Zaytsev & Zaytsev - [2024] FedCFamC1F 613

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zaytsev & Zaytsev [2024] FedCFamC1F 613

File number(s): MLC 2689 of 2023
MLC 12806 of 2023

Judgment 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;

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 Zaytsev & Zaytsev

Details

AGLC: Zaytsev & Zaytsev [2024] FedCFamC1F 613
Case: [2024] FedCFamC1F 613
Decision Date: 12 September 2024

CaseChat Overview and Summary

The case of Zaytsev & Zaytsev involved a dispute between the husband and wife concerning the division of their respective property interests. The husband sought adjustments to their property interests, while the wife, who had been the subject of a Family Violence Intervention Order, did not file any documents and represented herself. The husband had significantly more assets at the commencement of their cohabitation and made greater contributions, whereas the wife had not provided full and frank financial disclosure. The court was required to decide whether it was just and equitable to adjust the parties' property interests and, if so, in what proportion. The court determined that the assets should be divided in the proportion of 87.5 per cent to the husband and 12.5 per cent to the wife, with a 90/10 assessment of contributions in favour of the husband and a 2.5 per cent adjustment in favour of the wife.

The court found that the husband had made a significant contribution to the overall pool of assets, and it was just and equitable to adjust the parties' property interests accordingly. The court also considered the wife's non-compliance with orders to provide financial disclosure and the existence of the Family Violence Intervention Order, which enlivened section 102NA of the Family Law Act 1975 (Cth). The court concluded that the wife's unilateral withdrawal of funds from a joint account was a factor to be taken into account when considering the appropriate adjustment in favour of the wife. The court further determined that the purported marriage between the parties was null and void, as the wife had been married to another person at the time of her purported marriage to the husband, and both parties consented to the decree of nullity.

The court's reasoning was based on a comprehensive assessment of the parties' financial contributions, the existence of the Family Violence Intervention Order, and the wife's non-compliance with court orders. The court made a declaration of nullity of the purported marriage and ordered the sale of the former matrimonial home and a payment to the wife from the sale proceeds. The court also ordered the wife to provide financial disclosure and comply with various other orders related to the division of property and the management of superannuation funds. The court found that the wife's unilateral withdrawal of funds from a joint account was a relevant factor in determining the appropriate adjustment in favour of the wife.

Orders

Orders of the court

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;

(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;

(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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 2689 of 2023 MLC 12806 of 2023
Judgment 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

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