Cisek & Farrah (No 2) - [2023] FedCFamC1F 804

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cisek & Farrah (No 2) [2023] FedCFamC1F 804

File number: PAC 1160 of 2021

Judgment of: HARTNETT J

Date of judgment: 22 September 2023

Catchwords:
FAMILY LAW – PROPERTY – Where the first respondent claimed to be in two overlapping de facto relationships – Where the applicant and the first respondent had a sixteen year de facto relationship with two children – Where the applicant alleged serious family violence by the first respondent – Where the applicant and the first respondent acquired real property and a business in the first respondent’s name – Where the first respondent and the second respondent had a proceeding in the Supreme Court of New South Wales running concurrently not disclosed to the applicant until shortly before a trial date in the Supreme Court of New South Wales – Where a joinder of the applicant and transfer of those proceedings occurred and consolidation with the proceedings in the Court – Where a declaration of a de facto relationship was made between the first and second respondents – Where leave was granted to the second respondent to seek orders pursuant to s 90SM(4) of the Act – Where the second respondent proceeded with an application that a constructive trust be found between the first respondent and the second respondent – Where the first respondent had the use of over $2 million of the second respondent’s funds – Where the first respondent did not make proper disclosure of his use of the second respondent’s funds – Where the applicant seeks an adjustment under Kennon – Order for sale of property – Order for applicant and second respondent to receive proceeds of sale – Superannuation splitting order.

FAMILY LAW – COSTS – Where the first respondent has failed to comply with two costs orders – Costs order made for the first respondent to make payment to the applicant.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 44, 51, 79, 90RD, 90SB, 90SF, 90SM, 90XT, 106A

Marriage Act 1961 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12, 3.16

Civil Procedure Act 2005 (NSW) ss 100, 101

Real Property Act 1900 (NSW) s 74O

Cases cited:
Benson & Drury (2020) 62 Fam LR 1

Bevan & Bevan (2013) FLC 93-545

Biltoft and Biltoft (1995) 19 Fam LR 82

Blandford & Esmore [2022] FedCFamC1A 67

Jones v Dunkel (1959) 101 CLR 298

Kennon & Kennon (1997) 22 Fam LR 1

Lovine & Connor (2012) FLC 93-515

Maine & Maine (2016) 56 Fam LR 500

Mallet v Mallet (1984) 156 CLR 605

Massalski & Riley [2019] FamCA 1013

Muschinski v Dodds (1985) 160 CLR 583

Petruski v Balewa (2013) 49 Fam LR 116

Rodgers & Rodgers (No 2) (2016) 55 Fam LR 167

Roverati & Roverati (2021) FLC 94-027

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Weir & Weir (1992) 16 Fam LR 154

Division: Division 1 First Instance

Number of paragraphs: 190

Date of hearing: 28 November 2022 – 1 December 2022, 20 January 2023

Date of last submissions 17 April 2023

Place: Heard in Parramatta, delivered in Melbourne

Counsel for the Applicant: Mr Fowler

Solicitor for the Applicant: Hikma Legal

Counsel for the First Respondent: Mr Barham

Solicitor for the First Respondent: V L Macri Lawyers

Counsel for the Second Respondent: Mr Heazlewood

Solicitor for the Second Respondent: Coleman Greig Lawyers
ORDERS

PAC 1160 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CISEK

Applicant

AND:
MR FARRAH

First Respondent

NEW SOUTH WALES TRUSTEE AND GUARDIAN ON BEHALF OF MS ELSNER

Second Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

22 SEPTEMBER 2023

THE COURT DECLARES THAT:
A.Pursuant to s 90RD(1) of the Family Law Act1975 (Cth) (“the Act”) a de facto relationship existed between the first respondent and the second respondent from October 2016, concluding on or about September 2017.
B.Pursuant to s 90RD(2)(c) of the Act the second respondent in the de facto relationship with the first respondent made substantial contributions of a kind mentioned in s 90SM(4)(a)-(b) of the Act.

AND THE COURT ORDERS THAT:
1.Pursuant to s 44(6) of the Act, the second respondent be granted leave to initiate proceedings for adjustment of property interests pursuant to s 90SM of the Act as between the applicant, the first respondent and the second respondent.
2.The New South Wales Trustee and Guardian (“NSWTAG”) as financial manager for the second respondent be appointed as trustee for the sale of the property at Q Street, Suburb E in the State of New South Wales (“the Suburb E property”) on behalf of the parties, being the whole of the land in Folio Identifier ….
3.Within fourteen (14) days hereof the first respondent and the applicant do all acts and things and execute all necessary documents to authorise and direct NSWTAG to cause the Suburb E property to be listed for sale as follows:
(a)the NSWTAG shall sign all selling authorities necessary to enable the Suburb E property to be listed for sale with licensed real estate agents as appointed by the NSWTAG;
(b)the NSWTAG shall sell the Suburb E property for the best price reasonably attainable;
(c)the NSWTAG shall appoint a solicitor or conveyancer to act on the sale of the Suburb E property within 7 days of these Orders;
(d)the NSWTAG shall sell the Suburb E property by public auction through a licensed Auctioneer appointed by the NSWTAG;
(e)a reserve price shall be fixed by the NSWTAG in consultation together with the selling agent;
(f)the licenced real estate agents conducting the sale in consultation with the auctioneer shall nominate the date of sale, which will be no more than 2 months after the auctioneer has been appointed; and
(g)if agreements for the sale of the Suburb E property are not exchanged at a price of not more than 5% below the reserve price within 14 days of the auction taking place, then the NSWTAG shall forthwith re-list the Suburb E property for sale by private treaty with the auctioneer and shall sell the Suburb E property at the highest price offered in writing and received by the auctioneer within 30 days from the date of the auction, or such later date as the NSWTAG may nominate in writing, provided that such price is not more than 10% below the reserve price for the Suburb E property. In the event that the highest price offered as aforesaid is less than 10% below the said reserve price, the NSWTAG will forthwith list the Suburb E property for sale by public auction with the auctioneer, and the auctioneer will determine the auction date and the Suburb E property shall be sold to the highest bidder at that auction.

4.The net proceeds of sale of the Suburb E property be applied as follows:
(a)payment of any and all real estate agent’s and auctioneer’s fees and commissions together with advertising expenses of the sale;
(b)payment to NSWTAG of their costs of acting on the sale;
(c)discharge of the mortgage on the Suburb E property to U Ltd (Noting that all loans secured by this mortgage have been fully repaid); and
(d)payment of the then remaining balance as follows:
(i)$625,711 less 50% of the costs of sale to the second respondent; and
(ii)the balance to the applicant.

5.Within 28 days of the date of these Orders the first respondent:
(a)vacate the Suburb E property and subject to the provisions of Order 11 herein, remove all items and home contents personally owned by the first respondent or otherwise in his possession at the Suburb E property; and
(b)remove and dispose of at the first respondent’s cost, all rubbish and any remaining refuse at the Suburb E property;
(c)engage professional cleaners at the first respondent’s cost to clean the Suburb E property in preparation for sale;
(d)not remove from the property any chattel or item affixed to the property; and
(e)forthwith after vacating to deliver to the NSWTAG or such third-party organisation as is authorised by the NSWTAG, all keys to all locks and remote control devices for the Suburb E property.

6.Pending the first respondent providing vacant possession of the Suburb E property to NSWTAG:
(a)the first respondent shall pay all council rates, water rates, insurance premiums and utility expenses in relation to the Suburb E property as and when they fall due;
(b)the first respondent shall keep the Suburb E property in a clean, tidy and well‑maintained state of repair; and
(c)the first respondent shall permit NSWTAG, or its authorised agent, to access and enter the Suburb E property on reasonable notice for the purposes of the marketing and sale of the property.

7.Following the implementation of Order 5 herein the first respondent be restrained by injunction from:
(a)entry upon the Suburb E property, other than in accordance with the written consent or authority of the NSWTAG, or further order of the Court; and
(b)interfering in any way with the orderly sale of the Suburb E property as provided for in these Orders.

8.In accordance with the sale of the Suburb E property:
(a)the first respondent forthwith do all acts and things and sign all documents necessary to discharge or cause the discharge of the following encumbrances on the title of the Suburb E property:
(i)Registered Mortgage …;
(ii)Caveat …; and
(iii)any other encumbrance to settlement of the sale of the Suburb E property as provided by these Orders.

(b)the applicant forthwith do all acts and things and sign all documents necessary to discharge the Caveat … on the title of the Suburb E property;
(c)the first respondent and the applicant forthwith upon compliance with the provisions of this Order, advise the NSWTAG of such compliance in writing, and forthwith provide a copy of all documents confirming proof of such compliance.

9.From this day until settlement of the sale of the Suburb E property as provided in these Orders, the first respondent be restrained from further charging or encumbering the Property, or creating or increasing any liability secured against the Suburb E property without the prior written consent of the second respondent and the applicant which consent must not be unreasonably withheld.
10.There is leave to the NSWTAG to relist this matter on 7 days’ notice for the purposes of the implementation of these orders in relation to the vacant possession and sale of the Suburb E property.
11.The first respondent cause to be delivered to the second respondent at such address as may be nominated by the NSWTAG within 14 days of the date of the date of these Orders, all such property of the second respondent in the possession and/or control of the first respondent in undamaged condition, with such costs of transport to be paid solely by the first respondent as and when due. All such property shall include but not be limited to the following chattels and goods:
(a)Motor Vehicle 1 – last known registration …;
(b)Antique furniture;
(c)Dining table and chairs;
(d)Mirror;
(e)Chest of drawers;
(f)Clock;
(g)Artwork; and
(h)Watch, if the first respondent is able to locate same.

12.The Court allocates, as required by s 90XT(4) of the Act, a base amount of $118,219.41 to Ms Cisek (“the non-member party”) applicant out of the member interest of Mr Farrah (“the member party”) first respondent in Superannuation Fund 2, having member number ….
13.In accordance with s 90XT(1)(a) of the Act:
(a)the non-member party (or the non-member party’s financial manager, administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)the entitlement of the member party in the member party’s superannuation interest (or the entitlement of such other person who becomes entitled to receive a payment out of the member party’s superannuation interest) is correspondingly reduced by force of this Order.

14.The Trustee of the member party’s Superannuation Interest shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Act the entitlement awarded to the non-member party's interest in the immediately preceding clause of this Order; and
(b)pay the entitlement whenever the Trustee makes a splitable payment from the member party's interest in the member party's Superannuation Interest.

15.This order has effect from the Operative Time and the Operative Time is 4 business days after service of this Order upon the Trustee.
16.After service of the payment split notice in accordance with the Superannuation Industry (Superannuation) Regulations 1994 (“the SIS Regulations”), the non-member party shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the non-member party’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member party’s interest to a complying superannuation fund of the non-member party's choosing in accordance with the SIS Regulations.

AND THE COURT NOTES THAT:
A.The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
B.Any payments from the member party's Superannuation Interest made after the Trustee has created a new interest in the non-member party’s name in the Fund are not splitable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.

AND THE COURT ORDERS THAT:
17.Subject to these Orders the applicant, the first respondent and the second respondent each retain to the exclusion of the other parties, all items of respective personality, savings, motor vehicles, home contents and all other property currently held within each party's possession.
18.Pursuant to s 106A of the Act if any party fails or neglects to do anything, sign any documents, or give any necessary authorisation to give effect to these orders or any part of them including the executing all such documents as may be needed to comply with these Orders within the time provided:
(a)a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division1) or such other person appointed by the Court be authorised to do all such acts and execute all such documents on behalf of the non-complying party; and
(b)if any party procures compliance with this order by obtaining execution of documents pursuant to this order, then the party procuring such execution of documents will be indemnified by the non-compliant party for his or her costs and expenses incurred in obtaining such compliance.

