Corelli & Beroni - [2021] FedCFamC1F 125

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Corelli & Beroni [2021] FedCFamC1F 125

File number(s): ADC 1771 of 2016

Judgment of: MEAD J

Date of judgment: 13 October 2021

Catchwords: FAMILY LAW – PROPERTY – De facto relationship – Interim hearing – De facto maintenance – Where assets owned by the respondent are significantly greater than that of the applicant – Where s 90SF(3) factors are considered – Where the applicant provided little information about her employment prospects – Where the applicant’s standard of living is significantly reduced upon separation – Where the issue of contribution is contentious – Where the reasonableness of a standard of living is considered – Where the respondent submits there should be no alteration of his property interests at all on a final basis – Where it is considered whether the applicant has a prima facie case for final settlement of property – Where an interim costs order is sought – Where it is determined whether there are circumstances that justify making a costs order under s 117(2A) – Where the applicant is and continues to be legally represented – Where a “dollar for dollar” order is sought – where there is no evidence that the value of the respondents assets are disputed at this stage of the proceedings – Where there is no evidence as to future work or costs to be undertaken by the applicant’s legal representatives – Where the Court is not satisfied that there are circumstances that justify the making of a “dollar for dollar” order – Where injunctive relief to prevent assets being disposed of was sought – Where the Court is not satisfied there is an evidentiary basis for claim for injunctive relief – Where the Court is not satisfied that the “balance of convenience” favours the making of the orders.

Legislation: Family Law Act 1975 (Cth) ss 72(1), 79, 79(2), 79(4), 90SE, 90SE(1), 90SF, 90SF(1), 90SF(2), 90SF(3), 90SF(3)(g), 90SF(4), 90SG, 90SM, 90SM(1), 90SM(3), 90SM(4), 90SM(4)(c), 90SS(1)(k), 90SS(5), 90UI, 90UI(1), 90UI(2), 114, 114(2A)(c), 117, 117(1), 117(2), 117(2A), 117(2A)(c), 117(2A)(d), 117(2A)(e), 117(2A)(f), 117(2A)(g)

Cases cited:
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Atkins & Hunt & Ors [2018] FamCA 14

Bevan & Bevan (1995) FLC 92-600

Evans & Evans (1978) FLC 90-435

Ferraro & Ferraro (1993) FLC 92-335

Mitchell & Mitchell (1995) FLC 92-601

Murkin & Murkin (1980) FLC 90-806

Rigby & Kingston [2017] FamCA 877

Stanford & Stanford (2012) FLC 93-518

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Tsiang & Wu & Ors [2019] FamCAFC 128

Division: Division 1 First Instance

Number of paragraphs: 223

Date of hearing: 12 June 2020

Place: Adelaide by Global Meet Telephone Conference

Counsel for the Applicant: Mr McGinn

Solicitor for the Applicant: Angela Ferdinandy

Counsel for the Respondent: Mr Kearney SC

Solicitor for the Respondent: Marsden Law Group
ORDERS

ADC 1771 of 2016

BETWEEN:
MS CORELLI

Applicant

AND:
MR BERONI

Respondent

ORDER MADE BY:

MEAD J

DATE OF ORDER:

13 OCTOBER 2021

THE COURT ORDERS THAT:
1.That the respondent pay, or cause to be paid, weekly maintenance for the applicant in the sum of $1,000.00 per week as and from 31 January 2020 until further order.
2.That on or before Friday 29 October 2021 the respondent pay to the applicant the sum of $91,000.00 being maintenance at the rate ordered in paragraph 1 hereof for the period 31 January 2020 to 29 October 2021 by direct deposit into such bank account as the applicant may nominate.
3.That as and from 29 October 2021 the maintenance ordered in paragraph 1 hereof shall be paid by the respondent on a weekly basis in advance with the first payment to be made on 29 October 2021 by direct deposit into such bank account as the applicant may nominate from time to time and thereafter on or before Friday of each week.
4.That paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 be dismissed.
5.That the Amended Application in a Case filed herein on 31 January 2020 and the Further Amended Response filed herein on 27 May 2020 be otherwise dismissed.

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.
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 pseudonyms Corelli & Beroni is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

By way of an Amended Application in a Case filed on 31 January 2020 the applicant sought the following orders:
1.That pursuant to section 117, or in the further alternative pursuant to section 114 or section 90SS9(5) or section 90UI of the Family Law Act ("the Act") that within 28 days:-
1.1The de facto husband do pay the de facto wife the sum of $591,169 for her indemnity costs and interest up to and including 2 December 2019; or
1.2.The de facto husband do pay the de facto wife's party and party costs to be fixed or assessed with respect to the section 90UM proceedings.
2.        That the proceedings in this matter be certified fit for Senior Counsel.
3.That by way of urgent maintenance pursuant to section 90SF and/or section 90UI of the Act ("the Act") the de facto husband pay to the de facto wife the sum of $2,000 per week.
4. That pursuant to section 90SFand/or section 90UI of the Act:-
(a)by way of interim maintenance pursuant to section 90SF of the Act the de facto husband do pay to the de facto wife the sum of $2,000 per week;
(b)within 14 days the de facto husband do pay to the de facto wife lump sum maintenance from the date of her Application (16 May 2016) to date, fixed in the sum of $272,000 for 136 weeks.
5.That by way of interim settlement of property, interim costs order or, in the further alternative pursuant to section 90SF of the Act the de facto husband do pay to the de facto wife the sum of FIVE MILLION DOLLARS ($5,000,000) within 14 days.
6.That any sum paid pursuant to paragraph 5 by way of interim property settlement be brought to account in such way as this Honourable Court deems just and equitable at the hearing of this matter.
7.        That within 14 days the de facto husband do:-
(a)       File a Financial Statement; and
(b)give disclosure of by way of provision of an Affidavit of Documents by way of discovery and an Affidavit disclosing:-
7.1.All property in his possession or power at the present date, or under his control;
7.2.All property disposed of by him or at his direction since 1 January 2010;
7.3.All costs and disbursements paid by him or on his behalf since the institution of these proceedings and the source of such payments;
7.4.A copy of all of his bank statements and those of any entity in which he has, or has had, an interest or signing rights since 1 January 2010;
7.5.A copy of his taxation returns and financial statements and those of any entity in which he has, or has had, any interest since 1 January 2010;
7.6.A copy of all valuations, appraisals and other evidence of value of all and any assets in the name of the de facto husband, or in which any of the entities in which he has, or has had an interest, or constituting documents with respect to all entities in which the de facto husband has or has had an interest since 1 January 2010;
7.7.All documents evidencing any change in the constitution, appointment of any trustee, appointor or change of beneficiary with respect to the said entities since 2009;
7.8.A copy of the de facto husband's share portfolio and any change thereof since 1 January 2010;
7.9.A copy of all correspondence, notes, memoranda and other documents between the de facto husband and his accountants to include correspondence between the accountants and or any entity in which the de facto husband has or has had an interest since 1 January 2010.
8.That until further or other order the de facto husband be restrained and an injunction be granted restraining him from transferring, assigning, disposing of or dealing with any property in his possession or under his control without the de facto wife's written consent first sought and obtained pending the making of final Orders save and except:-
8.1      In the ordinary course of business; and/or
8.2      To comply with orders of this Honourable court; and/or
8.3      To meet the de facto husband's reasonable living expenses; and/or
9.Pursuant to section 117 of the Act, or in the alternative section 114 or section 90SS(5) or 90SS(1)(K) of the Act from the date of these orders and within 7 days after the payment by or on behalf of the de facto husband of any monies in payment of accounts:-
9.1Rendered by solicitors or counsel for the de facto husband in connection with these proceedings;
9.2Rendered by accountants engaged by the de facto husband or the solicitors for the de facto husband, or on his or their behalf, to value or express an opinion or comment on the interest of the de facto husband and/or the de facto wife in any business, company, trust or entity or the de facto husband's income or loan accounts or unpaid present entitlements of the de facto husband or to examine any document for the purposes of these proceedings;
9.3Rendered by any expert engaged by the de facto husband or the solicitors for the de facto husband, to report on the interest the de facto husband has in any business, company, trust or entity in which he has an interest or to express an opinion or comment on the interest of the de facto husband and/or de facto wife in any business, company, trust or entity or the de facto husband's income or loan accounts or unpaid present entitlements of the de facto husband or of any associated entity or examine any document for the purposes of these proceedings.
The de facto husband pay or cause to be paid the same amount/s to the trust account of the solicitors for the de facto wife, to be applied to her legal costs and expenses in connection with these proceedings.
10.Within 24 hours after the payment by or on behalf of the de facto husband of any amount/s referred to in Order 9 hereof the de facto husband cause to be given to the de facto wife's solicitors a memorandum stating the amount or amounts so paid to the solicitors or accountants or expert/s.
11.The de facto husband instruct his solicitor that all monies paid to them including on his behalf as referred to in order 10 hereof should be held in trust by them and not applied in payment of any outstanding legal fees until such time as the same amount has been paid by or on behalf of the de facto husband to the solicitors for the de facto wife on the Court record from time to time in these proceedings.
12.In the event that the payment to the de facto wife referred to in Order 9 hereof is not made within 7 days thereafter, the de facto husband is to instruct his solicitor to pay 50% of whatever amounts have been received by them (as referred to in Order 8 hereof and held by them in trust) to the solicitors for the de facto wife on the Court record from time to time in these proceedings.
13.That the de facto wife instruct her solicitor that the amounts paid, or caused to be paid by the de facto husband to the solicitors for the de facto wife pursuant to the preceding Orders be applied by the solicitors for the de facto wife in payment of the legal costs and disbursements incurred or to be incurred by the de facto wife in the conduct of these proceedings, including but not limited to the reasonable costs and disbursements:
13.1     rendered by the solicitors or counsel for the de facto wife;
13.2rendered by accountants (engaged by the de facto wife or the solicitors for the de facto wife), to value the interests of the de facto husband in any business, company, trust or entity or comment upon the de facto husband's income, loans, or unpaid present entitlements; or
13.3rendered by valuers (engaged by the de facto wife or the solicitors for the de facto wife) to report on and value the real and personal property relevant in these proceedings and the income and loan accounts or unpaid present entitlements of the de facto husband relevant in these proceedings.
14.The question of how payment of costs to the de facto wife pursuant to these Orders are treated at the final hearing be a matter for determination by the Trial Judge.
15.That leave be granted to the de facto wife on 14 days' notice to make any application required to assist her to pay her solicitors, counsel, accountant or expert so that she is able to put her case as to the values of and the income and financial resources of the de facto husband and the entities and businesses associated with him at all relevant times.
16.That to the extent necessary that leave be granted to the de facto wife to bring applications pursuant to section 90SF and 90SM of the Act.
17.That leave be granted to the de facto wife to amend her application for final orders upon the provision of disclosure by the de facto husband and the completion of valuations.
18.      That this Application be heard as a matter of urgency.
19.      Directions generally.
20.      Costs.
The applicant did not pursue the orders specified in paragraphs 1, 2 and 7 of that Amended Application. The application was supported by an affidavit of the applicant filed on 21 February 2020 (“her affidavit”) and a financial statement filed on the same day.
On 27 May 2020 the respondent filed a Further Amended Response to the Application in a Case. He sought the following orders:
1.        That the Amended Application in a Case filed 31 January 2020 be dismissed.
2.        That in the alternative:
2.1.The Applicant bears her own costs of and incidental to her Application in a Case filed 10 May 2017;
2.2.That the Respondent otherwise pay the Applicant’s costs of the proceedings as agreed, and failing agreement as assessed, on an ordinary basis; and,
2.3.That the payment of costs referred to in this Order be deferred pending the determination of the appeal by the Full Court of the Family Court of Australia.
3.        That in the alternative to Order 1 sought above:
3.1.That pending further Orders, the Respondent pay to the Applicant the sum of $1,000.00 per week by way of maintenance.
3.2.That pending further Order, and without admission and without prejudice, the Respondent shall be and hereby is retrained from doing any act or thing to:
3.2.1.Cause or permit the balance of funds held by V Pty Limited in Westpac Bank Account (BSB: … …22) to be reduced below $5,000,000.00 (‘the funds’) or to otherwise alienate or encumber such funds; and,
3.2.2.Alter in any way the officeholders of, issued capital of and/or shareholding in V Pty Ltd;
Without first having provided each of the wife and the solicitors for the wife with 28 days prior notice in writing of any intention to do so.
The respondent relied on the evidence contained in his affidavit filed on 27 May 2020 and his financial statement filed on the same day.
Background
At the time of hearing the applicant was aged 53 years and the respondent was 88 years of age.
The applicant deposed to:
·coming to Australia in late 2009, at which time she was aged approximately 42 years;
·having completed the equivalent to Year 12 in Country G;
·her English improving, but to being less proficient in written English;
·still having a limited vocabulary as at 21 February 2020; and
·an employment background in Country G as a business owner and the operator of a business.
She and the respondent met in or about December 2009. They commenced cohabitation in a house owned by the respondent somewhere between 1 January 2010 (applicant's case) and May 2010 (respondent's case).
It was common ground that:
·when the applicant arrived in Australia in mid-November 2009 she had her clothes, was debt free and had funds in Country G to a value of approximately AUD 18,000;
·at the commencement of cohabitation the respondent had or had control over assets to an approximate value of $73.18 million;
·in addition to being responsible for almost all of the parties day to day housing and living expenses, the respondent provided to the applicant the sum of $2,000 per month between the commencement of cohabitation and sometime in 2014 (on the respondent's case March 2014), at which time the monthly payment increased to $3,000; and
·the payment of $3,000 per month to the applicant by the respondent continued until the end of November or early December 2016.
The parties separated for a time in 2014 although continued to reside in the same house. On the applicant's case the separation was for a period of three months between May and August 2014. On the respondent's case the separation occurred between 1 March 2014 and October 2014.
On the applicant's case the funds provided to her by the respondent were initially expended to pay rent for one of her sons whilst he was living in Adelaide as well as for her own personal expenses, but that more of the funds were available for her own use after her sons returned to Country G. She deposed to utilising some of the funds to pay for various personal items for the respondent, as well as sending some of the balance to her sons in Country G, and having some available for savings.[1]
[1] Applicant’s affidavit filed 21 February 2020 – paragraph 73.
The parties separated finally in or about April or May 2016, with the applicant's Initiating Application in these proceedings being filed on 16 May 2016.
In that application she sought orders for:
·a declaration that a de facto relationship existed between the parties;
·that an agreement made between the parties on 7 April 2011 be set aside (a Financial Agreement);
·property settlement;
·maintenance;
·costs; and
·an order under section 106B (of the Family Law Act 1975 (Cth)) in relation to all transactions since the date of cohabitation wherein the respondent had a signed, transferred or divested himself of assets in which he had a legal or beneficial interest.
On an interim basis she sought but did not pursue at that time:
·interim maintenance in the sum of $2,000 per week;
·partial property settlement in the sum of $5 million;
·disclosure;
·injunctions restraining the respondent from transferring, assigning, disposing or dealing with assets; and
·a section 106B order in terms of the final orders sought.
The applicant ceased residing in the property at Suburb L owned by the respondent on 16 December 2016. When she left the property she received the sum of $90,000 from the respondent. There is no evidence before the Court as to the characterisation of that payment.

