Zaytsev & Zaytsev
[2024] FedCFamC1F 613
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zaytsev & Zaytsev [2024] FedCFamC1F 613
File number(s): MLC 2689 of 2023
MLC 12806 of 2023Judgment of: WILLIAMS J Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – PROPERTY – Where the husband seeks orders adjusting their respective property interests – Relationship of less than seven years - Where the wife has not filed any documents and is self-represented – Where there is a current Family Violence Intervention Order against the wife enlivening s 102NA of the Family Law Act 1975 (Cth) – Where the husband had significantly more assets at the commencement of cohabitation and made greater contributions – Where the wife has not provided full and frank financial disclosure –Where it is just and equitable to adjust the parties property interests – Where the contributions are assessed in a proportion of 90/10 in favour of the husband – Where an appropriate adjustment in favour of the wife is 2.5 per cent – Where the assets in the overall pool will be divided in the proportion of 12.5/87.5 in favour of the husband.
FAMILY LAW – NULLITY – Application for decree of nullity – Where the wife concedes being married to another person as at the date of her purported marriage to the husband – Where both parties consent to decree of nullity being made – Decree of nullity made.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VIII, ss 51, 71, 75, 79, 90SM, 102NA, 106A
Marriage Act 1961 (Cth) s 23B
Cases cited: Bevan & Bevan [2013] FamCAFC 116
In the Marriage of Hickey [2003] FamCA 395
Komaromi and Komaromi 1976 FLC 90-142
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Robb & Robb [1994] FamCA 136; (1995) FLC 92-555
Stanford v Stanford (2012) 247 CLR 108
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 122 Date of last submission/s: 30 August 2024 Date of hearing: 15 & 16 August 2024 Place: Melbourne Counsel for the Applicant: Mr Salamanca Solicitor for the Applicant: CE Family Law Pty Ltd The Respondent: Litigant in person ORDERS
MLC 2689 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZAYTSEV
Applicant
AND: MS ZAYTSEV
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Within 30 days from the date of this Order and subject to the wife complying with paragraph 2, the husband pay to the wife to an account nominated in writing by the wife, the sum of $282,409 (“the payment”).
2.Contemporaneously with the payment;
(a)The husband and wife do all acts and things and sign all such documents to close the joint Westpac account ending #28 used exclusively by the wife;
(b)The wife do all acts and things and sign all such documents required by the Westpac Bank to remove herself from the group of securities held by the Westpac Bank;
(c)The husband retain for his sole use and benefit all Westpac group of securities accounts including all surplus funds in each account save for account number ending in #28
(d)The wife do all acts and things and sign all such documents to remove any direct debts/payments from any account held by the husband and she be and is hereby restrained from reinstating such direct debit/payments.
(e)The wife do all acts and things and sign all such documents to provide to:
(i)The husband’s lawyers the keys and close all accounts and facilities relating to the self-storage units at B Street, Suburb C (Suburb C storage unit), and D Street, Suburb E (Suburb E storage unit); and
(ii)The husband remove his personal and business items and the wife be restrained from being present at the Suburb C and Suburb E storage units while the husband is collecting his personal items pursuant to these Orders.
(f)The husband and wife do all such acts and things to transfer Motor Vehicle 1 to the wife at her sole expense;
3.The wife assume sole responsibility for all expenses relating to Motor Vehicle 1 including but not limited to registration, insurance and all Civic Compliance infringements.
4.Except as otherwise provided in this Order, the husband and wife are entitled to be the sole legal and beneficial owners of all items of property in the possession or control of each of them respectively including but not limited to:
(a)Money in bank accounts (including the respondent retaining her part property settlement of $70,000, $20,000 and $90,000);
(b)Real estate;
(c)Motor vehicles;
(d)Insurances;
(e)Equities;
(f)Superannuation entitlements;
(g)Furniture and chattels;
(h)Personal effects; and
(i)Investment portfolios.
5.Except as otherwise provided in these Orders, the husband and wife be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
6.In the event that the wife fails to execute any document required to give effect to these Orders, within seven (7) days of a request for same, the husband be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute any documents required in the name of the wife and do any other acts and things as may be necessary to give validity and operation to these Orders.
Superannuation
7.The husband and wife are the Directors of F Pty Ltd ATF Zaytsev Superannuation Fund (“The Fund”).
8.Contemporaneously with the payment, the husband and wife in their capacity as Directors of F Pty Ltd ATF (“the Fund”) do all acts and things and sign all such documents to instruct the accountants of the Fund, to calculate the wife’s member entitlements in 2024 (at the husband’s sole expense) and the wife do all acts and things and sign all documents necessary to rollover her member entitlement into her nominated superannuation fund.
9.Contemporaneously with the rollover of the wife’s member entitlement pursuant to paragraph 8 herein, the wife do all such acts and sign all such documents to:
(a)Firstly, relinquish any and all interest in the Fund;
(b)Secondly, resign as Director of F Pty Ltd;
(c)Thirdly, resign as a member of the Fund;
(d)Fourthly, resign from any positions she holds in Zaytsev Superannuation Fund; and
(e)Fifthly, remove herself as an authorised signatory on any and all bank and any and all other accounts associated with the Fund; and
(f)Sixthly, transfer responsibility for the management and administration of the Fund to the Replacement Director who is the Director appointed after resignation of the respondent; and
(g)Seventhly, comply with all directions and sign all documents required by the Funds accountants.
10.The requirements of procedural fairness have been observed on the basis that the parties are the Directors of F Pty Ltd.
11.This Order has effect from the operative time, being the date a sealed, certified copy of these Orders are served on the accountants of the Fund.
12.The husband and wife have leave to provide a copy of these Orders to the Fund’s accountants.
Other
13.The husband serve a copy of this Order, on the wife via email at her email addresses.
14.Any joint tenancy of the parties in any real or personal estate is expressly severed.
