Corelli & Beroni (No 3) - [2024] FedCFamC1F 327

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Corelli & Beroni (No 3) [2024] FedCFamC1F 327

File number(s): ADC 1771 of 2016

Judgment of: MEAD J

Date of judgment: 17 May 2024

Catchwords: FAMILY LAW – PROPERTY – Application for property settlement – where there was a de facto relationship of almost seven years – where section 90SM and 90SF factors are considered - where there is an overwhelming imbalance between the parties’ financial positions at the commencement of the relationship - where assets owned by the respondent are significantly greater than that of the applicant – where the applicant seeks an alteration of the property interest– where the respondent seeks the application to be dismissed–where it is clear from the evidence of both parties that the husband intended to keep all of his property separate from the applicant throughout the relationship – where the applicant was dependent upon the respondent for her accommodation as she had no residence of her own in Australia – where at the time of the trial the respondent’s assets existed the same as they did at the commencement of the relationship – where the applicant acquired assets from the monthly allowances provided to her by the respondent during the relationship and by the respondent purchasing property and jewellery for her - consideration of approaching the matter by way of a “global approach” or an “asset by asset approach” – where it is common ground that during the relationship the applicant made no direct financial contribution to any of the assets held by the respondent –where the applicant’s homemaking vastly exceeded that of the respondent – consideration of the Kennon principles – where the court found the principles not applicable to the circumstances of this case – consideration of the applicant’s future needs determined by reference to section 90SF(3) – where it is unhelpful to attribute a percentage calculation to applicant’s non-financial contributions – where it is appropriate to affix an amount for her contribution entitlement and future needs – where it is just and equitable to make an order.

Legislation: Family Law Act 1975 (Cth) ss 79, 79(2), 79(4), 90B, 90J, 90SF(b)(r), 90SF(3), 90SF(3)(r), 90SM, 90SM(1), 90SM(3), 90SM(4), 90SM(4)(a)(i), 90SM(4)(a)(ii), 90SM(4)(e).

Cases cited:
AJO & GRO (2005) FLC 93-218

Beroni & Corelli (2021) FLC 94-004

Bevan & Bevan [2013] FamCAFC 116

Corelli & Beroni [2019] FamCA 911

Chancellor & McCoy [2016] FamCAFC 256

Cook & Langford (2008) FLC 93-374

Edgehill & Edgehill [2007] FamCA 1102

Fielding & Nichol [2014] FCWA 77

Kennon v Kennon (1997) FLC 92-757

Norbis & Norbis (1986) FLC 91-712

Rodgers & Rodgers [2016] FamCAFC 68

Stanford & Stanford [2012] HCA 52

Division: Division 1 First Instance

Number of paragraphs: 356

Date of hearing: 28, 29 & 31 March 2022, 4-6 April 2022, 17-18 May 2022 and 10 June 2022

Place: Adelaide

Counsel for the Applicant: Mr Whitington QC with Ms Doyle of Counsel

Solicitor for the Applicant: Angela Ferdinandy

Counsel for the Respondent: Ms Nelson QC with Mr Bullock of Counsel

Solicitor for the Respondent: Griffins Lawyers

ORDERS

ADC 1771 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CORELLI

Applicant

AND:
MR BERONI

Respondent

ORDER MADE BY:

MEAD J

DATE OF ORDER:

17 MAY 2024

THE COURT ORDERS THAT:
1.In full and final settlement of any claim that either party may have or hereafter have against the other for settlement of property:
(a)That on or before 28 June 2024 the respondent do pay to Angela Ferdinandy Pty Ltd Trust Account on account of the applicant the sum of $4,000,000 (FOUR MILLION DOLLARS).
(b)That in addition to the payment referred to in paragraph 1(a) hereof the applicant do retain for her sole use and benefit absolutely free of any claim by the respondent the following property, assets and resources, namely:
(i)Her savings;
(ii)Her investments;
(iii)Her motor vehicle;
(iv)Her furniture and effects;
(v)All real property in her possession;
(vi)Her superannuation and work entitlements;
(vii)Her life insurance;
(viii)All claims for compensation and damages;
(ix)Her choses in action; and
(x)All other assets in her possession or under her control.