In early 2017 the applicant began receiving a Newstart Allowance.
Nearly two years later, in October 2018 the applicant commenced employment in a retail store. She deposed to making many unsuccessful job applications prior to that time.[2]
[2] Applicant’s affidavit filed 21 February 2020 – paragraph 86.
In June 2018 the applicant was involved in a car accident. She deposed to suffering injuries as a result of the accident, to her vehicle being "written off" and to receiving $9,000 from the insurance company which she used to purchase a second hand motor vehicle (2014 model).[3]
[3] Applicant’s affidavit filed 21 February 2020 – paragraphs 84 and 85.
At some time post-separation the applicant apparently moved to Melbourne to live. She commenced renting accommodation in Melbourne in July 2019.
On 2 December 2019 the Honourable Justice Tree made an order in these proceedings setting aside the Binding Financial Agreement dated 7 April 2011 ("the BFA").
On 19 December 2019 the respondent filed an appeal from that order.
On 31 January 2020 the applicant filed the Amended Application in a Case which, together with the Response thereto filed on 27 May 2020, are the matters to which these reasons refer. The hearing took place on the papers on 12 June 2020.
Urgent/Interim maintenance
The applicant sought urgent maintenance in the sum of $2,000 per week pursuant to s 90SF and/or s 90UI of the Family Law Act 1975 (Cth) ("the Act").
She also sought interim maintenance pursuant to s 90SF and/or s 90UI of the Act in the sum of $2,000 per week, as well as lump sum maintenance in the sum of $272,000. This amount was calculated on the basis of maintenance in the sum of $2,000 per week from the date of the filing of her Initiating Application on 16 May 2016 until the date of filing of her Amended Application in a Case on 31 January 2020.
The Court's jurisdiction to make orders for the maintenance of a party following upon the breakdown of a de facto relationship is enlivened by s 90SE of the Act.
Section 90SF is not a source of power but merely specifies the matters to be taken into consideration in determining whether or not an order for maintenance should be made. This point was made but not taken by counsel for the respondent.
Section 90UI(1) provides that the Court's power to make an order under s 90SE is not limited or excluded by any provision of a Binding Financial Agreement provided that the Court is satisfied that:
…when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit.[4]
[4] Family Law Act 1975 (Cth) s 90UI(2).
The application to which these reasons pertain was filed on 31 January 2020. By that date the BFA had been set aside. The practical effect of that order was that the BFA had not come into effect.
Although the respondent’s stay application pending the determination of an appeal against the setting aside of the BFA had not been heard as at 31 January 2020, the order stood. By the time of hearing on 12 June 2020 the stay application had been dismissed. In those circumstances I consider that the provisions of s 90UI of the Act are not relevant to this matter.
Urgent maintenance cases following upon the breakdown of a de facto relationship are to be determined by the Court in accordance with the provisions of s 90SG of the Act.
This provision was not referred to in the original Initiating Application filed by the applicant on 16 May 2016, the Amended Initiating Application filed by her on 5 December 2019, or the Amended Application in a Case upon which the applicant relied for the purposes of this interlocutory hearing. I find that in any event an order for urgent maintenance would not be appropriate in this case.
I am satisfied that the applicant was relying on the provisions of s 90SE and 90SF of the Act to found her application for interim maintenance.
Section 90SE(1) is in the following terms:
After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.
Section 90SF(1), (2), (3) and (4) set out the matters to be taken into consideration in relation to maintenance.
In reliance on those provisions the applicant is seeking maintenance on an interim basis in the sum of $2,000 per week, together with backdated lump sum interim maintenance of $272,000. She also relies upon those same provisions as an alternative basis upon which to found her claim for a lump sum payment of $5 million.
Section 90SF(1) of the Act provides that in exercising the power to make an order for the maintenance of one of the parties, the Court must:
1.…apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
a.only to the extent that the first‑mentioned party is reasonably able to do so; and
b.only if the second‑mentioned party is unable to support himself or herself adequately whether:
i.…
ii.by reason of age or physical or mental incapacity for appropriate gainful employment; or
iii.for any other adequate reason.
The Court is required by s 90SF(2) to take into account only the matters set out in s 90SF(3).
In considering the applicant’s claim for maintenance the Court is guided by the process for assessing a spousal maintenance claim as determined by the Full Court of the Family Court in Bevan & Bevan (1995) FLC 92-600. The Court said at pp 81,981 – 81,982:
…we would state the law as being that an award of spousal maintenance requires:
1. a threshold finding under s 72;
2. consideration of s 74 and s 75(2);
3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
4.discretion exercised in accordance with the provisions of s 74, with ‘reasonableness in the circumstances’ as the guiding principle.
The sections of the Act referred to in that case were of course those with respect to spousal maintenance following upon the breakdown of a marriage.
Section 72(1) of the Act is in the following terms:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The comparative section in the circumstances of this case is s 90SF(1) to which I have already referred.
To meet the "threshold" it is necessary for the applicant to satisfy the Court that she is unable to support herself adequately by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason, having regard to the relevant matters in s 90SF(3).
It is only in those circumstances that the respondent, if reasonably able to do so, must maintain the applicant.
In Mitchell & Mitchell[5] the Full Court of the Family Court said at p 81,995:
Thus, the question whether the applicant can support herself ‘adequately’ is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s. 75(2)…
[5] (1995) FLC 92-601.
The same issue was discussed by Nygh J in Murkin & Murkin[6] where he said at p 75,081:
In my opinion the issue is not whether the wife is receiving sufficient funds, but whether she is able to support herself adequately i.e. whether she can generate funds from her own resources or earning capacity to supply her own needs…The threshold test in terms of sec. 72 [now s 72(1)] is ability to support one’s self, not need…
[6] (1980) FLC 90-806 (“Murkin & Murkin”).
It was the respondent's case that the relationship between the parties broke down finally in April 2016.[7] By 16 May 2016 the applicant had filed her Initiating Application seeking to set aside the parties BFA, an order for settlement of property and an order for maintenance and partial property settlement.
[7] Respondent’s affidavit filed 27 May 2020 – paragraph 9.
It was common ground that the parties both remained living in the Suburb L property until 16 December 2016, that at least until November 2016 the respondent continued to pay to the applicant the sum of $3,000 per month, that the respondent provided the sum of $90,000 to the applicant upon her vacating the property and that the parties had not reconciled since that time.
The applicant filed a financial statement with her Initiating Application on 16 May 2016. On 21 February 2020 the applicant filed the financial statement in support of this application. The respondent filed his original financial statement on 4 August 2016, and that in support of his Amended Response on 27 May 2020.
In her financial statement filed 16 May 2016 the applicant deposed to average weekly income of $692. At that time the parties although separated were still residing under the same roof and the respondent was providing that sum to the applicant.
She deposed to personal weekly expenditure in the sum of $1,737 as set out in Part N of the document. Those expenses included:
·food and household supplies - $300;
·electricity - $80;
·telephone - $20;
·petrol and maintenance of a motor vehicle- $80;
·fares and car parking - $5;
·clothing and shoes - $50;
·medical, dental and optical expenses - $10;
·entertainment and hobbies - $20;
·holidays - $10;
·chemist and pharmaceutical expenses - $20;
·repairs of furnishings and appliances - $10;
·dry cleaning - $2;
·books and magazines, gifts, hairdressing and toiletries - $30;
·health insurance - $100; and
·insurances - $1000
In the respondent's financial statement filed 4 August 2016 he deposed to total average weekly income of $2,613 comprising $1,058 in dividends from BB Company, $171 by way of bank interest from CC Bank and $1,384 paid by the Beroni Super Fund.
His weekly personal expenditure in the sum of $1,834 comprised:
·Council rates, water rates and ESL - $171;
·DD Company Health Policy - $85;
·Motor vehicle registration - $15;
·Visa card - $429;
·Allowance for applicant - $692 and
·General living expenses - $442.
Part N of the form was not completed.
In her financial statement filed 16 May 2016 the applicant deposed to owning property to a value of $358,174. In Part I of her financial statement she deposed to owning the following property:
·Apartment in Country G - $186,674;
·ANZ savings bank funds - $100,000;
·Westpac bank funds - $1,000;
·Shares - $50,000;
·Household contents - $500; and
·Jewellery - $20,000.
The applicant deposed to NIL superannuation and NIL liabilities.
The respondent deposed to owning property worth $76,171,389 comprising:
·Property at Suburb L - $1,750,000;
·Funds in Country K bank - $140,041;
·Funds in CC Bank - $1,096,972;
·Funds in a private bank in Country K - $2,493,472;
·Luxury motor vehicle - $100,000;
·V Company - $69,300,000;
·Household contents (insured value) - $578,812; and
·Company loan account as at June 2015 - $712,092.
He further deposed to superannuation interests in the sum of $703,812 and NIL liabilities.
The next financial statement filed by the applicant was that filed on 21 February 2020 and by the respondent was that filed on 27 May 2020.
In her second financial statement the applicant deposed to average weekly income of $790 and personal expenditure of $983. She deposed to her income being earned from her occupation in customer service. Her personal expenditure comprised income tax of $100, rent of $318, rates and levies of $7, car insurance of $8, vehicle registration expenses of $8 and “all other expenditure” in the sum of $542. That expenditure was specified in paragraph 60 of the financial statement. Of the $542, $300 was accounted for by food and household supplies.
In paragraph 107 of the applicant’s affidavit filed 21 February 2020 she deposed to what she described as “a reasonable amount for living expenses, and my anticipated expenses”. She calculated those expenses to be $2,224 per week.
It was not possible to ascertain on what basis she calculated her anticipated expenses for household supplies, clothing, entertainment, holidays, repairs and various fitness expenses. In addition, although she anticipated house cleaning expenses of $100 per week due to neck injuries, no medical evidence was adduced by her with respect to that issue.
In his second financial statement the respondent deposed to weekly income of $2,316 and expenditure of $2,070. The weekly expenditure included income tax, rates and levies, health and house and contents insurance, motor vehicle registration, MasterCard expenses and "all other expenditure" in the sum of $956. The $956 "other expenditure" was set out in paragraph 60 of the financial statement. The respondent’s expenses included significant amounts for motor vehicle expenses and entertainment.
The applicant deposed to owning property to the total value of $215,274. This comprised an apartment in Country G to which she ascribed a value of $186,674, a motor vehicle valued at an estimated $7,000, household contents with an estimated value of $500, jewellery with an estimated value of $20,000 and $1,100 in two bank accounts. She deposed to a modest superannuation entitlement of $1,000 and total liabilities in the sum of $476,734 comprised entirely of legal fees.
By contrast the respondent deposed to owning property to a value of $102,966,082, with total liabilities of $21,502 and superannuation entitlements in the sum of $1,006,365. The property included two bank accounts containing a total of $1,216,082 as at 27 May 2020.
According to the respondent's financial statement his weekly income as at 27 May 2020 exceeded his weekly expenses by $246. The applicant deposed to earning $193 less than her weekly expenditure.
It was the applicant's case that upon her leaving the respondent's home on 16 December 2016 he provided her with $90,000, the characterisation of which is not explained. Seven months prior to separation, on her evidence to which I have referred, she had funds in bank of approximately $101,000. During six of those seven months it was common ground that she remained living in the respondent's property and that he provided her with a personal allowance of $3,000 per month.
She deposed in paragraph 78 of her affidavit filed 21 February 2020 to the respondent covering the cost of their accommodation, food, utilities, health insurance, travelling expenses and other incidental living expenses when they lived together. No evidence was adduced as to that position changing between separation in April or May 2016 and December 2016 when she left the home.
Nevertheless, in paragraph 60 of the same affidavit the applicant deposed to having savings in December 2016 of $10,000, being some $91,000 less than she deposed to having in May 2016. The only evidence she adduced as to the expenditure of $91,000 in savings between May and December 2016 and the further $90,000 received by her from the respondent in December 2016 was that in paragraph 61, wherein she told the Court all of her cash savings in the sum of $107,040 had been spent on legal fees. She provided no details as to when those funds were spent.
The applicant deposed in paragraphs 80 to 86 of her affidavit filed 21 February 2020 to having commenced receiving a Newstart Allowance in January 2017 and to being reliant upon that income, as well as financial assistance provided by friends, until October 2018 when she obtained employment.
At the time the applicant left the respondent's home in December 2016 she was aged 49 years. By then she had been in Australia, on her evidence, for about seven years. The parties had no children.
The applicant alleged extensive contributions were made by her not only as a homemaker during the period of her cohabitation with the respondent but also in her capacity as a labourer during house renovations. It was her evidence that prior to coming to Australia she had worked in Country G as the operator of a business and had been a business owner.
She told the Court that she made applications for many jobs through Centrelink every month after the parties separated, to being rejected on the basis of her poor English skills, and finally obtaining employment in October 2018.
The applicant's evidence as to being unable to obtain employment between December 2016 and October 2018 was at the very least scant.
She adduced no evidence for example as to how many jobs she applied for in that period of time, what kinds of jobs she applied for, whether she was granted interviews with respect to any of the job applications or if there was any other basis on which she was rejected for the employment she sought, other than her poor English skills.
In paragraph 84 of her affidavit she deposed to suffering ongoing physical incapacity arising from a motor vehicle accident in June 2018. She deposed to having problems with her balance, not being able to use escalators and not being able to get up a ladder to move stock for her employer. No medical evidence was put before the Court with respect to these matters. She commenced working in October 2018.
In her financial statement filed 21 February 2020 she deposed to the employment obtained in October 2018 being in customer service at EE Company in Melbourne, Victoria. She deposed in that same document in paragraph 7 to having been employed at that business for twelve months. That would suggest employment commenced at EE Company between February 2019 and February 2020, and does not explain her evidence as to having obtained that employment in October 2018, some four months earlier.
The employment was stated to be in Melbourne, and in paragraph 92 of her affidavit filed 21 February 2020 she deposed to having signed a Tenancy Agreement in July 2019 to rent a unit in Melbourne at $1,380 per month. This was either five or nine months after the applicant commenced employment in Melbourne.
No evidence was adduced by the applicant as to her living arrangements between the time she left the respondent’s residence in December 2016 and when she took up rental accommodation in Melbourne in July 2019. In paragraph 82 of her affidavit she deposed to receiving the Newstart Allowance in early 2017 at the rate $489 per fortnight and to the amount not being sufficient to pay her living expenses set out in her financial statement.
She adduced no evidence as to what her living expenses were between the time she left the respondent’s home in December 2016 and when she commenced paying rent of $1,380 per month in July 2019. She deposed to managing shortfall in her expenses by relying upon friends to provide her with food and pay the bills she could not pay.[8]
[8] Applicant’s affidavit filed 21 February 2020 – paragraph 82.
The Court was not informed by the applicant’s evidence as to whether she had rental expenses between December 2016 and July 2019 or whether during that period of time she had some other form of accommodation. There was no evidence before the Court as to the applicant’s needs for that time period.
The applicant did not pursue her interim application for maintenance contained in her Initiating Application filed 16 May 2016 at any time before filing her Amended Application in a Case on 31 January 2020.