15.All previous orders be discharged.
16.All extant applications are 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 Zaytsev & Zaytsev has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
ORDERS
MLC 12806 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZAYTSEV
Applicant
AND: MS ZAYTSEV
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The purported marriage between Mr Zaytsev and Ms Zaytsev solemnized in late 2016 is void.
2.A Decree of Nullity in respect of that marriage is granted.
3.That a copy of this Order be provided to Births, Deaths, and Marriages and it is requested that the Registrar of Births, Deaths and Marriages of Victoria amend the resister accordingly.
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 Zaytsev & Zaytsev has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
By Initiating Application filed 16 March 2023, the applicant husband, Mr Zaytsev seeks a property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) or in the alternative, pursuant to s 90SM of the Act. Their relationship in its entirety was for less than seven years, there were no children of the relationship, and the husband entered the relationship with significantly more assets than the wife, including a number of real properties, an investment portfolio, and significant superannuation entitlements.
The applicant filed a further Initiating Application on 2 November 2023 seeking a decree of nullity between the purported marriage between him and the wife, because at the time of their marriage ceremony, the wife was still married to her former husband.
For the reasons that follow, I have determined the asset pool as at the date of the trial should be divided in the proportion of 87.5 per cent to the husband and 12.5 per cent to the wife and I have made a declaration of nullity of the purported marriage between the parties.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The husband is aged 60 years, and the wife is aged 48 years. The husband is a medical professional, and the wife is a professional. There are no children of the purported marriage, however both parties have children from previous relationships.
The parties commenced cohabitation in 2015, and undertook a marriage ceremony in 2016. At this time, the applicant erroneously believed the respondent had been divorced from her former husband since early 2015. In 2017, the respondent’s divorce from her former husband took effect, some six months after her purported marriage to the applicant.
The parties separated under the same roof in May 2022. Later in 2022, the applicant vacated the former matrimonial home at G Street, Suburb H (“the G Street property”).
In 2022, a Family Violence Intervention Order was made, naming the husband as the protected person and the wife as the respondent. The final Intervention Order expires in 2027.
The husband commenced these proceedings on 16 March 2023 by filing an Initiating Application seeking, inter alia, the sale of the G Street property, payment of $325,000 to the wife from sale proceeds, and for the wife to provide financial disclosure.
The matter was listed for first return on 20 April 2023 before Judicial Registrar Dorian. The wife appeared in person, despite having not filed any court documents. Orders were made for the filing of documents and for the wife to provide financial disclosure to the husband. The wife did not comply.
On 23 May 2023, an Interim Defended Hearing occurred before Senior Judicial Registrar Hoult, who made orders for the sale of the G Street property and for the husband to pay the wife $70,000 by way of a part property settlement.
The husband deposes that in 2023, he became aware that the wife was still married to her former husband as at the date of their purported marriage, after receiving a copy of the Divorce Order.
On 26 July 2023, an Interim Defended Hearing took place before Senior Judicial Registrar Conlan, with the wife appearing via video link. On this day, SJR Conlan made further orders for the wife to file documents and comply with orders of the court. The wife did not comply.
In 2023, the wife unilaterally withdrew $90,000 from a joint account. She transferred $70,000 to a Westpac account used exclusively by her, and $20,000 to a MasterCard in her name. As a result, the account was overdrawn. Subsequently, the husband filed a Further Amended Initiating Application and affidavit in support seeking a payment to the wife of $165,000, taking into account the unilateral withdrawal of the wife.
On 2 November 2023, the husband filed an Initiating Application seeking a decree of nullity between the purported marriage between him and the wife.
On 12 April 2024, the matter was listed before me for commencement of trial. Both parties attended the hearing, however, the wife had not filed any documents nor complied with any orders made by the court. The matter was adjourned to 15 and 16 August 2024, and orders were made for the wife to file her responding material.
The wife again failed to file any material.
The trial commenced before me on 15 August 2024 and concluded the following day.
PRELIMINARY MATTERS
The wife was not represented at the trial, despite her assurances to the court on 12 April 2024 that she had secured legal representation and documents would shortly be filed on her behalf.
Every opportunity was afforded to the wife preceding the trial to file documents and obtain legal representation, yet she continually failed to avail herself of representation and did not file any documents.
On the first day of the trial, the wife advised the court she had prepared an affidavit and Financial Statement, and she sought leave of the court to file both documents and rely on them during the hearing. Although counsel for the husband objected to the wife being permitted to rely on the affidavit, leave was granted to the wife to rely on it as her evidence in chief. Neither document was sworn. In the witness box, the wife adopted the contents of the documents as true and correct.
Because the husband obtained a final Family Violence Intervention Order against the wife in 2022, the wife was advised by me that the provisions of s 102NA of the Family Law Act 1975 (Cth) would apply to the conduct of the trial, and she would not be able to cross-examine the husband and his evidence would therefore be unchallenged. She was also offered the opportunity to obtain legal advice from the duty lawyer on the day, but declined and said she was ready to proceed with the trial that day and act on her own behalf.
In accordance with Re F: Litigants in Person Guidelines (2001) FLC 93-072, the wife was provided with procedural assistance about the structure of the trial and a copy of relevant legislation. Counsel for the husband, despite being the applicant, made his final submissions prior to the respondent wife being required to make her final submissions, to enable the wife to observe and hear final submissions. She was also provided with a detailed explanation how to structure her final submissions, and the opportunity to file written final submissions, rather than having to make oral submissions in the courtroom on that day. She was also provided with a transcript of counsel for the husband’s final submissions, in addition to ten business days to provide my Chambers her written submissions. The wife failed to provide final written submissions to my chambers, and in accordance with my directive to her on the final day of trial, if she failed to do so, a decision would be made, and reasons would be published.
