Tsvetkova & Peeters [2025] FedCFamC1A 157 (5 September 2025)

🔹 Introduction

This case concerns an appeal by Ms Tsvetkova against property settlement orders made in favour of her former husband, Mr Peeters. Dissatisfied with the trial outcome, she alleged errors of fact and law, including failure to consider financial misconduct, economic abuse, and undisclosed assets. She also sought to introduce new evidence on appeal. The appellate Court, however, dismissed both her application to adduce new evidence and her substantive appeal.

🔹 Facts and Issues

• The parties married in 2016, separated in 2020, and had one child.
• They began with modest savings (~AUD $44,000), held in a joint account but later retained solely by the husband.
• At trial, the asset pool was set at $71,344 (including superannuation). The wife sought $46,106 and 60% of superannuation; the husband sought dismissal of her application.
• The primary judge awarded her 70% of net assets (via a superannuation split), recognising the husband’s retention of joint savings and disclosure failures.
• On appeal, the wife raised multiple grounds, including:

1. Error in fact regarding their separation timeline.
2. Error in law by not recognising the husband’s retention of funds as economic abuse (s 4AB, Family Law Act).
3. Failure to account for capacity to repay and undisclosed assets.
4. Misapplication of add-back principles (Trevi v Trevi).
5. Failure to consider trust account funds, Calderbank offers, separation agreements, and inheritance expectations.
6. Alleged reliance on misleading financial statements.

• She also sought to introduce additional financial documents that existed at trial but were not tendered.

Key Issues:

• Should new evidence be admitted on appeal?
• Did the primary judge commit appealable error in law or fact in making the property orders?

🔹 Rule (Law)

1. Adducing fresh evidence on appeal – s 35 FCCA Act 2021, guided by CDJ v VAJ (1998) 197 CLR 172 and Hsiao v Fazarri (2020) 270 CLR 588. Fresh evidence must generally be undisputed, unavailable at trial, and capable of showing error.
2. Family violence (economic abuse) – defined in s 4AB Family Law Act 1975. Conduct must be established by evidence and properly raised at trial.
3. Property division – s 79 Family Law Act: orders must be “just and equitable.” Non-disclosure and dissipation of funds can justify adjustment (Trevi v Trevi (2018) FLC 93-858).
4. Capacity to borrow – Not treated as “property” under s 79 (Walters & Walters (1986) FLC 91-733).
5. Inheritance expectations – not considered property unless imminent (White & Tulloch & White (1995) FLC 92-640).
6. Appeals – require proof of appealable error; dissatisfaction alone is insufficient.

🔹 Application (Reasoning of the Court)

1. New Evidence

• The wife tried to introduce documents available at trial (e.g., respondent’s tax returns).
• Court: failure to tender them was unexplained; evidence was disputed and not decisive ([15]–[17]).
• Applying CDJ v VAJ, admission would not correct error but simply re-litigate final findings. Application dismissed.

2. Alleged Errors of Fact and Law

• Separation timeline: No error – trial judge’s wording was interpreted correctly ([20]).
• Economic abuse: No evidence of family violence presented at trial. Court held she was bound by trial conduct and could not raise it anew ([23]–[25]).
• Capacity to repay: A loan facility is not “property” under s 79. Reliance on Walters confirmed this ([30]–[31]).
• Non-disclosure: Trial judge had already penalised husband with 20% adjustment in wife’s favour ([33]–[34]).
• Add-backs (Trevi): Trial judge correctly declined to add back dissipated savings, but adjusted distribution under “justice of the case” ([38]–[43]).
• Trust funds, Calderbank offer, financial statement irregularities, and inheritance: None revealed appealable error; either immaterial, misconceived, or unsupported by evidence ([44]–[57]).

🔹 Judgment

• Application to adduce evidence dismissed.
• Appeal dismissed.
• No order as to costs, as both were self-represented ([58]).

🔹 Cited Precedents

• CDJ v VAJ (1998) – admission of further evidence.
• Hsiao v Fazarri (2020) – discretion to admit new evidence.
• TKWJ v R (2002) – incompetent representation not ground of appeal absent miscarriage of justice.
• Walters v Walters (1986) – borrowing capacity not property.
• Trevi v Trevi (2018) – approach to add-backs.
• White & Tulloch & White (1995) – inheritance not property unless imminent.
• Stanford v Stanford (2012) 247 CLR 108 – focus on existing legal and equitable interests.

🔹 Conclusion (Take-Home Lesson)

This case highlights that:

• Appeals are not second trials. Dissatisfaction or fresh arguments cannot substitute for proven appealable error.
• New evidence will rarely be admitted if it was available at trial.
• Economic abuse must be clearly pleaded and evidenced; late claims will fail.
• Courts prioritise practical justice over theoretical entitlements—capacity to borrow or unproven inheritances cannot inflate property pools.

👉 The take-home message: prepare thoroughly at trial—appeals cannot repair omissions or re-argue the case.