Giller v Procopets [2004] VSC 113

Giller v Procopets [2004] VSC 113 - VSC 2004 case summary — Zoe

[27]

Some of the plaintiff's affidavit evidence was exposed in cross-examination as deliberate lies. The defendant cross-examined her, at times skilfully, over a period of some eight days. Some of the evidence which damned the reputation and character of the defendant was shown to be a deliberate lie. I refer to her evidence concerning the payment of fees for child minding. She said the defendant did not pay any of the fees. He produced a calendar which was on the refrigerator and which was marked. It was suggested to her that the markings indicated when each had to pay. She initially said that that was the arrangement but he did not meet it and then when confronted with the calendar for the following year, she first of all denied that she filled in the calendar and then speculated that the reason was because he was obliged to pick the children up on the days that were marked. I do not believe her. In paragraph 212 of her affidavit she said she had not received any child support since 7 December 1998. She alleged that the accrued arrears "now exceed $30,000". This was quite untrue. It is hard to accept that it was due to a defect of memory. Paragraph 172 is also incorrect. It asserts that prior to 6 December 1996 the defendant did not seek to have any contact with the twins by himself. It is clear that between June and December he had constant contact. He was picking up the children and delivering them to a child minding centre and this would be sometimes two to three days per week. Again in my opinion paragraph 172 is a deliberate lie. The last sentence of paragraph 177 asserts that although the defendant was granted supervised contact with the twins he never availed himself of that contact. She admitted this was incorrect. It is hard to accept that that was due to a memory lapse. Her description as to the state of Otira Road when the defendant moved into the property in late 1994 is exaggerated and I do not accept it. Her evidence as to the pensions that were obtained from the moment she moved in with the defendant up until July 1993 is also inconsistent and untrue. She first of all said that she and her husband had an unemployment pension for some considerable time, then she changed her version to say they only had it for a few weeks and she then obtained a sole parent pension. However, when a document was produced in re-examination of her, showing that the sole parent pension was granted in 1992, she denied that she had first received the sole parent pension from March 1992. She said that the letter she had received was in a form that always contained the first sentence suggesting that she just made a claim for a sole parent pension. I do not accept her explanation. This cross examination demonstrated her willingness to lie if she thought it appropriate. Her evidence as to why she endorsed three cheques provided by the defendant to her in July 1996 to a Mr Cwikla was unbelievable. She asserted that she did it, to put the money beyond the reach of the defendant. This was an extraordinary proposition bearing in mind that the defendant had taken the step of obtaining three cheques under $10,000 to avoid the bank reporting the transactions to the authorities and handing over the cheques to her. At that stage she was in complete control of her own monies. I do not accept her evidence. In re-examination she told the Court that between 1994 and 1996 the defendant spent about one night per fortnight at her Port Melbourne residence. This does not accord with the evidence of her daughter. It was the first time it was mentioned in the case. I do not accept the plaintiff's evidence in relation to this matter either. Her evidence contained in paragraph 102 is also a deliberate untruth. It reads -

[29]

In an affidavit sworn on 4 November 1997 by the defendant, he in fact criticised her for not looking after the children. This was put to her. She then admitted to this Court that the children had had a problem holding down their food for most of their early years. She then admitted that when food was regurgitated on occasions they attempted to get the children to eat it. This is not a surprising state of affairs when young children are prone on occasions to spit out their food. What was said in paragraph 102 is a lie. I do not accept that the defendant became angry and slapped their faces. Indeed there was considerable evidence placed before the Court which showed that the defendant as a loving and caring father who had a very good relationship with the twins in their early years. There were many instances in the proceeding when the plaintiff gave evidence that was hard to accept or unbelievable and, on occasions, was deliberate lies. She is very intelligent, and it was apparent that she on occasions anticipated the cross examination and was prepared to make up a story or speculate to head off the questions. Not only did the plaintiff tell lies, but she appears to have induced others to tell like lies. An affidavit by her brother contained material which he frankly conceded in the end was incorrect. He struck me as an honest witness. He was not prepared to support the plaintiff in much of her evidence as to the behaviour of the defendant. In addition she met a retired Professor Poynter some 10 years after she had met him at the University of Melbourne and prompted his memory that on one occasion he observed her in a distressed and injured state. This led to an affidavit which in the end turned out to be incorrect. Not for one minute am I criticising the deponent. I am quite satisfied that Professor Poynter did see the plaintiff on one occasion distressed and showing signs of injury. However his evidence was out by at least one year and as corroborative evidence of a particular assault was shown to be of no corroborative value at all. Whilst one might criticise the deponent for his careless approach to the evidence, nevertheless the plaintiff and her advisers must accept some responsibility for the situation. Further the affidavit of the daughter Julia, which is similar in terms to her mother's affidavit, was exposed as containing much false evidence. Paragraphs 11 and 12 of her affidavit, which I have excluded as being irrelevant, were put to Julia after she was shown a video and I am quite satisfied on all the evidence that what she swore was false and in my opinion deliberately false.