(c)Upon compliance with the order contained in paragraph 1(a) hereof the respondent retain for his sole use and benefit absolutely free of any claim by the applicant the following property, assets and resources, namely:
(i)His interests in the following entities:
A.Beroni Share Trust;
B.Beroni Family Trust
C.V1 Pty Ltd ATF:
D.Beroni Property Trust;
E.Beroni (2) Family Trust;
F.Beroni (3) Family Trust;
G.BB Company;
H.V Pty Ltd;
I.W Pty Ltd;
J.V3 Pty Ltd;
K.V2 Pty Ltd;
L.HH Pty Ltd;
M.JJ Trust;
N.Beroni Super Fund; and

(ii)His savings;
(iii)His investments;
(iv)His motor vehicle;
(v)His furniture and effects;
(vi)All real property in his possession;
(vii)His superannuation and work entitlements;
(viii)His life insurance;
(ix)All claims for compensation or damages;
(x)His choses in action; and
(xi)All other assets in his possession or under his control.

(d)That subject to the provisions of this Order that each party do release the other party from any liability for any claim that either one may have against the other in respect of any property either not or hereafter owned by either of them.
(e)That the respondent indemnify the applicant in relation to all actions, claims, proceedings and demands howsoever arising in relation to any debts or liabilities incurred in his sole name.
(f)That the applicant indemnify the respondent in relation to all actions, claims, proceedings and demands howsoever arising in relation to any debts or liabilities incurred in her sole name.
(g)That hereafter each party shall discharge without calling upon the other to contribute thereto their several debts contracted for and by them.
(h)Henceforth, each party is restrained and an injunction is hereby granted restraining the parties and each of them for pledging the credit of the other.

2.Pending compliance by the respondent with the order contained in paragraph 1(a) hereof the respondent be restrained and injunctions are hereby granted restraining him from transferring, assigning, disposing of or otherwise dealing with any asset or interest in his possession or power or control, other than to satisfy the terms of this Order.
3.That the applicant shall be at liberty to register a Caveat over the Suburb L property to secure the judgment sum provided that such Caveat shall be removed at the expense of the applicant upon payment of the judgment sum in full.
4.In default of payment of the judgment sum specified in paragraph 1(a) hereof:
(a)Interest shall be payable at the rate prescribed by the Federal Circuit and Family Court Rules (2021) ("the Rules") and if default should continue for a further seven (7) days then without limiting the entitlement of the applicant to invoke the Rules as to enforcement:
(b)The property situate at KK Street, Suburb L ("the Suburb L property") being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … and Register Book Volume … Folio … shall be forthwith placed upon the market for sale by public auction upon the following terms and conditions:
(i)That the Suburb L property be placed with an Agent and Auctioneer of the applicant’s choice (hereinafter called "the auctioneer") by auction at the earliest possible date;
(ii)That the respondent execute all documents requested by the Auctioneer for the sale of the Suburb L property;
(iii)That the respondent request the Auctioneer to recommend a reserve price to be placed on the Suburb L property for the purpose of the auction and sale and accept such recommended reserve price;
(iv)That the respondent pay to the Auctioneer any sum requested for advertising expense in relation to the auction;
(v)That the respondent give such instructions to LL Conveyancers, for the preparation of an appropriate contract and other documents as are necessary for the sale of the Suburb L property by auction;
(vi)That the respondent co-operate in every way with the Auctioneer in relation to the auction of the Suburb L property including making the key available and allowing inspection of the Suburb L property at times requested by the Auctioneer and ensuring that the Suburb L property is in a neat and clean condition at the time of inspection by prospective purchasers;
(vii)That the respondent attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached provided that the wife shall determine the sale price having regard to the recommendations of the Auctioneer;
(viii)That the respondent accept the advice of the Auctioneer as to the acceptance of a price less than the reserve price; and
(ix)That the respondent shall execute all other documents necessary to complete the sale.

(c)The respondent shall do all acts and things necessary to procure that on completion of the sale of the Suburb L property the proceeds of sale shall be paid in the following manner and priority:
(i)In payment of agent's commission and auction expenses due on the sale;
(ii)In payment of conveyancing costs of sale;
(iii)In payment of all registered mortgages and encumbrances and costs of sale;
(iv)In payment of the balance to Angela Ferdinandy Pty Ltd Trust Account on behalf of the applicant and in discharge of his obligations under this Order and if the balance is insufficient to discharge the respondent’s obligations under this Order then the interest of the respondent in the entities referred to in paragraphs 1(c)(i)(A)-(N) hereof shall be realised upon such terms and conditions as may be determined by the parties and in default of agreement as ordered by the court and the net proceeds of sale shall be applied:
A.Firstly, to discharge the respondent’s obligations under this Order; and
B.Secondly, to Griffins Lawyers Trust Account on behalf of the respondent.

