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
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;
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- AGLC
- Zaytsev & Zaytsev [2024] FedCFamC1F 613
- Case
- [2024] FedCFamC1F 613
- Decision Date
CaseChat Overview and Summary
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;
(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.
Background
Background to the litigation
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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