[48]

The plaintiff's parents Arkady Zuperman and Sofia Rudutskaya left Kiev and settled in Israel for a short period of time. The defendant provided financial help whilst they were in the Ukraine and also through his sister provided assistance to them whilst they were in Israel. I am satisfied that the defendant was instrumental in obtaining the necessary entry permits for the plaintiff's parents and also financially assisted them come to Australia. They arrived in Australia on 1 July 1993 with their son Alex who was then aged thirteen years. They lived at the defendant's premises at Orrong Crescent. In a matter of days it was apparent that the presence of the parents and their son was not to the liking of the defendant. Primarily as he put it, because the plaintiff's daughter Julia and the son did not get on and were arguing, and also the added numbers in the house were hardly conducive to a pleasant situation. It also appears that the defendant did not get on with the plaintiff's parents, in particular her mother. There is a dispute as to what occurred on 6 July 1993. The plaintiff stated that the defendant lost his temper, a verbal and physical confrontation occurred and the defendant demanded that the plaintiff, her daughter, her parents and her brother leave the home. It is said that the defendant dragged out the bedhead from the bed used by the parents and broke it up in the backyard. He denies the plaintiff's version. That version is not supported by the brother's evidence and the daughter Julia's evidence is vague. I accept the defendant's version, that he required and indeed demanded that the parents and the brother leave the home because it was creating problems, and the plaintiff said that if they were going, so was she. The end result was that on 6 July 1993 the plaintiff, Julia, the plaintiff's parents and brother left the premises at Orrong Crescent. Surprisingly they found a flat 4/13 Philip Street, Bentleigh that night. The plaintiff was quick to point out to the Court that she was able to obtain the flat mainly because of the defendant's reputation. However, there is evidence that up to July 1993 there had been physical confrontations between the plaintiff and the defendant and on at least two occasions the plaintiff left the home and sought refuge. She said she was constantly mistreated, from time to time was assaulted, she was dominated by the defendant and the house was untidy, cluttered and a mess. She said he mistreated the children including Julia and he was mean. Clearly at times the plaintiff was not happy at the premises. Despite the alleged confrontation on 6 July 1993 it is surprising to note that on 26 July 1993 the parties got together, including the plaintiff's parents to enter into a contract concerning an alleged loan made to the parents. I accept the version of events given by the plaintiff. He did not want the plaintiff and the twins to leave. She decided to go with the parents.

[58]

The plaintiff stated that in mid-1995, December 1995 and January 1996, she and her parents paid sums of money to the defendant for the construction of the units. Her mother gave evidence that she and her husband lent a sum of money. The evidence was extremely vague and inconsistent with the position of the parties. Whilst the plaintiff was in receipt of a number of pensions, making money as teacher and casual interpreter but supporting herself and the children, her parents were not working and were living on pensions. The parties including the plaintiff's parents apparently acquired some motor vehicles which they later sold. The plaintiff gave evidence that she paid three instalments totalling $4,000 towards the construction of the units at 22 Orrong Crescent in mid-1995 by attending at a bank in the city at the request of the defendant and paying amounts of interest on the mortgages. The defendant stated that the plaintiff did not pay any money into any of his accounts. I do not believe the plaintiff. I do not accept that she made any financial contribution. It is said that the plaintiff paid the defendant a sum of $10,000 in December 1995 towards the cost of constructing the units. It is also said that the parents provided the defendant with the sum of $12,000 towards the construction in January 1996. The details of these payments, where the money was sourced from and the circumstances are all very vague and the evidence is somewhat inconsistent. The plaintiff, her mother and the defendant gave evidence in relation to the matter. What appears to be extremely odd is that on 26 July 1996 the defendant repaid the alleged loans by three cheques, payable to the plaintiff. I am not satisfied of the truthfulness or reliability of the evidence of either the plaintiff or the defendant. They entered into an arrangement whereby the amount, which was in the vicinity of $26,000, was divided into three separate cheques of $8,666.66 each. This was done to avoid the bank informing the authorities of a transaction of $10,000 or more. The three cheques were made out to the plaintiff. She then endorsed the cheques over to a man by the name of Lesh Cwikla. Mr Cwikla was involved in buying and selling motor vehicles. The explanations in relation to raising the money paying it to the defendant, the method of repaying the amount, the payments and why the cheques were endorsed to Cwikla raises suspicion about the transactions. The mother was cross examined as to where she got the money to lend, with her husband, the sum of $12,000 towards the construction of the units in January 1996. Her evidence was to the effect that she obtained a loan without security from a female person who was not called as a witness. She said that she obtained the loan because she requested this person to lend it to her and that she lent the money to the defendant because he asked for it. I am not satisfied the evidence was the truth. It seems odd to say the least that the money, when paid by the defendant in July 1996, was not paid in a cheque to the mother to repay the loan. The defendant's version was that the two payments totalling $22,000 were repayments of money lent by him to the plaintiff and her parents and that the alleged payment of $4,000 was untrue. Whilst the evidence tended to support the defendant's version, he could not give any satisfactory explanation as to why he gave the plaintiff $26,000 in July 1996. He said it was a loan to her. I do not believe him. The whole evidence is shrouded in mystery and suspicion. Why did the plaintiff endorse the cheques to Mr Cwikla? She gave an explanation that it was to put it beyond the reach of the defendant. That is nonsense and I do not believe her. There must have been another reason. On the other hand why did the defendant lend her $26,000 at the end of July 1996. By this time the relationship between the parties was extremely rocky; a suggestion has been made that both had entered into sexual relationships with new partners. The Court has not heard the truth concerning these transactions. I do not accept that the monies were paid by the plaintiff to the defendant as a contribution towards assisting with the construction of the units.