5.That the order for spousal maintenance made herein on 13 October 2021 shall be discharged upon compliance by the respondent with the terms of paragraph 1(a) hereof.
6.In the event that either party shall fail and/or refuse to execute any document necessary to give effect to the terms hereof within seven (7) days after the same shall have been tendered to him or her for that purpose, then and in such case a Registrar or Deputy Registrar of this Honourable Court upon proof of Affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party hereto and if in his opinion it shall be necessary so to do to settle the same and to do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly and the party in default shall pay the other party’s costs as agreed or taxed.
7.That if either party shall make default in the due compliance with any of the terms of this Order the party in default shall pay the costs of the other part reasonably incurred in relation to such default.
8.That the matter be certified fit for senior counsel.
9.That the application filed herein on 16 May 2016 (as amended on 5 December 2019) and the response thereto filed on 4 August 2016 be otherwise dismissed.

Liberty to apply as to consequential orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE MEAD:
INTRODUCTION

These reasons relate to the property settlement aspect of proceedings between the applicant (Ms Corelli) and the respondent (Mr Beroni), the court having previously determined their dispute in relation to a Binding Financial Agreement.[1]
[1] Carcani & Boscaini [2019] FamCA 911.
They are unable to agree as to whether it is:
(a)Just and equitable to make an order for settlement of property in favour of the applicant following upon the breakdown of the de facto relationship between the parties[2], and, if the court determines that it is so;
(b)What order is appropriate[3] taking into account the various factors specified in section 90(SM)(4) of the Family Law Act 1975 (Cth) (as amended) (“the Act”).
[2] Family Law Act 1975 (Cth) (As Amended) s 90SM(3).
[3] Family Law Act 1975 (Cth) (As Amended) s 90SM(1).
On the applicant’s case the parties lived in a de facto relationship from February 2010, being the date stated in a Binding Financial Agreement signed by both parties dated 7 April 2011,[4] until December 2016.[5] On the respondent’s case the de facto relationship commenced in May 2010[6] and continued until April 2016.[7]
[4] Exhibit R20.
[5] Applicant’s trial affidavit filed 28 February 2022, paragraph 515.
[6] Respondent’s trial affidavit filed 29 March 2022, paragraph 75.
[7] Respondent’s trial affidavit filed 29 March 2022, paragraph 122.
BACKGROUND
The matters to which I refer under this heading are factual matters that are not substantially in dispute between the parties, save as to the extent to which I specifically refer from time to time.
The applicant Ms Corelli was born in Country G in 1967 and at the time the trial in this tranche of these proceedings commenced she was aged almost 55 years. She arrived in Australia in late 2009 under a visa, accompanied by her son Mr Y who at that time was aged not quite 16 years. Upon their arrival in Australia, they took up accommodation in Suburb MM.
At the time of her arrival in Australia she had limited cash funds with her and apparently modest financial resources in Country G. I will refer to that matter later herein.
She had married in Country G in 1987 and separated from her husband in November 2008, alleging that he had perpetrated serious domestic violence upon her and the children.
The respondent Mr Beroni was born in 1932 and was aged 90 years at the commencement of trial. He migrated to Australia from Country K in 1952. He lived and worked in City YY between 1954 and 1978. In 1957 he married and in 1978 he, his then wife and their three children relocated to Adelaide. Following upon the separation between he and his then wife in the mid 1990’s they were engaged in acrimonious property settlement proceedings between 1996 and 1998 when their matter was finalised.
At the time of those proceedings he and his then wife had accumulated significant wealth through business ventures and investments such that he was required, upon the breakdown of their marriage, to pay a substantial sum to his wife.