As well as very limited information about her employment attempts and prospects, the applicant also deposed in paragraph 56 of her affidavit to the respondent purchasing an apartment in her name in Country G in December 2015, which apartment was unencumbered.
She deposed to the apartment being provided by the respondent for her sons to live in rent free. In paragraph 59 she deposed to both adult sons living in the apartment together with the wife and son of one of them, apparently rent free. She adduced no evidence as to what a reasonable amount of rent would be for that property in Country G or indeed whether she had any intention to charge her sons rent.
She said in paragraph 93 that the employment she obtained in October 2018 was for a period of six hours per week for which she received approximately $700. This was insufficient to pay her living expenses.
In paragraph 94 of her affidavit she deposed to urging her employer to allow her to work longer hours because she was unable to sustain herself on six hours a week, and in paragraph 95 she told the Court that from December 2019 she was permitted to work approximately eighteen hours per week on a casual basis. She deposed to still receiving approximately $700 per week ($600 per week after tax), as well as a small amount ($30 in her financial statement) towards her superannuation. She then deposed in paragraph 96 to ceasing to be eligible for Centrelink when her hours increased.
The evidence as to income adduced in paragraphs 93 and 95 of her affidavit to which I have referred is inconsistent as regards the amount earned by her each week in the period October 2018 to December 2019 and then in the period December 2019 to February 2020.
The applicant did not depose to serious health issues between October 2018 and February 2020 other than those to which I have referred in paragraph 74 hereof, nor did she put before the Court details as to any efforts made to increase her work hours or obtain alternative employment that would provide her with additional and/or improved income.
The respondent was at the time of separation aged 84 years, and notwithstanding the health challenges to which he deposed in paragraphs 56 to 58 inclusive of his affidavit filed 27 May 2020, had the capacity for appropriate gainful employment as a director of the various corporate entities to which he referred in paragraph 65 of that same affidavit. I am satisfied that continued to be the position at the time of hearing.
In considering the factors in s 90SF(3), I have already referred to the age and state of health of each of the parties to the de facto relationship. I have likewise considered the income, property and financial resources of each of the parties in some detail. I find that both parties have the physical and mental capacity for appropriate gainful employment.
There are no children of the relationship
I have referred to what I consider to be the modest commitments of both parties to enable them to support themselves. Neither party has a responsibility to support any other person and neither party are eligible for a pension, allowance or benefit under any law of the Commonwealth of a state or territory or of another country.
A significant proportion of the respondent's income is provided by his superannuation investments as set out earlier herein. The applicant has very limited superannuation entitlements, and in any event is not of an age to access those entitlements.
The applicant’s evidence as to the standard of living that she currently enjoys is limited but suggests it is modest. She rents accommodation for $318 per week, which it would appear is subsidised by one of her children sending her on average $100 per week from Country G.[9]
[9] Applicant’s financial statement filed 21 February 2020 at paragraph 18.
She deposes to:
·not being able to afford health insurance or access physiotherapy, dental treatment, counselling or travel;
·not being able to afford to pay for entertainment or luxuries such as dinners or make‑up treatments;
·rarely going out, even for a coffee;
·being in need of new clothes;
·limiting her telephone bill; and
·being very careful with her money including the cost of her medication.
There is no doubt that this is a standard of living that is significantly reduced from that which she enjoyed during the period of cohabitation with the respondent and which he continues to enjoy. In considering this aspect of maintenance, the Court is required to interpret the question of reasonableness of a standard of living "in all the circumstances”.[10]
[10] Section 90SF(3)(g).
The applicant deposed to wanting to undertake a course in improving her English to assist her in obtaining better paid employment such that she could do a book-keeping course. No evidence was adduced by her as to any enquiries that she may have made in that regard, any possible courses that she may undertake, the length of time such courses may take or the cost of such courses.
There was little evidence adduced by the applicant with respect to any contributions she may have made to the income, earning capacity and financial resources of the respondent. She did adduce evidence with respect to her non-financial contributions towards the relationship and homemaking and the maintenance and improvement of the home owned by the respondent. I note that save as to a very minimal concession in this regard by the respondent, the issue of contributions is to say the least contentious.
The de facto relationship extended over a period of approximately six and a half years with a period of separation between three and seven months in 2014. There is no evidence that during that time the earning capacity of the applicant was affected. I have already referred to the lack of evidence in particularising the employment sought by the applicant following upon the parties' separation.
This is an interim application. The Court has not heard the application with respect to orders sought by the applicant pursuant to s 90SM of the Act. It is the position of the respondent that no such order should be made.
Although I have expressed my concerns as to the paucity of evidence put before the Court by the applicant with respect to her living circumstances since leaving the respondent’s property in December 2016, and the difficulties that causes in assessing her claim for interim maintenance, I am satisfied that as at 21 February 2020 her modest expenses exceeded her income by $193.
Counsel for the respondent submitted that in the absence of evidence which would permit of a finding that the applicant is unable to earn such further amount, she is deprived of her ability to meet the “threshold requirement” of which the Court must be satisfied.[11]
[11] Outline of Case document on behalf of the respondent – paragraph 24.
Even if she could earn another $193 per week I am not satisfied that the applicant can “generate funds from her own resources or earning capacity to supply her own needs”[12] when those needs are not to be interpreted as “bare necessities”.[13]
[12] Murkin & Murkin.
[13] Evans & Evans (1978) FLC 90-435 at p 77,209 (“Evans & Evans”).
I have earlier referred to some concerns about the “anticipated expenses” relied upon by the applicant with respect to her claim for interim maintenance. I find however that even if she were able to earn the additional $193 per week to meet her weekly expenses, they are expenses that would only provide the “bare necessities” of living.
The applicant deposed to total personal expenditure of $983 against income of $790, of which only $730 is available to her in circumstances where the remaining $60 comprises the compulsory superannuation contribution.
It is not reasonable that the $100 per week provided to her by her son Mr X should be taken into account as income.
Of the expenses claimed:
·$100 reflects her taxation liability;
·$325 reflects rent and water rates;
·$300 reflects food and household supplies;
·$20 reflects electricity expenses;
·$15 is for telephone expenses;
·$80 is for petrol and maintenance of her motor vehicle;
·$5 is for fares and car parking;
·$10 is for clothes and shoes;
·$20 represents medical, dental, optical and pharmaceutical expenses;
·$10 reflects repair expenses;
·$2 provides for dry cleaning; and
·$60 provides for personal expenses including hairdressing and toiletries, and books and magazines.
With reference to the matters set out in paragraph 107 of the applicant’s affidavit, and in all of the circumstances of this case, considering the factors pursuant to s 90SF and in particular the standard of living enjoyed by the applicant whilst cohabiting with the respondent, I consider it to be reasonable that the applicant should have sufficient funds for:
·Electricity expenses;
·Motor vehicle maintenance;
·Clothing and shoes;
·Health insurance;
·Entertainment; and
·Personal health maintenance expenses and other reasonable personal expenses,
other than at the level of “bare necessities”.
A payment to the applicant by the respondent by way of interim maintenance in the sum of $1,000 per week would result in her having regular weekly income of $1,730, resulting in her income exceeding her expenses by $747.
I consider such an outcome would be proper for the maintenance of the applicant on an interim basis.
The applicant sought an order for backdated maintenance in a lump sum from the date of the filing of her Initiating Application to the date of filing of the Amended Application in a Case.
For the reasons to which I have referred, I am not satisfied that the applicant has made out her claim for maintenance for the period December 2016 to 31 January 2020, particularly taking into account not only the paucity of her evidence to which I have referred, but the fact that the application for interim maintenance was not actively pursued by the applicant until the filing of the Amended Application in a Case on 31 January 2020.
I find that for the reasons set out herein it is appropriate for an order for interim maintenance to be made in the sum of $1,000 per week as and from 31 January 2020. The maintenance owing from that date to the date of this order, together with the maintenance for the period from the date of this order to 29 October 2021, is to be paid to the applicant in a lump sum of $91,000 on or before 29 October 2021. The first weekly payment to the applicant is to be made on or before Friday 29 October 2021 and each Friday thereafter until further order.
I find that for the period from 31 January 2020 and continuing the applicant is unable to support herself adequately for the reasons to which I have referred and further, that the respondent, taking into account his income, property and financial resources, is reasonably able to maintain the applicant to the extent of $1,000 per week.
Lump sum payment of $5 million by way of interim settlement of property, interim costs order or pursuant to s 90SF of the Act
Interim settlement of property
The applicant seeks final orders by way of settlement of property in terms of her Amended Initiating Application filed 5 December 2019.
The orders she seeks are as follows:
1.Pursuant to Section 91RD (1) of the Family Law Act, for a declaration that a de facto relationship existed between the applicant de facto wife MS CORELLI and the respondent de facto husband MR BERONI between 1 January 2010 and 7 July 2014 and from 28 August 2014 to 16 December 2016.
2.That the Agreement made between the parties on 7 April 2011 be set aside on the following grounds:-
(a)Duress; and/or in the alternative
(b)Unilateral mistake; and/or in the alternative
(c)Promissory estoppel; and/or in the alternative
(d)Undue influence; and/or in the alternative
(e)That the de facto husband behaved in conduct that was in all the circumstances unconscionable; and/or in the alternative
(f)That the Agreement was obtained by fraud; and/or in the alternative
(g)That the de facto husband failed to disclose material circumstances in relation to his assets, including his assets overseas; and/or in the alternative
(h)Under the principle of non est factum.
3.That pursuant to section 90SM and 90UM(6) of the Family Law Act 1975 as amended by way of settlement of property the assets be divided on a 30/70 basis in favour of the de facto husband, or in the alternative that the de facto husband do pay to the de facto wife the sum of $10,000,000.
4.That pursuant to section 90SE and 90UM(6) of the Family Law Act 1975 as amended by way of spousal maintenance the de facto husband do pay to the de facto wife the sum of TWO THOUSAND DOLLARS ($2,000) per week.
5.That the de facto husband pay the de facto wife's costs of and incidental to these proceedings.
6.That pursuant to 106B of the Family Law Act all transactions since the date of cohabitation, wherein the de facto husband has divested himself of and/or transferred and/or assigned assets to which he has a legal or beneficial interest or which are under his control, to third parties, be set aside.
The property settlement order she seeks is either a 30 per cent share of the parties' assets or in the alternative the sum of $10 million. That order is sought pursuant to s 90SM of the Act.
Section 90SM(1) is in the following terms:
1.In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
a.in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property;…
including:
c.an order for a settlement of property in substitution for any interest in the property; and
d. an order requiring:
i. either or both of the parties to the de facto relationship
…
to make, for the benefit of either or both of the parties to the de facto relationship…such settlement or transfer of property as the court determines.
Section 90SM(3) 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.
This is a somewhat unusual matter in that notwithstanding an agreed period of cohabitation of at least six years (respondent's case), albeit with a separation period of some seven months (respondent's case) or three months (applicant's case) in 2014, the final orders sought by the respondent are a dismissal of both the applicant's application for settlement of property and for maintenance on a final basis. It is his case that the Court will find that it is not satisfied as to the provisions of s 90SM(3) of the Act.
In short, it is the respondent's position that he should not be required to pay anything to or transfer any property to the applicant either by way of a property settlement or a final order for her maintenance.
In the decision of Stanford & Stanford[14] the High Court was concerned as to the question of the need, in property settlement proceedings, for a Court to be satisfied that in all of the circumstances of the case it is just and equitable to make an order. In that case their reference was to the provisions of s 79(2) of the Act, a section in almost identical terms to s 90SM(3) of the Act save that it refers to a property settlement between married parties as opposed to parties who have lived together in a de facto relationship.
[14] (2012) FLC 93-518.
Section 90SM(4) relied on by the applicant in these proceedings to support the final order she seeks by way of property settlement, specifies the factors to be taken into account in determining that issue as between parties who have lived in a de facto relationship. It is in similar terms to s 79(4) of the Act, which relates to relevant factors to consider in a property settlement between parties to a marriage.
The Court said in [35] to [40] as follows:
35.It will be recalled that s 79(2) provides that ‘[t]he court shall 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’. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not ‘to be exercised in accordance with fixed rules’, nevertheless, three fundamental propositions must not be obscured.
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to ‘altering the interests of the parties to the marriage in the property’. The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs ‘as [the judge] thinks fit’, in any question between husband and wife as to the title to or possession of property, is a power which ‘rests upon the law and not upon judicial discretion’. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
‘The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down’.
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ‘just and equitable’ to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that ‘[c]ommunity of ownership arising from marriage has no place in the common law’. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be ‘decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses’. The question presented by s 79 is whether those rights and interests should be altered.
40.Third, whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised ‘in accordance with legal principles, including the principles which the Act itself lays down’. To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
(footnotes/citations omitted)

