debt with SS Insurance;
(g)       Blanchfield Nicholls Partners.
That unless specified in these Orders, the parties are to be responsible for and indemnify the other in respect of all liabilities and claims in their respective names inclusive of taxation and those arising from their property, assets and superannuation as provided for by these Orders, whether in Australia or overseas.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Colak & Viduka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or gramMr EEal errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6669 of 2014

Ms Viduka

Applicant

And

Mr Colak

Respondent

REASONS FOR JUDGMENT

The matter of Viduka & Colak was a property application heard on 1, 2, 3 July 2020, with final submissions on 4 September 2020.
Ms Spain of counsel acted for the applicant wife and the husband was self-represented.
In April 2015 Hague Convention proceedings (“the Hague proceedings”) were brought by the Central Authority after the mother wrongfully removed the children from Croatia in October 2014. Justice Watts heard that application on 23 and 24 July 2015 and delivered judgment on 4 August 2015 and would have ordered the children to return to Croatia under the Hague Convention but he found the threats of self-harm by B, the parties eldest child then aged 13 years, if he was ordered to return were serious and that his life was possibly at risk if he so ordered. He did not order a return as he found B could be exposed to a grave risk of harm in so doing.
Since that time, the children have been denied a relationship with their father, and as at today's date have no relationship with him.
In his Honour's judgment the mother raised serious allegations of domestic violence perpetrated upon her by the father during the relationship, allegations which his Honour found were not credible and he found that the mother was not a witness of truth. The mother continued with these allegations in the property matter.
There were many issues of contest in this hearing and the credibility of the parties’ loomed large as did the witnesses called by the mother.
Going to the parties’ assets.
In Australia the parties' matrimonial property basically consists of a home at Suburb F which has been valued at $1.65 million by Mr Z and that valuation was filed in the proceedings on 23 June 2020.
The wife’s evidence was that the property requires maintenance such as painting, re-plastering due to water damage and a general face lift and Mr Z agreed in his valuation that this was the case.
The wife did not tell the Court at the hearing that the re-plastering was to be undertaken by the TT Company under an insurance claim and this was only revealed in submissions in September.
Otherwise, there is some superannuation for both parties and neither sought a super splitting order.
In Croatia, the husband owned some land which he has transferred to his sister to pay his legal fees and which he has valued based on the equivalent VG valuation to that which operates in Australia at $27,000. The wife asserts it is worth $94,000. There is no formal valuation of this land.
The parties have limited chattels in Australia although there was contention about chattels still in Croatia.
The reality is the asset of real value is the home at Suburb F.
There are significant debts in both parties’ names from family. Initially the wife sought the husband be liable for some of these debts but abandoned that application and, as with the husband, says now that other than the mortgage debt all other debts are the parties’ debts.
The joint balance sheet was as follows.

Ownership		Description		Wife’s value	Husband’s value
ASSETS
1	Joint	T Street, Suburb F – “Suburb F Property”		1,450,000	1,650,000
2	N/A	Asserted Equitable interest in apartment in J Town owned by Mr FF (Wife’s father) – “J Town Property”		NIL	NIL
3	Husband	8.25% interest in AQ Business, Croatia		94,000	38,000
4	Joint	Funds in AK Group Mortgage Redraw Facility as at 01 January 2015		0	0
5	Wife	Funds in Commonwealth Bank Accounts ending …6 and …5		50	0
6	Husband	Funds in AL Bank Account		NK	0
7	Husband	Funds in UU Bank account		NK	0
8	Husband	Funds in ANZ Bank Account		2	2
9	Husband	Funds in WW Bank Account		10	10
10	Husband	Funds in VV Bank Account		10	10
11	Husband	motor vehicle 1		7,500	E2,000
12	Wife	motor vehicle 2		250	E3,000
13	Joint	Contents from the former matrimonial home stored in Croatia		0	E30,000
Total		$1,551,822	$1,723,002
ADDBACKS
14	Joint	Funds jointly withdrawn from parties’ ANZ Bank redraw account in January 2014		0	25,000
15	Joint	Funds unilaterally used by wife from the Offset Mortgage Redraw Account for the Suburb F Property		0	92,187
16	Joint	Rental Income Loss – due to wife unilaterally living in the Suburb F Property		0	112,400
17	Husband	Partial Property settlement as agreed between parties (redrawn from Mortgage Redraw Account)		10,000
18	Wife	Partial Property Settlement as agreed between parties (redrawn from Mortgage Redraw Account)		10,000
Total		$20,000	$229,587
LIABILITIES
19	Joint	Mortgage as at 05 Feb 2020 to XX Corporation secured against T Street, Suburb F		82,426	82,426
20	Husband	AL Bank Mastercard (in name of husband)		0	0
21	Husband	AL Bank Visa credit card (in name of husband)		0	0
22	Husband	AL Bank Visa Gold credit card (in name of husband)		0	0
23	Husband	Loan from Ms PP		0	0
24	Husband	Loan from Mr QQ		0	0
25	Husband	Loan from Ms RR		0	0
26	Husband	Outstanding legal costs due to Blanchfield Nicholls Partners		0	0
27	Joint	Loan from Mr GG		5,000	0
28	Joint	Loan from Mr AA		25,000	0
29	Joint	Loan from Ms CC		1,500
30	Joint	Loan from Mr YY		4,000
31	Wife	Loan from Mr FF		0	0
32	Wife	Loan from Ms CC & Mr CC		46,192	0
33	Wife	Loan from Mr BB (legal fees)		See notes	0
34	Wife	Loan from Mr BB		See notes	0
35	Wife	Loan from Mr JJ		2,616	0
36	Wife	Loan from Mr HH		9,095	0
37	Wife	Loan from Mr EE (Mortgage repayments)		26,118	0
38	Wife	Loan from Mr EE		12,129	0
39	Wife	Loan from Ms KK		6,815	0
40	Wife	Loan from Ms LL		7,793	0
41	Wife	Loan from Ms MM		3,600
42	Husband	HECS liability		0	0
43	Husband	Centrelink – Student Start up Loan (SSL)		0	0
44	Husband	Child Support Agency debt		0	0
45	Husband	SYC2170/2015 – Hague Convention Proceedings		13,000	2,730
46	Husband	Health Insurance – Family Health Insurance Debt with SS Insurance		0	0
Total		$245,284	$85,156
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
47	Wife	ZZ Super Fund	Accumulation Interest	31,958	31,958
48	Husband	AN Super	Accumulation Interest	129,362	129,362
49	Husband	Voluntary Pension – NN Bank	Pension	15,000 (9000 Euro)	8,000
Total		$176,320	$169,320

