FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zalitis & Zalitis [2025] FedCFamC2F 474
File number(s): SYC 5331 of 2022 Judgment of: JUDGE LIVERIS Date of judgment: 11 April 2025 Catchwords: FAMILY LAW – PROPERTY – both parties seeking an alteration of property interests after a 38 year marriage – whether the husband made full and frank disclosure – whether addbacks should be made – whether the husband engaged in wastage – allegations of coercive control and financial abuse – whether a Kennon adjustment should be made – whether a Jones v Dunkel inference should be made due to the husband’s failure to call his accountant to give evidence – whether the husband’s evidence is credible – just and equitable property adjustment orders made – whether an order for spousal maintenance should be made Legislation: Evidence Act 1995 (Cth) s 140(1)
Family Law Act 1975 (Cth) ss 4AB, 72(1), 75(2), 79(2), 79(4), 81, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Chapter 6
Cases cited: Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622
Benson & Drury [2020] FamCAFC 303; (2020) 62 Fam LR 1
Berfield & Berfield (No 2) [2024] FedCFamC1F 573
Blass & Blass [2022] FedCFamC1A 63
Carlson & Fluvium [2012] FamCA 32
Carswell & Tenson (No 4) [2024] FedCFamC1F 848
Clauson and Clauson [1995] FamCA 10; (1995) FLC 92-595
Dajani & Dajani [2025] FedCFamC1A 28
Dickons & Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244
Emmerton & Manwaring (No 2) [2024] FedCFamC2F 996
Jabour & Jabour (2019) 59 Fam LR 475; (2019) FLC 93-898
Jones v Dunkel (1959) 101 CLR 298
Kannis & Kannis [2002] FamCA 1150
Keating & Keating (2019) FLC 93-894
Kennon v Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1
Koch & Kest [2021] FamCA 408
Kowaliw & Kowaliw (1981) FLC 91-092; [1081] FamCA 70
Mallet & Mallet [1984] HCA 21; (1984) 156 CLR 605
Martell v Martell (2023) 66 Fam LR 650
Mayhew & Fairweather [2022] FedCFamC1A 53
Omacini & Omacini [2005] FamCA 195
Oriolo & Oriolo (1985) FLC 91-653
Pickford & Pickford [2024] FedCFamC1A 249
Ramzi & Moussa [2022] FedCFamC2F 1473
RK & SK [2000] FamCA 1045
Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173 (2018) FLC 93-858
Weir and Weir (1993) FLC 92-338
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447
Zubcic & Zubcic and Anor [2019] FamCAFC 168; (2019) FLC 93-918
Division: Division 2 Family Law Number of paragraphs: 289 Date of last submission/s: 12 September 2024 Date of hearing: 24 – 26 June, 25 October 2024 Place: Darwin Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: Bartier Perry Counsel for the Respondent: Mr Havenstein Solicitor for the Respondent: Swifte Law ORDERS
SYC 5331 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ZALITIS
Applicant
AND: MR ZALITIS
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF…
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- Zalitis & Zalitis [2025] FedCFamC2F 474
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- [2025] FedCFamC2F 474
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CaseChat Overview and Summary
The court found that the husband had not made full and frank disclosure of his assets and that addbacks should be made. The court also found that the husband had engaged in wastage and that there was a need for a Kennon adjustment. The court further found that a Jones v Dunkel inference should be made due to the husband's failure to call his accountant to give evidence. The court found the husband's evidence to be credible and made just and equitable property adjustment orders, as well as an order for spousal maintenance.
The court ordered that the husband transfer his interest in the Suburb C property to the wife, and that the wife repay the Suburb C CBA loans and discharge the Suburb C mortgages associated therewith. The husband was ordered to repay the P Bank Loan and discharge the Suburb C mortgages associated therewith. The husband was also ordered to pay any arrears of monies payable by him pursuant to the interim spouse maintenance order made by SJR Neilson on 23 September 2022. The husband was ordered to cause H Company to transfer the wife's motor vehicle to her free of any impost. The husband and wife were ordered to close the Joint CBA Account and transfer the residual balance to the parties. The husband was ordered to indemnify and keep indemnified the wife with respect to any liabilities arising from her being an officer holder or shareholder of any of the entities or the use by the wife of the wife's Motor Vehicle 1. The wife was ordered to resign as a director and office holder and transfer her interest in the Entities to the husband. The parties were ordered to retain all other assets and liabilities in their respective names, including their superannuation interests. The court also made provisions for the sale of the Suburb C property in the event that the wife could not comply with certain orders. The parties were ordered to release each other from all debts owing from one to the other, except as specifically provided for by the orders to the contrary. The parties were also ordered to execute all documents and writings necessary to give effect to the orders made by the court.
Orders
Orders of the court
SYC 5331 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS ZALITIS
Applicant
AND:
MR ZALITIS
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
11 APRIL 2025
UPON NOTING:
Definitions:
A. Suburb C property means the property situated at and known as 1 B and 2 B Street, Suburb C, NSW; folio identifier ….
B. Suburb C CBA loans means the following two loans from the Commonwealth Bank of Australia in the joint names of the parties and secured over the title of the Suburb C Property by the Suburb C Mortgages:
a. Loan account …70 …07; and
b. Loan account …70 …05.
C. P Bank loan means the business loan in the name of Mr Zalitis from the Commonwealth Bank of Australia bearing account number …00 …90 secured over the title of the Suburb C Property by the Suburb C Mortgages.
