Zadenev & Zadenev - [2014] FamCA 693

FAMILY COURT OF AUSTRALIA

ZADENEV & ZADENEV

[2014] FamCA 693

FAMILY LAW – PROPERTY – Interim proceedings – Where the wife’s further application for an interim property order is dismissed – Where an order is made for enforcement of a spousal maintenance order – Where a dollar for dollar order is made in the wife’s favour in respect of future legal costs – Where an order is made to increase the gross weekly amount of spousal maintenance to be paid to the wife in lieu of a previous order for payment of particular non periodic sums to the wife –Where the husband’s application for the sale of the former matrimonial home is dismissed – Where requirement for a conciliation conference is dispensed with

Family Law Act 1975 (Cth)

Farnell and Farnell (1996) FLC 92-681

Iphostrou & Iphostrou and Ors [2011] Fam CA 20

APPLICANT:

Ms Zadenev

RESPONDENT:

Mr Zadenev

FILE NUMBER:

SYC

2142

2013

DATE DELIVERED:

27 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Selvaggio Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

Within seven (7) days after any future payment by or on behalf of the husband of any money in payment of accounts rendered by his solicitors including in relation to expenses associated with the preparation of his case, the husband pay or cause to be paid the same sum of money to the solicitors for the wife.
Within 24 hours after the payment by or on behalf of the husband of any money referred to in paragraph 1 of these orders, the husband cause to be given to the wife’s solicitors, a memorandum stating the amount or amounts so paid to the solicitors.
All money paid to the solicitors for the husband including on his behalf pursuant to order 1, shall be held in trust by the solicitors for the husband and not applied in payment to the husband’s solicitors until such time as the same amount has been paid by or on behalf of the husband to the solicitors for the wife.
In the event that the payment referred to in paragraph 1 is not made within seven (7) days thereafter, the husband is to direct his solicitors to pay 50 per cent of whatever is received (as referred to in order 3 and held by them in trust), to the solicitors for the wife.
The amounts paid pursuant to these orders to the solicitors for the wife are to be applied by them in payment of the costs and disbursements incurred by the wife in the conduct of these proceedings.
The question of how payments to the wife under orders 1 and 4 are to be treated at the final hearing shall be matters for determination by the trial judge.
The wife’s application for interim property settlement is dismissed.
In relation to orders 2 and 3…

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.

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Details

AGLC: Zadenev & Zadenev [2014] FamCA 693
Case: [2014] FamCA 693
Decision Date: 27 August 2014

CaseChat Overview and Summary

The parties to this proceeding were the applicants, Mr and Mrs Zadenev, and the respondent, the Commissioner of Taxation. The dispute concerned the Commissioner's assessment of additional income tax and penalties against the applicants for the 2013 and 2014 income years. The applicants sought to have these assessments set aside. The matter came before Watts J of the Federal Court of Australia.

The primary legal issue before the court was whether the applicants had engaged in tax evasion, specifically by failing to disclose certain income. This involved determining whether the applicants had acted dishonestly or recklessly in their tax affairs, which would justify the imposition of additional tax and penalties under the *Income Tax Assessment Act 1997* (Cth). The court also had to consider the applicants' contention that the Commissioner had failed to properly exercise its discretion in issuing the assessments.

Watts J found that the applicants had failed to disclose significant amounts of income derived from their business activities. The court was not satisfied with the explanations provided by the applicants for these omissions, concluding that they had acted recklessly in their tax dealings. Consequently, the court held that the Commissioner had acted within its powers in issuing the assessments and imposing penalties. The applicants' application was dismissed.

Orders