19.There be liberty to the applicant and the second respondent to apply in respect of the question of costs within 30 days of these orders and not thereafter.
20.The first respondent pay to the applicant the outstanding costs orders made 14 June 2022 and 18 August 2022 in the total sum of $16,200 within 30 days of this date.
21.All extant applications in the proceedings in this Court and in the transferred Supreme Court of New South Wales proceedings case number 2021/… be otherwise dismissed and the matter removed from the list.

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 the pseudonym Cisek & Farrah has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY

The parties to competing property orders applications are firstly, the applicant de facto wife (“the applicant”), and the first respondent de facto husband (“the first respondent”), and secondly, the first respondent and the second respondent de facto wife (“the second respondent”). The parties claims are intermingled. The proceeding in the Court is a proceeding consolidated with a proceeding commenced on behalf of the second respondent in the Supreme Court of New South Wales against the first respondent, to which the applicant was joined. The Supreme Court of New South Wales proceeding was transferred to the Court in October 2022. The claims made by each of the applicant and the second respondent against the first respondent concern primarily each of their equitable interests in a single piece of real estate which is registered in the sole name of the first respondent, and in which the first respondent resides.
The second respondent has been diagnosed with dementia and is a current resident of a residential care facility in Suburb S. The second respondent is represented by the New South Wales Trustee and Guardian (“NSWTAG”) pursuant to a Financial Management Order by New South Wales Civil and Administrative Tribunal (“NCAT”) first made in November 2017. Pursuant to orders made by the Court, by consent, on 21 October 2022, the second respondent is a person in need of a litigation guardian pursuant to r 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and pursuant to r 3.16(2) of the Rules the NSWTAG is appointed as the litigation guardian for the second respondent.
The matter first commenced in March 2021 in the then Federal Circuit Court (now the Federal Circuit and Family Court of Australia (Division 2). The applicant and the first respondent were declared to be in a de facto relationship of approximately fifteen years by declaration made by the Court on 14 June 2022. There are two children of the de facto relationship. Both children are now adults. During the de facto relationship, there were episodes of family violence as perpetrated upon the applicant by the first respondent. The first respondent was incarcerated for several months in respect of some of that family violence.
During his de facto relationship with the applicant, the first respondent claimed that he commenced a de facto relationship with the second respondent. There is dispute between the first respondent and the second respondent as to the commencement of the de facto relationship between them. The first respondent claimed the relationship commenced “many years before 2015”,[1] his counsel submitting on the evidence of the first respondent that the relationship commenced “in or about the early 2000’s”.[2] The second respondent claimed the relationship commenced after she separated from her then husband, in late 2016. The second respondent and first respondent agree that the relationship ended in September 2017, when the second respondent was admitted into the T Hospital.
[1] First Respondent’s Outline of Case, paragraph 11.
[2] First Respondent’s Outline of Case paragraph 10.
The applicant had no direct knowledge of the relationship between the first respondent and the second respondent until August 2022, when the applicant and her solicitors first became aware of the relationship between the second respondent and the first respondent as alleged in the Statement of Claim filed early 2021 in the Supreme Court of New South Wales proceedings by the NSWTAG on behalf of the second respondent (who was in those proceedings the plaintiff) against the first respondent (who was in those proceedings the defendant).
Orders sought

The Statement of Claim, filed by the NSWTAG on behalf of the second respondent in the Supreme Court of New South Wales in early 2021 sought, as primary relief, orders for accounting in relation to monies received by the first respondent from the second respondent; and an order for payment by the first respondent to the second respondent of the amount, if any, found to be due to the second respondent after the taking of accounts. Alternatively, the second respondent sought equitable relief against the first respondent in the sum of $2,257,291.18; an order for the return to the second respondent of her chattels and goods in the first respondent’s possession and control; and interest up to judgment pursuant to ss 100 and 101 of the Civil Procedure Act2005 (NSW) (“the CPA”). In the event interest up to judgment would not be granted, the second respondent sought the first respondent pay compound interest on all monies misappropriated and found to be applied to his own use and benefit from the respective dates of each misappropriation, a total of $2,641,702.45.
An Amended Statement of Claim was filed by the second respondent on 26 September 2022 seeking additional orders, including a declaration that the first respondent held the property at Q Street, Suburb E in the State of New South Wales (“the Suburb E property”) on trust as a constructive trustee for the second respondent to the value of $1,198,711; or in the alternative, a charge over the first respondent’s property for an amount of $200,000, $625,711 and $373,000 (totalling $1,198,711), equitable compensation, an order for judgement in the sum of $2,257,291.18 and an order for the return to the second respondent of her chattels and goods in the first respondent’s possession and control.
On the first day of the final hearing on 28 November 2022, the second respondent was granted leave to file a Further Amended Statement of Claim wherein the second respondent sought in the alternative additional orders for a de facto property settlement. Subsequently the second respondent sought, and was granted, further leave to amend the Further Amended Statement of Claim to amend the declaration sought as to the length of the de facto relationship between the first respondent and the second respondent being the period October 2016 to September 2017.
The second respondent then proceeded to seek orders that, a declaration be made that the first respondent held all title and interest in the Suburb E property on trust for the second respondent to the value of $1,350,000; in the alternative, a declaration that the property be charged separately; in the alternative, that the first respondent pay to the second respondent equitable compensation as was necessary to restore the second respondent to the position in which she would have been if the first respondent had not unduly influenced, acted unconsciously against the second respondent, or had money had and received by him for his own use and benefit to the second respondent’s detriment quantified in the amount of $2,284,380.26; in the alternative, the first respondent pay the sum of $2,284,380.26 to the second respondent; the first respondent return to the second respondent all of the second respondent’s chattels and goods which were in his possession and control; interest pursuant to s 100 and s 101 of the CPA; in the alternative, the first respondent pay compound interest on all monies misappropriated and found to be applied to his own use and benefit from the respective dates of each misappropriation; in the alternative, a declaration pursuant to s 90RD(1) of the Act be made that a de facto relationship existed between the second respondent and the first respondent from October 2016 concluding on or about September 2017; pursuant to s 44(6) of the Act the second respondent be granted leave to initiate proceedings for the adjustment of property interests pursuant to s 90SM of the Act between the second respondent and the first respondent; in the alternative, a declaration pursuant to s 90RD(2) of the Act that the second respondent made substantial contributions of a kind under s 90SM(4)(a)-(c) of the Act; pursuant to s 90SM of the Act the first respondent forthwith pay to the second respondent the sum of $1,100,000; in the alternative, the NSWTAG be appointed as a Trustee for the sale of the Suburb E property; within 28 days of the orders the first respondent provide vacant possession of the Suburb E property; the first respondent and the applicant discharge encumbrances upon the Suburb E property; the net proceeds of the sale of the property be disbursed to payout all outstanding costs, to the NSWTAG to hold on behalf of the second respondent an amount equivalent to 75 per cent of the net proceeds of the sale, and to the applicant being an amount equivalent to 25 per cent of the net proceeds of the sale; the Court allocate pursuant to s 90XT(4) of the Act a base amount of $118,219.41 to the applicant out of the member interest of the first respondent; and the first respondent pay to the second respondent their costs and disbursements of an incidental to the family law proceedings on an indemnity basis in the amount of $212,730.50.
At final hearing, the applicant sought orders, relevantly, that the NSWTAG be appointed as trustee for sale of the Suburb E property on behalf of all parties; within seven days the applicant and first respondent do all acts and things and execute all necessary documents to authorise and direct NSWTAG to cause the Suburb E property to be listed for sale and thereafter sold with the net proceeds of sale to be applied as to payment of the real estate agent’s commission and advertising expenses of the sale, payment to NSWTAG of their costs of acting on the sale, discharge of the mortgage on the Suburb E property to U Ltd (noting all loans secured by this mortgage have been fully repaid), a payment of $500,000 of the net sale proceeds to the second respondent, and the balance to the applicant; the first respondent to provide vacant possession of the Suburb E property to the NSWTAG; both the applicant and the first respondent to pay all monies at the request of the NSWTAG to facilitate the listing for sale and the sale of the Suburb E property; both the applicant and the first respondent to be solely responsible for and indemnify the other in relation to any liabilities or claims; a superannuation splitting order in respect of the first respondent’s superannuation entitlements where the base amount of $77,000 was to be allocated under s 90XT(1)(a) of the Act to the applicant out of the first respondent’s interest in the fund, with such order to bind the trustee and take effect on the fourth business day after the orders were served on the trustee.
The applicant’s earlier orders sought in her Amended Application, relevantly that, the first respondent hold the Suburb E property on trust for both himself and herself in equal shares; both the applicant and the first respondent be appointed jointly as trustees for the sale of the Suburb E property; and that the balance of proceeds after payment of costs and disbursements of sale to be 65 per cent to herself and 35 per cent to the first respondent, were no longer appropriate, as conceded by the applicant in her orders sought at trial.
The difference in approach by the applicant came about because the applicant had proceeded with her litigation in the Court with no knowledge of the second respondent’s claim in the NSW Supreme Court. Reprehensibly, and with cost consequences to the applicant and the second respondent, the first respondent failed to disclose this significant fact until some three months before the trial, being approximately one year and four months after the second respondent’s Supreme Court proceeding commenced against the first respondent, and approximately one year and five months after the filing of the applicant’s Initiating Application against the first respondent in the then Federal Circuit Court (now Federal Circuit and Family Court of Australia (Division 2)).
At final hearing, and as confirmed in his Case Outline, the first respondent sought orders that the applicant’s application for property settlement be dismissed; that there be a dismissal of the applicant’s application that the first respondent be solely responsible for, and indemnify the applicant in relation to, the claim bought by the second respondent; and that the applicant pay the first respondent’s costs of and incidental to this proceeding. As will be seen hereafter, the seeking of these orders by the first respondent was entirely devoid of merit.
MATERIAL RELIED UPON
The applicant relied upon the following material:
(1)Case Summary Document filed 25 November 2022;
(2)Amended Initiating Application filed 5 September 2022;
(3)her affidavits filed 3 December 2021 and 8 September 2022, certain paragraphs and/or parts thereof which were objectionable and struck out;
(4)her affidavit, paragraphs 16 to 20 inclusive filed 30 September 2022, in the Supreme Court of New South Wales;
(5)her Financial Statement filed 11 November 2022;
(6)affidavit of Mr V, the applicant’s father, filed 8 June 2022;
(7)affidavit of Ms BG, the applicant’s close friend, filed 6 June 2022; and
(8)Written submissions filed 3 April 2023.
The first respondent relied upon the following material:
(1)Outline of Case handed up to the Court on 28 November 2022;
(2)Amended Response to Final Orders filed 10 November 2022;
(3)Defence to Amended Statement of Claim filed late 2022 in the Supreme Court of New South Wales;
(4)his affidavits filed 26 March 2021 and 9 November 2022;
(5)his affidavit filed early 2022 in the Supreme Court of New South Wales; and
(6)his Financial Statement filed 9 November 2022.
The second respondent relied upon the following material:
(1)Further Amended Statement of Claim filed late 2022 in the Supreme Court of New South Wales;
(2)Amended Statement of Claim filed late 2022 in the Supreme Court of New South Wales;
(3)affidavit of the first respondent filed early 2022 in the Supreme Court of New South Wales;
(4)affidavits of Ms X, a legal officer employed at NSWTAG, filed on two dates in late 2022 in the Supreme Court of New South Wales;
(5)affidavit of Ms X, a legal officer employed at NSWTAG, filed late 2022;
(6)affidavits of Ms Y, the second respondent’s sister, filed on three dates between late 2021 and late 2022 in the Supreme Court of New South Wales, certain paragraphs and/or parts thereof which were objectionable and struck out;
(7)affidavit of Ms Z, the second respondent’s sister, filed late 2021 in the Supreme Court of New South Wales, certain paragraphs and/or parts thereof which were objectionable and struck out; and
(8)Written submissions filed 17 April 2023.
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities, unless the context indicates otherwise.[3]
[3] Evidence Act 1995 (Cth) s 140.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.
Credibility
The applicant was a reliable witness who gave her evidence in a straightforward manner. Save in the very limited instances indicated hereafter, where there was a dispute of fact in the evidence given by the applicant and the first respondent, I prefer the evidence of the applicant to that of the first respondent.
The first respondent was an unreliable witness. He was often inconsistent in the giving of his evidence, much of it which was garbled, he often giving contradictory evidence, and he appeared to answer questions on the basis of what he perceived would be the most favourable answer to promote his case, regardless of its lack of truthfulness. He was both non-responsive at times, and argumentative at others. He gave at other times, answers in cross-examination that were simply implausible.
The second respondent was medically incapable of giving evidence.
RELEVANT FACTUAL FINDINGS
The second respondent was born in Australia in 1941 and was aged 81 years at the time of trial.
The first respondent was born in Country C in 1966, and was aged 56 years at the time of trial. He was employed full time as a retail worker and claimed to be in receipt of a gross income of $108,869 per annum. He had worked in a shop either as an owner and/or employee for approximately thirty years. The job involved extensive physical labour. He resided in the Suburb E property of which he is the sole registered proprietor, and which is the subject of claim by the other parties in this proceeding.
The applicant was born in Country B in 1980, and was aged 42 years at the time of trial. She was in compromised health suffering from a number of conditions. The applicant was seeing a counsellor and taking pain medication as prescribed by her general practitioner. She was unemployed and deriving income from Centrelink of approximately $18,876 per annum. The applicant resided in New South Wales Department of Housing rental accommodation, having obtained such accommodation through a domestic violence accommodation service.
In 1998, the applicant and the first respondent commenced a relationship.
In 1998, the applicant fell pregnant with the first respondent’s child. The applicant and the first respondent agreed for the applicant’s pregnancy to be aborted and the first respondent made the necessary arrangements.
In 1998, the applicant fell pregnant with the first respondent’s child for a second time, and again the applicant and first respondent agreed for the applicant’s pregnancy to be aborted and again the first respondent made the necessary arrangements.
In late 1998, the applicant and the first respondent became engaged.
In or around late 1999, the first respondent’s brother, Mr D (“Mr D”) visited Australia from Country C on either a tourist or a business visa. He expressed to the first respondent his desire to move to Australia. The first respondent, accordingly, proposed to the applicant, his then fiancée, that she marry Mr D in a civil ceremony, so Mr D could obtain permanent residency in Australia. The applicant initially refused.
The first respondent continued to persist in his request that the applicant marry Mr D. In or around that time, being 1999, the applicant and the first respondent discovered the applicant was again pregnant. The applicant claimed that the first respondent told her that if she did not marry his brother, he would leave her and not assist in the care of the applicant’s unborn child.[4] The first respondent disputed making such a statement, responding “that’s an absolute lie”.[5] The parties ultimately determined to proceed with the pregnancy. I make no finding as to which of the parties gave a truthful account of this matter, as the establishment of this fact, in particular in the context of less than satisfactory evidence, was not necessary in this proceeding.
[4] Applicant’s affidavit filed 3 December 2021, paragraphs 17-18.
[5] Transcript 1 December 2022, p.10 line 37.
In late 1999, the applicant and the first respondent participated in religious marriage ceremony. The marriage contract was signed by the first respondent and the applicant. The applicant’s mother and father were witnesses to the marriage. No marriage certificate pursuant to the Marriage Act 1961 (Cth) was issued and nor was this religious marriage registered as it was not a legal marriage.
The late 1999 date was, however, the commencement of the de facto relationship between the applicant and the first respondent.
In late 1999, the applicant married Mr D in a civil marriage ceremony attended by the first respondent and the first respondent’s father. At the ceremony, the applicant and Mr D signed a legal marriage certificate, with the first respondent and the first respondent’s father as witnesses. The marriage was registered in the State of New South Wales Register of Births, Deaths and Marriages. The applicant did not inform her parents of her marriage, understanding that they would have entirely disapproved of her actions, and of the actions of the first respondent in orchestrating the marriage. The applicant was told by the first respondent that the purpose of marrying Mr D was for a marriage certificate to be shown to the Department of Immigration.
In late 1999, the first respondent and the applicant participated in a reception celebrating their religious marriage ceremony.
In 2000, the applicant and the first respondent’s son Mr F was born. The first respondent is, as acknowledged by the applicant and the first respondent, the biological father of the child Mr F. The first respondent completed documentation in respect of the birth, including the birth certificate. On that certificate, the first respondent listed Mr D as Mr F’s father. The first respondent told the applicant this falsifying of the document, as I find it to be, was to “solidify [his] brother’s visa…to make [the] marriage more believable and help him attain permanent residency”.[6]
[6] Applicant’s affidavit filed 3 December 2021, paragraph 23.
In or around late 2000, the first respondent informed the applicant that Mr D had obtained permanent residency in Australia.
In 2002, the applicant and the first respondent’s daughter Ms G was born. The first respondent was faithfully recorded as Ms G’s father on the birth certificate.
From 2002 until 2015, the applicant received Centrelink benefits fortnightly, including a single parent payment and rent assistance. The applicant enrolled and undertook tertiary courses to satisfy requirements by Centrelink to receive the single parent payments. That was a fact known to and encouraged by the first respondent. The receipt of such benefits by the applicant continued throughout the de facto relationship.
In or around 2002, the applicant and the first respondent purchased real property at CC Street, Suburb BB in the State of New South Wales (“the Suburb BB property”). The title was under the name of the first respondent only. The applicant’s father, Mr V (“the applicant’s father”), took out a loan of approximately $30,000 to $40,000 and transferred those funds into the first respondent’s bank account to assist the parties with the purchase and lending requirements. Such monies were to be repaid to the applicant’s father by the applicant and the first respondent. Such funds were so repaid by the first respondent on behalf of he and the applicant.
In 2003, as alleged by the first respondent, he commenced a ‘close and personal relationship’ with the second respondent. I find that not to be supported by the evidence, and do not accept the evidence of the first respondent. He was at the time residing with the applicant and two infant children in their newly acquired home. Also in the household were his parents.
In or around early 2010, the second respondent purchased a Motor Vehicle 1 and registered such vehicle in her name. The first respondent alleged that the second respondent “bought [Motor Vehicle 1] as a present for me and I refused to have it in my name. I said what’s the point, I have so many vehicles not in my name”.[7] The vehicle has remained registered to the second respondent since 2010. The first respondent did not disclose Motor Vehicle 1 as property owned by him in either of his Financial Statements filed in this proceedings. Nor did he disclose to DD Financial Services that he owned Motor Vehicle 1 car. He deposed at the final hearing, “I believe I own [Motor Vehicle 1]”.[8] This was patently absurd evidence.
[7] Transcript 30 November 2022, p.222 lines 16-24.
[8] Transcript 1 December 2022, p.63 line 30.

