Bagsby & McIntyre
[2021] FedCFamC2F 201
•23 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bagsby & McIntyre [2021] FedCFamC2F 201
File number: MLC 516 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – final property – undefended hearing – where court is satisfied respondent is aware of proceedings – transfer of respondent’s interest and right in property – resulting trust – failed joint venture – constructive trust. Legislation: Family Law Act 1975 (Cth), ss 4AA, 90SF, 90SL, 90SM, 106A Cases cited: Baumgartner v Baumgartner (1987) 164 CLR 137
Black & Kellner (1992) FLC ¶92-287
Calverley v Green (1984) 155 CLR 242
Dyer v Dyer (1788) 2 Cox 92
Muschinski v Dodds (1985) 160 CLR 583
Weir & Weir (1993) FLC ¶92-338
Division: Division 2 Family Law Number of paragraphs: 50 Date of hearing: 23 September 2021 Place: Melbourne Solicitor for the Applicant: Verduci Lawyers Solicitor for the Respondent: No Appearance ORDERS
MLC 516 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BAGSBY
Applicant
AND: MR MCINTYRE
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.It is declared that the Respondent holds his interest in the property at B Street, Suburb C ("the property") on trust for the benefit of the Applicant.
2.The Respondent forthwith transfer to the Applicant all his right title and interest in the property to the Applicant ("the transfer").
3.Contemporaneously with the transfer, both parties do all acts and things and sign all necessary documents to cause the mortgage debt encumbering the property to ANZ Bank (Registration number …) to be refinanced, discharged and replaced with a mortgage in the sole name of the Applicant, save that the Applicant is at liberty, with the agreement with the mortgagee, to retain the existing mortgage security but provided that the Respondent is discharged from any and all liability pursuant to that mortgage .
4.If the Applicant cannot refinance the existing mortgage debt within a period of 120 days, or the transfer of the property cannot occur during this period for any reason, then the Applicant is appointed as trustee in order to effect the immediate sale of the property for the best price reasonably obtainable and that such sale occur either by way of private treaty or public auction as determined by the Applicant.
5.In order to give effect to these Orders the Applicant as Trustee (at her expense):
(a)Cause to be prepared a contract of sale for the property;
(b)List the property for sale by private treaty or public auction with any real estate agent she so desires (Agent);
(c)Execute all documents requested by the Agent for the sale of the property;
(d)Shall fix the listing price for private sale or the reserve price for any price recommended by the listing Agent in writing;
(e)Shall be entitled to accept any offer made to purchase the property within 10% of the Agent's recommended sale price or reserve price set for auction.
6.Upon the sale of the property, the sale proceeds be distributed as follows:
(a)Payment of the Agent's commission and advertising expenses and the legal expenses of the sale;
(b)Payment of any money due and owing pursuant to the mortgagee;
(c)The balance to be paid to the Applicant.
7.Other than as set out in these orders the parties have the sole right title and interest in any other property which is at the date of these orders in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
8.The Respondent and Applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to these orders.
9.The Applicant be and is authorized to execute such deed or instrument or authority that relates to the property and/or the mortgage … in the name of the Respondent and to do all acts and things necessary to give validity to the operation of such deed or instrument or authority and, in order to give effect to these orders (if necessary), the Applicant is hereby appointed to execute:
(a)The Transfer of Land for the property, causing the property to be transferred to the Applicant's sole name;
(b)Discharge Authority for the mortgage secured against the property; and
(c)The client authorisation form and the State Revenue Office Duties form in the name of the Applicant and the Respondent in order to satisfy any online requirements to complete the transfer.
(d)Any other necessary documents relating to the property.
10.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(d)All insurance policies are to become the sole property of the owner as named;
(e)Each party 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; and
(f)Any joint tenancy of the parties in any real or personal estate is expressly severed.
11.Each party bear their own costs.
AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
B.The solicitor for the Applicant agreed to serve a copy of these orders by registered post on the Respondent.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym Bagsby & McIntyre has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
BACKGROUND
These are the settled reasons of an ex tempore judgment. In this matter, the applicant de facto wife (‘the Applicant’) is aged 38 and the respondent de facto husband is aged 53 (‘the Respondent’). The Applicant and the Respondent lived in a de facto relationship within the definition of section 4AA of the Family Law Act 1975 (Cth) (‘the Act’) from 2011 until on or about 30 April 2019.