[63]

In the meantime the intervention application was heard in the Melbourne Magistrates' Court on 22 November. The parties had indulged in sexual activity on 19 and 21 November. Prior to the hearing the defendant requested the plaintiff not to seek an intervention order against him. This is clear from their conversation captured by the video on 19 November 1996. The plaintiff stated that she proposed to proceed with the intervention order and the assault charges against the defendant would be dropped. The defendant indicated that he would prefer assault charges than have an intervention order. It was very clear from the conversation that the plaintiff was aware of the procedures in the Magistrates' Court, which she had observed during her role as an interpreter. She told the defendant that it did not depend upon him; she was asking for an intervention order and "I will get it automatically at my request, with or without your consent." The defendant indicated he would tell his side of the story but the plaintiff pointed out it was on the balance of probabilities if "the Judge is convinced that you are a real threat to me". The plaintiff made it quite clear that she was going to proceed with the application and the defendant stated he did not want an intervention order and that he would prefer to stand trial for assault. He ended by pointing out to her that she was blackmailing him. Despite this and the entreaties of the defendant not to obtain an intervention order against him the parties attended the Court together, and the plaintiff gave evidence on oath that she was afraid of the defendant and was fearful for her own safety. It is difficult to accept that her evidence was truthful bearing in mind their intimate relationship at that time. Nevertheless she obtained the order. One of the terms was that the defendant was not to contact the plaintiff except in the company of the police. That afternoon sexual intercourse took place. The parties continued to indulge in sexual activity which was filmed up to 1 December 1996. There is no doubt the intervention order caused the defendant a degree of distress. By its terms the defendant was prohibited from assaulting or harassing the plaintiff, approaching her except in the presence of police, he was not permitted to be within 350 metres of her flat at Port Melbourne and was restrained from damaging her property.

[74]

In the early hours of Tuesday 10 December 1996 and clearly very soon after the plaintiff had signed her statement, Senior Constable Cain and other police took the defendant into custody and at 4.30am commenced an interview with him. This continued through to 7am. The questions covered a number of topics, including the relationship between the plaintiff and the defendant. He was also asked about the filming of the sexual activities and when asked why he commenced filming, he stated that he wanted the intervention order removed. He lied when he told the police that the plaintiff knew about the existence of the camera for the whole period. I do not accept that. Indeed looking at the video it is very clear that she became aware from about 25 November 1996. He was asked what he did with the tapes. It is very clear that the defendant was aware that a complaint had been made about showing the videos and his fingerprints were taken. He was told that he may be charged with offences of breaching the intervention order and assault. The evidence revealed that the video was not shown to any other person after 10 December, nor was any threat made after that date to show the video to anybody. The video did get into the possession of Mrs Drobitsky who was handed the tapes and some documents in a sealed envelope by the defendant. Mrs Drobitsky said that she viewed the video in the privacy of the defendant's home in the following year 1997, at which time she was having a relationship with him. The relationship ceased in about mid-1997, and despite requests by the defendant to her to hand over the tapes, she refused to do so. Later after their relationship had ceased, she made contact with the plaintiff, telling her about the existence of the tapes and that she had seen one of them, and arrangements were made for her to go and see Senior Constable Cain. She made a statement to the police. The plaintiff arranged for her to attend at the police station. As a result of Mrs Drobitsky's statement, the defendant was charged with breaching the intervention order and was imprisoned for a period of approximately thirty-one days before he obtained bail from a Judge of this Court. This occurred in the latter part of 1997.

[276]

The plaintiff's parents and brother arrived in Melbourne on 1 July 1993. They moved in with the parties and their children. The plaintiff's brother Alex Zuperman was then aged thirteen and a half years and the daughter Julia was then aged eleven years. There is a factual dispute between the parties as to what led to the separation. The plaintiff asserts that when her parents arrived her mother was appalled by the state of the house. The mother made some comment in front of the defendant and the plaintiff became angry and stated in the presence of the defendant that she was no more than a slave. It is said the defendant reacted by ejecting the plaintiff, Julia, the twins, the plaintiff's parents and brother from the house. The plaintiff gave evidence that the defendant lost his temper, that he dragged the parent's bed head which the plaintiff said she had bought, outside and chopped it up. She said that the family was forced outside, it was in the middle of winter, the children were cold and had nowhere to go and the defendant would not permit them to come into the house. The defendant's version is different. He found that the brother and Julia could not get on and appeared to be arguing all the time, the defendant did not get on with the plaintiff's mother and he found the presence of the additional persons in the house not to his liking. He demanded that the family leave but he did not demand that the plaintiff, her daughter and two children should leave. As I have difficulty with the honesty of both parties, it is necessary to consider whether there is any evidence supporting either version. The mother Sofia Radutskaya in her affidavit has given a version which is similar to the plaintiff's version. She states that after the argument "the defendant put all of us including the three children, out the front door and locked us out of the house." The mother speaks little english and her evidence was given through an interpreter. I have considerable doubts about the credibility of the mother. First of all she dislikes the defendant and has had very little contact with him in all the years she has been in Australia. It was obvious during the course of the trial that there is no love lost between the defendant and the plaintiff's mother. Secondly, as a witness she was prepared to change her story if she thought it was appropriate. Her evidence as to where she obtained some money which she alleged she lent the defendant was unbelievable and I am satisfied was false. She was also asked about her activities to derive income. She is a pensioner. It was clear that she was far from frank when asked about buying and selling items. All told I found her a very unsatisfactory witness. Her evidence about where her daughter lived after July 1993 was very vague and I would not place any reliance upon it. Her evidence about the state of the defendant's home which she described in harsh terms hardly stood up to cross examination when shown photographs of the home. Her evidence in cross examination about what happened at the Camberwell market was prevaricating and in my view evasive. Her evidence in paragraph thirty-eight of her affidavit, that on 15 December 1996 she received a telephone call from her daughter who said the defendant had told her he was going to take an overdose and that she attended the home with her, is clearly wrong. It occurred in November 1996 and as the cross examination continued I formed the impression that she was making up the evidence as she went. I do not accept the evidence of Mrs Radutskaya as to the circumstances of the break up.