The second respondent’s sister Ms Y and her husband were with the second respondent when she purchased Motor Vehicle 1 for her use from the dealership in Suburb BH. The second respondent did not refer to the first respondent, nor claim that the vehicle was to be purchased as a gift for the first respondent, as claimed by him. The second respondent paid approximately $50,000 for Motor Vehicle 1 second hand with approximately 22,000 kilometres on the odometer. Ms Y’s evidence was that on her visits to the second respondent some three or four times a year, she had never seen the vehicle in the possession of, nor driven by, any other person save her sister, the second respondent.
In or around 2010, on the evidence of the first respondent, but contrary to the evidence of the applicant and the second respondent, the first respondent commenced to live in the home of the second respondent and her husband at EE Street, Suburb FF (“the Suburb FF property”). He claimed he would only vacate that home between 2010 and 2017 (upon settlement of the sale of the home), for two weeks a year, being when the second respondent’s relatives would visit and stay at the home. At those times, he would stay at the Suburb E property with the applicant and children, being where the applicant and children were residing until 2015. Whilst the first respondent was in occupation of the Suburb FF property and from 2010 until September 2016, on his evidence, the Suburb FF property was also occupied by the second respondent’s husband, a joint proprietor of the property with his wife. This was extraordinary and implausible evidence. There was not a semblance of truth in it.
The applicant’s evidence, which I accept, was that the first respondent lived with her and their children in this period in firstly, their Suburb BB property and secondly, their Suburb E property. I note that these property purchases had occurred with some enabling assistance from the applicant’s father. Otherwise, the first respondent came and went from the home and his workplace in a shop where he worked long hours. In some of that time, the applicant worked in the shop with him. The second respondent lived, with her husband, in the Suburb FF property owned by them until around the time of their physical separation in September 2016. They were married for approximately 40 years. Their separation was precipitated by the presence of the first respondent in the home at an earlier time as set out in [70]-[71] hereafter.
In 2012, the applicant and the first respondent planned to purchase the Suburb E property. During the period leading up to the purchase, the applicant’s father deposed to having a conversation with the applicant, as was the applicant’s evidence, where the applicant said “we need around $65,000 to buy the home in [Suburb E]. Do you think you could help us with this?”.[9]
[9] Affidavit of Mr V filed 8 June 2022, paragraph 17.
In early 2012, the applicant’s father took out an advance of $65,000 on his own home loan with the ANZ Bank to be used by the applicant and the first respondent toward the purchase of the Suburb E property.
In early 2013, the applicant and the first respondent purchased the Suburb E property in the first respondent’s sole name. The purchase price was around $650,000 and stamp duty and legal fees amounted to $25,000. The first respondent made an application for finance to GG Bank for a home loan amount of $520,000. The applicant’s father transferred $65,000 from his bank account to the bank account of the applicant’s brother, to be transferred to the first respondent to assist with the purchase. The indirectness of this transfer was no doubt to support the declaration made by the first respondent in his loan application to GG Bank in early 2013, wherein he falsely stated that such monies (which he described as being $70,000) were a “non‑payable family gift”.[10] To the contrary, such advance was required to be repaid within a period of two years, which was in fact repaid by the first respondent to the applicant’s father.
[10] Transcript 30 November 2022, p.278 line 45.
Around this time the Suburb BB property was sold.
In mid-2013, settlement of the Suburb E property occurred. This property was the family home where the applicant, the first respondent and their children, together with the first respondent’s mother (when in Australia) resided. In addition to the $65,000 received from the applicant’s father, the parties placed the sum of $85,000 toward the purchase, being the net sale proceeds of the Suburb BB property. The balance of the purchase price (and perhaps some extra sum) was met by the first respondent obtaining, in his sole name, a mortgage with GG Bank in the sum of approximately $518,000.
In late 2013, the applicant, the first respondent and their two children travelled to Country HH and Country C for a vacation.
In December 2013, the first respondent applied for a further loan advance from GG Bank. The loan he applied for was a personal loan, with a purpose, as stated by him, being for “renovations loan $30K”.[11] This loan was described by the bank as a loan forming part of the first respondent’s “My Home Package” and further described as a “Personal Purpose Standard Variable Rate Loan”.[12] The total loan advanced was in the amount of $29,600.
[11] Applicant’s Tender Bundle, p.120.
[12] Applicant’s Tender Bundle, p.115.
When cross-examined by counsel for the applicant as to what the above loan was for, the first respondent stated as follows:[13]
That was – when – when we bought the business for the first time, we bought half the business. The amount was agreed to, was 85,000. I was under the impression that [Ms Elsner] would give me the money and I give it to the guy, so I can go back with half and half, but [Ms Elsner] instead straight away forward $85,000 to that guy’s bank account. I never got to sign an agreement because he was already in a position of the money. Plus he – he put some shelves in the shop.
[13] Transcript 30 November 2022, p.286 lines 40-46.
Subsequently, when further pressed by counsel for the applicant as to the application of the loan amount, the first respondent stated that it was used to complete the purchase of half the business. This evidence was incomprehensible save that it was clear that the second respondent had paid the vendor of the business the sum of $85,000 and the first respondent had obtained ownership of the business. The first respondent provided no evidence to establish that he had paid a further $85,000 to obtain the business. I find the first respondent kept for himself the further loan borrowings as secured by the Suburb E property and applied them in a manner not disclosed by him. This was but one of many examples of the first respondent’s failure to comply with his obligation of disclosure.
In or around late 2013 or early 2014, the purchase of the business in Suburb L known as ‘JJ Pty Ltd’ was completed. The evidence of Ms Y goes to her sister’s relationship with the first respondent at that time. It is enlightening. That evidence was that her sister met the first respondent in a shop at Suburb W where he worked for many years. The second respondent would talk to him when shopping there. They became closer, talked on the telephone, and met occasionally. It was not until around 2014, that her sister began to see more of the first respondent.[14] Ms Y’s evidence corroborated the evidence of the first respondent that the second respondent did provide the funds to the first respondent to purchase his own “[…] business” in Suburb L,[15] and that she did so by direct transfer of the sum to the vendor.
[14] Affidavit of Ms Y filed late 2021 in the Supreme Court of New South Wales, paragraph 16.
[15] Affidavit of Ms Y filed late 2021 in the Supreme Court of New South Wales, paragraph 24.
In 2015, the first respondent assaulted the applicant, forcing her to engage in non‑consensual sexual relations. The applicant told her father the first respondent was violent toward her and that she had decided to permanently separate from him. The parties then separated under the one roof in the Suburb E property.
In 2015, the first respondent further assaulted the applicant by hitting her in the face on multiple occasions. Bruises to the face of the applicant, as caused by the first respondent, were observed by Ms BG, a close friend of the applicant. She photographed such bruises. The applicant planned for her and the second respondent’s daughter, Ms G, to move out of the Suburb E property and to that end she contacted a domestic violence accommodation service. The applicant around this time also told her father the first respondent was again violent toward her, that he pulled her hair, gave her a black eye and that she could not stay in the home any longer.
A short time later, the first respondent further assaulted the applicant. The applicant was mopping the floor in the kitchen when the first respondent entered the room, grabbed her arm and forced her to sit on a chair. Thereafter he obtained a knife, placed it to her throat and said to her “I know you’re cheating on me, tell me who you are talking to!”.[16] The applicant denied such allegations. This incident was not reported to the Police at the time.
[16] Applicant’s affidavit filed 3 December 2021, paragraph 63.
In mid-2015, the applicant attended Suburb H Police Station to report the incident that had occurred a few days earlier. She was then directed to Suburb K Police Station where she made a formal statement.
From mid-2015, there was minimal communication between the first respondent and the applicant. Any communication that transpired between them was regarding the children.
In mid-2015, the applicant visited her general practitioner, Dr J, as accompanied by her father. Both the applicant and the applicant’s father signed a statutory declaration, as witnessed by Dr J, detailing the family violence perpetrated by the first respondent upon the applicant.
Approximately one month later, a provisional Apprehended Domestic Violence Order (“ADVO”) was taken out by the New South Wales Police against the first respondent for the protection of the applicant.
A short time later, an ADVO was issued by consent against the first respondent for the applicant’s protection for an operative period of two years.
Also in mid-2015, the first respondent was incarcerated in respect of the family violence incidents. He remained in jail until late 2015. The second respondent assisted in the release, on bail, of the first respondent, by the payment of his legal fees in a sum of approximately $4,000.
In early 2016, and doing the best I can on the evidence (it appears there may have been other non-identified charges) the first respondent was charged in the Suburb H Local Court with a number of offences. The first respondent’s offence included the use, on multiple occasions, of a tracking device on her motor vehicle; another offence of assault was that which occurred in mid-2015; and a third offence related to the first respondent entering a secure car park at Suburb K Police Station, and removing from the applicant’s car, to which he had a set of keys, a telephone which he falsely claimed belonged to the parties’ daughter. In apologising to the Police subsequently, the first respondent claimed to be under a lot of stress as the result of his failed relationship with the applicant. I note this was at a time when he claimed in evidence to have been living with the second respondent for five years. He pleaded guilty to the charges and received a bond for each of the three charges, concurrently a bond of a number of years. He received additionally a fine in relation to his unlawful entry charge.
In early 2016, the second respondent paid a $20,000 deposit toward the first respondent’s purchase of the business ‘KK Company’.
In early 2016, the Suburb E property was valued by Mr MM of LL Group for the purposes of the first respondent refinancing the Suburb E property mortgage with DD Financial Services.
In mid-2016, the second respondent expressed a desire to her doctor that she wished to separate from her husband to be with the first respondent. The second respondent told her doctor she “wants to leave her husband to be with her boyfriend of the last 5 years. She would like her boyfriend to move in with her husband and her. They have a big house”.[17]
[17] Exhibit ME-3.
In mid-2016, the first respondent borrowed $625,000 from DD Financial Services. From that loan, the first respondent paid $500,889.66 to discharge the first mortgage over the Suburb E property with GG Bank and $29,182.24 to discharge his subsequent borrowings with GG Bank. The total cost of the refinancing amounted to $14,272 which formed part of the mortgage. The first respondent claimed he applied the remaining approximately $95,000 to payment of a supplier. There was no other evidence before the Court going to the establishment of the fact that the first respondent did in fact make such a payment, or that he had any extant liability. There was on his part a deliberate failure to comply with his obligation to make disclosure, a duty to the Court and the other parties, in respect of this matter. I find that the sum of $95,000 was retained by the first respondent and applied by him in a manner not disclosed to the Court and the other parties.
In May 2016, the second respondent deposited $350,000 in her NN Bank Term Deposit account number ending …78.
In mid-2016, the Police attended the Suburb FF property where the second respondent and her husband resided. The second respondent’s husband had seen the first respondent in the home and demanded the first respondent leave the home. The first respondent refused to leave, and the second respondent’s husband had gone downstairs to the kitchen and threatened the first respondent with a weapon. The Police forced entry into the home, located the weapon and spoke to the second respondent’s husband. The second respondent’s husband was arrested, taken into custody and interviewed.
On 23 July 2016, the second respondent and her husband separated under the one roof. In around late September 2017, the second respondent’s husband moved out of the Suburb FF property to live with his daughter of a former relationship. Around the commencement of October 2016, the first respondent took up residence in the home of the second respondent and both the first and second respondents remained living together in the home until settlement of its sale (for a sale price of $3,400,000) which occurred in early 2017.
In September 2016, the second respondent transferred $50,000 from her NN Bank account number ending …72 to the first respondent’s Commonwealth Bank account number ending …32.
In November 2016, the first respondent received $95,000 direct credit from the second respondent in his Commonwealth Bank account number ending …32.
The next day, the first respondent withdrew $20,000 from his Commonwealth Bank account number ending …32.
The following day, the first respondent received $95,000 direct credit from the second respondent in his Commonwealth Bank account number ending …32.
A day later, the remaining funds in the second respondent’s NN Bank Term Deposit account number ending …78, in the sum of $132,992.40 were withdrawn by the second respondent and the account was closed with a closing balance of $1,009.26.
In early 2017, settlement of the Suburb FF property was effected by the second respondent and her husband. The second respondent received $1,802,707.53 and $85,000 (as her half share of the deposit). The $1,802,707.53 was paid into the second respondent’s ANZ bank account number ending …63 in early 2017. The second respondent’s application of the $85,000 is not clear on the evidence.
In early 2017, the second respondent lent the first respondent $200,000 which the first respondent agreed to charge against the Suburb E property. The first respondent consented to the second respondent registering her interest on the Personal Property Securities Register and lodging a caveat over the Suburb E property at any time without notice to the first respondent. The agreement, which included a period for repayment of the loan, was reduced to writing and prepared by OO Lawyers. The invoice for the preparation of the agreement was addressed to the first respondent at the Suburb E property. The agreement was however never executed. No charge was lodged against the title and the first respondent gave evidence that there was no outstanding loan, inferring it had been forgiven. There was no evidence to further shed light on this from the second respondent. The Court could not find a debt due to a charge.
Following the settlement of the sale of the Suburb FF property, the first respondent and the second respondent moved into the Suburb E property for a week or two weeks before moving into rental accommodation in Suburb PP (the applicant remained with Ms G in her housing commission accommodation). A lump sum of $38,000 was paid in advance by the second respondent for a twelve month rental from early 2017 until early 2018. The first respondent and the second respondent remained living together at the Suburb PP property until 26 August 2017, whereupon they separated in circumstances as described in [91] below. Thereafter, the first respondent continued his occupation of that property until he resumed occupation of the Suburb E property in the following year.
In April 2017, the sum of $1,355,057.32 was withdrawn by the second respondent from the second respondent’s ANZ account number ending …63.
Three days later, a further withdrawal in the sum of $500,000 was made by the second respondent from her ANZ account number ending …63 and paid into the Commonwealth Bank account number ending …09 held jointly by the first respondent and the second respondent.
A short time later, a sum of $1,355,057.32 was deposited by the second respondent into the Commonwealth Bank account number ending …09 held jointly by the first respondent and the second respondent.
Three days later, the first respondent transferred $1,355,257.32 from the joint Commonwealth Bank account number ending …09 of the first respondent and the second respondent to his Commonwealth Bank account number ending …32. The first respondent made no disclosure as to his application of these funds.
A short time later, the first respondent transferred $900,000 from the first respondent and second respondent’s joint Commonwealth Bank account number ending …06 into his Commonwealth Bank account number ending …32. Those funds had their origin in the second respondent’s ANZ Access account number ending …63. The first respondent’s mortgage to U Ltd (the credit provider for DD Financial Services) in the remaining sum of approximately $625,711.26 was discharged in full by using part of these funds made solely available by the second respondent. This resulted in the position at trial, namely that the Suburb E property was unencumbered by mortgage sum but with a discharge of mortgage still to be sought. This direct contribution from the second respondent was supported by the evidence. It was a contribution made to the Suburb E property based on the existence of the first and second respondent’s de facto relationship. Their actual intention, on the evidence of, and given the actions of the first respondent, was to render the Suburb E property mortgage free and renovated for their occupation from early 2018. On the first respondent’s evidence, he and his de facto wife, the second respondent, were engaged in a joint endeavour to secure this outcome, with the home renovated to the second respondent’s liking, and suitable for them both.
In April 2017, the first respondent transferred $373,000 from the first respondent and the second respondent’s joint Commonwealth Bank account number ending …09 into the first respondent’s Commonwealth Bank account number ending …32. The first respondent provided no disclosure as to his application of these funds.