Thereafter the respondent continued his successful business ventures such that by the time of these proceedings he had generated significant wealth.
The applicant had become aware through her friendship with long term neighbours in Country G that their son in law, a Mr B lived in Adelaide and undertook work assisting people from Country G. It was with his assistance that she obtained visas for herself and her youngest son Mr Y to travel to Australia for a period of two years, during which time Mr Y would be able to attend school. To obtain the visa the applicant was required to inform the Australian authorities that she was able to support herself and her son financially during his two year period of study, as it was a condition of her visa that she could not obtain paid employment during that time.
The respondent had been introduced to Mr B by a mutual friend in or about 2008 and they formed a friendship. In paragraphs 32 – 39 of his Trial Affidavit filed on 29 March 2022 he deposed to:
·Becoming aware through that friendship that Mr B helped people with immigration applications to Australia;
·Confiding in Mr B that after his divorce in 1998 he had some short relationships but sometimes became a bit lonely;
·Mr B telling him that if he met anyone who could be a companion for him he would let him know;
·Mr B previously introducing him to a woman from Melbourne as a potential companion; and
·Mentioning to Mr B that he was looking for someone to do cleaning work at his Suburb L property once renovations were complete.
In or about late 2009, some two weeks after her arrival in Adelaide with her son Mr Y, the applicant was introduced to the respondent by Mr B and his wife at the home of the respondent at the Suburb L property. The property at that time was undergoing significant renovations.
On the same day the applicant met the respondent at his Suburb L property, the respondent invited Mr B, his wife and the applicant to dinner at a restaurant. By the end of that evening the respondent had obtained the applicant’s telephone number from Mr B and he first telephoned her the next day.
Sometime between 3 December 2009 and a date prior to 12 December 2009 the applicant accepted an invitation from the respondent to accompany him on an outing. On the applicant’s case the parties’ sexual relationship commenced after the outing. On 12 December 2009 the applicant accompanied the respondent, at his invitation, to his friends birthday party. On the respondent’s case the parties’ sexual relationship commenced on 12 December 2009 after his friend’s party.
I am satisfied nothing turns on the parties’ differing recollections of the date their sexual relationship commenced.
The parties attended a New Year’s Eve party on 31 December 2009. It was the applicant’s case that at least from that date she slept every night thereafter at the home of the respondent. It was the respondent’s position that from that date the applicant stayed at his house overnight just about every night but not every night.
Prior to the time that the applicant moved into the respondent’s property to live it was common ground that each day after the applicant had stayed overnight the respondent would drive her back to the Suburb MM accommodation where Mr Y remained residing. Her personal belongings were still at that property and it was still her postal address until mid-2010.
On the applicant’s case she moved all of her possessions, her clothes, papers and passport into the respondent’s home in early 2010.[8] On the respondent’s case the applicant moved into his home to live in or about May 2010.[9] I will refer to that matter later herein when considering the period of the de facto relationship.
[8] Applicant’s trial affidavit filed 1 March 2022, paragraph 107.
[9] Respondent’s trial affidavit filed 29 March 2022, paragraph 69.
Sometime shortly after the applicant commenced residing in the respondent’s house at the Suburb L property, he commenced providing her with an allowance of $2,000 per month. Initially some $1,600 per month of those funds were expended by her on her son Mr Y’s accommodation fees. By about the end of 2010, after a short stay in private rental, Mr Y also moved into the Suburb L home. He returned to Country G to live at the end of 2011.