[279]

In my opinion the defendant did not force the plaintiff, the daughter and the two boys out. He did demand that her parents and brother leave the home. In my view the plaintiff took the opportunity to leave. She was not happy at the residence. There was some evidence of mistreatment. By this time she was in receipt of a pension, and I am satisfied that she made the decision that she would leave with her parents. What happened thereafter until October 1996 is much disputed between the parties. The plaintiff for her part asserts that the defendant made promises to her that if she would come back and live with him, he would do various things. She gave evidence which was to the effect that she spent periods with him at his home during the next three years. In her affidavit she referred to promises being made at the end of July 1993 about marriage and transferring property. She said that in early August she began spending one to two nights each week with the defendant, that despite the promises about marriage and transferring property she did not believe him and some time in November 1993 she left the home at Orrong Crescent and resumed living with her parents. She then said that there was another agreement in November 1993 in which the defendant made promises about demolishing the house at Orrong Crescent and building two units on the land; one would be the family home. She stated that she would not resume a relationship with him until he included his name as father of the twins on the birth certificates. In this six month period I am satisfied that the parties did spend time together at Orrong Crescent. However I do not accept the evidence that the resumption of the sexual relationship was on the basis of any promises. One thing that occurred during this six month period is that a decision was made by the plaintiff to acquire her own premises. She states that when the family first arrived in 1990 they were put on a waiting list for Housing Commission accommodation and in July 1993 she made urgent pleas for a Housing Commission flat. In December 1993 she was offered a flat at 96 Esplanade East, Port Melbourne. She accepted the flat and moved in with her daughter and the twins in February 1994. It is clear that it was her intention in the last six months of 1993 not to resume living with the defendant, to conduct her own life as she wished, to be in charge of her finances and set up her own household independently of the defendant. She said that by February 1994 she had established a pattern of spending three to four nights each week with the defendant. It is clear that Julia did not wish to have anything to do with the defendant. As a witness Julia was unsatisfactory. I think that she was induced to sign an affidavit which was prepared by others and contained many sweeping statements that were not true and she admitted as much in the witness box. She said that she was upset by the family arrangements during this period and she tried to put a lot of the events out of her mind. She did not stay overnight with her mother and the boys at Orrong Crescent. However she stated that her mother always made sure that she was supervised and that when Julia slept at Port Melbourne her mother was always there.

[309]

Barry John McLennan, a licensed real estate agent and certified practicing valuer, gave evidence. He has had considerable experience in valuations. However he suffered from a distinct disadvantage in valuing the properties. He was asked to value the properties in September/October 2002 at dates 13 March 1990, 20 October 1996 and 29 October 2002. He suffered a particular disadvantage in relation to the value of the property at Orrong Crescent. It was demolished in 1994. He did not have any opportunity to inspect the property and make some assessment of the value of the improvement on it. So far as Otira Road was concerned he was looking at the property in October 2002 and had to determine the values at a date some twelve years previously. In addition, in seeking to rely on comparable sales he was denied the opportunity of checking the improvements on the comparable land sales at the relevant times. He valued 37 Otira Road and 22 Orrong Crescent. The evidence revealed that Otira Road was a more sought after address and more valuable than Orrong Crescent. He valued 37 Otira Road at 13 March 1990 for $190,000. He was cross examined suggesting the true value was in the high $200,000's at that time. The defendant had purchased Otira Road in late 1986 for $188,500. It was put to him and he accepted that from 1986 there had been steady increases in values in the order of some 22 percent each year. He agreed that in the year 1987 there was an increase of 21.4 percent on values in that area and this would add another $40,339 to the valuation. He did say that every valuation had a margin of error of about ten percent. However despite that concession, accepting that there had been an overall increase of 21.4 percent this would bring the price up around $228,839. He said that in the latter part of the 1980's there was a downturn. However he accepted that this was mainly in the commercial area but had some effect on the residential areas. Taking into account the fact that there had been steady increases in the values during these years I do not accept his valuation at $190,000. Indeed in my view the valuation was somewhere around $250,000. He valued 37 Otira Road on 20 October 1996 at $335,000. He valued it at 29 October 2002 at about $636,000. The defendant did not appear to contest these figures.