Between April 2017 and November 2017, a further seventy-five transfers of funds totalling $902,033.80 were made by the first respondent from the second respondent and first respondent’s joint Commonwealth Bank account number ending …09, into the Commonwealth Bank account of the first respondent ending …32. The first respondent provided no disclosure as to his application of these funds.
In respect of the totality of withdrawals made by the first respondent, and in the process of attempting to establish what happened to the monies in the first respondent’s control, a further and important piece of oral evidence as provided by the single expert valuer, Mr QQ, and accepted by the Court, was that no other consents for construction work after 2017 to the Suburb E property had been issued by the Suburb H Council. Further, that on the Development Application (“DA”) tracking for Suburb H Council, the estimated cost of the approved renovations to the home was $200,000. It was the single expert’s evidence that such estimated cost would have come from either the building contract, or from a quantity surveyor. This was the best and only objective evidence of the cost of renovations, as was submitted by Counsel for the applicant in a submission with which I agree. The first respondent’s evidence that the renovations carried out by him, which commenced after mid-2017, cost “about $1 million” was unsupported by any other evidence and is contradicted by this evidence.[18] The first respondent’s evidence was I find, again, untruthful.
[18] Transcript 30 November 2022, p.320 line 18.
In May 2017, two further transfers were made by the first respondent from the first respondent and the second respondent’s joint Commonwealth Bank account number ending …06, to the first respondent’s Commonwealth Bank account number ending …32. These transfers totalled $40,000.
In 2017, a sum of $500,287.73 was deposited by the second respondent from the second respondent’s ANZ Bank account number ending …63 into the first respondent and the second respondent’s joint Commonwealth Bank account number ending …09.
In May 2017, the first respondent withdrew $499,000 from the first and the second respondent’s joint Commonwealth Bank account number ending …09 and deposited this into the first respondent and the second respondent’s joint Commonwealth Bank account number ending …06.
In mid-2017, the second respondent had a fall, and the first respondent called an ambulance. The second respondent was admitted to T Hospital. The second respondent was diagnosed with multiple medical conditions. Apparently, none of these conditions had been observed by the first respondent in the many months that he had been residing with her, in particular her decreased mobility. His evidence in this regard beggars belief. It is highly likely that the second respondent had no proper physical or mental functioning for some considerable period of time.
In late 2017, the second respondent was admitted to a secure dementia unit at the TT Residential Care in Suburb L pursuant to a Respite Agreement as a permanent resident. This was arranged by the first respondent. During the months immediately following, the first respondent ceased to make payments for the care of the second respondent.
In late 2017, the first respondent’s business ‘JJ Pty Ltd’ was sold by him and the settlement funds were paid into the first respondent’s Netbank account number ending …44. The final amount deposited at the conclusion of the sale was $275,500. The first respondent claimed that he paid suppliers outstanding accounts of approximately $150,000 and rental arrears of approximately $70,000 from these sale proceeds. He conceded however in cross-examination, that he had not provided any documents to verify his evidence that the business sale proceeds of $275,000 were applied in the manner he described. Indeed, there were no withdrawals from his sole account that were consistent with the payments of $150,000 and $70,000 that he claimed to have made. His evidence was entirely unreliable. The Court finds that the first respondent has applied such funds in a manner undisclosed by him.
In November 2017, NCAT determined the need for the second respondent’s estate to be the subject of a management order and made orders appointing the NSWTAG as the second respondent’s financial manager. The second respondent’s sister, Ms RR was appointed as the second respondent’s guardian and another of the second respondent’s sister’s, Ms Y, was appointed as the alternative guardian.
In late 2017, the second respondent was discharged into the care of Ms Y and her husband. They then travelled to their residential town of Suburb S. The second respondent was admitted as a permanent resident to a residential care facility in Suburb S where she remains living. It fell to her sisters and to Centrelink to make financial provision for the second respondent. Her estate had essentially been transferred to the first respondent.
On or about late 2017, the second respondent executed a caveat prepared by OO Lawyers. She claimed an equitable interest as charge of the Suburb E property based on her as caveator advancing $200,000 to the first respondent in good faith. The caveat was executed whilst the second respondent was a resident of another residential care facility and witnessed by two people. The caveat was lodged for registration although not effected due to a requisition as to irregularity in the execution of the instrument.
In mid-2018, a caveat was registered against the title to the Suburb E property by the NSWTAG on behalf of the second respondent. The charge and details of the second respondent’s interest being in the same terms as the caveat executed in late 2017. This caveat lapsed after the lodgement of an Application for Preparation of Lapsing Notice by the first respondent in mid‑2020.
In early 2019, the second respondent’s Motor Vehicle 2 was impounded by the Suburb H Council and sold at auction. The auction and towing fees were greater than the sale price and the first respondent was billed for the shortfall.
In 2021, the applicant deposed she was receiving Centrelink benefits in the form of Jobseeker payments.
In or around early 2021, the Suburb E property was advertised for sale at a reserve price of $1,175,000. The applicant was advised by her father that the property was for sale. The applicant instructed her solicitors to register a caveat against the title on the Suburb E property.
In early 2021, the applicant registered a caveat over the Suburb E property claiming an equitable interest in that property based on “financial and non-financial contributions during the marriage”.[19]
[19] Applicant’s affidavit filed 3 December 2021, paragraph 78 and Annexure M2.
A short time later, a second caveat by the NSWTAG was recorded against the title on the Suburb E property, claiming an equitable interest in the land by virtue of a loan of $200,000 from the second respondent to the first respondent.
In early 2021, the NSWTAG gave written notice to the first respondent to repay the principal sum of $200,000 secured by caveat.
In or around early 2021, the applicant’s solicitors contacted the real estate agent responsible for the sale of the Suburb E property to obtain an update as to the sale. The real estate agent advised the first respondent had taken the Suburb E property off the market.
A short time later, the second respondent’s caveat as lodged by the NSWTAG in early 2021 was removed by the New South Wales Land Registry due to the caveat contravening s 74O of the Real Property Act 1900 (NSW).
On 21 April 2023, the Court, constituted by another judge, made orders dismissing an application by the applicant pursuant to s 51 of the Act that the marriage between herself and Mr D in late 1999 be nullified and declared void.
Further evidence of the first respondent
The first respondent claimed a payment made by him to Mr D, in the sum of $145,000 was a payment required to be made by him to repay his brother his investment in the business in the sums of variously $150,000 and then $145,000, and to pay out Mr D’s part ownership in consequence. The first respondent claimed that that “[Mr D] ultimately did not want to stay in the business, and I paid him out”.[20] The first respondent claimed such monies as given by him to Mr D “came out of [the second respondent]’s fund” before he sold the business.[21] That may be an explanation as to the current whereabouts of some of the monies retained by the first respondent. It may also be an explanation of the implausible evidence given by the first respondent when he sought to claim that the second respondent’s purchase of the business was only as to a half. Such evidence was rejected by me. I do not accept the first respondent’s evidence that Mr D had any interest in the business at any time. The first respondent provided no documentary or other corroborative evidence to support his assertion and establish this fact. Further, there was no disclosure by the first respondent that would have supported his assertion. Nor was there evidence before the Court that Mr D had any capacity to advance to the first respondent such a large sum of money. Equally false evidence was the first respondent’s evidence as contained in his Financial Statement filed 15 November 2022 that at trial, he had a current debt to Mr D of $200,000. By that time the first respondent had all the second respondent’s remaining estate. The first respondent provided, again, no evidence to corroborate this claim, nor any evidence in chief as to how such a debt came into existence.
[20] Transcript 20 January 2023, p.26 lines 42-43.
[21] Transcript 20 January 2023, p.377 line 15.
Indeed, in respect of the first respondent’s claim involving monies owed to his brother Mr D, I accept the submission of Counsel for the applicant that the payment of $145,000 made by the first respondent to Mr D was “a gratuitous payment amounting to another premature distribution of property.”[22]
[22] Applicant’s written submissions filed 3 April 2023, paragraph 42(a)(ii).
Further, I accept and adopt the submission made by Counsel for the applicant that it would be reasonably expected that the first respondent would have called Mr D to give evidence in this proceeding, as he would have been able to give admissible evidence about these issues. Clearly, in accordance with the rule in Jones v Dunkel (1959) 101 CLR 298, the Court can, and does, draw an adverse inference against the first respondent for failing to do so, that inference being that Mr D’s evidence would not have assisted the first respondent’s case in relation to these issues.
Mr QQ, Single Expert Valuer
Mr QQ was the single expert property valuer of the Suburb E property. He was cross-examined by all parties at trial.
Mr QQ prepared a valuation report providing a market value of the Suburb E property both at the date of his inspection of the property in late 2022, and as at mid-2015 by way of retrospective market value. This earlier value was around the time of the separation of the applicant and the first respondent. Between these two dates renovations to the property were undertaken by the first respondent in 2017. Additionally, the first respondent claimed that he had spent $50,000 on the lawn at the Suburb E property in 2019. He provided no corroborative evidence of that assertion. The Court cannot make a finding that this expenditure was incurred, though it may have been, given the access of the first respondent to the second respondent’s funds at that time. There is no evidence that such additional expenditure was a factor in the valuation.
It was Mr QQ’s evidence that the market value of the Suburb E property as at late 2022 was in the sum of $1,350,000, and that the retrospective market value was in the sum of $750,000 (as at mid-2015). Mr QQ relied upon marketing material dated early 2013 and from data records obtained by him to assess the layout of the home and the condition of, and facilities available within the home situated on the property, together with the external street presentation of the property at the retrospective date. The data records were “photographs taken by the sales agent at the time of sale, and floor plans, when they marketed the property for sale”.[23] The photographs relied upon in Mr QQ’s retrospective valuation report were not taken by him but were referenced and relied upon by him.
[23] Transcript 20 January 2023, p.6 lines 20-21.
A historic valuation, in evidence before the Court (Exhibit MC4) and prepared by Mr MM of LL Group (on instructions from DD Financial Services for the purposes of a mortgage as sought by the first respondent) valued the property at $950,000 in early 2016, being approximately ten months after the retrospective valuation date of Mr QQ. Mr MM’s valuation was assisted by his physical inspection of the property at the relevant time, which Mr QQ conceded was a probable advantage in assessing value, when cross-examined by Counsel for the applicant. Mr MM’s physical inspection of the property also occurred before the renovations to the property were undertaken by the first respondent in 2017 which I find would also have given him an advantage, contrary to that asserted by Mr QQ.
Mr QQ, in cross examination, commented that it was a rising market throughout this period and when questioned whether the rising market could have expected a natural increase in the value of the property after mid-2015 until early 2016, Mr QQ agreed that could be so.
Counsel for the applicant sought to draw comparisons between the Suburb E property and a neighbouring property at UU Street, Suburb SS (“the Suburb SS property”) which sold in early 2015 for $785,000, some three months before the retrospective valuation date, and in a rising market. When questioned as to the similarities and differences between the Suburb E property and the Suburb SS property, Mr QQ did not concede that the Suburb SS was an inferior property at the date of the retrospective valuation to the Suburb E property. Whilst he agreed that the Suburb SS property had a smaller land area of 555 square metres, in comparison to the Suburb E property at 714.4 square metres, I observe some twenty-nine per cent larger, his evidence was “ [UU Street], in my opinion, has more appeal” and “it’s a much more efficient block”.[24] Whilst he acknowledged that the larger land area would be considered in the value of the property, it was “not a full freight”.[25] The renovations completed on the Suburb E property commencing after mid-2017, pursuant to the 2017 development approval, had the effect of reducing the bedroom accommodation of the property from four to three, removing the study, and providing for a larger lounge room and a two car garage. Mr QQ claimed these changes “limit the buyer profile for the property”.[26] That was so because “the demographics are of larger families for [Suburb E]”.[27]
[24] Transcript 20 January 2023, p.13 line 44.
[25] Transcript 20 January 2023, p.13 lines 30-31.
[26] Transcript 20 January 2023, p.18 lines 20-21.
[27] Transcript 20 January 2023, p.19 lines 38-40.
On a consideration of the above evidence overall, in my view it is likely that the Suburb E property had a higher value at mid-2015 than that opined by Mr QQ in his valuation report. His late 2022 valuation is accepted by the Court.
The evidence of Mr QQ was such that, in my view, it is just and equitable to take the late 2022 valuation as the relevant value. I give the retrospective value little weight. The changes in the market over the relevant period include a rising market which is likely to account for the present value of the Suburb E property. Additionally, any value add of the renovations undertaken by the first and second respondents was not in evidence before the Court. Indeed, there was evidence that the renovations made the home less suitable for potential purchasers as the number of bedrooms and facilities for families were reduced.
Ms Y, the second respondent’s sister
Ms Y was a truthful witness and I accept her evidence some of which is referred to above. She was cross examined by Counsel for the first respondent at trial.
Ms Y observed the second respondent to be infatuated with the first respondent in the period probably commencing around 2015. In the period following the second respondent moving in with the first respondent, Ms Y became unable to contact her sister as she had previously. That lack of contact was initiated by the first respondent in his removal from the second respondent of her mobile phone, thereby depriving her of her usual communications with her sister.
Ms Y had never met the first respondent until 2017, when she encountered him at the T Hospital when visiting her sister.
Ms Y and Ms RR had always been close to the second respondent, their sister, and both would travel to spend time with her. Ms Y would regularly spend time around Christmas and Easter each year with the second respondent, either staying at the home of the second respondent and her husband in Sydney, or upon the second respondent travelling to her home. Both stepped in to look after their sister upon her abandonment by the first respondent, that abandonment being that the first respondent left no funds available to the second respondent to provide for the second respondent’s ongoing care. This was highlighted in 2017, in a conversation between Ms Y, the first respondent, and the manager of the nursing home where, on Ms Y’s evidence “the nurse or the manager of the home told [the first respondent] that we were going to take [the second respondent] to [Suburb S] because [the first respondent] had stopped paying the money for her care and she had no cards, nothing”.[28] That is precisely what occurred.
[28] Transcript 20 January 2023, p.57 lines 23-27.
Ms X, legal officer at NSWTAG
Ms X is a legal officer with the NSWTAG and with carriage of the matter on behalf of the second respondent, deposed in unchallenged evidence, that the second respondent has no available source of funds to meet her unpaid legal costs or enforce any orders made by the Court, other than from any award she receives in this proceeding. She claimed the second respondent is impecunious, and the second respondent’s living costs are likely to increase, given the second respondent’s age and health, and depending on her need for additional specialist care and differing or increased medications. Annexed to Ms X’s affidavit filed 30 September 2022, was email correspondence between the second respondent’s sisters outlining personal property, which it is alleged the first respondent currently holds on behalf of the second respondent. It was the intention of the second respondent’s sisters that these items be sold, and the funds be put toward the second respondent’s care and accommodation. Such items included jewellery (including a watch, diamonds, gold rings and pearls); artwork (silk screens); and antiques.
LEGAL PRINCIPLES
On 14 June 2022, a declaration was made by the Court pursuant to s 90RD of the Act that a de facto relationship existed between the applicant and the first respondent from 1999 to 30 May 2015. Leave was granted to the applicant under s 44(6) of the Act to apply for property orders pursuant to s 90SM of the Act.
Thus, in respect of an alteration of property interests as between the applicant and the first respondent, the Court shall proceed to apply s 90SM of the Act to that consideration.
In respect of the position as between the first respondent and the second respondent, having regard to the meaning of de facto relationship as set out in s 4AA of the Act, together with the concession of the first respondent and the second respondent that there was a de facto relationship between them, albeit for differing commencement dates to the same conclusion date, and taking into account the above factual findings, the Court finds that the first respondent and the second respondent were in a de facto relationship between the period from on or about October 2016 to on or about September 2017.