D. Suburb E Property means the property at D Street, Suburb E, Folio Identifier ….
E. Suburb C Mortgages means the registered mortgages to the Commonwealth Bank of Australia secured over the title of the Suburb C Property, dealing Numbers …96 and …63.
F. Suburb G property means the property known as F Street, Suburb G; Folio Identifier ….
G. Suburb G CBA loan means the Commonwealth Bank of Australia investment loan …73 in the sole name of the husband and secured by the Suburb G Mortgage.
H. Suburb G Mortgage means the registered mortgages to the Commonwealth Bank of Australia secured over the title of the Suburb G Property, dealing Number …51.
I. H Company means the entity H Pty Ltd.
J. Super Fund 1 means the Self-Managed Superannuation Fund known as Super Fund 1.
K. K Company means K Pty Ltd being the corporate trustee of Super Fund 1.
L. L Trust means the L Trust, the trustee of which is N Clinic.
M. N Clinic means the company N Pty Ltd.
N. The entities means H Company, K Company, L Trust and N Clinic.
O. Wife’s Motor Vehicle 1 registered in the name of H Company and bearing registration … currently in the wife’s possession and control.
P. Joint CBA Account means the Commonwealth Bank of Australia Smart Access account …21 …11 in the joint name of the parties.
Q. The Suburb C property listing date means the 43rd day after the wife’s non-compliance with order [2(a)] or such other date as the parties agree in writing.
THE COURT ORDERS THAT:
1. Within 28 days of the date of these orders the husband do all acts and things and sign all documents necessary to transfer to the wife the whole of his right, title and interest in the Suburb C property.
2. Simultaneous with the transfer of the Suburb C property, the following shall occur:
(a) The wife shall pay all sums necessary to repay the Suburb C CBA loans and discharge any of the Suburb C mortgages associated therewith.
(b) The husband shall pay all sums necessary to repay the P Bank Loan and discharge any of the Suburb C mortgages associated therewith.
3. Within 28 days of the date of these orders the following shall occur:
(a) The husband shall pay to the wife any arrears of monies payable by him pursuant to the interim spouse maintenance order made by SJR Neilson on 23 September 2022.
(b) The husband shall, in his capacity as director of H Company do all acts and things including the payment of monies to cause H Company to transfer to the wife, free of any impost, the wife’s motor vehicle and in complying with this order, the husband shall ensure that the consideration identified on the Notice of Disposal is equal to the value of the wife’s motor vehicle as recorded in the accounts of H Company as at the date of disposal.
(c) The husband and the wife shall do all acts and things and sign all documents necessary to cause the Joint CBA Account to be closed and the residual balance transferred to the parties:
(i) $10,579.30 to the husband; and
(ii) The balance to the wife.
4. Pending the husband’s compliance with order [3(b)], the husband shall cause H Company to pay, and in its default the husband shall be personally liable to pay, the following expenses with respect to the wife’s Motor Vehicle 1:
(a) Registration costs;
(b) Green slip insurance and comprehensive insurance costs;
(c) Servicing, maintenance and repair costs including but not limited to replacement tyre costs.
5. Within 7 days of the husband’s compliance with the last of orders [1], [2(b)], and [3] the wife shall resign as a director and office holder and transfer to the husband the whole of her right, title and interest in the Entities.
6. The husband shall indemnify and keep indemnified the wife with respect to any liabilities, whensoever and howsoever they arose arising from or related to:
(a) her being an officer holder or shareholder of any of the entities;
(b) the use by the wife of the wife’s Motor Vehicle 1.
7. For the purpose of order [3(c)], the wife shall have leave to provide a copy of these orders to any employee of the Commonwealth Bank of Australia.
8. Other than as provided for in these orders, the parties each retain all other assets and liabilities in their respective names, including their superannuation interests.
9. In the event that the wife cannot comply with order [2(a)] hereof before the Suburb C Property Listing Date, the Suburb C property shall be sold and to give effect to this order, the following shall apply:
(a) The wife is authorised by this order to act as trustee for the husband in respect to the sale of the Suburb C property and doing all things specified in the following orders [9(b)] to [9(h)] (inclusive).
(b) The Suburb C property shall be listed for sale with such real estate agent as is selected by the wife (“the Suburb C Agent”).
(c) The Suburb C property shall be listed for sale by private treaty or public auction as recommended by the Suburb C Agent.
(d) The wife shall retain a solicitor to act on the sale of the Suburb C property (“the Suburb C Solicitor”).
(e) The list or reserve price shall be such amount as is recommended by the Suburb C Agent in writing.
(f) That upon agreement being reached for the sale of the Suburb C property, the wife as Trustee for sale shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to her by the Suburb C Agent or the Suburb C Solicitor.
(g) That 21 days prior to the completion of the sale of the Suburb C property, the husband shall pay all sums necessary to discharge the P Bank loan.
(h) The proceeds of sale of the Suburb C property shall be paid in the following manner and priority:
(i) The Suburb C CBA loans.
(ii) Payment of the Suburb C agent’s commission and advertising or other expenses, if any, payable on sale.
(iii) Payment of the legal costs and outlays relating to sale.
(iv) The balance to the wife.
10. Except as specifically provided for by these orders to the contrary, each of the husband and the wife releases the other from all debts owing from one to the other.
11. Other than as otherwise set out in these orders the parties shall have the sole right, title and interest in any other property which is at the date of the orders in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
12. The Parties shall do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
13. In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then a Registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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