[312]

In the years ending 30 June 1990, 1991, 1992 and 1993 the defendant paid substantial sums of money off his four mortgages namely $75,180, $73,464, $63, 300 and $53,736. A perusal of the defendant's tax returns during this period shows that his income was made up of rent and interest. He suffered substantial losses each year and accordingly paid no taxation. It was contended that the money that the plaintiff was deriving from her pensions and which she says was paid to the defendant enabled him to pay his interest payments. I am not persuaded that the monies that she contributed from the pensions exceeded the true value of the cost of boarding for her and Julia and meeting their expenses. It is interesting to observe with respect to Orrong Crescent that between 30 June 1990 and 30 June 1993, the defendant reduced the mortgage principal by the sum of $11,759 and in that period he paid $60,316 in interest. He was cross examined as to how he could pay the mortgages. The annual sums were indeed substantial. However he showed that on 30 July 1990 he obtained a bill discount facility of $65,000 which he did not use in any way to pay off any of his debts. He further gave evidence that he had substantial sums of money which enabled him to pay off his debts. Whilst I have doubts about his credibility, I am satisfied that he was able in this period to pay all his debts as they fell due. He was not asked where the money came from. One should not speculate as to where he got the money. He said during that time that he bought and sold some cars. I am satisfied on the evidence that he did have sufficient funds to be able to pay the principal and interest on the mortgages. The mortgages had been in place since 1988, and in the years prior to the plaintiff moving in, he had been able to properly service each of the mortgages. An attempt was made by the plaintiff to suggest that he was financially embarrassed because of the Pyramid failure in 1990, however the evidence satisfied me that although he did suffer an initial loss, he was reimbursed the full amount over the following three years. As he pointed out, in 1990 he obtained a bill discount facility of $65,000 which commenced on 30 July 1990. The evidence does not persuade me that the defendant was in any way financially embarrassed during this period and he was able to continue to repay his principal and interest on the mortgages from the date when he acquired the properties and after the plaintiff and her daughter commenced to reside with him.

[313]

That brings me to the plaintiff's financial contributions. The plaintiff gave evidence that she had no savings when she came into the relationship, and that the defendant at the beginning had to support her and Julia. In addition after the children were born he supported them. According to her affidavit, she said in the year 1990 she received unemployment benefits of the rate of $220 per week and from December 1990 until July 1993 she received two pensions, being the Family payment pension and the Sole Parent benefit. She said that she received some $325 per week. She stated that she paid all the money to the defendant and that he had total control of the money. In her Statement of Claim in Schedule A, she repeats that she paid the defendant those sums of money during those periods and that they were applied in part to meet all the mortgage repayments. She was cross examined by the defendant and the cross examination revealed that the amounts mentioned did not come to $220 per week in the first year and $325 per week thereafter. Further she admitted that she did use some of the money for her own purposes, including education items for Julia and some for her own expenses. In the years 1992 and 1993 she had the expenses of travelling to and from the university and other incidental expenses. I do not accept her evidence in her affidavit where she says "the defendant took it all and I never saw it again nor did he ever give me any money of my own". The defendant for his part says that she kept her money. I do not believe either the plaintiff or the defendant in this regard and accordingly it is difficult to know what amount of money came into the household from the pensions. As I have said, both pensions were paid as a result of misleading statements made by the plaintiff to a government department. In addition, by the fraud of both parties the department was induced to provide a rent subsidy on the basis the plaintiff was renting from the defendant the premises in which she resided.

[327]

During the period from 13 March 1990 to 6 July 1993 the plaintiff with the assistance of the defendant was able to achieve a great deal. She had come from an oppressed and deprived society in Kiev to this country and was unable to speak english when she arrived. She and her husband separated. She moved in with the defendant who provided her with all the support needed to enable her to assimilate in this country. In the first year she was kept by the defendant. He provided the home, food and all amenities. What contributions the plaintiff made were insufficient to cover the cost of keeping her and her daughter. The plaintiff became pregnant. In March-April she commenced her studies of the english language and these continued until about August that year. Thereafter she continued to study english at home with the defendant's assistance. In the meantime the defendant provided assistance to the plaintiff's parents and brother who had migrated to Israel. Whilst the defendant makes a fair point that it was the plaintiff's association with him that provided that assistance, it is a matter that I do not take into account. However, it does explain amongst many other things why the defendant is upset because of what he perceives is a lack of gratitude shown by the plaintiff and her mother. In the year 1991 the plaintiff continued to study english and in the following year commenced a course at the University of Melbourne. The course was in education. Her background in the Ukraine was in that area. She commenced studying at the university, and this required her to attend lectures on approximately three days per week at different hours. When this occurred the defendant looked after the twins. On occasions he drove the plaintiff to the university. In the latter part of 1992 the plaintiff attended a school as a student teacher and the defendant assisted her by driving her to and from the school. I am satisfied that he also provided her with some assistance in the preparation of the lessons. In the following year she continued her studies. Again when she was at university the defendant looked after the twins. Even though criticisms are made of his care and attention I do not accept the criticism. I have seen enough in this case to be satisfied that the defendant had a very loving relationship with his twin boys. It is an unfortunate feature of this case that a lot of the hatred that is clearly apparent has led to an estrangement between the defendant and the twins. In 1993 the plaintiff attended another school as a student teacher and again the defendant assisted her by driving her to and from school. And later in that year the plaintiff attended at another primary school and again the defendant provided some assistance.

[333]