There is little dispute between the parties as to what property existed at the time of their separation.
The respondent owned or controlled extensive interests in real estate and various corporate entities, as well as holding substantial savings and superannuation entitlements. The value of these interests had increased substantially during the de facto relationship.
The applicant owned a property in Country G paid for by the respondent, a parcel of shares of modest value, cash at bank of somewhere between $10,000 (applicant's case) and $101,000 (respondent's case), significant jewellery and minimal furniture and effects. All of this property was acquired during the relationship by way of provision of same to the applicant by the respondent.
It is sufficient for the purposes of these reasons to say that the gulf between the applicant's financial position and the respondent's financial position at the time of their separation was very significant, and, according to their financial statements filed for these interim proceedings, had only widened by early 2020. The trial in relation to the final orders sought is listed for 28 March 2022.
To be in a position to find that it is appropriate to make an interim order for settlement of property in favour of the applicant requires the Court to determine at this stage that it is satisfied that it is just and equitable to alter the interests of the parties in property owned by either of them (there is no jointly held property).
The majority of matters that come before the Court for determination with respect to settlement of property, whether the parties were married or had lived in a de facto relationship, involve arguments as to what proportion each party should retain of the assets owned by them jointly or individually, in contrast to the argument advanced by the respondent in this matter.
It is the respondent's case that there should be no alteration of his property interests at all based on a lack of contribution by the applicant, direct or indirect, financial or non-financial, to the acquisition, conservation or improvement of that property. This position is clearly set out by the respondent in his affidavit filed 27 May 2020 in paragraphs 24, 26, 50, 51 and 52. He does not seek any alteration in his favour of any property owned or controlled by the applicant.
In paragraphs 42 to 48, 51, 52 and 53 of her affidavit filed 21 February 2020 the applicant deposed to the facts she relies on to support her position of having made non-financial contributions towards the maintenance and improvements of assets owned by and under the control of the respondent during the period of the relationship. That evidence is disputed by the respondent in paragraphs 41, 42 and 47 to 53 of his affidavit filed 27 May 2020.
It is the applicant’s case that her claim is based upon significant non-financial contributions arising from her physical labour undertaken to improve the house property at Suburb L, as well as homemaking and household duties, and personal care given by her to the respondent. The latter two of those claims are based upon the provisions of s 90SM(4)(c) of the Act, namely:
the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship…
The only concession made by the respondent is contained in paragraph 46 of his affidavit filed 27 May 2020 where he concedes that the applicant cleaned the house and occasionally did the gardening and the laundry.
In this case there is no common position as to the roles played by each of the parties during the relationship.
In Strahan & Strahan[15] the Full Court said at [132], with respect to the capacity of the Court to make an order for interim property settlement:
… It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
[15] (Interim Property Orders) (2011) FLC 93-466 (“Strahan & Strahan”).
The Full Court went on to say in [139] of the same case:
We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
It was submitted by counsel for the applicant that, taking into account the length of the de facto relationship, the contributions made by the applicant, the size of the asset pool and the fact that contributions of homemaker are not to be recognised in a tokenistic way,[16] it could be anticipated by the Court that the applicant would receive an entitlement of at least ten per cent of the nett asset pool. It was submitted that the position of the respondent, namely that he pay nothing or transfer no property to the applicant, was completely unrealistic.
[16] Ferraro & Ferraro (1993) FLC 92-335 at p 79,571.
As I have said previously, the order sought by the respondent with respect to the substantive proceedings is that the application be dismissed. He is not seeking to claim an interest in any part of the assets retained by the applicant upon separation in or about May 2016, or the payment of $90,000 made to her in December 2016, however that payment may be characterised.
On the applicant's case at separation she retained a property purchased for her by the respondent in Country G with an estimated value of $186,674, as well as shares purchased by him for her with a value of approximately $50,000. She deposed to having $101,000 in savings, jewellery provided by the respondent to a value to $20,000 and household contents to a value of $500. She received the sum of $90,000 from the respondent in December 2016.
There is a significant dispute between the parties as to what if any contribution was made by the applicant as required by s 90SM(4).
Any finding by the Court that it is satisfied that it is just and equitable to make an order for interim settlement of property would require the Court to determine the very issues that are at the heart of the substantive dispute and will be determined at the final hearing. It would require this determination to be made on untested evidence.
In Rigby & Kingston[17] at [21] Carew J summarised the principles to be applied with respect to the making of an interim property order as follows:
[17] [2017] FamCA 877 (“Rigby & Kingston”).
21.The legal principles to be applied in making an order for interim property settlement are well settled. In summary, those principles include:
a)The discretion to make an interim property order must be exercised within the parameters of s 79 although not as thorough a consideration is required as would be if the Court were determining the matter on a final basis;
b)It is preferable to make only one order (a final order) in the exercise of the s 79 discretion;
c)The fact that it is an interim order requires a degree of caution;
d)An applicant for an interim property order need not establish compelling circumstances;
e)It is insufficient to establish merely that a property order of the type sought will be made at trial;
f)A significant factor is whether or not any interim order is capable of reversal;
g)If made, an order need not limit the use to which the sum ordered may be put.
(citations/footnotes omitted)
In that case her Honour referred to the parties competing prima facie cases, the applicant's for relief under s 79 of the Act and the respondent's for such an application to be dismissed. She referred to issues of credit looming large in that case.[18] In [27] her Honour found:
Any sum paid to the husband and used by him to pay his legal fees, support himself or to purchase a depreciating asset will not be recoverable nor will any fees paid to acquire an asset such as stamp duty.
[18] Rigby & Kingston – paragraph 26.
In this matter both credit and the capacity of the respondent to recover any funds paid to the applicant by way of an interim property settlement order are of significant relevance.
In considering whether the applicant has a prima facie case for settlement of property on a final basis, and therefore to consider whether it is appropriate for an interim order for settlement of property to be made pursuant to the terms of s 90SM of the Act, it is necessary for the Court to consider the factors in s 90SM(4).
It is the position of the respondent that the applicant has made no financial or non‑financial contribution to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them. The respondent concedes a minimal contribution made by the applicant in her capacity as homemaker.
He does not concede that any proposed order will have an effect upon the earning capacity of the applicant. He does not concede any entitlement to the applicant to a final order for maintenance.
The parties' evidence with respect to these matters at the final hearing together with an assessment as to their credit will be crucial in determining their respective claims.
It was not clear on what basis the amount of $5 million by way of an interim property settlement had been formulated, save and except that it was, on her case, significantly less than the minimum amount she would be likely to receive by way of settlement of property.
I do not accept the submissions of counsel for the applicant that the Court can either properly anticipate that the applicant will receive an entitlement of at least ten per cent of the asset pool by way of final order for property settlement,[19] or that the allowance she seeks is justifiable and can be brought to account as against that which she ultimately seeks by way of settlement of property.[20] These are matters that can only be determined in the circumstances of this case by a full airing and testing of the evidence at the final hearing.
[19] Outline of Case document on behalf of the applicant – J10.
[20] Outline of Case document on behalf of the applicant – J11.
If the respondent is successful at the final hearing, the Court would have no capacity to bring to account the amount sought by the applicant by way of interim property settlement taking into account her very modest financial circumstances. Although this is not fatal to the application for an interim property settlement, it is significant in the circumstances of this case when the claim is for $5 million.
I am not satisfied that it is just and equitable to make an order for interim settlement of property in the circumstances of this case.
Interim maintenance
In the alternative to a payment of $5 million by way of interim property settlement, the applicant seeks a payment of $5 million by way of lump sum interim maintenance.
I am not satisfied that the applicant has adduced any evidence upon which the Court could base an order for a lump sum payment of interim maintenance in the sum of $5 million.
I have referred at length in my consideration of the question of interim weekly maintenance and lump sum “back pay” interim maintenance to the various relevant factors pursuant to s 90SF(1) and s 90SF(3) of the Act and made my determination with respect to those issues.
I find that the applicant has not established a basis upon which the Court could order interim lump sum maintenance in the sum of $5 million.
Interim costs order
In the further alternative the applicant seeks an interim costs order in the sum of $5 million.
Costs are determined in accordance with s 117 of the Act.
That section primarily provides that each party to proceedings shall bear their own costs.[21]
[21] Section 117(1) of the Act.
Subsection 117(2) however enables the Court to make costs orders as the Court considers just in circumstances where it is of opinion that there are circumstances that justify it in doing so.[22]
[22] Section 117(2) of the Act.
In determining whether there are circumstances that justify it in making an order for costs the Court must take into account the provisions of s 117(2A).
This is a matter where the parties’ financial circumstances are what could best be described as “hugely” disparate.
The respondent is a wealthy man. The applicant is of modest means, both as to assets and income. Her assets were primarily acquired between the date the parties commenced cohabitation and their separation in May 2016.
Some twelve or eighteen months into the period of cohabitation, the parties entered into a Binding Financial Agreement. That was set aside on 2 December 2019, some three and a half years after the parties separated.
As at 21 February 2020 the applicant was indebted to her solicitors, according to her financial statement, in the sum of $476,734.
At the time of the hearing of these applications the respondent’s appeal against the setting aside of the BFA had not been determined.
The only references to the issue of costs in the applicant’s affidavit in support of her Amended Application in a Case were contained in paragraphs 69, 136 and 137. Paragraph 69 was in the following terms:
I also need funds to pay my outstanding and ongoing legal expenses.
Paragraphs 136 and 137 were in reply to paragraphs 14 and 15 of the respondent’s affidavit filed 27 May 2020.
Paragraph 136 referred to the issue of any costs that might arise with respect to the respondent’s appeal, and paragraph 137 effectively consisted of a submission that the respondent’s appeal has no merit and that her application for a “dollar for dollar” costs order and for maintenance have merit whether or not the appeal is successful.
It was submitted on behalf of the applicant by her counsel that an order for costs pursuant to s 117 of the Act can be justified in the circumstances of the inequality in the parties financial circumstances, as well as to the fact that neither party was in receipt of legal aid and in circumstances where the applicant had been successful in her application to set aside the BFA.
Where the applicant at first instance had been successful in her application to set aside the BFA and the outcome of the appeal against that order was unknown at the time of the hearing of this application, costs issues with respect to that part of the proceedings would in the ordinary course be dealt with following upon the determination of the appeal.
I accept, taking into account the parties disparate financial circumstances, that the respondent is in a position to fund his own legal expenses, whereas the applicant is not at this stage in the same position.
If the applicant was indebted to her solicitors as at 21 February 2020 in the sum of $476,734, the Court can only assume that such indebtedness arose with respect to work undertaken on behalf of the applicant with respect to the application to set aside the BFA, in respect of which judgment was delivered on 2 December 2019. The applicant adduced no evidence as to any anticipated fees with respect to her substantive application.
Notwithstanding her level of indebtedness to her solicitor as at February 2020 she remained legally represented by the solicitors who had commenced acting for her in May 2016 and there was no evidence before the Court suggestive of them declining to act for her in the absence of funds being paid to them. I am satisfied that both parties have been and are legally represented and anticipate continuing to be so, including as to counsel in the absence of any evidence to the contrary.
In Rigby & Kingston Carew J made an order for interim costs pursuant to s 117(2) of the Act in favour of the husband where the wife estimated her wealth at $11 million in contrast to the husband’s assets having an estimated value of about $260,000 of which $200,000 comprised superannuation entitlements. In addition, it was his position that he had liabilities to his mother of approximately $100,000 and outstanding legal fees of approximately $60,000. Her Honour said at [66] and [67]:
66.In this case I consider that the circumstances justify an order for costs and that a sum of $135,000 is just. In coming to that conclusion I have taken into account, in particular, the wife’s far superior financial position, the prima facie case for substantial relief established by each party, the prejudice to each party in making or not making an order and the estimate of costs provided.
67.The sum ordered is to be retained in the husband’s lawyer’s trust account to be used only for the purpose of payment of his legal fees.
Her Honour found in [53] that:
…it is fair to observe that each party (on their respective versions) establishes a prima facie case for the substantive relief sought. In the husband’s case that is for a property settlement and in the wife’s case that is for a dismissal of the husband’s application.
To that extent the circumstances in those proceedings are not dissimilar to the substantive proceedings between the parties in this matter. The respondent is in a far superior financial position. Both parties have, on their respective versions of the facts of the case, established a prima facie case for the substantive relief sought by each of them. The applicant seeks orders for property settlement, the respondent seeks that that application be dismissed.
I find that other than the parties disparate financial positions which on the evidence have not precluded the applicant being appropriately legally represented for a period of some four years prior to the hearing of this interim application, and where there is no evidence before the Court to indicate that she will be so prejudiced in the future.
Nevertheless, in that case the husband was found by Carew J to be likely to be forced to represent himself and be at a significant disadvantage to the wife with respect to her legal representation, in circumstances where the husband’s solicitor had deposed to his firm being unwilling to act for the husband if his legal costs were not paid as and when invoiced.[23] In addition, in that matter there was evidence before the Court as to the husband’s estimated legal fees up to and inclusive of a seven day trial. There is no such suggestion on the part of the applicant’s solicitors in this matter nor evidence as to anticipated costs.
[23] Rigby & Kingston at [54] and [62].
I find there are no other facts referred to in s 117(2A) of the Act that lead me to find there are circumstances that justify the Court making an order for interim costs in favour of the applicant in the sum of $5 million.
Dollar for dollar order
In paragraphs 9 to 15 inclusive of the applicant’s Amended Application in a Case filed 31 January 2020 she sought what is commonly known as a “dollar for dollar” order.
Such an order would require the respondent to cause to be paid to the applicant’s solicitor’s trust account funds to be applied to her legal costs and expenses in the same amount as any monies paid by him to his solicitors or counsel, or accountants or experts engaged by him or his solicitors on his behalf, with respect to these proceedings.
The applicant relied on s 117 of the Act, or in the alternative ss 114 or 90SS(5) or 90SS(1)(k) of the Act with respect to this aspect of her application.
In submissions counsel for the applicant principally pressed the claim pursuant to s 117 of the Act.[24] The application was not pressed at the time of hearing pursuant to s 114,[25] nor was any submission made with respect to reliance on s 90SS(5) or s 90SS(1)(k) of the Act.
[24] Outline of Case document on behalf of the applicant – K2.
[25] Outline of Case document on behalf of the applicant – K8.
I accept the submission of the applicant’s counsel that the matter is complex, and further that it may be necessary to test and assess the respondent’s claims as to his financial circumstances.[26]
[26] Outline of Case document on behalf of the applicant – K5.