THE PROPERTY PROPOSALS OF THE PARTIES
The husband’s proposal
The orders which the husband sought from the Court are set out in the Outline of Case document filed 8 August 2024. A copy of these orders is Annexure A to these reasons. He sought the asset pool be adjusted 90 per cent in his favour and 10 per cent in favour of the wife.
Documents relied upon by the husband
The applicant relied upon the following documents:
(a)Affidavit of Service filed 7 August 2024;
(b)Financial Statement filed 2 August 2024;
(c)Third Further Amended Initiating Application filed 18 July 2024;
(d)Affidavit of Ms J filed 19 July 2024;
(e)Affidavit of Mr Zaytsev filed 19 July 2024;
(f)Affidavit of Service filed 9 April 2024;
(g)Affidavit of Mr Zaytsev filed 15 March 2024;
(h)Financial Statement filed 15 March 2024;
(i)Affidavit of Service filed 17 January 2024;
(j)Cost Notice filed 22 January 2024;
(k)Second Further Amended Initiating Application filed 21 December 2023;
(l)Affidavit of Mr K filed 19 December 2023;
(m)Affidavit of Mr L filed 19 December 2023;
(n)Affidavit of Service (nullity) filed 14 December 2023;
(o)Undertaking as to disclosure filed 21 December 2023;
(p)Affidavit of Ms M (nullity) filed 23 November 2023;
(q)Affidavit of Mr Zaytsev (nullity) filed 2 November 2023;
(r)Initiating Application (nullity) filed 2 November 2023;
(s)Affidavit of Mr Zaytsev filed 17 October 2023;
(t)Affidavit of Service filed 24 July 2023;
(u)Outline of Case document filed 8 August 2023; and
(v)Documents tendered by counsel, including documents produced pursuant to subpoena.
The wife’s 's proposal
The wife emailed to my Chambers a handwritten Minute of her proposed final orders, which sought a 57/43 per cent split of the asset pool in her favour. She also sought all equity in the G Street, N Street, and O Street properties, in addition to super equalisation and $376,000 of the share portfolio. She was unable to explain, when asked, how she proposed to deal with the mortgages encumbering the investment properties.
Documents relied upon by the wife
The wife did not file any documents; and thus, it is unclear what documents she relies upon. She did email an unsworn Affidavit and Financial statement to the husbands’ instructing solicitor and my Chambers, however, despite an order made on 15 August 2024 to file these documents, she did not do so. These documents are referred to above. The wife tendered two exhibits during the hearing, which are Exhibits W-1 and W-2. As referred to above, she failed to file written final submissions.
Counsel for the husband and the wife on her own behalf, tendered documents during the trial as follows:
Exhibit Number
Description
H-1
Annexures A and B to the husband’s trial affidavit. (1) Marriage certificate of husband and wife dated 2016, and (2) divorce of the wife and her former husband dated 2017.
H-2
Correspondence from husbands’ solicitor to wife’s solicitors and/or the wife dated 9/12/22, 16/3/23, 27/4/23, 31/5/23, 20/6/23, 11/7/23, 14/7/23, 15/9/23, 3/11/23 and 14/11/23. Letters dated 20/1/24 and 2/2/24 (as included in husbands trial affidavit).
H-3
Document 34 (page 612) in tender bundle. Self-managed super fund financial statement 2015. Credit balance of $842, 127.
H-4
Page 634 of tender bundle (doc 35). P Company Portfolio summary in the name of the husband dated 2015. Value of $1,156,271.
H-5
Affidavits of applicant and divorce decree dated 2017.
H-6
Letter and attached document dated 2022 from the husband to Westpac.
H-7
Letter from wife’s former solicitors dated 10 January 2023 to husbands’ solicitors.
H-8
Chain of emails from the wife, commencing from 2022.
W-1
Extract from a Westpac bank statements of the mortgage secured against G Street.
W-2
Financial documents of the husband (one page), as of 2014.
EVIDENCE
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
The husband relied upon his affidavits and Financial Statements. His trial affidavit exhaustively recounted the history of the parties’ relationship and the dispute and his second affidavit replied to the wife’s affidavit. The wife’s affidavit was substantially in response to the husband’s trial affidavit. I have examined that evidence and do not propose to repeat it in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Credibility of witnesses
The husband was not cross-examined due to the current Final Intervention Order against the wife, which enlivened s 102NA of the Act. Despite the wife obtaining a part property settlement and having ample opportunity to afford herself legal representation, she failed to do so. His evidence is therefore unchallenged.
Ms J is an employee of the husband. She swore an affidavit in these proceedings on behalf of the husband and gave evidence about the parties’ financial arrangements and the wife’s involvement in the business. Ms J was cross-examined by the wife on the first day of the trial. Despite being unable to recall the specifics of several events, she impressed me as a pragmatic and truthful witness.
The wife gave evidence and was cross-examined by counsel appearing on behalf of the husband on the second day of trial. She admitted to hating the husband, and it seemed as though much of her evidence was given through this prism. I do not accept her as a reliable historian, particularly given her evidence regarding her divorce from her former husband. She initially gave evidence that she had been divorced for over a year before she married the applicant, however, the affidavit that accompanied the joint divorce application was signed by her in 2016, being the day before she purportedly married the applicant, and the divorce was not finalised until some six months later. When counsel for the husband suggested to her that the “most egregious of fraud” must have happened, she was non-responsive. The wife appeared unable to accept responsibility for many things when it did not suit her narrative, including her signature on a Loan Contract document (Exhibit H-6) which she professed to be a forgery. Whilst I understand the pressures the wife would have been under as a self-represented litigant; she was a combative witness who was argumentative and clearly aggrieved by the circumstances of the breakdown of the marital relationship. Where the parties evidence differs, I prefer the unchallenged evidence of the husband.
NULLITY APPLICATION
It was non-contentious that the respondent wife was still married to her previous husband as at the date she purportedly married the applicant husband, and there was no objection from either party to an order for a decree of nullity of their purported marriage.