NETT TOTAL ASSETS (including Superannuation)

$1,502,858

$2,036,753

Chronology

The wife was born in Croatia in 1966, now aged 54.
The husband was born in Australia in 1970, now aged 50.
The parties commenced cohabitation in Australia in May 1998.
In December 1998, the parties purchased the Suburb F property.
In 1999, the parties married in Sydney.
In 2001, B was born, now aged 19.
In 2003, C was born, now aged 17.
The husband was unemployed for five months in 2005 and retrained.
On 15 January 2006, the husband returned to Croatia to commence a job with G Ltd in City D.
On 12 March 2006, the wife and children returned to Croatia to live, residing at the wife’s father’s home.
In March 2007, the parties secured rental accommodation in City D.
On 9 June 2011, the wife and children returned to Australia for three months.
At the end of September 2011, the husband’s employment on a project was suspended.
From September 2011 to July 2012, the husband worked as a consultant to AD Company. The wife does not accept he was employed until July 2012 when he commenced work in Country E.
On 8 October 2011, C had a bad accident after falling off her bicycle, damaging her teeth. There is a dispute as to where the money for C’s treatment came from.
In July 2012, the husband commenced work in Country E.
The husband asserts his employment in Country E concluded in June 2013.
Between July 2013 to May 2014 the husband was unemployed.
The wife asserts the parties separated on a final basis in September 2013 and the husband departed the City D apartment and resided in J Town.
The husband asserts he asked the wife for a divorce in 2014 and contends this is the date of separation.
On 20 October 2014, the wife abducted the children and returned to Australia, taking money from the husband’s bank account.
In December 2014, the wife and children moved into the Suburb F property.
On 22 December 2014, the wife commenced proceedings in the Family Court.
In February 2015, the wife enrolled in a course to obtain a Certificate.
In April 2015, the husband commenced Hague proceedings for the return of the children to Croatia. The application is unsuccessful although the Court found the wife wrongfully removed the children from Croatia, and there would be a grave risk of exposure to harm to B if he was ordered to return.
The parties divorced in 2015.
On 7 December 2016, the husband returned to Australia and resided in Melbourne.
On 31 May 2018, both parties drew down on the mortgage and received $10,000 each.
The final hearing commenced on 1 July 2020 for three days, and final submissions were heard on 4 September 2020.

Material read

For the wife:
a)Affidavit of the wife filed 5 June 2020 with exhibits;
b)Financial Statement of the wife filed 5 June 2020;
c)Affidavit of Mr BB filed 5 June 2020;
d)Affidavit of Mr FF filed 5 June 2020;
e)Affidavit of Mr EE filed 5 June 2020;
f)Affidavit of Mr GG filed 5 June 2020;
g)Affidavit of Ms CC filed 5 June 2020;
h)Affidavit of Mr AA filed 22 June 2020;
i)Affidavit of Mr Z (Single Expert Valuer) filed 23 June 2020;
j)Case Outline on behalf of the wife.
For the husband
a)Response to Initiating Application of the husband filed 16 January;
b)Two affidavits of the husband filed 9 June 2020 with exhibits;
c)Financial Statement of the husband filed 9 June 2020;
d)Affidavit of Mr Z (Single Expert Valuer) filed 23 June 2020;
e)Case outline of the husband.
There were two exhibits as follows:
a)Husband’s exhibit 1: Bundle of disclosure documents called by the husband; and
b)Husband’s exhibit 2: Second bundle of documents the husband called for.
The husband and wife were cross examined as were the following witness for the wife:
a)Mr EE;
b)Ms CC;
c)Mr GG;
d)Mr BB;
e)Mr FF.

Parties’ evidence

A significant argument of the wife, supported by her witnesses, was her assertion that the husband was unemployed throughout the relationship on multiple occasions and for lengthy periods. That he struggled to maintain employment, and has not supported the family to the best of his ability, both during the relationship as well as post separation and that her family has supported her and the children.
As the evidence unfolded, the wife’s assertions were incorrect in relation to the period of the relationship. Matters did change post separation.
The husband was working, as was the wife, when they met in Australia and both were working in 1998 when they commenced cohabitation. The husband was working full time as was the wife.
The parties had a similar asset base when they met, however the husband had a tax debt of $29,000 and the wife had some $45,000 and no debts. Thus the wife had a superior assets base at the date of cohabitation.
The parties purchased the Suburb F property in December 1998. They could not have borrowed $300,000 as they did unless they were both working. They purchased the property for $450,000 with a mortgage of $300,000.
The remaining $150,000 came from gifts given to them by family members at their wedding in Sydney and their savings. The wife asserts her family gifted $45,000 and $10,000 was gifted from the husband’s family.
The husband agrees with the money the wife’s family gifted them however says his family gifted $55,000.
In May 2004 the husband commenced working for AM Pty Ltd and relocated to Melbourne to maintain that employment as his employers moved to Melbourne in 2005. That job ceased in 2005.
The husband commenced a course of study to further improve his employment prospects, which was successful. He studied from May 2005 to December 2005 and a mere month later he obtained a job with G Ltd in City D. His family came to join him three months later in March 2006. I accept his evidence that when they moved to Croatia they liquidated cars etcetera and had some $33,000 to take to their new home.
The wife says the husband lost his job with G Ltd and obtained employment on a project in City D in July 2010. His job with G Ltd may have ceased, but he obtained new employment forthwith. The husband had been continuously employed from May 1998 until 18 June 2011 save for six months in 2005 where he engaged in further study, a period of 12 years.
The wife says he was also unemployed for 12 months in Croatia from about September 2011 to July 2012. The husband’s case was that he had employment as a consultant to AD Company and was earning income from that consultancy. The wife may be correct in that he was not employed by a company during that period of time however as the evidence unfolded, and for the reasons that follow, I prefer the husband’s evidence to that of the wife in this matter and I accept he was employed as a consultant during this period and earning an income.
I accept that from June 2013 to May 2014 he was unemployed, a period just under 12 months. He was asked to return to his prior position in Country E in May 2014, and he did so and remained employed until September 2015.