The parties had four children, now aged nine, eight, six and four. The case is unusual in that the parties never shared a common residence and had a limited degree of mutual commitment to a shared life. However, their relationship spanned from 2011 until 2019 and, during that time, the parties had a sexual relationship and are the parents of the four children.
In addition to that, the most significant asset of the Applicant is the ownership of a property known as B Street, Suburb C, herein after called ‘the property’. The property was registered in the sole name of the Respondent, notwithstanding that the entire purchase price was contributed from the savings of the Applicant. The proceedings were issued on 19 January 2021 and the first return date was 12 April 2021. The Respondent did not appear or participate in the proceedings on the first return date or thereafter, including in this hearing. Hence, the matter comes before me and is requested to be heard as an undefended hearing.
DOCUMENTS RELIED UPON
The Applicant relied upon the following documents:
(1)Outline of Case filed 22 September 2021;
(2)Amended Initiating Application filed 14 May 2021;
(3)Affidavit of Applicant filed 14 May 2021;
(4)Financial Statement of Applicant filed 14 May 2021;
(5)Affidavit of Service filed 21 July 2021;
(6)Affidavit of Service filed 27 May 2021;
(7)Affidavit of Service filed 15 February 2021.
PROCEEDING UNDEFENDED
The first matter I must be satisfied of, when it is sought that I proceed in the absence of one party, is whether procedural fairness has been provided. I will set out the chronology of the service events hereafter. From this chronology, it is self-evident that the Respondent has had each and every opportunity to participate in the proceedings if he chose. It also follows that the Respondent has been informed of the proceedings and that the procedures adopted by the applicant and her current solicitor and the directions by the court have erred on the side of caution to repeatedly serve the Respondent with documents.
Service on the Respondent
Returning to the chronology, following the proceedings being issued on 19 January 2021, the Applicant retained a process server and the process server served the Respondent on 31 January 2021 at 1.15pm with the following documents:
(a)The Initiating Application filed on 19 January 2021,
(b)The financial summary filed on 19 January 2021, and
(c)The brochure called Marriage, Families and Separation.
On that occasion, the process server, Ms D, had in her possession a photograph provided to her as a photograph of the Respondent.
The Applicant told me in evidence, and was able to identify the photograph that the process server had relied upon, as being her former partner and the father of her children, the Respondent. I am satisfied that that photograph is of the Respondent. The process server, on 31 January 2021, was satisfied that the person served with the documents was the Respondent as she saw him sign an acknowledgment of service and the following conversation occurred:
Process Server: What is your full name?
Person served: Mr McIntyre
Process Server: Are you the person referred to in these proceedings as the Respondent?
Person served: Yes
In addition to that, the process server identified that person as the person shown in the photograph which the Applicant has identified before me. I also have, in evidence as part of the affidavit of service, the acknowledgement of service with a signature of the respondent and I am satisfied that is his signature. The matter returned to court on the first occasion on 12 April 2021. The rules of court, as they were at that time, required the filing of documents 28 days prior to the return date, being about 12 March 2021. The Respondent did not file any responding documents.
The Initiating Application, as filed, is significant and the order sought was one that is not frequently sought in these proceedings and I recite the final and interim orders set out in that document:
Final orders sought
1.The property at B Street, Suburb C, Vic. (described in Certificate of Title Volume … Folio …) be transferred to the Applicant and the Applicant refinance the current loan secured on the property in her name alone.
2.Other than the property referred in para 1 above, each party retain their other assets to the exclusion of the other and be responsible for any liabilities in their name.
3.The Respondent pay the Applicant's costs of this Application.
4.Such further and/or other orders as this Honourable Court deems appropriate.
Interim or procedural orders sought
1.The property at B Street, Suburb C, Vic. (described in Certificate of Title Volume … Folio …) be transferred to the Applicant and the Applicant refinance the current loan secured on the property in her name alone.