Section 51 of the Act provides that:
An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.
Section 23B(1)(a) of the Marriage Act 1961 (Cth) (“the Marriage Act”) relevantly provides that:
(1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;
The wife married her former husband in 2006 and their divorce did not take effect until 2017 (Exhibit H-5), being six months after she purportedly married the applicant husband in 2016 (Exhibit H-1). The husband accepted the validity of the documents, but the wife had no recall of attending her solicitor the day or so prior to the marriage to the husband. I accept the validity of the divorce document as filed, and do not accept the wife did not sign the document, when she agreed with the contents of the document, including her son’s then circumstances as referred to in the Divorce Application. It is inconceivable for the wife to attempt to somehow blame her former solicitor about any deficiencies in the document. I am satisfied that at the time of the parties’ marriage, the wife was lawfully married to another person. I will make a declaration that the marriage between the parties be deemed null and void.
The issue subsequently arose as to whether the parties Application for Property Settlement should be determined under s 79 of the Act or under the provisions of the Act relevant to a de facto relationship.
It was submitted by counsel for the applicant that if the marriage was deemed null and void, that s 71 of the Act would apply the property division between the parties. Section 71 provides as follows:
Part VIII – PROPERTY, SPOUSAL MAINTENANCE AND MAINTENANCE AGREEMENTS
SECTION 71 INTERPRETATION
marriage includes a void marriage
In the case of Komaromi and Komaromi 1976 FLC 90-142, Hogan J held that:
As sec. 71 of the Family Law Act provides that “marriage” includes void marriages in Part VIII and as sec. 79 is in Part VIII the fact that their marriage had been declared void did not preclude jurisdiction.
I am satisfied that jurisdiction is enlivened under Part VIII of the Act, and s 79 applies to these proceedings.
I will now turn to the property application.
PROPERTY APPLICATION
Relevant Legislation
Property proceedings between parties to the marriage are governed by the provisions of s 79 of the Act.
Section 79(1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79(2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
Section 79(4) provides as follows:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395 (“Hickey”).
The approach, as set out in Hickey is as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties, as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s 75(2) of the Act. Fourthly, the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford, the High Court noted that s 79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties’ interests in property, the court must determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
At Paragraph [36] of Stanford, the High Court said:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
In Bevan & Bevan [2013] FamCAFC 116 (“Bevan”), the Full Court considered which matters might be taken into account in determining whether it is just and equitable to alter existing property interests.
At paragraphs [84] and [85], Bryant CJ and Thackray J said:
84.Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79 (4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4) which make clear that in considering “what order (if any) to make, the court must take into account the matters referred to in that subsection.
85.This requirement to consider the s79(4) matters, in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, we determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
In Bevan, Finn J stated at paragraph 169:
169.Findings of fact concerning of the parties financial history (i.e. the contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
The Full Court in Chancellor & McCoy [2016] FamCAFC 256 said at paragraph [42]:
42.In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) ("the Act") when determining whether it is "just and equitable" to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.
The High Court stated in Stanford at [37]:
37.First, it is necessary to begin consideration of whether it is just and equitable to make property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order."
At paragraph [40] of Stanford, the High Court stressed that the question of whether it is just and equitable to make property settlement orders should not be answered by starting with an assumption:
40.…that one or other party has the right to have the property of the parties divided between them, or has the right to an interest in a marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4) without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
The High Court further stated at [42] that:
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship and the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective.
IS IT JUST AND EQUITABLE TO ALTER THE PARTIES’ PROPERTY INTERESTS?
I will now consider whether it is just and equitable to make an order adjusting property in this particular case. In order to do so, I am required to adopt the pathway set out in the relevant authorities and to embark on a separate but very careful deliberation. As previously referred to, Stanford requires the first step of that inquiry to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
THE PARTIES’ EXISTING INTERESTS IN PROPERTY
The husband provided a Balance Sheet of assets and liabilities of the parties as at 2024, which was Annexure B to his Outline of Case document. The wife did not provide a list of assets nor full and frank disclosure as to her financial circumstances. The husband’s Balance Sheet is as follows:
Description
Owner
Husband’s value
Wife’s value
Real Estate
G Street, Suburb H sole (net proceeds) held in Westpac account ending 85 – matured 2024, interest $88,146.72.