Therefore the husband’s unemployment was for a period of 17 to 18 months during the relationship and not the 24 months the wife asserted.
It was late 2014 that the wife determined to live in Australia with the children and she then removed the children unlawfully from Croatia. The father followed them and he has struggled to obtain employment since that time.
Further, the wife has remained living in the parties' property in Suburb F since she returned to Australia in 2014 for six years, thus depriving the husband of access to his capital. Living in that property, using the drawdown facility to pay the mortgage on the property, which she and the children lived in, is clearly a support by the husband of his family.
In June 2014 the parties had virtually $100,000 credit in a drawdown facility secured over their mortgage at the Suburb F property and a very small mortgage, some $70,000. They were in a very good financial position.
During the relationship the wife has worked, however she has fulfilled the role of primary parent and homemaker and the husband had earned the higher income, having to travel and be away from the family to do so at times. The parties could not have been in this excellent financial position if the husband was not working and putting his income into the support of his family as he says he did. The small mortgage and healthy drawdown facility are inconsistent with the wife’s tale.
The husband says the property is to be sold and the wife should receive 55 per cent of the net proceeds. The wife says she should receive 65 per cent of the net proceeds. This is only a 10 per cent difference. Up until the trial the wife had sought to retain the home and she has now abandoned that application.
There are arguments about property and goods and chattels left in City D. I will do the best I can on this vexed issue for the parties given the parlous state of the evidence of the value of these chattels and where they are situated, together with the lack of valuation of the real estate in Croatia.
The wife has significant debts and loans from her family.
The husband is concerned she has used matrimonial assets such as the redraw facility to pay her legal fees. Further, that she has used the sham of borrowings from her family to minimise his support of his family and hide her use of matrimonial funds to pay her legal fees etcetera. The husband asserts the wife paid her legal fees from her income, and/or mortgage drawdowns. The wife claims this is incorrect and all money used to pay legal fees came from her income or her family.
The wife has paid significant fees as is evident from the husband's tender bundle commencing at page 570.
The wife paid $2,000 on 13 January 2020, $14,000 from 24 January 2020 to 1 April 2020, and $40,000 from 29 March 2018 to 28 February 2019 in legal fees all in her name, a total of $56,000.
The husband’s position is incorrect on the evidence for the following.
First, the wife is entitled to pay her legal fees from her post-separation income.
Secondly, although the wife did not make any mortgage payments and merely used up the credit in the drawdown facility, that drawdown facility was in part her money also.
Further, and more importantly, since returning to Australia with the children in 2014 the husband has paid $8,827.42 in child support being approximately $1,500 per year over 6 years, clearly an insufficient sum to provide for the needs of the children day to day. The wife earned a modest income of $40,456 last financial year and her income may have peaked at $60,000 on some occasions. There were two children to provide for and her income would not have been sufficient to support herself and her children and pay rates, electricity etcetera for the home. The wife has paid $165,000 in legal fees for the Hague proceedings and significant money for these proceedings. Even though the wife did not have to pay the mortgage on the home for many years, she did not earn sufficient income to support herself and the children let alone pay legal fees, and thus it is clear her family has supported her and the children at times post separation.
Any money paid for legal fees sourced as loans from her family are the wife’s debts and the wife has accepted this position.
It is clear that the wife has used the $100,000 that was in advance on the mortgage to fund payment of the mortgage while she, I accept, supported the children in Australia from her income with very little support from the husband day-to-day.
Thus the lengthy cross examination of the wife by the husband of who actually paid money for the wife’s legal fees was misdirected and not relevant at the end of the day as she does not seek to saddle the husband with any of these family loans.
Unfortunately the wife’s family, who I accept have been generous in their support of the wife and children, supported the wife’s erroneous view that the husband did not work or support his family.
Mills Oakley dealt with the matter in the Hague proceedings for the wife. It is clear that the wife’s brother, Mr BB, and her father, Mr FF, paid significant money to the wife for her Hague proceedings on her behalf, totalling some $166,288.
The wife made much of the husband asserting that he had a car worth some $55,000 at the commencement of the relationship and that he has lied to her and was not a witness of truth. The husband had a motor vehicle 2, which was subject to a hire purchase finance agreement dated 15 August 1996 with AC Limited. The wife said that he still owed $49,000 on this motor vehicle 2 in 2001, was often behind in payments, that he had missed payments and there were letters and the notice of intention to repossess dated 6 February 2001.
A document appears at page 7 of the wife's tender bundle, exhibit “V1”, on this issue and it is a letter dated 6 February 2001 from AC Limited to the husband as follows:
TAKE NOTICE that AC Limited, the owner of motor vehicle 2…intends to retake possession of the goods after the expiration of 7 days from service of this notice…unless the arrears of instalments which now amount to $279.89 are paid…
The total amount payable on the original hire purchase agreement was $53,504. The husband had by this date, 6 February 2001, paid $49,873.71 in payments, had arrears of $279.89 and owed about $4,000 on the car.
The wife read that document to mean he still owed $49,000 on the car when the document is stating he had paid this sum, not that it was to be paid.
Although the wife was wrong in her reading of this letter, she did not resile from her position under cross examination.
Further, she had relied upon this letter to support her argument that the husband continued to not be able to pay his debts or support her and the children during the marriage when on this evidence he clearly was earning money and paying his debts.
The husband agreed that he had a tax debt, some $29,000, at cohabitation.
The husband does not dispute that the wife had money in the bank, some $30,000, at cohabitation and a car, however does not accept she had an additional $15,000. I accept that she had this additional money. It is consistent with her careful attitude to money that she would have been an excellent saver.
The wife did not agree that the husband had $15,000 at cohabitation but she agrees he had a block of land in Croatia. I find he had $15,000 in cash however with a tax debt of $29,000 he was in a negative liquid cash position of $14,000 which is in contrast to the wife’s cash position of $45,000 and no debt.
The wife asserts that the husband was disinterested in the children. I do not accept this is correct. The father was working full-time and supporting the family. He was working on big jobs in the construction industry, as a manager for large construction sites. He did what all parents who work do: care for their children as best they can when they return from home.
The wife worked and earned the best income she could, no doubt, but she was clearly the children's primary carer and parent.
The wife complained in 2002 that the husband lost his job with AR Company and did not obtain employment until December 2002. The period he was without work was about one month.
I reject the wife's assertion that at all times the husband was not able to meet the payments for his family and that is why they went back to Croatia. He went back to Croatia as he obtained a job in that country and they returned there as a family, retaining their home in Suburb F and renting it out.
I accept both sides of the family gave their children at their respective christenings substantial sums of money. Money given to the children was their money, not the parents' money.
The wife’s credibility is an issue given she complained in her affidavit filed 5 June 2020 that up to 2003 they had no money, the husband could not support his family and they returned to Croatia for family support yet says at paragraph 34:
In mid 2003[my father-in-law passed away]. We withdrew $5,000.00 from our mortgage…
They clearly had a capacity to draw down from their mortgage and could only have done so if they had surplus funds in an offset or similar account, as they did in 2014 when the wife came to Australia with the children. These are the reasons I prefer the husband’s evidence in relation to his employment than that of the wife.
There is no doubt that the husband moved around for work, working in Melbourne for a period of time, for example. This is not evidence of not being employed, rather of differing employers and moving around for work. The wife maintained it was not a mutual agreement to move back to Croatia, and that she did not agree with moving to Melbourne however she did move and this evidence does not support her argument that the husband did not work during the relationship when it is clear he did. I accept the wife may not have been happy with these events however, they happened.