2.Other than the property referred in para 1 above, each party retain their other assets to the exclusion of the other and be responsible for any liabilities in their name.
3.The Respondent pay the Applicant's costs of this Application.
4.Such further and/or other orders as this Honourable Court deems appropriate.
Hence, it is clear that the Respondent was on notice from 31 January 2021 that the Applicant was seeking orders that the property be transferred to her and that there be no payment or other compensation directed to the Respondent.
The 12 April 2021 hearing
On 12 April 2021, the matter came before Registrar Mathews and the Applicant appeared via video conference via her solicitor and there was no attendance by the Respondent. By order number 2, the matter was adjourned to this day before me and the order made that day is as follows:
2.All extant applications are adjourned to the Judge's Duty List (by Microsoft Teams) on 23 September 2021 at 10am for a possible undefended hearing.
In addition to that, the respondent was ordered as follows, order number 3:
3.The Respondent appear and/or be legally represented at court (by Microsoft Teams) on the adjourned hearing date.
The Applicant was ordered to serve a copy of these orders by 19 April 2021 and no later than 21 May 2021 the Applicant was to serve the Respondent with an Amended Initiating Application setting out with precision the orders sought, a financial statement and an affidavit in support of that Amended Initiating Application. The Respondent was ordered, by no later than 18 June 2021, to file and serve a Response to that Amended Initiating Application, a financial statement and an affidavit in support of his Response.
Those orders, the Amended Initiating Application filed on 14 May 2021, the Applicant's affidavit filed on 14 May 2021, her financial statement filed on 14 May 2021, her notice of address for service and again, the brochure, “Marriage, Families and Separation”, was served upon the Respondent on 18 May 2021 at 7.58pm at the address of E Street, Suburb F. E Street, Suburb F is the same premises where the process server had previously served the original initiating application.
The process server was again, Ms D and she again, identified the person served with the documents by way of the same photograph as exhibited to the first affidavit of service and identified by the Applicant as a photograph of the Respondent and again, by the following conversation:
Process Server: What is your full name?
Person served: Mr McIntyre
Process Server: Are you the person referred to in these proceedings as the Respondent?
Person served: Yes
In addition to that, the person signed the acknowledgement of service with a signature that, to the inexpert eye of the judge, appears to be the same signature. I am satisfied that on 18 May 2021, for the second time, the Respondent was informed of the nature of the application and the fact of the proceedings and so was given the opportunity to participate.
The order of 12 April 2021 adjourned all extant applications to the Registrar's list for a procedural hearing on 28 June 2021. It is significant that the orders of 12 April 2021 included the reference to a possible undefended hearing. It also recited in a notation to the orders, by way of assistance to the Respondent, a notation which is as follows:
B.In the event the Respondent does not appear at Court on the adjourned hearing date and/or file their documents in accordance with these orders, the matter will proceed for an undefended hearing before Judge O’Shannessy on 23 September 2021 at which the parties’ assets may be divided without the Respondent’s consent. If the Respondent attends Court on the adjourned hearing date and files their documents as required by these Orders, the possible undefended hearing date will be vacated.
The date for the Respondent to file material, 18 June 2021, came and went and he did not file any material.
The 28 June 2021 hearing
On 28 June 2021, the Applicant appeared by her current solicitor, Mr McIntyre, and there was no appearance for the Respondent.
On that day, the orders were made as follows:
1.The matter remains listed for possible undefended hearing before Judge O'Shannessy at 10 am on 23 September 2021.
In addition to that order, the orders recited notation B:
B.In the event the Respondent does not attend Court on 23 September 2021 and/or does not file Court documents pursuant to the Orders of 12 April 2021, then orders may be made dividing the parties’ assets in the absence of the Respondent, and orders may also be made for the Respondent to meet the Applicant’s legal costs of and incidental to this proceeding.
I note that the Amended Initiating Application is different in form to the original Initiating Application. However, in substance it is the same. The Amended Initiating Application gave more detail and particulars to the mechanics of how the property would be transferred and, in addition, sought a declaration that the property was, in fact, beneficially owned by the Applicant and that the Respondent held the property on trust for her. The Amended Initiating Application described final orders sought and orders 1, 2 and 3 are recited below:
1.A declaration that the Respondent holds his interest in the property at B Street, Suburb C, VIC (“the property”) on trust for the benefit of the Applicant.