Joint
$1,938,797
$1,938,797
N Street Property, Melbourne
Applicant
$1,500,000
$1,500,000
1 O Street, Suburb Q
$1,275,000
$1,275,000
2 O Street, Suburb Q
Applicant
$925,000
$925,000
3 O Street, Suburb Q
Applicant
$1,625,000
$1,625,000
R Street, Suburb S, City T NZ
Applicant
$545,721
$545,721
Motor Vehicles
Motor Vehicle 2 purchased 2024
Applicant
$123,000
Motor Vehicle 1 as per valuation as of 2022 driven by the wife
Applicant
$29,000
Bank Accounts
Westpac (secondary business account) #91
Applicant
$112,253
$
Westpac #22
Applicant
$53,538
$
Westpac Acc #61, G Street (closed)
Applicant
$0
ANZ Account #93
Applicant
$9,768
ANZ NZ Account #50
Applicant
$1,447
ANZ NZ Account #50
Applicant
$17,471
Westpac #60
Joint
$0
Westpac #28 (used exclusively by the wife)
Joint
$1
Westpac #27
Joint
$0
Mr Zaytsev P Company Investment Portfolio (as of 2024)
Applicant
$772,406
Wife part property: legal fees $20,000 + $160,000
Respondent
$180,000
Husband part property
Applicant
$70,000
Business
Plant and equipment
Applicant
$5,000
$
Total assets
$9,183,402
Liabilities
Westpac Home Loan #39 – G Street (paid out)
Joint
$0
$
Westpac Investment #84 (variable) 2 O Street
Applicant
($600,848)
$
Westpac Investment #25 (variable) 1 O Street
Applicant
($692,912)
Westpac Investment #94 (variable) 3 O Street
Applicant
($1,338,291)
Westpac Investment #04 (variable) N Street Property
Applicant
($633,481)
Westpac Investment Loan #09 (variable)
Applicant
($682,203)
Westpac Investment Loan #27 (variable)
Applicant
($371,508)
Westpac Investment Loan #14 (variable)
Applicant
($371,508)
U Company Home Loan #52 – G Street, repaid by applicant ($46,000)
Join
$0
Credit Cards
Westpac Mastercard #01
Respondent
($21,461)
AMEX #09
Applicant
($6,701)
Westpac Mastercard
Applicant
($4,496)
Tax
ATO Business Activity Statement – estimated 2024
Applicant
($105,000)
ATO PAYG – 2024
Applicant
($8,540)
Total liabilities
$4,837,049
Net assets (excluding superannuation)
$4,346,353
Superannuation
P Company Portfolio – F P/L ATF Zaytsev Superannuation Fund (as of 2023 – valued by single expert). Includes 2 O Street, Suburb Q (in the name of F Property P/L) unencumbered
Applicant
$1,790,250
P Company Portfolio – F P/L ATF Zaytsev Superannuation Fund (as of 2023)
Respondent
$315,047
Superannuation Total
$2,105,297
Net Total Assets (including superannuation)
$6,451,650
The wife did not dispute any of the items in the husband’s balance sheet, other than she contended she was jointly liable for the mortgages encumbering 1, 2 and 3 O Street, Suburb Q. She did not produce any bank statements to substantiate her claims, and I therefore adopt the husband’s balance sheet as demonstrating the legal and equitable interests of the parties.
In this matter the parties have separated, and the husband has made application to the court seeking orders altering the respective property interests. The wife also seeks that the existing property interests should be altered. The parties are no longer living in a marital relationship, and as stated at paragraph [42] of Stanford (supra), there will not “thereafter be the common use of property by the husband and the wife”.
I am satisfied that it is just and equitable to alter the parties’ property interests.
I now turn to consider the s 79(4) factors, commencing with contributions of the parties.
CONTRIBUTIONS
At the commencement of cohabitation, the husband asserts that he had the following assets:
Description
Owner
Husband’s value
Wife’s value
Real Estate
V Street, Suburb W
Joint
$1,675,000
1 O Street, Suburb Q
Applicant
$790,000
2 O Street, Suburb Q
Applicant
$730,000
3 O Street, Suburb Q
Applicant
$1,530,000
N Street Property, Melbourne
Applicant
$1,500,000
R Street, Suburb S, City T, NZ, property inherited by Mr Zaytsev – Will of Ms X
Applicant
E $426,011
Y Street Property purchased via the Trustee of the superfund, F Pty Ltd in 2010/2011 and sold in 2019
Applicant via super fund
$811,000
Motor Vehicles
Motor Vehicle 3
Applicant
$80,000
Bank Accounts
Westpac #58 (2015)
Applicant
$183,480
$
Westpac Account #22 (2015)
Applicant
$64,554
$
Westpac Account #95 (2015)
Applicant
$2,357
Westpac #61 (2015)
Applicant
$33,136
Westpac #91 (2015)
Applicant
$87,246
Term Deposit #31 (2015)
Applicant
$718,142
Mr Zaytsev P Company Investment Portfolio (as at 2015) $1,156,271 and $7,413
Applicant
$1,163,684
Assets subtotal
$9,794,610
Liabilities
Westpac #59 – 1 O Street
Applicant
($711,000)
$
V Street, Suburb W
Joint
($1,589,000)
$
Westpac #16 – 2 O Street
Applicant
($667,000)
Westpac #94 – 3 O Street (2018) previously #08
Applicant
($1,377,000)
Westpac #04 –N Street Property (Feb 188888) previously #85
Applicant
($650,000)
Westpac Loan #15
Applicant
($100,000)
Westpac Mastercard #01
Applicant
($3,000)
Westpac Mastercard #01
Applicant
$0
Liabilities subtotal
$5,097,000
Net assets (excluding superannuation)
$4,697,610
Superannuation
Zaytsev Superannuation Fund (as of 2015). SMSF
Applicant
$842,128
Superannuation subtotal
$842,128
Applicant TOTAL (assets – liabilities + superannuation)
$5,539,738
Respondent estimate
$150,000
The husband deposed that as at the date of cohabitation, the respondent had no significant assets and did not receive a property settlement from her former husband. The husband approximates that at the commencement of cohabitation, the wife had $150,000 in superannuation entitlements.
The wife refuted the list of pre-relationship assets during cross-examination, and claimed the property at V Street, Suburb W was acquired during the relationship. She also gave evidence that at the commencement of cohabitation, she owned a car and had received a settlement from her former marriage of $170,000, however, did not provide any documentation to verify this. In 2018, the respondent rolled over $246,000 into the husband’s self-managed superannuation fund, Zaytsev Superannuation Fund.
The wife also tendered as Exhibit W-2 a copy of an isolated page taken from financial statements of the husband prepared by P Company, which listed his current assets and liabilities as of 2014 as $2,804,661. The wife apparently had the document, unbeknownst to the husband, and failed to discover it during the proceedings and sought to rely on it during the trial to prove the assets of the husband.
A close examination of the document establishes the assets and liabilities referred to are an estimate of the husband’s P Company portfolio and his business. The document does not include any of the real properties referred to in the husband’s balance sheet. The wife did not adduce any evidence to contradict the other assets included in the balance sheet. In fact, her own evidence contradicted Exhibit W-2 because she asserted an interest in the V Street property, which is not included in W-2. For these reasons, I therefore accept the husband’s balance sheet of assets as at the date of cohabitation.