The wife complained that when the parties went to Croatia in 2006 for the husband's job, they obtained rental accommodation in City D which was inappropriate. The apartment was “basic and sparse” and that during this period “Mr Colak was spending approximately $4,000.00 per month on himself and contributing $2,000.00 per month which went toward the rent and electricity.”[1] Further, the wife said all other expenses were paid from her income, or gifts and loans from the family. I accept that the wife was working as a babysitter, ironing and a housemaid. I do not doubt her parents gave her gifts. They are generous people and this continues.
[1] Affidavit of the wife filed 5 June 2020 paragraph 48.
When the wife was pressed on how she knew the husband spent $4,000 a month on himself, she said:
It’s on [the husband’s] bank statements. I don’t have the authority to get them.
The wife said in her affidavit at paragraph 50:
In August 2007, I ascertained that $13,500.00 was owing in Australia in respect of Mr Colak's HECS/taxation liability as well as joint taxation payable as a result of the Suburb F property [being rented]...There wasn't enough money in the Australian account and as a result, the sum of $5,000 was sent from our wages and gifts from family in Croatia in order to pay this.
HECS debts did not have to be paid upfront and at that time could be paid off. This evidence tells me the parties had $8,500 in their account in August 2007, accumulated savings from income earned by the husband and wife during their marriage and excess of rental over expenses. The husband denies the wife’s position and said in his oral evidence that he was spending $2,000 per month on himself living away from his family and providing $4,000 per month to his family. This has the ring of truth and is the evidence I prefer.
The husband received $18,000 on 18 June 2011 when an employment contract was terminated. The wife asserts he did not put that money into an account to which she could have access and further said “we did not have a joint account.” However, they did have a joint account in Australia with the ANZ Bank.
The husband had three bank accounts in Croatia and one in Country E, and the wife had three accounts in Croatia.
The husband’s evidence was that individuals cannot have a joint account in Croatia but can provide another with access to their account via a power of attorney, which the wife had over his accounts and a debit-like card which he said the wife had in relation to his accounts. In 2011 the wife said she had no money, her husband was not working and she had to borrow money from friends and family.
However, there were funds in bank accounts under the husband’s name in 2011 and at other periods of time in Croatia. I reject her evidence on this issue as the wife removed from the husband’s accounts the following money:
a)On 5 September 2014, 900 Euro;
b)On 12 September 2014, 400 Euro; and
c)On 7 October 2014, 1,530 Euro.[2]
[2] Affidavit of the wife filed 5 June 2020 paragraph 69.
The wife was entitled to withdraw this money and I accept she used it to support her family. I highlight this evidence as it lays to rest her erroneous assertions that in October 2014 they had no money, that he was not working and she had no access to his bank accounts.
Again, in paragraph 71, 72 and 73 of her affidavit filed 5 June 2020 the wife refers to accessing the husband's ANZ account to re-credit payments made on their behalf by their friend, Ms AF, who looked after the Suburb F property for them when they were in Croatia. This evidence is inconsistent with her prior evidence that in some way the husband kept all his funds and gave her nothing. Clearly, she was able to access bank accounts in his name, clearly able to deal with the property, clearly a part of their financial dealing, as was he.
It is surprising that the parties could have a redraw facility of $100,000 on their loan in 2014 and a mortgage of only approximately $70,000, reduced from the original borrowing of $300,000 in 1998 16 years prior, if the husband was not earning money and using his income to pay the mortgage down. I accept the property was rented for periods of time when they were not in Australia, but that alone would not have reduced a loan of $300,000 taken out in 1998 to some $70,000 by 2014 and I note that interest rates were high and fluctuating during this period of time. The parties were in a sound financial position in 2014.
It is clear that the parties were saving hard to pay off the Suburb F mortgage. They were using the rent from the property to pay it, as well as income, and there may not have been much money to spend on luxury items, and I accept the wife’s evidence that her parents did assist her at times with expenses. However I do not accept her evidence that the husband did not work or support his family. In light of these inconsistencies, unless there is objective evidence to support what the wife says in matters of finances, I reject her evidence when it is contested by the husband.
C had a bad fall in 2011 and required dental work on her teeth. The husband said that he paid money to have the child's teeth repaired in Croatia. The wife said it came from friends. The money may have initially come from friends however it was repaid to these friends, Mr AG and Mr AH, from the husband's Croatian bank account by the wife. This was an account the wife initially said she could not access however she did access the account and did so just prior to leaving Croatia in 2014.
I accept this dental work had to be done and that this money was properly repaid to these people.
The wife's evidence at paragraph 66 of her trial affidavit was that her husband pleaded with her “I need money to find a job, I need to travel to interviews” in January 2014. $25,000 was withdrawn from mortgage, and the wife said the husband spent it travelling. The wife seeks I find this sum is an add-back.
This is denied by the husband.
The husband’s evidence was that he assisted the wife’s father by doing some renovation work on units he owned in J Town and AP City in 2014. The husband said he did much more work than his father-in-law said he did. The husband asserted his father-in-law intended to gift the property to them in exchange for his work on the unit. This was denied by the wife’s father.
The husband said he used the bulk of this money to buy materials and white goods etcetera for the renovation of the unit in J Town.
The wife’s father would only agree that the husband helped him do the work in the units that were renovated, not the un-renovated units. When questioned:
What did I [the husband] do to help?
Answer:
Just a bit of help…nothing serious
He was asked:
Level 3, is the apartment renovated?
Answer:
Yes.
Question:
Did I help you with that?
Answer:
No, I was dealing with that.
Question:
Is apartment 3 different to 1 and 2?
Answer:
It is different because it’s under the attic roof…the square metres are different.
Question:
Are the colours different?
Answer:
Maybe a bit.
Question:
Was it more modern?
Answer:
Yes, every level is a bit different.
The husband put to his father-in-law:
In 2013, didn’t I knock out brick walls on the third level?
Answer:
No, that was me.
Question:
Did I change windows on level 3…install the stud walls?
Answer:
No, that was a tradesperson.
Question:
Did I design level 3?
Answer:
No, there were plans before.
Question:
Who did the design?
Answer:
An architect in AP City.
Question:
Did I manage the services installation [for example, finding plumbers, electricians]?
Answer:
No, it was me who found the people.
Question:
Where did the material come from?
Answer:
It came from AP City.
The maternal grandfather said at paragraph 24 of his affidavit:
…Mr Colak assisted with some minor works to the property. I paid for all of this and deny that Mr Colak ever contributed towards this.
At paragraph 23:
Mr Colak lived in my house in J Town by himself and I met payment of all the expenses and outgoings. I attended the property in J Town multiple times whilst he was there and found that if I arrived late in the morning, he was still sleeping. In addition, the house was in a mess. On one occasion when I arrived after Mr Colak had obtained a job in Country E, the house was in such a mess, especially the kitchen and dining room, that I became upset and called my son Mr BB to come and see it.
The maternal grandfather said he witnessed the husband’s rage. The grandfather said he gave his son-in-law money to buy materials. He would not make one admission and I do not accept his evidence of this issue and the husband gave detailed evidence of the nature of these properties indicating he had worked with his father-in-law at times. He was, understandably, 100 per cent supporting his daughter.
I find that the husband worked on these properties and he has made a contribution, albeit small, to his father-in-law’s wealth. I reject the husband’s case that he and his wife have any beneficial interest in the J Town unit, however.
I prefer the husband's evidence on this issue to that of the wife. He did not spend $25,000 on himself travelling. He put that into the renovation of a unit which he believed, perhaps incorrectly, was going to be his and the wife's and had been gifted to them by her father. There is no doubt he worked on that property. Her father said so. Further, they had the financial capacity to draw down $25,000 which is again inconsistent with the wife’s evidence of having no money.
The husband did support his family during the relationship despite the wife's claims he did not.
Post separation is a different issue. The husband was in arrears of child support, which he paid in May 2020, in the sum of $8,827 and since he returned to Australia he has struggled to find work. The consequences of the wife removing the children from Croatia to Australia has had a negative impact on the husband at many levels and he is now re-training for alternate employment to that which he previously had in the building industry.
The wife asserts that she should get credit as she has paid the Suburb F rates and insurance alone since 2014. I accept she has done this. However she has lived in the home to the exclusion of the husband for six years and the husband has paid the mortgage on the home as has she by the use of the $100,000 draw down facility in existence at the time she commenced occupation of the home and those costs will not be credited to her.