The first question to address is whether or not there was any common intention or binding representations made that the plaintiff should have a beneficial interest in the property at Orrong Crescent. The property had been purchased in 1987, and the legal and beneficial interests in the property were solely vested in the defendant. The property was subject to a mortgage and the defendant was able each year to pay his instalment of principal and interest. When the plaintiff commenced cohabitation at the residence, nothing was said about her having any interest in that property. In the years that followed the defendant paid the mortgage instalments. The plaintiff made no direct or indirect financial contribution to the acquisition of the property. Her case is that after 6 July 1993 promises were made leading to an inferred common intention that she should have an interest in the property. In addition she says that in that period she made a substantial contribution to the development. The plaintiff asserts that there were agreements reached, however the evidence is expressed in a conclusionary form. First of all it is said that at the end of July 1993 an agreement was reached in that the defendant promised he would marry the plaintiff, acknowledge the twins as his own by having his name included on the birth certificate as their father and transfer to the plaintiff one of the properties or alternatively a half interest in two of the properties. No effort was made to place direct evidence as to discussions which led to those conclusions and I would not be prepared to accept the plaintiff's evidence unless it was corroborated in some way. I do not accept, as is asserted by her, that the defendant had refused to have his name included on the birth certificate as the father of the children. It was clearly not in the interest of the plaintiff or the defendant, bearing in mind the fraud perpetrated by the plaintiff in obtaining the pension, to reveal the defendant's existence as father. Further at that time, namely in 1991, the Registration of Births, Deaths and Marriages Act 1959 required the parents or either of them to give information concerning births and the obligation rested upon the father or mother within sixty days following the birth to furnish the necessary particulars. At that stage s.16A required that if a person was registered as the father of the child the family name of the child was to be registered in the Register of Births. I do not accept the evidence of the plaintiff that the defendant was the person responsible for not having his name included on the birth certificate. There is more to the story than emerged from the evidence. It is another example by the plaintiff to smear the defendant's name. The plaintiff has never called herself Mrs Procopets and the children were registered with second name of Giller.

[354]

(i) On or about 29 April 1992 an assault at Orrong Crescent.

I find that the defendant struck the plaintiff with a metal framed kitchen chair on the right arm and her right shoulder. Police were called. I am satisfied that the assault occurred. The injuries were bruising and lacerations to the lower right arm and some restricted painful movement of right shoulder. The plaintiff said that she suffered the effects for about a month. It is difficult to know whether that is true. However she was not cross-examined on her evidence. I am prepared to accept her evidence on the effect of the assault. I assess the damages at $1,000. No medical treatment was sought. The police were called and the Jewish welfare organisation became involved. Whilst the injuries were not serious, I am satisfied that they were not minor.

(ii) In or about August 1992 at Glenhuntly Primary School.

I find that the defendant and the plaintiff were sitting in a car outside Glenhuntly Primary School. The defendant struck the plaintiff with a clenched fist to her mouth. She suffered a deep cut inside her mouth and was severely bruised and had a swollen lip for a period in excess of one week. I find the assault proven. Again I note that the plaintiff did not seek any medical treatment. I accept that she had bruising and discomfort for about a week. I assess the amount of damages at $500.

(iii) In or about 1992 at Orrong Crescent.

The plaintiff is unable to give a date in relation to this assault but I am satisfied that the defendant did assault her by hitting her with his belt, dragging her onto a sofa and striking her in the face with a clenched fist. She suffered bruising to the lower part of the frontal bone of her head, just near the eyebrows and this lasted for about ten days. She also had severe bruising to her eyes which lasted for about ten days and extensive bruising to the jaw. She had painful movement of the jaw for about two or three weeks and her ears rang and buzzed for about two months. This is the incident that Julia observed. The plaintiff also suffered from headaches which persisted for about two months, and dizziness. She lost her appetite and was shocked and remained distressed.

I am satisfied that the assault took place. The effects of the assault were felt for some substantial period of time and I assess the damages at $1,500.

(iv) In or about June 1993 at Orrong Crescent.

An argument occurred, the defendant threatened to kill the plaintiff, he threw a chair at her which struck the plaintiff in the right arm and breast, causing her to fall to the floor. He made threats and the police later attended. The police report was placed in evidence by the defendant. The plaintiff suffered bruising to the right arm and upper right breast which lasted for about a week and pain in the right breast for about two weeks and painful movement in the right shoulder for about a month. She suffered shock and severe emotional distress.

I am satisfied the assault took place. I assess the damages at $750.

(v) On or about 7 June 1996 at a restaurant in Elwood.

The defendant contested this alleged assault. An evening had been arranged to attend a restaurant for the plaintiff's birthday. The party comprised the plaintiff, defendant, plaintiff's parents and brother, and the twins. The plaintiff's evidence was not convincing as to the events of that night. The plaintiff's mother gave evidence as to the incident. She did not observe the defendant strike the plaintiff. However the defendant was in a bad mood and I am quite satisfied that at times he made some derogatory and aggressive remarks to the plaintiff and her parents. The mother confirms the evidence of the defendant that the twin boys went upstairs into another room and that the defendant videoed the boys. The video was tendered. There was nothing about those events which in any way suggested that the defendant had struck the plaintiff. The mother observed some red marks on the arms and legs of the plaintiff but I am by no means persuaded on the balance of probabilities that the defendant struck the plaintiff. According to the plaintiff, the defendant used a camera case to strike her on the arms, legs and back. She said that she was bruised on both legs and also on the upper back.

The brother did not give evidence in chief about the incident but in cross examination he says he does recall his sister appeared to be crying but he can't say why the defendant left and he didn't see any violence or hear any foul language. He didn't hear any arguments. He was extremely vague about the party. I have observed a video of the function. It does suggest a reasonably happy evening.

Although the plaintiff only has to prove her case on the balance of probabilities I am not persuaded that her version of events is correct and accordingly her claim for this alleged assault fails.

(vi) On or about 10 November 1996 at Port Melbourne.