Having determined that the evidence supports the making of a declaration to the above effect pursuant to s 90RD(1) of the Act, the Court considered the jurisdictional thresholds of s 44(5) and s 44(6) of the Act together with s 90SB of the Act. The Court is satisfied that hardship would be caused to the second respondent if leave were not granted to her to apply for an order under s 90SM of the Act and therefore s 44(6) of the Act is engaged. Further the Court is satisfied that although the length of the de facto relationship is not a period of at least two years, and there is no child of the de facto relationship, that s 90SB(c)(i) and (ii) apply namely:
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
Accordingly, the Court shall apply s 90SM of the Act to its consideration of the alteration of property interests between the first respondent and the second respondent. During that consideration, the Court will factor in the windfall constructive trust in favour of the second respondent which exists with respect to the property of the first respondent, namely the Suburb E property.
The Court in property proceedings in relation to a de facto relationship shall “make such an order as it considers appropriate”. Section 90SM(3) of the Act provides that the Court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act for married parties, and s 90SM of the Act for de facto couples. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”[29] must not be merged with, or supplanted by the inquiries under s 79(4) and s 90SM(4) of the Act.[30] In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”[31] However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”[32]
[29] Stanford v Stanford (2012) 247 CLR 108 at [37].
[30] Stanford v Stanford (2012) 247 CLR 108 at [51].
[31] Stanford v Stanford (2012) 247 CLR 108 at [36] referring to Mallet v Mallet (1984) 156 CLR 605, 608 per Gibbs CJ.
[32] Stanford v Stanford (2012) 247 CLR 108 at [41].
Whilst I shall consider as a precondition to making an order for property settlement, whether it is just and equitable in all the circumstances of the case to make such an order, the Full Court of the Family Court of Australia in Bevan & Bevan (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that “permeat[es] the entire process”.
In many cases where an application is made for property settlement order, “the just and equitable requirement is readily satisfied by observing that, as a result of a choice made by one or both of the parties, the [first respondent] and the [applicant] are no longer living in a marital relationship”.[33] It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the applicant and the first respondent.
[33] Stanford v Stanford (2012) 247 CLR 108 at [42].
In determining the question as to whether a windfall constructive trust existed as between the first respondent and the second respondent, I was assisted by the decision in Massalski & Riley [2019] FamCA 1013 at [326] wherein McClelland DCJ said, in relation to a windfall constructive trust, which in my view is the only such trust that could apply on the facts of this case, the following:
365.A windfall constructive trust may be imposed where one party has made contributions to a property, and it would be unconscionable for the registered proprietor to retain the benefit of those contributions: Baumgartner v Baumgartner (1987) 11 Fam LR 915 (“Baumgartner”).
366.For such a trust to be found, the following is necessary:
1.The parties must be involved in a joint relationship or endeavour: Swettenham v Wild [2005] QCA 264.
2.There must have been a pooling of resources for the purposes of the joint relationship or endeavour. This might include consideration of the non-financial contributions made by the parties: Miller v Sutherland (1990) 14 Fam LR 416, 424; Muschinski v Dodds (1985) 11 Fam LR 930.
3.The joint relationship must have come to an end: Brendan Edgeworth et al, Sackville & Neave: Australian Property Law (LexisNexis Butterworths, 10th ed, 2016) [4.124]
4.It would be unconscionable in the circumstances for the landowner to retain the benefit of the other’s contributions.”
Unconscionability has been accepted by the High Court of Australia as the benchmark criteria for determining the existence of a windfall constructive trust.[34]
[34] Muschinski v Dodds (1985) 160 CLR 583.
I find that the elements as stated above apply in this case and that the Court can find, and does find, that a windfall constructive trust exists wherein it would be unconscionable for the first respondent to retain the benefit of the second respondent’s early 2017 contribution to the discharge of the mortgage sum secured by the Suburb E property, for the reasons as set out above.
In considering how this finding should fall within the competing de facto claims of the applicant and the first respondent, I refer to the decision of Biltoft and Biltoft (1995) 19 Fam LR 82 (“Biltoft”) which recognised the general rule that the liabilities of the parties to a marriage should be deducted from their assets in order to determine divisible property is not absolute and that, in the circumstances of a particular case, a trial judge may not be obliged “to determine the quantum of that debt and thus the net value of the property of the parties”.[35]
[35] Biltoft and Biltoft (1995) 19 Fam LR 82 at p.96.
In Rodgers & Rodgers (No 2) (2016) 55 Fam LR 167 the Full Court of the Family Court of Australia at [40], by way of reiteration and emphasis of what was said in Biltoft, said further “the manner in which a particular liability should be treated is, ultimately, dependent upon the nature of the liability, the circumstances surrounding the liability and the dictates of justice and equity shaped by each”.
IS IT JUST AND EQUITABLE TO MAKE AN ALTERATION OF PROPERTY INTERESTS?
The Court finds that it is just and equitable to make orders under s 90SM of the Act because:
(1)in respect of the applicant and the first respondent:
(a)the applicant and first respondent were in a de facto relationship for nearly 16 years. There are two children of the relationship (now both adults);
(b)the parties acquired property during their relationship, including the Suburb E property and the accumulation of the first respondent’s superannuation;
(c)the only significant property of the parties is the Suburb E property and the first respondent’s superannuation. The first respondent is the sole legal owner of the Suburb E property;
(d)the applicant made financial contributions, non-financial contributions, and contributions as homemaker and parent, of the kind referred to in s 90SM(4) of the Act;
(e)the first respondent is not paying any rent to the applicant in respect of his occupation of the Suburb E property; and
(f)if the Court does not make property adjustment orders under s 90SM the Act in favour of the Applicant, the result will be that the Respondent retains all the property owned by the parties.
(2)in respect of the first respondent and the second respondent:
(a)the relationship has ended and the first respondent remains in the Suburb E property in respect of which he pays no mortgage or rent and the second respondent resides in an aged care facility in respect of which payments are required to be made by her, and can only be met by Centrelink benefits; and
(b)the first respondent made significant financial contributions to the Suburb E property, contributions to the purchase of the businesses, and some limited non‑financial contributions during the period the parties resided in the Suburb FF property, all such contributions being of the kind referred to in s 90SM(4) of the Act. Further, there is a need for a change in legal ownership of the Suburb E property given the contributions and windfall constructive trust in favour of the second respondent with respect to that property.
At trial, both the applicant and the second respondent had a caveat lodged on the Suburb E property. BD Pty Ltd had also lodged a caveat over the Suburb E property to secure a debt owed to them by the first respondent pursuant to agreement dated January 2021 for an amount of $9,107.80.
THE ASSET TABLE
The following tables outlines the legal and/or equitable interests of the applicant and the first respondent as determined by the Court including superannuation:

Assets of the parties

Ownership

Value

Q Street, Suburb E NSW (“the Suburb E property”)

First Respondent

$1,350,000

Household contents (not including those goods and chattels belonging to the second respondent)

First Respondent

E$5,000

Motor Vehicle 3

Applicant

$3,000

Motor Vehicle 4

First Respondent

$1,000

Commonwealth Bank Account Number …47

Applicant

$250

Westpac Bank Account Number …47

Applicant

$1,050

Commonwealth Bank account number ending …19

First Respondent

$1,203.63

Commonwealth Bank account number ending …95

First Respondent

Unknown

Commonwealth Bank account number ending …09

First Respondent

Unknown

Commonwealth Bank account number ending …06

First Respondent

Unknown

TOTAL ASSETS

$1,361,503.63

The Court finds the first respondent failed to provide disclosure in respect of the above accounts as held by him and referred to as “unknown”.
Superannuation

Superannuation

Ownership

Value

Superannuation Fund 1

Applicant

$57

Superannuation Fund 2

First Respondent

$118,217.41 (as of 31 December 2021. The first respondent failed to disclose the balance as at the trial date)

TOTAL SUPERANNUATION

$118,274.41

Otherwise, the second respondent’s assets and liabilities were as follows:
·Equitable interest in the Suburb E property;
·Motor Vehicle 1 – last known registration …;
·Antique furniture;
·Dining table and chairs;
·Mirror;
·Chest of drawers;
·Clock;
·Artwork;
·Watch and other watch;
·NSW motor vehicle fines in respect of the first respondent’s possession and use of the vehicle owned by the first respondent $1,160; and
·Supreme Court of New South Wales fees $571.
In respect of the above furniture and other chattels of the second respondent, the first respondent conceded in the giving of his evidence, that save for a watch and/or any other watch, the above items remain in his possession and he was prepared to make same available to the NSWTAG upon request.
Each of the parties incurred considerable legal costs, despite the relatively small net assets available for alteration of property interests. This was not surprising given the way the proceedings unfolded. Throughout, the first respondent gave no ground in respect of his application for dismissal of the applicant and the second respondent’s claims. The legal costs of the applicant were $161,512.44. The legal costs of the first respondent were $65,000. The legal costs of the second respondent’s current lawyers were between $212,570.50 - $212,730.50 (inclusive of prior Supreme Court proceedings), with costs of the second respondent’s previous lawyers amounting to $142,415.52. There was no suggestion by any of the parties that such legal costs be added back to the asset pool, nor should they be.
The parties dispute was really contained to the Suburb E property interests; the first respondent’s superannuation; and the chattels and motor vehicle of the second respondent. I propose to leave motor vehicles, save Motor Vehicle 1, and items (unvalued) of furniture belonging to the applicant and first respondent not adjusted for. Nor will there be an adjustment of the minimal savings held by the parties. These adjustments were not sought and are practically left where they lie. No disservice to the just and equitable alteration of property interests between these parties occurs as a result.
The first respondent’s debts accrued post separation
The below debts constitute the first respondent’s sole spending post the separation of he and the applicant and post the separation of the first respondent and the second respondent. They are not included in the applicant and the first respondent’s asset pool, and nor do they fall as a liability in which the second respondent should share. It is not possible on the evidence to ascertain why the first respondent has accrued such debt in circumstances where he has had access to over $2,000,000 of the second respondent’s property. Again, there was an absence of disclosure.