2.That the Respondent forthwith transfer to the Applicant all his right title and interest in the property to the Applicant.
3.That contemporaneously with the transfer at paragraph 2, both parties do all acts and things and sign all necessary documents to cause the mortgage debt encumbering the property to be refinanced, discharged and replaced with a mortgage in the sole name of the Applicant.
On 13 July 2021 the same process server, Ms D, armed with the same photograph referred to, went to the same premises in E Street, Suburb F and at 6.28 pm served the Respondent with a copy of the order of Registrar Mathews of 28 June 2021. The process server was able to identify the respondent by means of the same photograph and, because of the following conversation:
Process Server: What is your full name?
Person served: Mr McIntyre
Process Server: Are you the person referred to in these proceedings as the Respondent?
Person served: Yes
The affidavit of service then notes as follows:
The respondent refused to sign the acknowledgement of service.
I am satisfied that the order of 28 June 2021 was served on the Respondent on that day.
THE PROPERTY APPLICATION
In the proceedings before me, I had the Applicant sworn and I asked her some further questions. In response to those questions from me, the Applicant advised me, and I accept that the Respondent reads and writes English and is comfortable in English, notwithstanding that it is not his first language and that his ability to comprehend English is superior to hers. I am satisfied that the Respondent would have been able to understand the documents if he wished to consume them or read them. In a carefully prepared and detailed affidavit, the Applicant gave the following evidence, which I accept:
4.The Respondent and I began our relationship in or around 2011, but never lived together. We separated on a final basis on or around 30 April 2019.
5.At the commencement of the relationship, I believe that I had the following assets:
(a) Motor Vehicle 1 valued at approximately $18,000;
(b) Savings with the Commonwealth Bank of about $3,000;
(c) Superannuation to the value of about $3,000.
6. There are four children of the relationship, namely:
(a) W (DOB 2012 – age 9);
(b) X (DOB 2013 – age 7);
(c) Y (DOB 2015 - age 6); and
(d) Z (DOB 2017 - age 3).
7. All four children currently live with me.
8.I also have two children from a previous relationship, namely Ms G (DOB 2002 - age 18) and Ms H (DOB 2006 - age 15). These two children are currently living in Melbourne with my sister Ms J, at the property which is the subject of this proceeding.
9.In or around July 2020, I had to relocate to City K, in the Northern Territory, to work. Initially, the four children did not accompany me. They remained living at the property in Melbourne with my sister Ms J until such time as I was settled. The (four) children then joined me in City K in or around February 2021.
The unusual aspects of this de facto relationship are set out in the Applicant's affidavit and, in particular, how that impacted on the purchase of the property:
10.In or around March 2016 the Respondent and I purchased a block of land at B Street, Suburb C in Victoria (“the property”) for a price of $170,000.
11.I used savings that I had acquired from my work as a subcontractor to purchase the land.
12.At the time the property was purchased, the Respondent became the sole registered proprietor. This was because the Respondent and I had had a conversation prior to the purchase. I wanted the Respondent to live with me, and he was living in Suburb L at the time. He said to me words to the effect of “if you want me to live with you, the man in the relationship has to have the property in his name”. He refused to move in with me until such time as I registered the property in his name.
13.As it transpired, despite me registering the property in his name, he never came to live with me. He would stay for maybe a week at a time, and then returned to his home in Suburb L. I basically had to beg him to come and stay with me.
14.After the land settled, we built a house and I borrowed $450,000 from ANZ Bank. The total cost of building the house was about $510,000, and I made up the balance from my savings.
15.I believe that the property is currently valued at about $800,000, and there is a mortgage balance of about $428,000.
16.I made all mortgage repayments in respect of the property. These were in the vicinity of about $1900 per month. I also paid all rates and outgoings in respect of the property. I continue to do so.
I note that the copy of the certificate of title, or title search, to the property exhibited to the affidavit corroborates the Applicant's assertion that the block of land was purchased by her savings because no mortgage borrowings was recorded on the title. The mortgage to the ANZ bank is registered in 2016 and the transfer of the block of land itself was registered in 2015.