In Atkins & Hunt & Ors [2018] FamCA 14 (“Atkins & Hunt & Ors”) Watts J, in discussing dollar for dollar orders, said the following in [44] to [47]:
44.In Ryder & Bonham Gill J made a dollar for dollar order notwithstanding he was unable to make any findings in respect to s 117(2A)(c)-(f) considerations. That is likely to be usually so, although in this case the husband raises an issue relating to the wife’s conduct of the proceedings. Also it would be rare, if ever, that a party in a financial case would be in receipt of assistance by way of legal aid. That is so in this case.
45.When making a dollar for dollar order under s 117(2), the focus will usually be in considering the disparity of the financial resources available to the respective parties, including their ability or lack of ability to meet their litigation expenses (s 117(2A)(a)) and the unusual features of the matter (s 117(2A)(g) of the Act).
46.The making of a dollar for dollar order is a discretionary order that is usually made only as an order of last resort. Examples of circumstances which may attract the exercise of the discretion include:
· 46.1. Where:
·46.1.1. The party who apparently controls significant financial purse strings pleads impecuniosity; and
·46.1.2. The financially disadvantaged party cannot point to any particular fund or asset that might be available to help assist that party fund their litigation; but
·46.1.3. The financially advantaged party seems to be able to fund their litigation through personal exertion income or structures that they directly or indirectly control (see for example, Zadenev & Zadenev [2014] FamCA 693 and Ryder & Bonham);
·46.2. Where a financially advantaged party is a minority shareholder in a company and/or a discretionary beneficiary in a trust and directors or trustees seem more than willing to declare dividends or make distributions to fund litigation for the financially advantaged party against the disadvantaged party;
·46.3. Where a financially advantaged party has relatives or associates who are prepared to fund the litigation against the financially disadvantaged party in circumstances where the financially disadvantaged party does not have the same support from third parties (Hurford & Hurford [2016] FamCA 328).
47.Once the relevant matters in s 117(2A) have been considered, then the overriding question is whether or not there are circumstances that justify making a costs order which is just in the circumstances of a particular case. In my view the statements made by McClelland J at [94] and [95] of Selena place an unwarranted gloss upon the preamble to s 117(1) and the clear words of s 117(2) of the Act. I do not accept I am precluded from making a dollar for dollar order because its quantum would not be certain and only able to be ascertained on each occasion the husband pays monies to his lawyers or other professionals for their services in respect of the case.
In considering the factors referred to in s 117(2A) of the Act, I have already referred to the financial circumstances of each of the parties to the proceedings and the fact that neither party is in receipt of legal aid. I do not consider that the factors referred to in s 117(2A)(c), (d), (e) or (f) are relevant to the facts of this case to the date of the hearing of this application.
As to any matters as the Court considers relevant,[27] I have referred at length earlier herein to the somewhat unusual facts of this case wherein the respondent seeks orders on a final basis that the application for property settlement on behalf of the applicant be dismissed. That is in circumstances where:
·the parties were in a de facto relationship for somewhere between six and seven years;
·certain property was acquired by the applicant from the respondent during the course of the relationship; and
·there is significant dispute between the parties as to whether any order for alteration of property interests as between the parties should be made by the Court in circumstances where the respondent owns or controls almost the entirety of the property in dispute.
[27] Section 117(2A)(g) of the Act.
On each of their cases the parties have a prima facie case to support the orders they seek.
In Rigby & Kingston to which I referred in my consideration of the application for an interim costs order, Carew J said in [27]:
Any sum paid to the husband and used by him to pay his legal fees…will not be recoverable…
Her Honour in that matter was considering the appropriateness or otherwise of an order for interim property, but the same outcome would result in this matter in the event that the respondent succeeded in his application to have the applicant’s substantive application dismissed.
In [47] of his judgment in the matter of Atkins & Hunt & Ors Watts J said:
…I do not accept I am precluded from making a dollar for dollar order because its quantum would not be certain and only able to be ascertained on each occasion the husband pays monies to his lawyers or other professionals for their services in respect of the case.
I do not disagree with his Honour, but in the circumstances of this case, there was no specific evidence before the Court as at 12 June 2020 as to whether the value of the assets owned and/or controlled by the respondent was in dispute, if so to what extent. There is no evidence before the Court as to what work may need to be undertaken by the wife’s legal representatives in readying the matter for trial including what work will be required to test and assess the respondent’s claims as to his financial circumstances.
These issues will no doubt become clearer at such time as the parties and their legal representatives are focused on detailed preparation for the hearing of the substantive proceedings. Such clarity may result in the Court being required to consider a further application.
Taking all of those matters into account I am not satisfied that there is circumstances that justify the Court making a “dollar for dollar” order in the current circumstances of this case.
Injunctive Relief
In paragraph 8 of the Amended Application in a Case filed by the applicant on 31 January 2020 she sought the following order:
That until further or other order the de facto husband be restrained and an injunction be granted restraining him from transferring, assigning, disposing of or dealing with any property in his possession or under his control without the de facto wife's written consent first sought and obtained pending the making of final Orders save and except:-
8.1      In the ordinary course of business; and/or
8.2      To comply with orders of this Honourable court; and/or
8.3      To meet the de facto husband's reasonable living expenses; and/or
(as per original)
It was submitted on behalf of the applicant that there is a serious issue to be determined in this matter in circumstances where the applicant’s claim for property settlement is for 30 per cent of the assets with an alternative claim for $10 million.
Mr McGinn submitted that the issues in dispute were matters of significance, that the applicant’s financial circumstances are straightened, and that in April or May of 2015 the respondent had informed her that he was going to give everything to his son Mr O Beroni.[28]
[28] Applicant’s affidavit filed 21 February 2020 - paragraph 114.
It was further submitted that the respondent has uncertain interests overseas in circumstances where he had not ascribed any values to real estate he deposed to owning in Country K in paragraph 36 of his financial statement filed 27 May 2020.
Mr McGinn also submitted that notwithstanding the evidence of the respondent contained in paragraph 117 of his affidavit filed 27 May 2020, namely that he does not intend to dispose of his interests in the Beroni Group, that its assets remain the same as they were during the relationship and that he has absolute control over the Group, the respondent was otherwise silent as to other dealings such as raising finance or encumbering assets or exercising powers.[29]
[29] Outline of Case document on behalf of the applicant – L12.
It was generally the applicant’s case that the respondent disregards her claim for settlement of property, and that taking into account all of those matters, the respondent demonstrates a possibility that he will act to evade or in disregard of obligations to the Court and in respect of the applicant’s claim.[30]
[30] Outline of Case document on behalf of the applicant – L16.
He further submitted that there is a “need to preserve the status quo pending resolution of the controversy between the parties”[31] and that the applicant “will need to verify the nature and extent of transactions undertaken by the de facto husband prior to and since the parties final separation”.[32]
[31] Outline of Case document on behalf of the applicant – L18.
[32] Outline of Case document on behalf of the applicant – L11.
Counsel for the respondent submitted that there is no properly available basis for either the order sought by the applicant or any injunctive order, and that the applicant had not adduced evidence directed to that issue, including to establishing any real risk of any assets being disposed of.[33] He submitted in the alternative that if the Court discerned a proper basis for injunctive relief then the relief offered by the respondent should be more than sufficient “to meet any claim maintainable by the applicant on a prima facie basis”.[34]
[33] Outline of Case document on behalf of the respondent – paragraph 5.
[34] Outline of Case document on behalf of the respondent – paragraph 6.
In the Further Amended Response to the Application in a Case filed by the respondent on 27 May 2020 he sought that the entirety of the applicant’s Amended Application in a Case filed 31 January 2020 be dismissed. He sought in the alternative with respect to the injunctive issue as follows:
3.2.That pending further Order, and without admission and without prejudice, the Respondent shall be and hereby is retrained from doing any act or thing to:
3.2.1.Cause or permit the balance of funds held by V Pty Limited in Westpac Bank Account (BSB: … …22) to be reduced below $5,000,000.00 (‘the funds’) or to otherwise alienate or encumber such funds; and,
3.2.2.Alter in any way the officeholders of, issued capital of and/or shareholding in V Pty Ltd;
Without first having provided each of the wife and the solicitors for the wife with 28 days prior notice in writing of any intention to do so.
In the respondent’s affidavit filed 27 May 2020 he deposes to his current interests and those of the entities comprising the Beroni Group to having a value of not less than $100 million based on insurance replacement costs and current cash. He deposed to those interests reflecting the interests held by him at the time he and the applicant commenced a relationship. In paragraph 20 he deposed to having assets to a total value of $73,180,000 as at the commencement of cohabitation.
In paragraphs 22 and 23 of his affidavit he deposes to the management roles he and his sons Mr O Beroni and Mr N Beroni played and continue to play in the Beroni Group, and in paragraph 25 to he or an entity which he controls being solely responsible for all outgoings, utilities and day to day expenses for the Beroni Group.