Throughout the period the applicant resided in the respondent’s home, including the period during which her son Mr Y also resided in the property, the respondent met all outgoings relating to the property and all day to day living costs incurred by the applicant. He did not seek any contribution from the applicant with respect to those expenses. Throughout the same period, in addition to the monthly allowance, the respondent provided additional funds to the applicant from time to time to enable her to purchase clothing and shoes and other personal items and purchased a significant quantity of jewellery for her.
It was common ground that during the entirety of the relationship the applicant was free to expend all funds provided to her by the respondent in such way as she saw fit.
At the time the applicant moved into the respondent’s house to live, extensive renovations to the property contracted for by the respondent in or about 2009 were still being undertaken. The inside renovations were completed in early 2010 (respondent’s case)[10] or mid-2010 (applicant’s case).[11]
[10] Respondent’s trial affidavit filed 29 March 2022, paragraph 188.
[11] Applicant’s trial affidavit filed 1 March 2022, paragraph 149.
In early April 2010 the respondent sought legal advice regarding a Binding Financial Agreement. His solicitors drew up an agreement and organised for the applicant to attend appointments with a lawyer Mr E to enable her to obtain the requisite legal advice regarding the agreement such that she could and would sign the document. She did so in March 2011. The respondent signed same on 7 April 2011 and the document was dated 7 April 2011.
In or about May 2011 the respondent contracted for further work to be done at the Suburb L property installations and extensions.[12]
[12] Respondent’s trial affidavit filed 29 March 2022, paragraph 189.
In mid-2011 the applicant finalised her divorce from her first husband, with the divorce becoming final in mid-2011.
In mid-2011, the applicant and the respondent stated in a letter of engagement that they would employ LL Pty Ltd (Mr B’s business) to act for them for the purpose of a letter being prepared and forwarded to the Department for Immigration and Citizenship (“the department”) seeking to waive the condition of “no further stay” on the applicant’s visa to enable her to apply for a partner visa based on a de facto relationship. The letter of engagement was signed by the respondent.[13]
[13] Applicant’s tender book, p.53 and 54.
A short time later the applicant was advised by correspondence from the department that the “no further stay” condition imposed on her visa had been waived and that she could make a valid application for a further substantive visa if she wished, with her current visa permitting her to stay in Australia until mid-2012.[14]
[14] Applicant’s tender book, p.50-52.
An application for another visa was lodged on her behalf with the department in late 2011.
The external renovations and additions to the Suburb L property were completed in or about the first quarter of 2012.[15]
[15] Applicant’s tender book, paragraphs 192.3 and 192.4.
In mid-2012 the applicant was granted another visa. By correspondence from the department to her dated mid-2012 she was advised that no specific conditions applied to her visa, that she was able to work on an unrestricted basis on the visa and could travel overseas and re-enter Australia until she was notified of a decision on her outstanding application for a different visa.[16]
[16] Applicant’s tender book, p.135-137.
In 2012 the respondent executed a will wherein he included a provision that the applicant was to receive the sum of $3 million in the event he predeceased her, as well as an entitlement to remain living in the Suburb L property for 12 months after his death.
In or about late 2012 the respondent commenced purchasing a parcel of shares for the applicant.[17] It was the applicant’s evidence that the total cost of the shares was approximately $100,000.[18] It was the respondent’s evidence that he purchased over $100,000 worth of shares for the applicant.[19]
[17] Exhibit R24.
[18] Applicant’s trial affidavit filed 28 February 2022, paragraph 498.
[19] Respondent’s trial affidavit filed 29 March 2022, paragraph 180.
The parties enjoyed interstate holidays together in 2012 and 2013 at the cost of the respondent.
Around mid-2013 discussions took place between the respondent and the applicant concerning the possibility of marriage and a new Binding Financial Agreement. Both parties obtained independent legal representation and negotiations commenced as to the terms of a new Binding Financial Agreement.
Around this same time in 2013 the respondent increased the $2,000 monthly allowance he had been paying to the applicant since 2010 to $3,000 per month.
A draft document dated August 2013 was prepared by the respondent’s solicitors OO Lawyers. The document was described as both a Binding Financial Agreement pursuant to s 90B of the Family Law Act 1975 (as amended) (“the Act”) and a Termination Agreement pursuant to s 90J of the Act. Inter alia it provided for the termination of the earlier Binding Financial Agreement signed by each of the parties in March and April 2011 referred to in paragraph 28 of these reasons.[20]