At the commencement of cohabitation, the wife was working as a professional earning approximately $200,000 per annum. According to the husband, the wife’s income was hers to dispose of as she wished. The wife contended she applied her income to household expenses. I prefer the husband’s evidence to the wife’s because of my assessment and reservations about the wife’s credibility.
In 2018 the wife ceased her employment and commenced studying and was financially supported by the husband during this time. The wife however contends that she worked in the husband’s business whilst she was studying.
Ms J’s evidence was in 2018, she was employed by the wife on a temporary basis in the husband’s business. In late 2018/early 2019, she was offered a permanent part-time position, which she accepted, because the wife could not perform certain tasks in the business.
Since that time, Ms J has managed the husband’s business and personal affairs. Prior that, the husband had employed a business manager for the previous 15 years, until she left in 2018. Otherwise, between 2018 and 2019 the wife assisted with management of the business, and subsequent to handing her duties over to Ms J, would assist with certain matters when required. The wife was paid a salary from the husband’s business while she undertook her degree, and from 2019, the wife ceased an active daily role in the husband’s business, after she handed over to Ms J.
During the relationship, the husband worked as a medical professional. His current skills and qualifications are similar to those he had at the commencement of cohabitation. His taxable income ranged between $1,500,000 to $1,700,000. The husband’s income was derived from his salary and investments.
In 2015 the husband received an inheritance from his mother’s estate, a property situated at R Street, Suburb S, City T, New Zealand. Based on the rateable value reassessments by City T Council, the property was conservatively valued at $426,011, at the time it was inherited by the husband.
The investment properties were mostly tenanted during the relationship. The rental received from the properties contributed to the mortgage repayments and the parties day-to-day living expenses. According to the husband, he was otherwise responsible for all mortgage repayments, rates, taxes, agent fees, utilities, and expenses together with management of these properties. I accept the husband’s evidence, particularly because of his far superior income.
During the relationship and post separation, the husband paid for a cleaner to assist with duties around the family home, and a gardener to maintain the garden. The parties predominately ate out and otherwise shared household duties, although the wife claims she attended to the majority of household duties.
The wife contended although the parties ate out on a regular basis, she frequently cooked and hosted many events, and when such events were in their home, she did all the catering, setting up and cleaning. She also claimed to regularly bake and provide catering to the husband and his colleagues in his office. For a period of three years prior to the Covid-19 lockdowns, she said the couple would host five to eight of the husband’s colleagues for dinner every Monday evening. Most family celebrations were also held in their home during the relationship, and she would do all cooking and general household duties.
She further contended all day-to-day management of the home and their personal life, including booking travel, entertainment, coordinating services and tradesmen, was organised and managed by her. She also organised all personal shopping requirements for herself, the husband, her son Z, the husband’s family, extended family, staff and friends.
The wife asserted she had a significant input in organising renovations to various properties, including V Street, G Street, and N Street Property. During cross-examination and in her affidavit, she sought to embellish the nature of her contributions. Her contributions are properly described as organising qualified builders and tradespeople to carry renovations to both properties, rather than any physical contribution by her. The wife does not have any building or project management qualifications.
She also claimed credit for managing all the moves between homes, which included packing and unpacking, coordination of services, trades and removalists and that she was accountable for all design, style, interiors and project decisions, including creating courtyard gardens.
Contrary to the wife’s position, the husband deposed to hiring a site manager after the purchase of V Street who oversaw most of the project. He said both he and the wife hired tradesmen and gardeners, both decided on design and ran their households together. From time to time the wife communicated with tradesmen to obtain updates, and on occasions she assisted on the project. They both jointly packed and coordinated services, trades, and removalists. I prefer the husband’s evidence to the wife’s because of my assessment of the wife’s lack of credibility.
The wife’s son, Z, who was around six years of age at the commencement of the relationship, lived with them until separation. The wife did not receive any child support from her former husband, Z’s father. The joint application for divorce filed by the wife and her former husband in 2017 which is Exhibit H-5, states at paragraph 28, that no child support will be paid by either party in relation to that the child.
The husband deposes Z was cared for or as a normal member of the household including the husband supervising him, taking him to sporting events, movies, and dinners, and contends he made a significant financial contribution to Z’s welfare during the relationship and post-separation. Those contribution should be taken into account: Robb & Robb [1994] FamCA 136.
From separation until 2023, the husband made significant payments for the support of the wife. He paid the equivalent of $120,000 per annum comprised of:
·$6,750 per month by way of salary;
·$2,200 per month by way of taxation; and
·$1,050 per month by way of superannuation.
Additionally, the husband paid other expenses for the wife including family health insurance of $2,477 per quarter, Suburb E storage fees $1,025 per month and Suburb C storage unit fees of $1,067 per month.
According to the husband’s affidavit filed 19 July 2024, the wife’s salary ceased in 2023 at her request, because she was contemplating obtaining employment and “could not have two jobs”. Thereafter she continued to receive $6,750 per month until mid-2023, when she withdrew $90,000 from the split loan account without the husband’s knowledge.
The wife has received the following partial property settlements since separation:
·$20,000 in two instalments of $10,000 payable to her former solicitors’ trust account, on account of her legal fees;
·$70,000 as a part property settlement pursuant to Order 5 of orders made in May 2023; and
·$90,000 she unilaterally withdrew from a joint Westpac account.
The husband has also received $70,000 by way of part property settlement.
Having regard to my comments as to contributions and weighing up and assessing the myriad of contributions of the parties, both financial and non-financial, direct, and indirect, at the commencement of the relationship, during the relationship and post-separation, and the parties’ contributions as homemaker I assess those contributions as in favour of the husband at 90 per cent and 10 per cent in favour of the wife.
The orders I intend to make will not have any effect on the earning capacity of either party, there are no other relevant orders and there are no children of the marriage (s 79 (4)(d), (f) and (g) of the Act).
SECTION 75(2) FACTORS – FUTURE NEEDS
The husband is 60 years of age and maintains good health. He intends to retire at 65 years of age.