The wife obtained a moratorium on mortgage repayments for six months due to COVID-19. The wife says from about July 2015 until December 2018 the mortgage was paid from the offset account. Between January 2019 and April 2020 the mortgage was met by way of loan from her cousin, Mr EE. This payment of the mortgage is a contribution by her to the property.
At paragraph 94 of her trial affidavit the wife says:
I chose to stay in the former matrimonial home in circumstances where the minimum mortgage repayments were approximately $850 a month, which is less than the amount payable for a suitable rental property.
I accept this evidence.
The wife set out, at paragraph 96 of her affidavit, a table of funds which she says demonstrates the loans from her family and others supported by affidavits and oral testimony.
In December 1998 the wife received significant gifts from her family, $55,000 towards the purchase of the Suburb F property. I accept this evidence as I accept the husband’s evidence of monetary gifts from his family of around $45,000. The giving of cash at a wedding is a tradition in their culture.
There was a loan agreement between the wife and her brother Mr AA of $25,000. That loan was supported by a loan agreement, annexed to the wife’s affidavit and marked “T”, and I accept this is a loan which the wife must repay.
I accept the husband did not have any knowledge of this loan but it does exist. I accept that the wife’s family have assisted her in paying the mortgage which is a contribution to the home and the husband made a similar concession.
I accept that C's dental work in Australia of $22,688 was paid by her aunt and uncle, Ms CC and Mr CC, page 57 of the wife's tender bundle, however Mr CC’s evidence was that she paid this money to the wife for C’s dental work from money the wife’s father advanced to her. Whatever the fact, this is a contribution by the wife to the welfare of the family.
Otherwise, the remaining loans the wife asserts the husband also had responsibility for were taken out without his knowledge. If I accept what the wife says she spent these advances on then she has made a greater contribution to the home and family post separation than has the husband.
Mr BB, the wife’s brother, filed an affidavit on 5 June 2020 and gave evidence. He was a bank manager and the husband said he was their bank manager in Croatia. He has provided significant funds to his sister: moneys given in cash when parties came to Australia; moneys transferred through other parties’ accounts to be paid to the wife, or to the wife directly or through her daughter’s account, for example, for C’s teeth. Nothing was ever done directly, it seems.
He was asked:
You don’t have a very good opinion of the [the husband] do you?
Answer:
No.
Question:
How did you find out…the true extent of [the husband’s] unemployment after separation?
Answer:
I asked my sister.
Well, your sister’s a liar.
It was clear that he was the husband’s bank manager, and I accept he transacted credit cards, loans and other things for the husband and was well aware of their financial position.
The wife’s father Mr FF filed an affidavit on 5 June 2020 and gave evidence that:
I gifted $15,000 for the house…No one asked for it.
It was a gift to his daughter. It was a contribution by the father to his daughter on her wedding day. He gave money for his grandson and granddaughter’s birth. The money that the wife’s father gave to the parties was for their house, for them to spend as they want.
The affidavit of Mr AA, the wife’s brother who was unable to give evidence was admitted uncontested.
He asserts between September 2011 and September 2014 he loaned the parties the sum of €17,000, which is equivalent to approximately $25,000, in cash. He said his father would contact him to tell him what the parties had said and would provide them with funds. The husband denies he ever entered into a loan agreement or knew of its existence and I accept his evidence on this. However, Mr AA has provided money to his sister.
It is clear the parties’ families have supported them and paid significant sums for their wedding. I accept the husband received $15,000 for stamp duty on the property from his family and that the wife’s aunt also paid them this sum for that purpose. However she has been repaid $10,000 which may have come from the money the husband’s family advanced him. The husband’s father was never re-paid. I accept this evidence of advancement from both the husband and wife’s families.
These people have very generous families and they have supported them and there is a contribution to the children and assets of these parties from their families. The wife’s family have been exceedingly generous with her, and their support post separation to the children and the wife has been significant given the husband’s inability to pay for the day-to-day expenses for his children since 2014.
The husband said he paid the wife’s parents’ rent in Croatia. I reject that evidence and it is inconsistent with their generosity to the family.
The husband said:
We had $33,000 in pockets going to Croatia. I had sold my car and we had drawn down on the mortgage…We were financially independent.
That evidence has the ring of truth and I accept it, and not the wife’s assertion they went to Croatia because they were penniless.
In relation to the wife’s assertion that the husband retained a redundancy of $18,000 he received, the husband said:
It went into my bank account. [The wife] had a duplicate card to that account….you couldn’t have a joint account in Croatia.
I accept his evidence.
The husband said, in answer to the wife’s assertion that he was spending 4,500 Euro a month on himself and only providing the family with 2,500 Euro when he was initially working in Country E in July 2012, that the reverse was true, and I accept this evidence. It is consistent with the person that the husband is. He came home on the weekends and worked during the week. He worked on the project from November 2012 to June 2013 and he agrees he did not work then again until May 2014. The husband conceded matters against his credit.
The husband was asked whether Mr AA lent them money during this period of time, namely June 2013 to May 2014. This was a long time to be without work with a young family to support. The husband did not agree, saying they had sufficient money in the bank. I do not accept this answer for the following.