[20] Exhibit A8.
Ultimately no agreement was reached, no further Binding Financial Agreement was executed and the parties did not marry. Accordingly, the 2011 agreement remained extant.
During 2014 both parties remained living in the Suburb L property and their financial arrangements were relatively unchanged, save that it was unchallenged by the respondent that he did not pay the applicant her monthly allowance for the months of June and July of that year. There were times during that year when the applicant slept in a different bedroom to that of the respondent and periods of time when the parties apparently regarded themselves as separated.
It was the applicant’s evidence that the parties first separated in May 2014.[21] Under the heading “Breakdown of Relationship” the respondent deposed in paragraph 101 of his trial affidavit to there being times when the applicant chose to sleep in a separate bedroom. The applicant deposed to moving out of the bedroom she shared with the respondent in June 2014.[22] She alleged in paragraph 463 of her trial affidavit that in June 2014 at about 5am the respondent “grabbed me by the hair and pushed me down and made me have oral sex with him”. Both parties were cross examined about the matter. The respondent denied the allegation. I will return to that matter later in these reasons.
[21] Applicant’s trial affidavit filed 28 February 2022, paragraph 512(b).
[22] Applicant’s trial affidavit filed 28 February 2022, paragraph 462.
In mid-2014 the respondent’s solicitors forwarded a Separation Declaration to the applicant’s solicitors[23], wherein the respondent formally declared that he and the applicant had separated on or about 1 March 2014.[24]
[23] Respondent’s trial affidavit filed 29 March 2022, paragraph 97.
[24] Exhibit A4.
The respondent was admitted to hospital in mid-2014. The applicant visited him in hospital each day of his stay and that he returned home after approximately seven days. He and the applicant thereafter continued to reside in the Suburb L property and shortly thereafter resumed sharing a bedroom.[25] The respondent deposed to he and the applicant attempting to reconcile their relationship in October 2014.[26] By correspondence dated 1 October 2014 the applicant’s solicitor advised the respondents solicitor that on their instructions the parties had reconciled.[27] I will refer to that matter later herein when considering the parties de facto relationship.
[25] Applicant’s trial affidavit filed 28 February 2022, paragraphs 468 and 471.
[26] Respondent’s trial affidavit filed 29 March 2022, paragraph 104.
[27] Exhibit R13.
In 2014 the respondent executed a new will containing the same provisions in favour of the applicant that had appeared in his 2012 will.
In mid-2015 the applicant was granted Australian citizenship.
Information about the contents of the respondents 2014 will was provided to the applicant’s solicitors by the respondent’s solicitors on 22 May 2015. [28]
[28] Applicant’s trial affidavit filed 28 February 2022, paragraph 478.
Between October and December 2015 the parties travelled to Europe together. During that trip the applicant visited her two sons in Country G on two occasions, unaccompanied by the respondent. Prior to her second visit to Country G the parties agreed for the respondent to provide to her a sum of €120,000 to purchase an apartment for her sons, albeit to be registered in her name. The parties arrived back in Adelaide around late 2015 and resumed cohabiting in the Suburb L property.
In addition to the payments made by the respondent to or on behalf of the applicant during the parties period of cohabitation to which I have already referred, the respondent provided a cheque in the sum of $30,000 to the applicant in 2016 to enable her to purchase a new motor vehicle.[29] The applicant conceded in cross examination that the funds had been provided to her and that she had retained them, having determined that it was not necessary to buy a new vehicle.
[29] Respondent’s trial affidavit filed 29 March 2022, paragraphs 182 and 187, Item 107.
The relationship between the parties broke down in 2016. On the respondent’s case it broke down irretrievably in April 2016.[30] On the applicant’s case the respondent told her he wanted to separate on or about 30 May 2016.[31]
[30] Respondent’s trial affidavit filed 29 March 2022, paragraph 122.
[31] Applicant’s trial affidavit filed 28 February 2022, paragraph 486.
On 16 May 2016 the applicant initiated these proceedings.
The applicant’s evidence that she continued her cleaning, washing, ironing and cooking duties daily and continued to carry out garden maintenance during that period[32] was not contested by the respondent. The respondent continued to pay to the applicant the monthly allowance of $3,000 until November 2016 (applicant’s case)[33] or December 2016 (respondent’s case).[34]
[32] Applicant’s trial affidavit filed 28 February 2022, paragraphs 488 and 489.
[33] Applicant’s trial affidavit filed 28 February 2022, paragraph 509.
[34] Respondent’s trial affidavit filed 29 March 2022, paragraph 187, Item 103.