I am satisfied that the block was purchased with the Applicant's funds. I am also satisfied that the property was registered in the Respondent's name because of the agreement or condition described at paragraph 12.
I find that the Respondent never fulfilled the condition of cohabitation as man and wife that was the condition subsequent to the agreement to register the property in his name. I note that the Respondent was the co-borrower with the Applicant of the funds to build the house upon the block of land. This could be regarded as a contribution by him. However, in the circumstances of his failing to fulfil the condition subsequent to the agreement between the parties, that is of little weight.
I asked the Applicant further questions as to the extent of any financial contribution by the Respondent to her household on those occasions when he did attend. The further evidence that the Applicant gave was moving and sad and I accept truthful. She told me, upon my inquiry, that the de facto relationship ended on or about 30 April 2019 following an incident of family violence where the police were involved where she told the Respondent that unless the Respondent committed to come back and live with her and the children (and I infer meaning all of the time, not just occasionally) that the relationship was over. The Respondent told the Applicant words to the effect that he did not care.
The Respondent never again attended the home of the Applicant to participate in family life or to pursue the de facto relationship and I find that the de facto relationship ended on or about 30 April 2019.
I find that the proceedings were issued within the two year timeframe prescribed by the legislation for the commencement of those proceedings. Hence, I have jurisdiction under Part VIIIAB of the Act to deal with this property and to make an application. I note that the circumstances of a de facto relationship are to be determined from sections 4AA (1) and (2) of the Act:
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
Pursuant to section 90SL of the Act, in proceedings between the parties to a de facto relationship, the Court may declare the title or rights, if any, that a party has in respect of the property and I was asked to do so by the Applicant's solicitor. I am also empowered to make the declaration and make consequential orders to give effect to the declaration. I am satisfied and find that at all material times the respondent held his interest in the property on trust for the applicant.
I find so on the basis of the principles of resulting trust in the circumstances where the Applicant provided all of the purchase price, notwithstanding that the parties were, at that time, in a de facto relationship. I also find that the circumstances where the Respondent failed to satisfy the condition of the property, being registered in his sole name means that, in equity, the Respondent at all material times held and holds the property on constructive trust for the Applicant. Whether the trust be characterised as a resulting trust or a constructive trust matters not as the facts that I find support both propositions which have the same legal consequences. In the event the presumption of advancement is applicable I find the presumption is rebutted by the evidence.
The orders otherwise sought in the amended application recite sensible and necessary orders to give effect to that declaration. Given that the property is the property of the Applicant, it is unnecessary to resort to section 106A of the Act for authorisation for the Applicant to execute documents in the name of the Respondent, so far as they relate to the property and/or the mortgage encumbering the property. Save for some minor amendments at my suggestion, the orders that I make are, by and large, entirely consistent with the Amended Initiating Application as served upon the Respondent.
The settled reasons will also set out some short statements of the law in regard to a resulting trust and a constructive trust.
Resulting and Constructive Trusts
Short statements of the multi-hued principles of equity are likely to be only partly accurate by unintended omission but are necessary on occasion. This is one of those. A readily understandable and sensible starting point for what the presumption of resulting trust means is the case of Dyer v Dyer (1788) 2 Cox 92 at 93 where it was concisely stated, in gendered terms, by
“…the trust of a legal estate, results to the man who advances the purchase money” (cited in Charles Marshall Pty Ltd & Ors v Grimsley & Anor (1956) 95 CLR 353 at 363-364)
(emphasis added)
In the High Court case of Muschinski v Dodds (1985) 160 CLR 583 (‘Muschinski v Dodds’) at 589, Gibb CJ described the equitable principles relating to the creation of a resulting trust:
Where, on a purchase, a property is conveyed to two persons, whether as joint tenants or as tenants-in-common, and one of those persons has provided the whole of the purchase money, the property is presumed to be held in trust for that person, to whom I shall, for convenience, refer as “the real purchaser”. However a resulting trust will not arise if the relationship between the real purchaser and the other transferee is such as to raise a presumption that the transfer was intended as an advancement, or another word is a presumption that the transferee who has not contributed any of the purchase money was intended to take beneficial interest. It was held in Calverley v Green that no presumption of advancement arises when a man puts property into the name of a woman with whom he is living in what is commonly called a “de facto relationship” and, since it has been held that there is no presumption of advancement where a wife makes a purchase in the name of her lawful husband (citation omitted), there is even stronger reason for holding that no such presumption arises where a woman puts property into the name of her “de facto husband”.
