ZABEK and ZABEK - [2016] FCWA 9

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ZABEK and ZABEK [2016] FCWA 9

CORAM: DUNCANSON J

HEARD: 21 FEBRUARY 2014
24-28 FEBRUARY 2014
14-18 JULY 2014
23 JULY 2014
18-20 MAY 2015
23 NOVEMBER 2015

DELIVERED : 19 FEBRUARY 2016

FILE NO/S: PTW 137 of 2008

BETWEEN: MR ZABEK
Applicant
AND
MRS ZABEK
Respondent

Catchwords:

PROPERTY - where there was a lengthy marriage - where the parties disagree as to the date of separation - where there was a lengthy period between separation and trial - where both parties allege financial misconduct on the part of the other - consideration of losses sustained as a consequence of conduct of parties and treatment of those losses - where the husband contravened the superannuation legislation - where he forged the wife's signature on documents - where the wife borrowed significant funds from the then second respondent with whom she was in a relationship - consideration of the financial agreement entered into by the wife and the second respondent - where it is just and equitable to make a property settlement order - where assessment of contributions favours the husband - adjustment to wife for s 75(2) factors

Legislation:

Family Law Act 1975 (Cth), s 75(2), s 79
Family Court Act 1997 (WA), s 205ZN
Evidence Act 1906 (WA)
Superannuation Industry (Supervision) Act 1993 (Cth)
Superannuation Industry (Supervision) Regulations 1994 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Mr R Hooper SC
Respondent: Mr M Berry (as he then was) thereafter Dr A Dickey QC

Solicitors:

Applicant: Carr & Co
Respondent: K G Sorensen

Case(s) referred to in judgment(s):

Biltoft v Biltoft (1995) FLC 92-614
Browne v Green (1999) FLC 92-873
C and C [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204
Dougherty v Dougherty (1987) 163 CLR 278
Kowaliw and Kowaliw (1981) FLC 91-092
Stanford v Stanford (2012) 247 CLR 108
Waters and Jurek (1995) FLC 92-635
Watson & Ling [2013] FamCA 57

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION

1[Mr Zabek] (“the husband”) and [Mrs Zabek] (“the wife”) were married for 30 years. They have two adult children.
2During their marriage they accumulated significant assets.
3The parties disagree as to the date of separation. In about 2002 they began to lead separate lives, however, they continued to enjoy a reasonably amicable relationship. Their finances remained intermingled.
4In 2007 the wife informed the husband she wished to separate their finances and she sought a divorce. The parties were unable to agree about the division of their property and the husband commenced these proceedings in 2008.
5A number of significant events occurred in relation to the parties’ property following the commencement of proceedings. Both parties allege financial misconduct on the part of the other.
6The wife was in a relationship with [Mr Ambrosi] who lent her substantial sums of money. He was joined as the second respondent in the proceedings.
7The parties’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZABEK and ZABEK

Details

AGLC: ZABEK and ZABEK [2016] FCWA 9
Case: [2016] FCWA 9
Decision Date: 19 FEBRUARY 2016

CaseChat Overview and Summary

In the case of Zabek and Zabek, the parties were involved in a dispute concerning the division of their matrimonial property following a lengthy marriage. The central issue in the case was the determination of the date of separation, which had significant implications for the distribution of the couple's assets. Both parties alleged financial misconduct against each other, including the husband's contravention of superannuation legislation and forgery of the wife's signature on documents, and the wife's borrowing of substantial funds from her then-boyfriend with whom she was in a relationship. The court was required to consider these factors in determining the appropriate property settlement.

The court had to weigh the losses sustained by each party as a consequence of their conduct and the treatment of those losses in the context of the financial agreement entered into by the wife and her former partner. Additionally, the court had to assess the contributions made by each party to the marriage and determine whether it was just and equitable to make a property settlement order in favour of the wife. The court also had to consider the factors outlined in section 75(2) of the relevant legislation to determine the appropriate adjustment to the wife's property settlement.

In its reasoning, the court found that while the assessment of contributions favoured the husband, the wife's conduct, including the financial agreement with her former partner, warranted a reduction in her property settlement. The court also found that it was just and equitable to make a property settlement order in favour of the wife, taking into account the losses she sustained as a consequence of the husband's conduct and the s 75(2) factors. The court ordered a property settlement in favour of the wife, taking into account the various factors and considerations outlined above.

Orders