The husband’s gross income comprises of salary/drawings together with income from his investments which is calculated the end of each financial year together with tax outstanding. As set out in his Financial Statement, his weekly income is estimated at approximately $49,821 and his expenses at $53,762.
The husband has three children of previous relationships, aged 31, 27 and 19 years old. He continues to provide financial assistance to his children.
The wife is aged 48 years and maintains good health, although during the trial she was evidently distressed at the breakdown of the marriage.
According to the husband, the wife told him she holds tertiary qualifications in her field and at the end of 2023 she completed further study. He asserts that the wife travelled overseas to pursue a job opportunity for about eight weeks in 2023.
The wife has qualifications and experience, which the husband submits would enable her to earn a sum similar to her previous earnings of $200,000 per annum, which would financially support a comfortable lifestyle. The wife is thirteen years younger than the husband and has the capacity to generate income for a longer period than the husband, until normal retirement age.
In my view there should be a slight adjustment in favour of the wife to enable her a short period of time to obtain employment. I consider an adjustment of 2.5 per cent in favour of the wife to be appropriate.
WHAT PROPERTY ADJUSTMENT ORDER IS JUST AND EQUITABLE
Turning now to consider how to give effect to my determination of s 79(4) factors, I determine the assets and liabilities of the adjusted property pool, which includes superannuation, should be divided 87.5 per cent to the husband and 12.5 per cent to the wife, which I consider to be just and equitable. The pool of assets as of 2024, is $6,451,650. The husband will retain net assets of $5,645,193.75 and the wife will retain/receive net assets of $806,456.25.
In this case, the relationship was for approximately six years and eight months, and at the commencement of the relationship the husband had very significant assets. Those assets have increased modestly in value and comprise most of the assets he brought into the relationship, including superannuation assets, except for the purchase and sale of the G Street property, which was funded by the husband, although I acknowledge the wife may have been a co‑mortgagor.
The wife did not have any significant assets of the commencement of the relationship other than modest superannuation and an extremely modest settlement from her former husband. She did not contribute to the assets the husband brought into the relationship, nor to his income earning capacity.
The husband made overwhelming financial contributions throughout the relationship and post‑separation for the wife and made financial contributions during the relationship for the wife’s son.
I accept the wife used to income throughout the relationship at her sole discretion and for her personal expenses, as I prefer the husband’s evidence to the wife’s for reasons set out above.
In his proposed Minute of Orders, the husband proposed rolling out to the wife her superannuation entitlements in the self-managed fund as of 2024 which is likely to slightly exceed her super balance as of 2023 ($315,047), and the balance of her entitlement as a cash payment from the sale proceeds of G Street.
The wife did not make any submissions about how her entitlements should be allocated between superannuation and cash, or at all, even though she was provided with a copy of the transcript of the husband’s counsel’s submissions, as I directed during the hearing.
The only document submitted by her was an email forwarded to my chambers, wherein she sought to retain the following:
·All equity in G Street $1,850,650,000
·N Street $860,101
·3 O Street $272,909
·½ super $1,047,550
·½ shares $376,000
·Total 57% $4,407,220
The document did not address how the mortgages encumbering the properties should be treated. Clearly the adjustment proposed by the wife is significantly in excess of the adjustment I have determined, and as referred to above, there were no submissions attempting to support the proposal, which in any event, would be impossible to sustain.
I will therefor make orders in the structure proposed by the husband but will increase the cash payment to the wife to reflect my determination.
The assets the wife will retain/receive are as follows:
Part property settlement
$70,000
Legal fees paid to her solicitors
$20,000
Redraw of bank facility in 2023
$90,000
Motor Vehicle 1
$29,000
Cash payment to the wife
$282,409
Superannuation (wife’s member entitlements as of 2023, noting the wife will receive her member entitlements as of 2024, which will be slightly higher)
$315,047
Total
$806,456
The husband will retain the balance of the assets and liabilities in the adjusted pool.
I consider the adjustment to be just and equitable in the circumstances of this case.
The husband sought some ancillary orders as set out in his proposed minute. The wife did not make any submissions to the contrary, other than she agreed to hand over the keys to the storage facilities at Suburb C and Suburb E, and the husband could collect his personal and business items from storage. It is entirely appropriate that machinery orders are made as per Order 9 to affect the wife’s release from any securities involving assets the husband will retain, and to provide for the transfer of her motor vehicle to her. The orders proposed by the husband to enable the wife’s superannuation entitlements to be rolled into a fund of her choice and for her to exit the self-managed super fund are machinery orders, and I will make them to enable that to occur.
I have also made an order under s 106A of the Act because of the wife’s failure to actively engage in the proceedings, except the final hearing, and to file any documents. I have legitimate concerns the wife may further disengage and refuse to sign documents as provided in the orders. If she does so, that will require further enforcement application to the court, to enforce the final property orders.
The husband sought an order for the wife to pay his indemnity costs incurred in the proceedings, primarily because of her failure to engage in the proceedings and her failure to make full and frank discovery, as required by the rules.
In Massalski & Riley (No. 2) [2021] FamCAFC 152 at [8], the Full Court said, an order for costs:
…falls to be determined within s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that each party to a proceedings under the Act should bear his or her own costs unless the court is of the opinion that there are circumstances that justify making a costs order (s 117(2)). Section 117(2A) sets out matters to which the court should have regard to in determining whether there are circumstances which justify an order for costs, and if so, what, if any, order should be made. As well as the matters listed in s 117(2A), s 117(2A)(g) enables the court to take into account such other matters that are relevant.
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557, the Full Court said that the relevant matters in s 117(2A):
“…must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”
No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the judge’s discretion: (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at 80,400). It is not necessary for each of the factors listed in s 117(2A) of the Act to be met for the court to make a costs order. (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123 at 124).