In this case I find that it was the parties’ common intention that the Respondent would enjoy his interest in the property when the conditions of actual and exclusive co habitation as man and wife in the property and joint contribution in that property as parents to their children were met. When that agreement failed the parties held their legal interest in the property on trust according to their contributions to it. Calverley v Green (1984) 155 CLR 242 set out the principle that to assume responsibility for a loan to purchase property is itself a contribution. In this case that was a de minimus contribution as in substance each and every mortgage payment was made by the Applicant.
The joint venture described in the Applicant’s affidavit failed when the Respondent refused to so cohabit and co-parent and renounced at the end of the relationship any intention to ever do so. These circumstances command the application of the principle of the failed joint venture constructive trust as described by Deane J (with whom Mason J agreed) in Muschinski v Dodds at 620 and which was approved and applied in Baumgartner v Baumgartner (1987) 164 CLR 137 at 147-148 by Mason CJ, Wilson & Deane JJ as:
...the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.
Toohey J determined the case on the basis that an approach based upon the principles of unconscionable conduct or unjust enrichment would bring the same result.
And so it is here. By service of her Application the Applicant sought that the Respondent transfer the property to her and he has refused. For the Respondent to retain, by intention or even “just can’t be bothered”, his legal interest in the property would be unconscionable. Equity will relieve his conscience. Hence the Respondent holds the property on resulting trust and/or constructive trust for the Applicant.
Part VIIIAB
The Applicant's solicitor also raised, in outline of case, the issue that regardless of the beneficial ownership of the property, in all of the circumstances, the contribution of the Respondent pursuant to section 90SM should be regarded as little, if any. In all the circumstances I considered whether, on the facts of the case, the result that the property be transferred to the Applicant without any payment or compensation to the respondent was just and equitable in accordance with section 90SM.
It is unnecessary to exercise the alteration of property position pursuant to section 90SM as I am not altering the property or any interest in the property. At all material times, the Applicant has been beneficially entitled to the whole of the interest in the property.
In the event that I am wrong about that, and there is some beneficial interest of the Respondent in the property, it is just and equitable in the circumstances of the facts and the circumstances of contribution that I have described and pursuant to section 90SM of the Act, including considering the prospective factors described at section 90SF(3), that the property be transferred to the Applicant in any event. The relevant factors are recited below.
The Respondent will have the benefit pursuant to these orders of any obligation or legal liability pursuant to the mortgage being extinguished. In substance, that obligation has been of no account or burden to him as on the evidence the Applicant has made all of the mortgage payments in regard to that property.
I take into account the circumstance that the Applicant supports the parties' four children without any significant assistance from the Respondent. The child support that the Applicant pays is minimal. I also take into account that I am unable to determine what the Respondent's financial circumstances are because of his refusal to participate in the proceedings. Once the proceedings are initiated, the Respondent has the legal obligation to make a full and frank disclosure of his financial affairs to the Applicant and to the court. He has failed to do so. In this case, there may be a number of reasons why the respondent has chosen not to participate in the proceedings. I am entitled to be less generous to the non-disclosing party on account of that circumstance (see: Weir & Weir (1993) FLC ¶92-338 and Black & Kellner (1992) FLC ¶92-287).
One background issue is that the Applicant believes that the Respondent has, throughout their relationship, pursued another relationship of an intimate nature that may be a de facto relationship as well and is likely to have had a child with that other person. It may be that the Respondent does not wish to disclose his financial affairs and his interest in the property where he resides. It may be that he has no such interest. I cannot make any finding and do not take that possibility into account. I also take into account that the Respondent's lack of involvement in the children's lives is in the face of the requests of the Applicant from time-to-time that he participate and communicate with the children and their request that he do so.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 20 October 2021
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