In paragraphs 64 to 116 of his affidavit the respondent sets out an organisational chart of the Beroni Group, the details of the relevant entities in the Group including the non‑operating entities and his powers and roles in each of the non‑operating entities and the trusts.
In paragraphs 110 to 116 he sets out the assets of the Beroni Group.
In Tsiang & Wu & Ors [2019] FamCAFC 128 (“Tsiang & Wu & Ors”) the Full Court of the Family Court discussed in [20] to [27] the principles applicable to the issue of the granting of an injunction in property settlement matters. The facts of that matter related to a dispute between the parties to a marriage.
The power to grant an injunction as sought by the applicant in this matter arises from the provisions of s 114(2A)(c) of the Act.
The Court said at [20] to [27]:
20.The grant of an injunction is discretionary and the basis on which such an order is made is well established. A purpose, as in this case, is to preserve the status quo pending resolution of the controversy. An applicant must demonstrate first that there is a serious issue to be tried. While that statement has been the subject of various iterations, in essence it requires the demonstration of an arguable case or as was said in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], the applicant must ‘show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo’.
21.Next the applicant must demonstrate that the balance of convenience favours making the order sought. As part of this, the applicant must show that there is a ‘danger’ or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the applicant.
22.In Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, Gleeson CJ said after discussing the discretionary nature of the remedy at 321–325:
…as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.
...
It is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not.
23.As McDougall J in Skyworks v 32 Drummoyne Road [2017] NSWSC 343 said:
24.The Court is required to undertake a qualitative evaluation of all the evidence that is available, to see if there is a sufficiently serious risk of frustration to justify the making of a freezing order. Further, the two considerations [namely, (1) whether there is a good arguable case and (2) whether there is a real risk of judgment frustration] should be analysed together (as each may impact on the other), and with an appreciation of both the underlying purpose of the rule and the relative risks of granting or withholding relief – the customary discretionary calculus.
24.In this case the identified risk was that the wife might dispose of assets in Australia and in her name in order to defeat the husband’s claim and, equally it was asserted that there was a risk that the second and third respondents too might deal with the partnership assets in a way so as to defeat the husband’s possible judgment or claim to that entity.
25.It is unnecessary to demonstrate a positive intention but merely the possibility of the event occurring. The determination about the balance of convenience may thus be an inference drawn from the facts and circumstances established by the applicant’s evidence.
26.Nor is it the role of the judge determining the question of the injunction to, in effect conduct a trial of the disputed evidence to resolve those disputes (see Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729).
27.As to the determination of the existence of the risk and its magnitude, in Palmer v Parbery [2019] QCA 27 McMurdo JA (with whom Fraser and Gotterson JJA agreed) said:
119.The determination of whether there exists a sufficiently serious risk of the dissipation of assets involves the evaluation of future possibilities, rather than the ascertainment of historical facts. The risk of dissipation might justify an order although the probability of the risk eventuating is less than 50 per cent. But, as the risk of dissipation must be a real and not merely a theoretical one, it must have an evidentiary basis. Where a fact is alleged by the plaintiff in support of its case about the risk, but there is contrary evidence from the defendant, must the fact be proved to the court’s satisfaction as if the application for the freezing order was the trial of the case? In my view, a plaintiff need not do so. A freezing order is interlocutory in nature; it does not involve a final determination of the parties’ positions. Usually it is made in circumstances of urgency in which the court is unable to conduct an extensive and conclusive factual inquiry in a way which is fair to both parties. Where the factual basis for the plaintiff’s case about the risk of dissipation is disputed, the risk will commonly have to be evaluated with the recognition that the factual basis for it is in doubt. Nevertheless, the possibility of the plaintiff’s evidence being correct, considered with other facts and circumstances, might mean that there is a sufficiently serious risk of the frustration of the satisfaction of a judgment as to justify the making of a freezing order…
(footnotes omitted)
In this case the application for injunctive relief is based on the concern on the part of the applicant that the respondent will take steps to divest himself of the ownership or control of assets over which he currently has control to defeat any claim she may have against him for settlement of property.
I am satisfied that in the circumstances of this case there is a serious dispute between the parties which can only be determined at trial. In this matter the dispute extends to whether the Court should alter the interests of the respondent in any of his property in favour of the applicant.
I am satisfied in the circumstances of this case the applicant has, as referred to in Tsiang & Wu & Ors,[35] an “arguable case”. As to whether there is a “danger” or risk of dissipation of or dealings with assets which will frustrate any judgement in favour of the applicant,[36] I find it is necessary to consider the particular facts of this case by referring to the evidence adduced by each of the parties and the facts upon which each of them rely.
[35] Tsiang & Wu & Ors at [20].
[36] Tsiang & Wu & Ors at [21].
The parties separated in or about April or May 2016. By 16 May 2016 the applicant had instituted proceedings in this Court seeking an order that a Binding Financial Agreement entered into between the parties be set aside, and that an order for property settlement be made in her favour such that the parties assets be divided on a 30/70 basis in favour of the respondent, or in the alternative that the respondent pay to her the sum of $10 million. The Response to that Initiating Application, filed on 4 August 2016, made plain the attitude of the respondent to the application, in that he sought that it be dismissed in its entirety.
On 2 December 2019 the BFA was set aside. That order predated the hearing of this application by some seven months.
The matters of concern raised by the applicant upon which she relied with respect to the granting of the injunctive relief sought by her, as set out in paragraphs 110 to 129 inclusive of her affidavit filed 21 February 2020, were as follows:
·a concern that the respondent had divested himself of assets or restructured his assets to defeat her claim;
·that the respondent received and opened all the mail addressed to her from her lawyers when she lived at the Suburb L property;
·that the respondent discussed many matters with her during the relationship including the nature of his relationship with his sons and other family members, commercial litigation he had been involved in, litigation with his former wife, conflicts with other people in the course of business and his perceptions and opinions of legal and accounting professions;
·that the respondent had conversations with her about his discussions with his commercial lawyer Mr FF;
·that some twelve months prior to separation the respondent explained to her before they went on a trip to Country K that he had to see Mr FF because he had found a lawyer to do something with his property and business and money to make it more “safe” and that he was giving everything to Mr O Beroni and that she saw Mr O Beroni attend with the respondent at Mr FF’s office;
·that the respondent had a number of telephone conversations with Mr FF in her presence and she heard the respondent say to Mr FF words such as “you’re working for Mr O Beroni and not for me” as well as a comment that the respondent did not have access to money if Mr O Beroni received it all at that time and that if Mr O Beroni wanted to kick him out in the street he would do so, as well as him not wanting assets to pass to Mr O Beroni’s wife or children and that he would rather have them go to his other sons. She said the respondent would scream during those conversations;
·that the respondent told her he would not transfer any assets to Mr O Beroni unless Mr O Beroni’s wife signed something to prevent her from making a claim against Mr O Beroni, that the wife had refused to sign such an agreement and that the respondent was angry about this, as well as the fact that he had paid $10 million into a new company formed by Mr O Beroni and his wife to please Mr O Beroni’s wife, and to her talking to Mr O Beroni’s wife about her (the applicant’s) financial security if the respondent died;
·that the applicant told her that when he returned to Australia he was not sure whether he would sign documents prepared by Mr FF, that he felt he was making a big mistake in giving everything to his son Mr O Beroni and that he felt Mr FF and Mr O Beroni were putting pressure on him to sign documents;
·that the respondent discussed his Will with her, that he got a letter about it, that they discussed how the respondent might provide for her in the future;
·that the respondent had made a document about his life that he had read with the applicant as he was apparently hoping to write a book;
·that she became concerned about the content of that document because it appeared to her the respondent was saying bad things about her and that she asked him what was happening with her if he gave everything to Mr O Beroni because she was worried about what he had written;
·to discussions in about 2014 about the terms of a new Binding Financial Agreement and to the respondent’s complaints about his lawyer;
·in circumstances where the respondent told her that he had been advised that a judge would “throw the Binding Financial Agreement in the rubbish”, the applicant became concerned that he would try and protect his assets from a claim by her;
·that during the relationship the respondent had many conversations in her presence over the telephone with his solicitor;
·that the respondent angrily made derogatory comments about his lawyer to her;
·to it becoming evident to her that the respondent was nervous about a potential financial claim that she may have against him;
·that the respondent left documents laying around the house for her to read including a case regarding property settlement and told her that a another lady like her had lost her case; and
·to a change in company details to reflect a change in share structure and shareholdings with respect to V Pty Ltd on or about 18 January 2016 and likewise a change to the share structure and shareholdings in V1 Pty Ltd on or about 18 January 2016.