The husband had been working as a consultant for 12 months from 2011 to 2012 and not employed by an independent company. I am not clear what his income was and no evidence was provided to me of the husband’s income. The parties may have used savings to provide for their needs during this time.
Further, in the absence of documentary evidence to support the parties’ having sufficient funds to support themselves for 12 months I do not accept that they were able also to do.
I accept between June 2013 to May 2014 the wife’s family assisted the parties to provide for themselves and their children.
The wife asserted that the husband agreed to pay her costs of $13,000 for his failed appeal in the Hague matter. The husband disagreed and the basis of the wife’s belief was wrong for the following.
The wife relied upon a letter of settlement dated 3 November 2016, page 624 of the husband’s tender bundle, which said he was “prepared to pay to [the wife] the sum of $13,000 in full and final satisfaction of the costs order made by the Full Court…[and] this offer will remain open for a period of seven days.”
This offer was not responded to until 13 December 2016, five weeks later. Clearly, the offer of 3 November 2016 was off the table after 5 weeks. I will make a finding that, from the husband’s share of the property, he is to pay the wife’s costs of the appeal at $10,000 and I reject any assertion there was an agreement as to the quantum of costs he was to pay.
The husband said:
When the wife and children moved back into Suburb F, [when the wife removed the children wrongfully from Croatia], I wanted to make sure the children had a roof over their heads.
That has been the case for six years.
The husband said he continued to work in Croatia whilst the Hague proceedings were on and after the wife left. He was earning €2,000 per month, which equates to about $4,000 Australian a week. He said he kept the rent on the apartment up for one year and three months because he thought his family might return to Croatia after the Hague Convention proceedings.
The wife’s case that the husband did not support his family during the relationship is flawed. Parties cannot achieve an offset account with $100,000 and a mortgage of $70,000 having been reduced from an initial $300,000 in 16 years whilst also living and supporting yourself and two children in another country without significant income being earnt and applied to these necessary expenses.
The wife asks me to accept that the parties were able to reduce their debt significantly and have this redraw facility available because they were living off the largess of her family. That would have been an unconscionable act by the wife given all her family’s position that they had to support the wife because the husband was not working and providing for his family, a position I have rejected.
The husband, making the appropriate concessions, said “I don’t dispute the wife’s family paid for many things for her after separation.”
In relation to the husband’s land in Croatia.
The husband said he has gifted the land to his sister because she had paid legal fees on his behalf for the Hague proceedings. There is no doubt she had paid legal fees on his behalf for him in the Hague proceedings, as well as latterly, and that comes out in his exhibits at “Appendix S” being ANZ Bank account statements showing amounts such as $450, $800, $200 as transfers from his sister, Ms PP.
However, he gave away an asset in his name worth $27,000 and as neither party pays the other’s legal fees that must be notionally added back to the pool.
The husband certainly paid out a credit card for an overseas account in the sum of $3,500 in 2018. He said he used his overseas credit cards whilst in Australia, after returning here in 2016 as it was the only way he could live, as he was not working.
The wife asserted he was sending money overseas, money that he should have used to support the family. He did do this and he sent part of his interim property settlement overseas to pay out a credit card. In June 2018 he sent $8,182 overseas, being part of the $10,000 he received from the interim property distribution and then drew down and used that credit card in Australia to live. The wife was in error in her assertion the husband was hiding money overseas.
At “Appendix X” of his material the husband sets out the legal fees he says his sister paid on his behalf. This is now no longer an issue as I have included his land in Croatia in the pool for division.
At page 338 of his material, the husband sets out the moneys his family provided to him to assist him to live when he returned to Australia. His brother has lent him $86,000, his sister, $62,000, his mother, $15,000. Extraordinary sums of money from family members, similarly as the wife was lent by her family, all for the Hague proceedings and all incurred due to the wrongful removal of the children by the wife.
There was much made by the wife concerning the husband’s failure to disclose. I agree the husband was tardy in this regard and often combative in answer to questions concerning his financial position and generally.
He was asked whether he had any passports and in answer, annexed to the wife’s affidavit at page 319, wrote “Irrelevant.” This attitude was not helpful.
He was asked whether he had copies of his past employment contracts. He answered that the wife had them all. This cannot be possible as the wife did not take his documents when she left Croatia. He would have had his documents in the apartment he maintained for 15 months hoping his children would be returned.
Although this attitude did not assist the husband I am satisfied that the parties have no money or assets other than that which they have disclosed. The Hague proceedings, both financially and emotionally, have taken a heavy toll on each of them.
Neither of the parties have any money of any significance, and the husband has not worked since returning to Australia in 2016. They have paid, between them, well over $350,000 in legal costs in the main from funds borrowed from family. It is clear to me you cannot also have money in the bank or squirreled away elsewhere when you are not working, or working for a modest wage as does the wife.
Much was made of Croatia pension the husband receives yet the evidence was it was $90 a month. I accept the father returned to Croatia in 2017 as authorities were exhuming the body of a baby sister who had died tragically and this was a very emotional time for the husband.
I accept the husband was paying off a health care debt in respect of the children left over after the wife left for Australia in 2014.