The defendant admitted that there was a confrontation between the parties but he said that the plaintiff suffered injuries because he grabbed her clothing at the front of her neck to restrain her and that she, in the course of struggling, suffered injury. She states that on 10 November 1996 they were talking outside her flat in Port Melbourne, that he became enraged and took hold of her with his left hand, pulled her body down towards his knee and proceeded to strike her twice with a clenched fist to the left side of her face. In so doing he tore a gold chain from her neck, severely scratching and bruising her. The plaintiff reported the matter to the police that evening. She made a statement which is consistent with her evidence. But more importantly the defendant was charged with the assault and on 14 April 1998 he pleaded guilty to the charge at the Magistrates' Court. He informed the Court that the plea of guilty was a commercial one because he was facing so many charges that it was far better to plead and finish the whole saga and avoid expense rather than fight the case. A plea of guilty by a person charged with a criminal offence is an admission of all the essential elements that comprise the offence. I am satisfied that the plaintiff was assaulted by the defendant on that occasion. I accept her evidence that she suffered a severely bruised left cheek, a severely bruised and scratched neck and had a buzzing in her left ear and discharge from the ear and headaches for about a month.

In assessing damages I take into account that she did not seek medical treatment. I have seen photographs of the injuries. I also take into account that the plaintiff suffered from a skin condition which had the effect of making her injuries look more prominent but this does not assist the defendant with respect to the appearance of the injuries which the plaintiff had to endure. Further I note that despite obtaining an interim intervention order on 12 November 1996, allegedly because she was in fear of the defendant, the plaintiff had sexual intercourse with the defendant on 19 November 1996 during the day, on 21 November 1996 and on the afternoon of 22 November 1996 after she obtained the permanent intervention order. In addition I note that on 8 December 1996 at the Camberwell Market the plaintiff approached the defendant with an iron bar and struck him a number of times whilst he was filming the plaintiff and her mother. I take those matters into account in determining the effect of the injuries upon the plaintiff. I assess the damages at $750 taking into account the injuries and their effects upon the plaintiff. The plaintiff also claims a sum of $428 for damage to a gold necklace. I have grave doubts about the value of the necklace. When asked about it she was vague as to its value. Nevertheless I am prepared on the balance of probabilities to assess the damage to the necklace at a value of $428. Accordingly she is entitled to recover $1,178 as a result of that assault.

[366]

(a) 5.12.96 - On that day the defendant went to the plaintiff's parents' premises and had a conversation with her father in which he described the plaintiff in vulgar language and produced a video of the parties engaging in sexual relations. He requested that Mr Zuperman place the video in the cassette player and look at the tape. He handed the tape to the father who refused to accept it. He repeatedly requested him to do so. The father asked him to leave the premises and as he left the video was left with the brother Alex Zuperman. I accept the evidence of the son in relation to this incident. The plaintiff was told what happened and she was extremely distressed by the incident. The brother and father did not look at the video. The brother handed it over to the plaintiff.

(b) 5.12.96 - On that day the defendant attended the home of Mr and Mrs Semyon Furman. Mrs Furman is a friend of the plaintiff. The defendant did not know either person. He told Mrs Furman that the plaintiff was a bad person and a prostitute and he then produced a video and requested that she look at it. He told her that he wanted Mrs Furman to look at the video to show the defendant's relationship with the plaintiff. She refused to accept the video and told him to leave. As he was leaving the residence he spoke to the husband and requested that he take the video and he refused to do so. The defendant left and did not leave the video cassette with the Furmans.

(c) 6.12.96 - On that day the defendant was in his car with the twins, following the plaintiff's car. He drove up by the side of the car. He was abusive to the plaintiff and her mother. He produced a number of photographs which appeared to be sexually explicit photographs which he placed on the window in front of the plaintiff's mother and kept yelling out, "look at your daughter, she is a slut, look what she is doing". The plaintiff's mother did her best to avoid looking at the photographs.

(d) 7.12.96 - On this day the defendant attended the residence of Mrs Meda Volkova, who is the mother of a friend of the plaintiff, at Caulfield. Mrs Volkova was alone when the defendant knocked on her door. The defendant produced a video cassette and asked her to view it. When she informed him they had no VCR the defendant returned with a VCR and connected it to the TV and commenced to play the video cassette. It was shown for about two or three minutes. Mrs Volkova realised that it showed a male and female having explicit sex and she demanded the defendant to leave the home. He said he would bring another tape. About ten minutes later Mrs Volkova's husband returned home. Later on the son Leonid Volkov came home and he rang the police who took possession of the VCR and the video cassette. Mr Leonid Volkov said that he did not look at the video.

[368]

The defendant had a relationship with Mrs Drobitsky prior to 1990. The relationship resumed sometime in late December 1996. It continued until about mid-1997. The defendant brought the relationship to an end about mid-1997. I am quite satisfied that Mrs Drobitsky was upset and annoyed by the breakdown of the relationship and I am satisfied that she developed a deep hatred of the defendant which continues to today. I found her an unsatisfactory witness, who was prepared to change her story if she thought it was appropriate, and I am satisfied that she sided with the plaintiff in the last half of 1997. The defendant gave evidence that he handed to her in December 1996 an envelope containing some documents and a number of video cassettes. He sealed the envelope and asked her to keep it for him. She gave evidence that some time in mid-1997 the defendant showed her a video of the plaintiff and him having sex and gave the video and some documents to her to keep in safe custody. He did request later that she return them but she refused to do so. The video and documents were handed to the police. After her relationship with the defendant ceased he did ask her to return the documents and video to him but Mrs Drobitsky telephoned the plaintiff and provided her with the documents and video. The tape and documents were then handed over to the police. She made a statement to the police which ultimately led to the defendant being proceeded against for a breach of an intervention order and he spent some thirty-one days in jail before he was bailed by an order of this Court in late 1997. At the time when the defendant is alleged to have shown the video to Mrs Drobitsky, they were having a relationship. The defendant denied that he showed Mrs Drobitsky the video. Mrs Drobitsky made a statement on 25 October 1997 to the police. However an interpreter was not used. The plaintiff arranged the meeting with the police and was present when Mrs Drobitsky arrived at the police station. In an affidavit sworn on 14 November 1997 she stated that she observed the tape sometime in mid-1997. She also gave evidence that she saw it again on another occasion in front of a friend of hers but the friend refused to look at it after about ten seconds. I do not accept her evidence about the video being shown to one of her friends.