Debts of the first respondent

Value

Debt to VV Company (creditor: WW Finance Services)

$2,784

Credit card debt (creditor: WW Finance Services)

$15,344

$9,576

Credit card debt (Creditor: XX Finance Services)

$20,799

Credit card debt (creditor: YY1 Finance Services)

$10,558

Credit card debt (Creditor: YY2 Finance Services Services)

$4,897

$21,071

$6,372

Credit card debt (creditor: ZZ Bank)

$13,199

Personal loan from BA Finance Services

$8,025

Personal loan owed to Mr D

As alleged by the first respondent but in relation to which no probative, nor truthful evidence was put before the Court by the first respondent.

$0

Personal loan owed to Mr BE

As alleged by the first respondent but in relation to which no probative, nor other evidence was put before the Court by the first respondent.

$0

Personal loan owed to Mr BF

As alleged by the first respondent but in relation to which no probative, nor other evidence was put before the Court by the first respondent.

$0

TOTAL DEBTS

$112,625

CONTRIBUTIONS OF THE APPLICANT AND THE FIRST RESPONDENT

It has been determined that, in undertaking the task of considering the totality of the parties’ contributions in a holistic manner, it is inappropriate for a trial judge to adopt an ‘accounting’ or ‘scoring’ approach to each separate contribution. As explained by the Full Court in Blandford & Esmore [2022] FedCFamC1A 67 at [14], adopting such an approach is flawed because it “would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases), but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) [s 79(4)(b)] and s 90SM(4)(c) [s 79(4)(c)] of the [Act]”.
Similarly, it has been determined that, in circumstances where consideration is being given to whether the s 79(4) of the Act contributions made by a party have been made significantly more arduous as a result of the other party’s conduct, (also referable to s 90SM(4)) of the Act having regard to the principles set out in Kennon & Kennon (1997) 22 Fam LR 1 (“Kennon”), it is again necessary to make an holistic assessment of those contributions as part of the totality of the myriads of contributions made by each party. As explained by the Full Court in Benson & Drury (2020) FLC 93-998 at [35]:
… The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.
When considering the parties competing contributions, it has been acknowledged that the exercise of the broad discretion bestowed upon the Court pursuant to s 79 and s 90SM of the Act “‘inevitably involves value judgments and matters of impression’, and accordingly it cannot be treated as ‘a mathematical exercise’”.[36] It is often stated that there is an inevitable ‘leap’ from the evaluation of the parties’ contributions to declaring the “quantitative reflection of such an evaluation”.[37]
[36] Petruski v Balewa (2013) 49 Fam LR 116 at [49], citing Lovine & Connor (2012) FLC 93-515 at [40]–[41].
[37] Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], cited with approval in Roverati & Roverati (2021) FLC 94-027 at [38].
Initial contributions
At the commencement of the de facto relationship between the applicant and the first respondent, the applicant was unemployed, and the first respondent was working as a manager of a shop. There was a considerable discrepancy in their ages such that the applicant had not long left school. At this time, the first respondent was earning approximately $1,500 per week. It was the applicant’s evidence that when the shop was purchased in 2013, the first respondent’s weekly income increased to around $3,000 per week. I accept that evidence.
It is not in dispute that neither of the applicant nor the first respondent had any assets of significance at the commencement of their cohabitation.
Contributions during the de facto relationship
The applicant was the primary homemaker throughout the de facto relationship and the primary carer of the children following their respective births and until the time of separation. During some part of this time the applicant and first respondent’s daughter, Ms G, suffered from some mental health issues making more intense the applicant’s caring responsibilities.
During the relationship the first respondent worked long hours each day, around six days a week. He, I accept, as corroborated by the applicant, “would try to get on the road before 5” and return home in the evening “usually [at] 8”.[38] The first respondent worked firstly as an employee in two different shops before acquiring his own shop in 2013.
[38] Transcript 1 December 2022, p.12 lines 16-22.
The applicant requested of the first respondent that she assist the first respondent with his tasks in the shop, following the 2013-2014 purchase of his own business, as assisted by the direct financial contribution of the second respondent. The children were then less dependent upon her. Although the first respondent disputed the claim of the applicant that she worked approximately 25 to 30 hours per week in the shop, I accept her evidence. She was not paid any wages by the first respondent. She would intermittently receive a payment of approximately $200 per week from the first respondent on her evidence, which was contrary to the evidence of the first respondent that he made no payment to her of any kind on a weekly basis. The reason for his giving of that evidence, was his denial that the applicant had worked in the shop. Rather, he described her attendance at the shop as one of a person whom he taught to use the cash register, and who otherwise talked to suppliers when he was unable to do so.[39] Whilst both those things occurred, they did so during the applicant’s working hours.
[39] Transcript 1 December 2022, p.346 line 43.

The applicant did not remain working long in the shop with the first respondent. She sought out other employment and commenced to be employed by BC Business wherein she was paid as an employee and where she continued to work until around separation. The applicant worked from 9.00am to 3.00pm to accommodate her being available to the children both before and after school. As she said in her evidence “I would take the kids to school, I come to the shop, do what I have to do, and then I go and pick up the kids, even drop the kids off at home and come back to the shop till closing time sometimes”.[40]
[40] Transcript dated 29 November 2022, lines 16-19.
During cross-examination of the applicant, the applicant conceded the first respondent’s mother, from 1999 until 2015, lived with the applicant and the first respondent and was considered, as described by the first respondent’s counsel, “basically a permanent fixture at the house”.[41] On regular occasion she would go back to Country C “for a few months and then return back to Australia”.[42] The first respondent’s mother performed all of the housework in the home on those occasions when the applicant was pregnant, and otherwise assisted in household tasks during her occupation of the home.
[41] Transcript dated 29 November 2022, line 24.
[42] Transcript dated 29 November 2022, p.74 lines 41-42.
The contributions made by the applicant’s father in relation to acquisition of the Suburb BB property and the Suburb E as described above were contributions made by the applicant’s father on behalf of the applicant.
Contributions post separation
Post separation the applicant had the responsibility of caring for the children during the first respondent’s period in jail. She received no financial assistance from the first respondent and quite clearly this was a difficult time for her and the children. The applicant was traumatised by her history with the first respondent.
The applicant departed the home upon separation taking with her the parties daughter Ms G. The applicant had full time care of Ms G from aged thirteen years, at separation, until she was eighteen years old. Following separation, Ms G experienced poor mental health and was hospitalised on many occasions. The applicant’s responsibility as Ms G’s emotional support has limited her capacity to work.
The applicant was required to incur the cost of rental for she and Ms G as the first respondent remained in the family home. Post separation and during his incarceration, the first respondent continued his occupation of the Suburb E property. The first respondent cared for and looked after the parties son, who remained living in the family home.
Allegations of family violence raised by the applicant
Below I set out the factual basis of the objectionable conduct of the first respondent, and the effect that it had on the applicant’s contributions for my concluding that the first respondent engaged in controlling behaviour towards the applicant, including incidents of actual physical and sexual violence and financial control, that separately and cumulatively made the applicant’s contributions significantly more arduous in terms of the principles as set out in Kennon, and that a contribution based entitlement in the applicant’s favour was required as a result.
The applicant did identify a nexus between the conduct of the first respondent and its impact on her ability to make the contributions which she did, or to make those contributions significantly more arduous than they would otherwise have been. No percentage need be specified by the Court in this regard. The Full Court of the Family Court of Australia in Maine & Maine (2016) 56 Fam LR 500 at [49] made clear that direct evidence of the impact of violent conduct on the contributions of the other party is not necessary where there is “an inescapable inference that the applicant’s contributions – in particular her s 79(4)(c) of the Act contributions at the very least – were made “more onerous”.
I place significant weight upon the following:
·The first respondent’s emotional, physical and financial abuse of the applicant.
·The first respondent’s behaviours which impacted all the contributions of the applicant generally, including the applicant’s parenting.
·The days the first respondent was in prison in respect of serious charges of violent conduct by him toward the applicant.
·The sexual violence perpetrated by the first respondent on the applicant.
·The denigration of the applicant by the first respondent in front of customers at the shop where he would call her “good for nothing” and “useless”.[43]
·The depression and anxiety now suffered by the applicant.
·The episode wherein the first respondent, in mid-2015, sexually assaulted the applicant.
[43] Applicant’s affidavit filed 3 December 2021, paragraph 48.
Upon a consideration of the above matters in a holistic manner, I conclude that there should be a contribution adjustment in favour of the applicant of 65 per cent with 35 per cent to the first respondent.
CONTRIBUTIONS OF THE FIRST RESPONDENT AND THE SECOND RESPONDENT
Initial contributions
The first respondent had his interest in the Suburb E property; the business; Motor Vehicle 4 motor vehicle; his superannuation; and some furniture.
The second respondent owned real property jointly with her husband (the Suburb FF property); Motor Vehicle 1; considerable cash reserves; and personal property owned by her including a watch, some expensive jewellery, and furniture including:
·A dining table with four chairs;
·A TV stand;
·Antique furniture;
·An antique stand and clock;
·A lounge;
·A painting;
·A mirror; and
·Other items of furniture.
Contributions during the relationship
The Court is satisfied that the second respondent made substantial contributions being both direct financial contributions pursuant to s 90SM(4)(a) of the Act and contributions other than financial contributions as provided for in s 90SM(4)(b) of the Act as set out below.
The second respondent made a clear contribution through paying off the outstanding DD Financial Services mortgage as secured over the Suburb E property, in the sum of $625,711.26.
The first respondent conceded in cross-examination that he had enjoyed the benefit of funds belonging to the second respondent in an amount of $2,284,380.26, which he claimed she had freely and voluntarily provided to him. Additionally, the shop purchase price was a contribution that preceded the de facto relationship, but one that resulted in the sale proceeds to some extent.
The second respondent provided a home for the first respondent to reside in during the period they resided together in Suburb FF, and Motor Vehicle 1 for him to drive without cost to him.
Contributions post separation
The first respondent made no contribution to the relationship of he and the second respondent. In fact, he left her impecunious. The second respondent contributed her funds held in the two joint bank accounts of the first and second respondent, which continued to be used by the first respondent, and her Motor Vehicle 1 which has continued to be driven by the first respondent.
Upon a consideration of the above matters in a holistic manner, I conclude that there should be a contribution adjustment in favour of the second respondent which would see her being reimbursed for her contribution to the payment out of the DD Financial Services mortgage, and a further contribution entitlement as against the first respondent that must be considered, however, along with the first respondent’s contribution entitlement if any, in the context of the applicant’s claim.
SECTION 90SF(3) MATTERS AS APPLICABLE TO ALL PARTIES
Section 90SF(3)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The second respondent is medically and physically incapable of working. She is currently residing in a nursing home receiving Centrelink benefits of approximately $936.80 a week and pension supplements of approximately $75.60 per week. These are her only financial resources were she not to receive funds in this litigation. Her current expenditure includes aged care accommodation fees of approximately $796.18 per week; NSWTAG management fees of approximately $10 per week; and an energy supplement of approximately $14.10 per week. Her weekly needs are limited, and met by her Centrelink benefits. She has considerable outstanding legal costs, however. The applicant is also on unemployment Centrelink Benefits and has struggled with her mental health. Her need to care for Ms G has impacted her employment prospects periodically. She is of an age where there are some prospects for her return to the workforce. The first respondent has income, earning capacity, property and financial resources.
Section 90SF(3)(g) a standard of living that in all the circumstances is reasonable
The applicant and the second respondent do not have a standard of living that in all the circumstances is reasonable because of the actions of the first respondent.
Section 90SF(3)(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to (i) a party to the subject de facto relationship (in relation to another de facto relationship); (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship
The claim of the applicant as against the first respondent shall be, as conceded by Counsel for the second respondent, determined first in time, but it shall take into account the contribution of the second respondent to the payment out of the DD Financial Services mortgage secured over the Suburb E property. A consequent alteration of property interests in each de facto relationship shall follow. That shall impact the need for any adjustment to the second respondent when considering the s 90SF(3) of the Act matters.
Section 90SF(3)(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
The first respondent had the benefit of the GG Bank loan of $29,600 and the surplus loan monies from the DD Financial Services of approximately $90,000. The first respondent provided no explanation to the Court, nor any evidence, nor disclosed any relevant documents, as to his application of those funds. They were a benefit to him of $119,600 which is unexplained. Likewise, the first respondent’s payment to his brother Mr D in the sum of $145,000 was said by the first respondent to have been repaid to him - in fact in the sum of $200,000. There is no explanation nor disclosure as to the whereabouts of these funds which have also been solely controlled by the first respondent.
The first respondent has not credibly accounted for his application of more than $1,300,000 of the second respondent’s funds.
NON-DISCLOSURE
This is a further matter which I consider pursuant to the above s 90SF(3)(r) of the Act. The first respondent failed to properly set out his financial circumstances and relevant financial history as detailed above in these reasons. One such example is that although the first respondent admitted in his Defence, the following paragraphs of the second respondent’s Amended Statement of Claim filed 29 September 2022:
·[17] that the sum of $1,355,257.38 was, on 14/4/2017, transferred from a joint bank account of the Plaintiff and Defendant into a CBA account in the name of the Defendant.
·[19] that between early 2017 and late 2017 further bank transfers totalling $902,033.80 were transferred from a joint bank account of the Plaintiff and Defendant into a CBA account in the name of the Defendant.
·[32] that the mortgage over the Suburb E property, which at April 2017, was $625,711.00, has been paid in full from the Plaintiff’s funds.
The first respondent failed to disclose his application of the $2,257,291 which he admitted was transferred into his Commonwealth Bank account from the funds of the second respondent, other than assert, without any relevant documents to substantiate his claim, that approximately one million dollars had been spent on renovations to the Suburb E property.
That evidence I find was untruthful.
Significantly, Orders were made by the Court by consent of the parties on 4 November 2022, including Order 5 which required the first respondent to provide to the applicant and the second respondent specified financial disclosure documents by no later than 4.00pm on 11 November 2022. The evidence establishes, and as submitted by Counsel for the applicant, that the documents not provided by the first respondent, in contravention of the Order to which he had consented, were:
(1)Any statements at all for the following Commonwealth Bank accounts referred to in the letter to the Court from Commonwealth Bank dated 25/11/2022 (Exhibit MC3):
(a)…26
(b)…44
(c)…32
(d)…06
(e)…09
(2)Any pay slips (the first respondent stated in cross examination that he doesn’t receive pay slips).
(3)Any income tax returns or Australian Taxation Office Notices of Assessment.
(4)Any documents relating to the JJ Pty Ltd previously owned by first respondent as referred to in Order 5(e).
(5)Any documents relating to the sale of the business apart from the front pages of a sale contract, the agent, an email from the landlord, Deed of Surrender of Lease and Settlement statement. Of note was that first respondent produced no documents at all showing the application of the $275,000 sale proceeds of this business.
(6)No documents were produced by first respondent evidencing the liabilities set out in his Financial Statement, save for a Costs Notice from his solicitor.
(7)The first respondent did not produce any invoices or receipts relating to the renovations he caused to be undertaken to the Suburb E property including:
(a)building contracts;
(b)invoices;
(c)receipts;
(d)Council DA and correspondence; and
(e)Plans.
I note the first respondent claimed to have met the cost of the building works mostly in cash from his Commonwealth Bank account number ending …32.
In Weir & Weir (1992) 16 Fam LR 154 at page 158, the Full Court stated:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party.
The Court finds that the first respondent engaged in multiple deliberate non-disclosures.
Upon a consideration of all the above s 90SF(3) of the Act matters, there shall be a further adjustment of the applicant and first respondent’s property interests as to 35 per cent in favour of the applicant. There is no need for any adjustment in the second respondent’s favour.
The effect of the alterations to property interests is that the applicant shall receive 100 per cent of the first respondent’s interests in the Suburb E property, subject to the monies to be paid out to the second respondent in the sum of $625,711 less one half of the selling costs of the property which I find should be shared equally by the applicant and the second respondent. A sum of approximately $724,289 to the applicant, less one half of the selling costs. The applicant should also receive 100 per cent of the first respondent’s superannuation interests. A sum of $118,000.
The first respondent’s non-disclosure is so great, and his evidence so unreliable, that the Court cannot ascertain the whereabouts and/or application of those funds in the sole control of the first respondent as derived from the second respondent. But they exceed or equate to the monies to be shared by each of the applicant and the second respondent.
COSTS
On 14 June 2022, orders were made by consent of the first respondent that within 28 days of 14 June 2022 the first respondent would pay the applicant’s legal costs of $15,000. The first respondent conceded that he had not paid such funds to the applicant.
On 18 August 2022, a further costs order was made for the first respondent to pay $1,200 to the applicant within three months. The first respondent stated “I don’t remember that”.[44]
[44] Transcript 30 November 2022, p.128 lines 24-25.
The applicant submitted the first respondent has failed to pay the two costs orders and failed to comply with Court orders as to the filing of material. His abject failure to comply with disclosure obligations shows a continued disdain by the first respondent for the authority of the Court and its processes. The applicant seeks, and I shall make, further orders requiring the first respondent to pay the outstanding costs orders.
CONCLUSION
In my view the alteration of property interests between the applicant and the first respondent, and thereafter between the first respondent and the second respondent, and ultimately between the applicant and the first and second respondents as provided for above is just and equitable in the circumstances of the case.