In December 2016 the respondent put suitcases containing the applicant’s belongings outside of the house, refused her entry into the house and told her in strident terms to leave. The applicant alleged the respondent also physically assaulted her during the incident. The respondent conceded yelling at the applicant but denied her allegations of physical assault. I will return to that issue later in these reasons.
Following that incident the applicant entered the home, finally vacating the property on 16 December 2016 after negotiations between the parties’ solicitors resulted in the respondent agreeing to pay an amount of $90,000 to the applicant upon her vacating the property. There was no evidence at the time of trial as to the characterisation of that payment.
Shortly after vacating the Suburb L property the applicant moved to Melbourne to live.
In early 2017 the applicant applied for and commenced receiving a New Start Allowance from Centrelink in the sum of approximately $489 per fortnight.[35] The applicant deposed to living with a cousin and his family for six months after her move to Melbourne.[36] No evidence was adduced by the applicant as to her living arrangements between mid-2017 and mid-2019, at which time she signed a tenancy agreement for a unit in Melbourne with monthly rental of $1,380.[37] At the time of trial the applicant deposed to living in a two bedroom apartment at a cost of $550 per week.
[35] Applicant’s trial affidavit, filed 28 February 2022, paragraphs 521 and 522.
[36] Applicant’s trial affidavit, filed 28 February 2022, paragraph 495.
[37] Applicant’s trial affidavit, filed 28 February 2022, paragraph 537.
In late 2018 the applicant secured employment with EE Company. She deposed to working 22.5 hours per week in that employment at the time of trial.[38] In mid-2018 the applicant was involved in a car accident during which her car was written off and she suffered some level of injury.[39]
[38] Applicant’s trial affidavit, filed 28 February 2022, paragraph 527.
[39] Applicant’s trial affidavit, filed 28 February 2022, paragraph 525 and 526.
From the time the applicant left the Suburb L property on 16 December 2016 to the date of trial the respondent remained living in the Suburb L property and engaged as he saw fit in his various business activities.
LITIGATION BETWEEN THE PARTIES
Litigation between the parties commenced upon the filing of an Initiating Application filed by the applicant on 16 May 2016 wherein she sought various final orders 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].
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 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 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 f 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.
In addition to final orders the applicant sought interim orders including for spousal maintenance and partial property settlement.
In the Response to the Initiating Application filed by the respondent on 4 August 2016 he sought that the application for final orders be dismissed.
He also sought various interim orders, in particular an order that the application to set aside the Binding Financial Agreement dated 7 April 2011 contained in paragraph 2 of the Initiating Application (referred to in paragraph 61 of these reasons) be listed for a preliminary determination.
On 6 October 2017 the Honourable Justice Tree ordered inter alia that “the question of the validity and enforceability of the Binding Financial Agreement signed 7 April 2011 be tried before the other issues in dispute between the parties.”[40]
[40] Order of Tree J in Corelli & Beroni (Family Court of Australia, ADC1771/2016, 6 October 2017).
For the extensive and erudite reasons delivered by his Honour on 2 December 2019[41] he ordered that the Binding Financial Agreement between the parties dated 7 April 2011 be set aside.
[41] Corelli & Beroni [2019] FamCA 911.
On 5 December 2019 the applicant filed an (Amended) Initiating Application substantially in the same terms as the Initiating Application filed on 16 May 2016 save that:
·She sought that the declaration that a de facto relationship existed between the parties apply to the periods between 1 January 2010 and 7 July 2014 and from 28 August 2014 to 16 December 2016; and
·She specified the relevant sections of the Family Law Act 1975 (as amended) to support the orders she sought by way of settlement of property and spousal maintenance.
On 19 December 2019 a Notice of Appeal from the decision of Tree J of 2 December 2019 was filed on behalf of the respondent.
On 19 December 2019 the applicant filed an application in a case, an amended version of which was filed by her on 31 January 2020.
By way of the (Amended) Application in a Case she sought various orders including:
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.
The respondent filed a Response to the Application in a Case on 6 February 2020 and an Amended Response on 17 March 2020. On 24 April 2020 the interim matters were listed for argument on 12 June 2020.
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 Ltd] 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.