Current position of the parties regarding the Home

The husband said he does not want the home sold until after his daughter has finished her HSC. That he needs 42 days to get the house on the market. That he should complete as much work as he can on the home to maximise its sale price and minimise costs. That he will pay for these costs and will come to Sydney and oversee all work on the home including, for example, any work that he cannot do such as electrical work. The home does need repair or renovation for rising damp etcetera and Mr Z’s valuation report attests to that necessity. The husband said he will move to Sydney and that the wife and children will move out to allow him to get the home in the best possible condition prior to its sale. The husband is agreeable to a timetable to complete the work and have the home on the market for sale.
There is a practical reality to his proposal. The husband has knowledge of the building industry and what is required to bring the home up to standard. The home has physically deteriorated whilst the wife has been in occupation, including being tardy in having repairs carried out when a ceiling collapsed due to water damage which was covered by insurance. The wife has little personal capacity in this regard and the husband has the capacity and is “rearing to go”, so to speak.
On the evidence I have formed the view that the husband’s position of occupying the home to the exclusion of the wife and children to prepare it for sale, although enticing at first blush, will on the facts of this matter have the potential to cause further litigation and delay the sale yet again.
Although the husband’s position may be the best chance the parties have to maximise their sale price, as the wife is opposed to this approach it will not work. This is despite the view I have formed that the parties need every dollar they can achieve from the sale of their home to secure their future.
The wife said she needed to spend $70,000 to get the home into a fit state but had little to support her costing. The husband did not agree and believed he could have the home re-furbished for less than $40,000 by doing the following work himself: repaint walls and the skirting board; deal with and fix up rising damp evident in certain walls from Mr Z’s report; silicone areas of the roof which he identified as being the cause of the leak into the internal ceiling above the staircase; clean and generally tidy up the home after the renovation work has been carried out.
I will allow the wife $50,000 to renovate the home which must be completed within 42 days of these orders. The husband will reimburse the wife one half of the costs expended in this endeavour from his entitlement to the sale proceeds. The wife must produce receipts for payment of these costs to verify the payments made. Upon that verification being provided 14 days after the home is placed on the market for sale, the husband’s entitlement to the sale proceeds shall be reduced by 50% of the costs incurred by the wife up to $50,000.
The home will be sold by way of auction.
I will give the wife 42 days to renovate the home and then a further two weeks to have it placed on the market for sale by way of public auction.

The matrimonial pool

The home is worth $1,650,000.
The land transferred to his sister worth $27,000 is to be included in the pool.
I will not include monies in either parties’ bank accounts in the pool as it has been many years since separation and these funds are their funds.
The husband’s car is worth $2,000, the wife’s, $3,000 and I will not include those items in the matrimonial pool either.
I will not include the contents stored in Croatia. I have no idea of their value and both parties tell me they cannot access these goods for reasons I do not understand. After six years these items would be of minimal value.
Each drew down $10,000 by way of an interim property distribution and this has been expended and I will not add that back to the pool.
I do not accept the $25,000 drawn down on the mortgage in Croatia was spent by the husband as the wife asserts, rather it was used to assist in renovation to one of her father’s units which may have been a fair price for rent free accommodation.
I will have regard to the use of these monies in my determination.
I will not add back the funds drawn down by the wife in relation to utilising the $100,000 line of credit to pay the mortgage whilst she and the children occupied the home.
Part of that facility was the wife’s money. The husband’s entitlement to that facility was expended in payment of the mortgage and I will regard that as a contribution by him to the welfare of the family. I will have regard to the use of these monies in my determination.
It is fallacious for the husband to assert that I should calculate the loss of rental from the Suburb F property due to the wife’s occupation of the home and include that as an addback for the following.
If she had not lived in the home she would have had to rent and, as she asserted and I accept, that the mortgage payment was less than rent she would have paid.
If I adopted the husband’s approach I would need to calculate the financial costs to the wife in having received virtually no child support for six years and her sole financial support of the children day to day.
Finally, and mercifully, property proceedings are not accounting exercises. I will take into account in my deliberations the wife’s sole occupation of the home and that the husband paid minimal day to day child support.