[375]

She did not give evidence that she suffered any psychiatric or psychological injury. She did not seek any medical advice. There is no medical evidence that she suffered any physical, psychological or psychiatric injury. If the evidence of Professor Mendelson suggests she did, I do not accept it. Because of her lack of credibility, I approach her evidence as to the effect on her of the threats, distribution, and showing the tape with a degree of reservation. I have considered the tapes of the conversations had around this time over the telephone with the defendant. I have observed the video of the attack upon the defendant at the market by the plaintiff and I have also observed the plaintiff in the witness box and in the Court. She is a determined woman who is not over sensitive. Indeed her complaints about the assaults are exaggerated. She had no reservations about attacking the defendant at the Camberwell Market with a steel rod. In addition one has to analyse precisely what it was that was being distributed. What was being shown is sexual activities between consenting adults. It was known to all those who were shown the video that she and the defendant had had a sexual relationship over many years. The revelation of that to the community was of no consequence and could not have caused her any anguish. No doubt the showing of the intimate relationship to others was a matter of distress, embarrassment, annoyance and upset. However by 10 December it had been nipped in the bud. She had made her complaint with the police, the police had moved in and taken the defendant to the police station where he was interviewed for a substantial number of hours early in the morning about these very incidents. By the end of December statements had been made by the various witnesses to the police. It must have been very apparent to her by the end of December that the defendant's conduct was viewed by others as shameful and that his conduct was condemned by all. There is no evidence that the more intimate details of their sexual activities were shown. Indeed it is very apparent that one has to go a long way into the video to see the more intimate activities of the parties. One cannot overlook the fact that the damages are compensatory and that the question of aggravation and more particularly exemplary damages involve different considerations.

[376]

Expert evidence was given by Professor George Mendelson, a psychiatrist holding many posts including those in the area of psychological medicine. He saw her on 22 October 2002 for one and a half hours in his consulting rooms. He saw her for psychiatric examination. He was provided with a letter from the solicitors and a draft affidavit which apparently was the plaintiff's main affidavit in this proceeding. In making his assessment and diagnosis and forming an opinion as to the plaintiff he had to rely upon what she told him and what appeared in the affidavit. As he told the Court his opinion was based purely and simply on what she had told him. He was not making any diagnosis or forming any opinion on his observations. He agreed that she was not clinically depressed. He came to the view however that she was suffering from a clinically significant anxiety disorder with indications of autonomic nervous system hyper arousal which, he was of the view, was developed as a consequence of the emotional abuse and physical violence to which she had been exposed during her relationship with the defendant. The Professor frankly conceded in cross examination that on the scale of anxiety, her anxiety was at the minor end. He was also skilfully cross examined by the defendant who highlighted all the matters of stress that the plaintiff was exposed to after she left the Ukraine in 1988. She moved from the depressing situation in the Ukraine to a camp in Italy in circumstances where the family had little money and life was extremely difficult. They hoped to go the United States of America. They were disappointed when this did not happen. They came to a new country which was strange, not understanding the language, culture or way of life of Australia. The break up of her marriage, the difficulties associated with her daughter and the marriage break up, her deception of various bodies to obtain pensions, subsidised rent, subsidised childcare, free education for her daughter Julia, all of which backfired on her and ended up in demands being made for her to reimburse the various suppliers of the financial assistance, all contributed to her anxiety. The Professor frankly conceded that they were all factors which would cause a degree of anxiety to the plaintiff. The Professor suffered from the fact that he only saw her for an hour and a half in October 2002, and he was relying on what she told him. I have already indicated that her credibility is questionable. He was prepared to base his opinion on what she said. He thought that she may be suffering from battered wife syndrome but went on to observe that the Court was in a far better position than he was to make some assessment of her condition based on all the evidence before the Court. I reject any suggestion of battered wife syndrome in this relationship. The relationship effectively ended in July 1993 and thereafter the plaintiff pursued her own life independently of the defendant. The incident in December 1996 I have no doubt was a cause of annoyance and distress to her but I do not accept that it in any way contributed to an anxiety condition that the Professor thought she may be suffering from at the moment. Indeed her deceptions of a variety of suppliers of money and services and the pursuit of her by the various suppliers would cause anxiety in most people. This litigation brought its fair share of anxiety. I formed the opinion in this case that the plaintiff was a very strong willed and determined person who had a deep hatred of the defendant and was determined to make him pay. She spent much of the time in Court when her counsel were cross examining and addressing the Court supplying them with handwritten messages. I do not accept that the incident in December 1996 caused her an anxiety disorder and if she suffers from one I am quite satisfied that the causes were found in areas other than that incident. I refer to the police statements made at the time.

At a glance

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Judgment (455 paragraphs)

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Legislation Cited (8)