In the affidavit of the respondent filed 27 May 2020 he said in paragraphs 118 to 127 inclusive:
·that he had not paid $10 million or a capital lump sum into a company formed by Mr O Beroni;
·that he did not recall the applicant being present during his conversations with Mr FF;
·that he did discuss succession issues with Mr FF in the normal course of business;
·that in 2012 he included a provision in his Will that the applicant receive a sum of $3 million on his passing on the condition that she looked after him and stayed with him until his passing, that he did not discuss the provision with the applicant at the time it was made, that later in the relationship the applicant demanded to know the contents of the Will and that under pressure he showed her the Will to prove that she was provided for in the event of his passing;
·he otherwise denied the allegations of the applicant to the extent that they are relevant and in particular deposed in paragraph 127 as follows:
127.In relation to Paragraphs 128 and 129 of Ms Corelli’s Affidavit filed 21 February 2020, I say the following:
(a)I transferred my shares in V1 Pty Ltd and V Pty Ltd to V2 Pty Ltd ATF Beroni Family Trust.
(b)I am the sole shareholder of V2 Pty Ltd. I am the Appointor of Beroni Family Trust.
(c)The Beroni Family Trust is owned by the Mr O Beroni Share Trust, of which I am the Trustee, Appointor and Beneficiary.
(d)As set out above, the Mr O Beroni Share Trust, Beroni Family Trust, V1 Holdings Pty Ltd and V Pty Ltd remain entities which I control.
As the Full Court said in [25] of Tsiang & Wu & Ors it is only necessary to demonstrate to the Court the possibility of an event occurring, namely in the circumstances of this case, the respondent taking action to divest himself of assets in order to defeat the claim of the applicant.
I am not satisfied that the applicant has made out an evidentiary basis to support her claim for injunctive relief, not simply because of contrary evidence of the respondent, but rather in circumstances where:
·the question of injunctive relief was first raised by the applicant in paragraph 4 of the interim or procedural orders sought in her Initiating Application filed 16 May 2016. In those circumstances the respondent was on notice of that claim;
·in paragraph 1 of the interim orders sought in response by the respondent in his document filed 4 August 2016 he sought that that application for injunction be dismissed; and
·the application was not actively pursued by the applicant until the filing of her Amended Application in a Case on 31 January 2020;
The parties separated in April or May 2016. The application filed on 31 January 2020 was heard approximately four years after the parties’ separation. There is no objective evidence before the Court that in the four year period post-separation the respondent has taken any steps whatsoever to divest himself of any property he owns or controls. To the contrary, his financial statements filed on each of 4 August 2016 and 27 May 2020 suggest an increase in the value of property owned or controlled by him of just less than $27 million.
I am not satisfied that the balance of convenience favours making the order sought, as referred to by the Full Court in [21] of Tsiang & Wu & Ors with reference to Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19]. In those circumstances I intend to dismiss the application for injunctive relief.
I am not satisfied that there is any necessity for the orders sought in paragraphs 15, 16 and 17 of the Amended Application in a Case filed 31 January 2020 and note no submissions in respect of those issues were made by either counsel.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 13 October 2021