Assets for Division

The assets for division are $1,702,000.
The mortgage is $82,426.
The net matrimonial pool for distribution is $1,619,574.
The husband has superannuation of $129,362 and a Croatian pension providing him with $90 a month.
The wife has superannuation of $31,958.
Neither seek a super splitting order.
I will have regard to these monies in my determination.

The Law

It is just and equitable and appropriate having regard to the principles enunciated in Stanford v Stanford (2012) 247 CLR 108 and Bevan & Bevan (2014) FLC 93-572, that I embark upon a division of the parties’ property pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).
Following the well-known principles enunciated in Ferraro & Ferraro (1993) FLC 92-335, Pierce & Pierce (1999) FLC 92-844 and Coghlan & Coghlan (2005) FLC 93-220 I must engage in, being the four stage approach which is to:
i)Identify the matrimonial pool and its value;
ii)Assess the parties’ contribution based entitlement expressed as a percentage for their past contribution to their property both directly of a financial nature, indirectly by energy, effort and/or third party contribution and as parent and homemaker;
iii)Determine whether there ought to be a further adjustment to either party’s contribution based entitlement for their past contribution having regard to their future needs;
iv)Look back at the orders proposed to be made and determine if they result in a just and equitable division of the parties’ assets.

It was necessary, and to do justice between the parties, to embark upon an assessment of the division of their assets. The orders I propose to make acknowledge each parties’ contribution to their assets during the marriage having regard to the matters under section 79 and 75(2) of the Act.

Determination

The husband says the wife is entitled to 55 per cent of the net proceeds and he 45 per cent.
The wife says 65 per cent to her and 35 per cent to the husband.
The wife was in a superior financial position to the husband at the commencement of cohabitation with cash of $45,000. The husband had negative $14,000 due to a tax debt which was paid post the relationship in the amount of $29,000.
The parties’ families generously provided them money which assisted them to purchase their first and only home in Suburb F. There is no doubt that the husband’s work during the marriage, in Australia and Croatia, assisted these parties to have a mortgage of only some $70,000 in 2014 from an initial borrowing of $300,000 in 1998, together with $100,000 draw-down facility. This is a significant effort by each of them during their marriage.
The wife was clearly the primary parent and homemaker and cared for the children solely at times in Australia when the husband was working in Melbourne and Croatia and when he worked in Country E. Additionally, the wife’s parents provided a home for the husband to live in, being a unit which I accept the husband assisted in renovating whilst in Croatia.
The wife’s parents assisted the parties financially in Croatia, perhaps in 2011 when the husband was working as a consultant but particularly for the period July 2013 to May 2014 when the husband was unemployed.
I find the wife has, on these facts, made a superior financial contribution to that of the husband during the relationship and asses her entitlement at 52.5 per cent.

Post-separation contributions

Post-separation, the contribution based entitlement has varied markedly. The wife’s family have supported her and the children, of that there is no doubt, both in paying the mortgage and for day to day expenses the wife could not meet.
However, the husband has supported the wife and children by the use of his share of the draw-down facility and that he did pay $8,800 in arrears of child support in May 2020.
The wife, however, has made the overwhelming financial and emotional contribution to the children post separation supported by her family and her own work.
The situation of these parties having expended in excess of $350,000 in legal fees being, it would seem, from moneys borrowed from family is directly related to the wife’s actions in wrongfully removing the children from Croatia. That was a very poor decision by her, which has resulted in the children spending no time with their father and, as the father said, having nothing to do with one-half of their family, his family. That is a significant sadness in this matter.
I reject the wife’s assertions that the father behaved violently or badly towards her, making her role as a parent and homemaker more difficult. Justice Watts did not accept this evidence and neither do I.
I find the husband did not pay for day-to-day and ongoing costs for the children post separation and he has not worked in Australia. He has a capacity to work which he has not exercised and he asserted that these proceedings in their entirety have taken an emotional toll on him.
I note he has a heart condition, cardiomyopathy, enlargement of his heart. There was medical evidence to support his condition in “Appendix J” to his affidavit from Dr U dated 9 August 2016 from Croatia, Dr V, his local General Practitioner, dated 5 June 2018, Dr X, cardiologist, dated August 2018 and Mr W, consultant cardiologist, dated 1 April 2015 all confirming this diagnosis and variously indicating he will need lifelong heart medication, being blood pressure medication, he will experience tiredness, and that he should lose weight and reduce his stress.
There was no direct evidence of the impact of this lifelong condition on his capacity to work. However, he suffers from a serious medical condition relating to the functioning of his heart and I note he is undertaking a course of study and hopes to re-enter the workforce in the future.
The wife has maximised her earning capacity and continues to work and earns a modest income.
The children will both be over 18 at the end of February 2021 and likely both to be attending university as they have both excelled at school, a testament to their mother’s parenting, and will reside with their mother for some time to come. When the wife removed them from Croatia in 2014 they were 13 and 11, a very different situation to the situation today.
The wife’s family have made a significant contribution to the financial day-to-day care of the children, given the absence of ongoing child support by the father since separation.
I find the mother is entitled to an adjustment in her favour for her superior post-separation contribution to the children, both in her sole parenting of them and in her family’s generous financial support. I assess that contribution to be 10 per cent.

Section 75(2) factors and considerations

I do not see either party has any greater need than the other having regard to the factors set out in section 75(2) of the Act over and above the other.
The wife is to receive 62.5 per cent of the net equity and the husband 37.5 per cent of the net equity, and the wife’s cost of the appeal of $10,000 is to be paid from the husband’s share of the former matrimonial home prior to the parties being paid their entitlement together with 50 per cent of the renovation costs paid by the wife.
I find these orders are a just and equitable distribution of the parties’ property in all the circumstances.

I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 18 February 2021.

Associate:

Date: 18 February 2021

[2021] FamCA 49

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