I certify that the preceding one hundred and ninety (190) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.
Associate:
Dated: 22 September 2023

File number:	PAC 1160 of 2021
Judgment of:	HARTNETT J
Date of judgment:	22 September 2023
Catchwords:	FAMILY LAW – PROPERTY – Where the first respondent claimed to be in two overlapping de facto relationships – Where the applicant and the first respondent had a sixteen year de facto relationship with two children – Where the applicant alleged serious family violence by the first respondent – Where the applicant and the first respondent acquired real property and a business in the first respondent’s name – Where the first respondent and the second respondent had a proceeding in the Supreme Court of New South Wales running concurrently not disclosed to the applicant until shortly before a trial date in the Supreme Court of New South Wales – Where a joinder of the applicant and transfer of those proceedings occurred and consolidation with the proceedings in the Court – Where a declaration of a de facto relationship was made between the first and second respondents – Where leave was granted to the second respondent to seek orders pursuant to s 90SM(4) of the Act – Where the second respondent proceeded with an application that a constructive trust be found between the first respondent and the second respondent – Where the first respondent had the use of over $2 million of the second respondent’s funds – Where the first respondent did not make proper disclosure of his use of the second respondent’s funds – Where the applicant seeks an adjustment under Kennon – Order for sale of property – Order for applicant and second respondent to receive proceeds of sale – Superannuation splitting order. FAMILY LAW – COSTS – Where the first respondent has failed to comply with two costs orders – Costs order made for the first respondent to make payment to the applicant.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AA, 44, 51, 79, 90RD, 90SB, 90SF, 90SM, 90XT, 106A Marriage Act 1961 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.12, 3.16 Civil Procedure Act 2005 (NSW) ss 100, 101 Real Property Act 1900 (NSW) s 74O
Cases cited:	Benson & Drury (2020) 62 Fam LR 1 Bevan & Bevan (2013) FLC 93-545 Biltoft and Biltoft (1995) 19 Fam LR 82 Blandford & Esmore [2022] FedCFamC1A 67 Jones v Dunkel (1959) 101 CLR 298 Kennon & Kennon (1997) 22 Fam LR 1 Lovine & Connor (2012) FLC 93-515 Maine & Maine (2016) 56 Fam LR 500 Mallet v Mallet (1984) 156 CLR 605 Massalski & Riley [2019] FamCA 1013 Muschinski v Dodds (1985) 160 CLR 583 Petruski v Balewa (2013) 49 Fam LR 116 Rodgers & Rodgers (No 2) (2016) 55 Fam LR 167 Roverati & Roverati (2021) FLC 94-027 Stanford v Stanford (2012) 247 CLR 108 Steinbrenner & Steinbrenner [2008] FamCAFC 193 Weir & Weir (1992) 16 Fam LR 154
Division:	Division 1 First Instance
Number of paragraphs:	190
Date of hearing:	28 November 2022 – 1 December 2022, 20 January 2023
Date of last submissions	17 April 2023
Place:	Heard in Parramatta, delivered in Melbourne
Counsel for the Applicant:	Mr Fowler
Solicitor for the Applicant:	Hikma Legal
Counsel for the First Respondent:	Mr Barham
Solicitor for the First Respondent:	V L Macri Lawyers
Counsel for the Second Respondent:	Mr Heazlewood
Solicitor for the Second Respondent:	Coleman Greig Lawyers

PAC 1160 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CISEK Applicant
AND:	MR FARRAH First Respondent NEW SOUTH WALES TRUSTEE AND GUARDIAN ON BEHALF OF MS ELSNER Second Respondent

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	22 SEPTEMBER 2023

Assets of the parties	Ownership	Value
Q Street, Suburb E NSW (“the Suburb E property”)	First Respondent	$1,350,000
Household contents (not including those goods and chattels belonging to the second respondent)	First Respondent	E$5,000
Motor Vehicle 3	Applicant	$3,000
Motor Vehicle 4	First Respondent	$1,000
Commonwealth Bank Account Number …47	Applicant	$250
Westpac Bank Account Number …47	Applicant	$1,050
Commonwealth Bank account number ending …19	First Respondent	$1,203.63
Commonwealth Bank account number ending …95	First Respondent	Unknown
Commonwealth Bank account number ending …09	First Respondent	Unknown
Commonwealth Bank account number ending …06	First Respondent	Unknown
TOTAL ASSETS	$1,361,503.63

Superannuation	Ownership	Value
Superannuation Fund 1	Applicant	$57
Superannuation Fund 2	First Respondent	$118,217.41 (as of 31 December 2021. The first respondent failed to disclose the balance as at the trial date)
TOTAL SUPERANNUATION	$118,274.41

Debts of the first respondent		Value
Debt to VV Company (creditor: WW Finance Services)		$2,784
Credit card debt (creditor: WW Finance Services)		$15,344 $9,576
Credit card debt (Creditor: XX Finance Services)		$20,799
Credit card debt (creditor: YY1 Finance Services)		$10,558
Credit card debt (Creditor: YY2 Finance Services Services)		$4,897 $21,071 $6,372
Credit card debt (creditor: ZZ Bank)		$13,199
Personal loan from BA Finance Services		$8,025
Personal loan owed to Mr D	As alleged by the first respondent but in relation to which no probative, nor truthful evidence was put before the Court by the first respondent.	$0
Personal loan owed to Mr BE	As alleged by the first respondent but in relation to which no probative, nor other evidence was put before the Court by the first respondent.	$0
Personal loan owed to Mr BF	As alleged by the first respondent but in relation to which no probative, nor other evidence was put before the Court by the first respondent.	$0
TOTAL DEBTS	$112,625