File number(s):	ADC 1771 of 2016
Judgment of:	MEAD J
Date of judgment:	13 October 2021
Catchwords:	FAMILY LAW – PROPERTY – De facto relationship – Interim hearing – De facto maintenance – Where assets owned by the respondent are significantly greater than that of the applicant – Where s 90SF(3) factors are considered – Where the applicant provided little information about her employment prospects – Where the applicant’s standard of living is significantly reduced upon separation – Where the issue of contribution is contentious – Where the reasonableness of a standard of living is considered – Where the respondent submits there should be no alteration of his property interests at all on a final basis – Where it is considered whether the applicant has a prima facie case for final settlement of property – Where an interim costs order is sought – Where it is determined whether there are circumstances that justify making a costs order under s 117(2A) – Where the applicant is and continues to be legally represented – Where a “dollar for dollar” order is sought – where there is no evidence that the value of the respondents assets are disputed at this stage of the proceedings – Where there is no evidence as to future work or costs to be undertaken by the applicant’s legal representatives – Where the Court is not satisfied that there are circumstances that justify the making of a “dollar for dollar” order – Where injunctive relief to prevent assets being disposed of was sought – Where the Court is not satisfied there is an evidentiary basis for claim for injunctive relief – Where the Court is not satisfied that the “balance of convenience” favours the making of the orders.
Legislation:	Family Law Act 1975 (Cth) ss 72(1), 79, 79(2), 79(4), 90SE, 90SE(1), 90SF, 90SF(1), 90SF(2), 90SF(3), 90SF(3)(g), 90SF(4), 90SG, 90SM, 90SM(1), 90SM(3), 90SM(4), 90SM(4)(c), 90SS(1)(k), 90SS(5), 90UI, 90UI(1), 90UI(2), 114, 114(2A)(c), 117, 117(1), 117(2), 117(2A), 117(2A)(c), 117(2A)(d), 117(2A)(e), 117(2A)(f), 117(2A)(g)
Cases cited:	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Atkins & Hunt & Ors [2018] FamCA 14 Bevan & Bevan (1995) FLC 92-600 Evans & Evans (1978) FLC 90-435 Ferraro & Ferraro (1993) FLC 92-335 Mitchell & Mitchell (1995) FLC 92-601 Murkin & Murkin (1980) FLC 90-806 Rigby & Kingston [2017] FamCA 877 Stanford & Stanford (2012) FLC 93-518 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 Tsiang & Wu & Ors [2019] FamCAFC 128
Division:	Division 1 First Instance
Number of paragraphs:	223
Date of hearing:	12 June 2020
Place:	Adelaide by Global Meet Telephone Conference
Counsel for the Applicant:	Mr McGinn
Solicitor for the Applicant:	Angela Ferdinandy
Counsel for the Respondent:	Mr Kearney SC
Solicitor for the Respondent:	Marsden Law Group

ORDER MADE BY:	MEAD J
DATE OF ORDER:	13 OCTOBER 2021