Having considered all relevant statutory criteria and balancing the factors and in particular the disparate financial position of the parties, I conclude the overall circumstances do not justify any order for costs, let alone indemnity costs, and I do not propose to make any costs orders.
Notwithstanding the above, the husband presses enforcement of order 6 made on 26 July 2023, that the wife pay his costs thrown away fixed at $5,500. Although there were no contrary submissions made by the wife, I will not deduct that amount from the funds the wife is to be paid. The husband is at liberty to pursue the costs if he seeks to do so.
I will make orders accordingly.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 12 September 2024
ANNEXURE A
Minute of Proposed Orders – Applicant Husband
THE COURT ORDERS THAT:
1.There be an adjustment of property interests pursuant to s 79 of the Family Law Act 1975 (Cth).
2.In the alternative to paragraph 1 herein, that there be an adjustment of property interests pursuant to s 90SM of the Family Law Act 1975 (Cth).
3.Within 30 days from the date of this Order and subject to the respondent complying with paragraph 4, the applicant pay to the respondent to an account nominated in writing by the respondent, the sum of $165,000 less the sum of $5,500 (“the payment”) being costs thrown away pursuant to Order 6 of the Orders dated 26 July 2023 by way of a final property settlement.
4.Contemporaneously with the payment;
(a)The applicant and respondent do all acts and things and sign all such documents to close the joint Westpac account ending #28 used exclusively by the respondent; and
(b)The respondent do all acts and things and sign all such documents required by the Westpac Bank to remove herself from the group of securities held by the Westpac Bank;
(c)The applicant retain for his sole use and benefit all Westpac group of securities accounts including all surplus funds in each account save for account number ending in #28
(d)The respondent do all acts and things and sign all such documents to remove any direct debts/payments from any account held by the applicant and she be and is hereby restrained from reinstating such direct debit/payments.
(e)The respondent do all acts and things and sign all such documents to provide to:
(i)The applicant’s lawyers the keys and close all accounts and facilities relating to the self-storage units at B Street Suburb C (Suburb C storage unit), and D Street, Suburb E (Suburb E storage unit); and
(ii)The applicant remove his personal and business items and the Respondent be restrained from being present at the Suburb C and Suburb E storage units while the Applicant is collecting his personal items pursuant to these Orders.
(f)The applicant and respondent do all such acts and things to transfer Motor Vehicle 1 to the respondent at the respondent’s sole expense, failing which, the Applicant deregister the motor vehicle seven days thereafter.
5.That forthwith the respondent assume sole responsibility for all expenses relating to Motor Vehicle 1 including but not limited to registration, insurance and all Civic Compliance infringements.
6.Except as otherwise provided in this Order, the applicant and respondent are entitled to be the sole legal and beneficial owners of all items of property in the possession or control of each of them respectively including but not limited to:
(a)Money in bank accounts (including the respondent retaining her part property settlement of $70,000, $20,000 and $90,000);
(b)Real estate;
(c)Motor vehicles;
(d)Insurances;
(e)Equities;
(f)Superannuation entitlements;
(g)Furniture and chattels;
(h)Personal effects; and
(i)Investment portfolios.
7.Except as otherwise provided in these Orders, the applicant and respondent be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
8.In the event that the respondent fails to execute any document required to give effect to these Orders, within seven (7) days of a request for same, the applicant be appointed pursuant to s 106A of the Family Law Act 1975(Cth) to execute any documents required in the name of the respondent and do any other acts and things as may be necessary to give validity and operation to these Orders.
Superannuation
9.The applicant and respondent are the Directors of F Pty Ltd ATF Zaytsev Superannuation Fund (“The Fund”).
10.Contemporaneously with the payment, the applicant and respondent in their capacity as Directors of F Pty Ltd ATF (“the Fund”) do all acts and things and sign all such documents to instruct the accountants of the Fund, to calculate the respondent’s member entitlements as at 2024 (at the applicant’s sole expense) and the respondent do all acts and things and sign all documents necessary to rollover her member entitlement into her nominated superannuation fund.
11.Contemporaneously with the rollover of the respondent’s member entitlement pursuant to paragraph 10 herein, the Respondent do all such acts and sign all such documents to:
(a)Firstly, relinquish any and all interest in the Fund;
(b)Secondly, resign as Director of F Pty Ltd;
(c)Thirdly, resign as a member of the Fund;
(d)Fourthly, resign from any positions she holds in the Zaytsev Superannuation Fund; and
(e)Fifthly, remove herself as an authorised signatory on any and all bank and any and all other accounts associated with the Fund; and
(f)Sixthly, transfer responsibility for the management and administration of the Fund to the Replacement Director who is the Director appointed after resignation of the respondent; and
(g)Seventhly, comply with all directions and sign all documents required by the Funds accountants.
12.The requirements of procedural fairness have been observed on the basis that the parties are the Directors of F Pty Ltd.
13.This Order has effect from the operative time, being the date a sealed, certified copy of these Orders are served on the accountants of the Fund.
14.The applicant and respondent have leave to provide a copy of these Orders to the Fund’s accountants.
Other
15.The applicant serve a copy of this Order, on the Respondent via email at her email addresses.
16.Any joint tenancy of the parties in any real or personal estate is expressly severed.
17.The respondent pay the applicant’s costs on an indemnity basis.
18.All previous orders be discharged.
19.That all outstanding applications be dismissed
Nullity Final Orders
1.This Honourable Court pronounce a decree that the purported marriage between Mr Zaytsev and Ms Zaytsev solemnized in late 2016 be declared to be null and void.
2.A Decree of Nullity is made in respect of the marriage solemnised in late 2016 between Mr Zaytsev and Ms Zaytsev.
3.That a copy of this Order be provided to Deaths, Births and Marriages and it is requested that the Registrar of Births, Deaths and Marriages of Victoria amend the resister accordingly.
4.That the respondent pay the applicant’s costs on an indemnity basis.
0
6
3