On 10 February 2021 the Full Court of the Family Court of Australia dismissed the respondent’s appeal against the dismissal of the Binding Financial Agreement.[42]
[42] Beroni & Corelli (2021) FLC 94-004.
For reasons delivered on 13 October 2021[43] I made the following orders with respect to the (Amended) Application in a Case filed by the applicant on 31 January 2020 and the Further (Amended) Response to that application filed by the respondent on 27 May 2020 namely:
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.
[43] Carcani & Boscaini [2021] FedCFamC1F 125.
The substantive proceedings concerning the competing applications for final orders were listed to commence before me on 28 March 2022.
On 18 January 2022 the applicant filed an Application in a Proceeding seeking, inter alia, orders as set out in paragraphs 4, 5 and 6 of that document, namely:
4.That pursuant to section 117 of the Family Law Act and within 28 days the de facto husband do pay to the de facto wife the sum of $385,815.00, or in the alternative:-
(a)Within 7 days after the payment by or on behalf of the de facto husband of any monies in payment of accounts:-
(i)Rendered by solicitors or counsel for the de facto husband in connection with these proceedings;
(ii)Rendered 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;
(iii)Rendered 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 or 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…
5.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.
6.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.
On the return date of that application, namely 25 January 2022, the hearing of it was adjourned to the commencement of trial on 28 March 2022.
On 16 February 2022 the respondent filed a Response to the Application in a Proceeding. He sought that the application be dismissed and that the applicant pay his costs of and incidental to the application or in the alternative that each party bear their own costs.
After hearing argument on 28 March 2022 I delivered reasons and made the following orders on 31 March 2022[44] namely:
1.That the Application in a Proceeding filed herein on 18 January 2022 be dismissed.
2.That the question of costs of same be reserved to trial.
3.That the Response to an Application in a Proceeding filed herein on 16 February 2022 be otherwise dismissed.[45]
[44] Corelli & Beroni (No 2) [2022] FedCFamC1F 197.
[45] Order of Mead J in Corelli & Beroni (Federal Circuit and Family Court of Australia, ADC1771/2016, 31 March 2022).
I have not referred in these reasons to various other interim applications and responses filed by the parties prior to the commencement of trial that are not relevant to my determination of the substantive issues.
COMPETING APPLICATIONS AT TRIAL
The applicant relied on her (Amended) Initiating Application filed on 5 December 2019 in which she sought final orders at trial 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.
…
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 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.
At trial the issue of the existence of a de facto relationship was not in dispute. I will refer to that matter later herein when considering the period of time during which that relationship existed.
No orders were sought pursuant to paragraph six of the applicant’s (Amended) Initiating Application.
In paragraph 340 of the applicant’s counsel’s closing submissions dated 3 June 2022 it was submitted “In her Case Outline, the wife proposed a percentage adjustment applied to the property of the husband in the order of 20 – 25%. Nothing which has been brought forward at the trial has caused the wife to modify that submission.” It was further submitted in paragraph 339 of those same submissions that “it is important to acknowledge that the wife’s application for spousal maintenance remains on foot and the nature of any order will necessarily be affected by the terms of any property settlement in favour of the wife.”
The respondent relied on his Response to an Initiating Application filed on 4 August 2016. He sought that all but paragraph 1 of the applicants (Amended) Initiating Application be dismissed, noting that by the time of this trial the issue of the validity of the Binding Financial Agreement signed by the parties in 2011 had already been determined by Tree J.
The respondent’s primary position was set out in paragraph 149 of his counsel’s closing submissions, namely “the court should conclude that it is not just and equitable in all of these circumstances to make any order. That conclusion means that the court may not make any order for the adjustment of property interest, and the applicant’s claim should be dismissed.”
Two alternative positions were then advanced in Parts H and I respectively of the closing submissions. The first alternative was that the court should adopt an asset by asset/direct contribution approach and that in taking that approach “the only relevant assets would become the [Suburb L property], the two [Country G] properties and the parties motor vehicles and personal effects.”[46]
[46] Respondent’s closing submissions, filed 3 June 2022, paragraph 151.
It was submitted that taking that approach “the respondent is entitled to no more than a very modest adjustment in her favour of the parties’ interests in their domestic (rather than the respondent’s commercial) assets. Given her age, existing benefits and ability to continue to work, no adjustment should be made in favour of the applicant for her future needs.”[47]
[47] Respondent’s closing submissions, filed 3 June 2022, paragraph 152.
Counsel further submitted in paragraph in Part H that “any notional alteration in favour of the applicant should be offset against the amounts already received by her post separation (most notably, the $90,000 paid to her upon separation).”
In Part I it was submitted that a second alternative would be that any adjustment should be minimal and reflect the parties’ contributions and the duration of the relationship. It was submitted in paragraph 155 that “In the further alternative…The parties’ financial contributions must be assessed as 100% to the respondent, 0% to the applicant. Any adjustment in favour of the applicant must be vanishingly small and, as above, offset against amounts already received by her.”
The conclusion in Part J of the respondent’s counsel’s closing submissions was that on any of those alternatives the claim should be dismissed.
THE PARTIES AND THEIR EVIDENCE
Both parties relied on affidavit evidence at trial and both were subject to cross examination. In addition the applicant relied on the affidavit of the respondent’s former daughter in law Ms T, together with the transcript of the cross examination of Ms T at the BFA trial to which no objection was taken (Ms T being deceased). The applicant filed a financial statement dated 28 February 2022 and relied on a case outline filed on 22 March 2022.
In addition to his own evidence the respondent also relied on the affidavit of his son Mr O Beroni sworn 9 March 2022. Mr O Beroni was also cross examined at trial. Affidavits of Mr PP, Mr QQ and Mr RR were also relied on by the respondent together with the transcript of their cross-examination at the Binding Financial Agreement trial to which no objection was taken. They were not required for further cross-examination. The respondent filed a financial statement on 25 March 2022 and an amended case outline on 25 March 2022.
This relationship had its genesis in a somewhat unusual set of circumstances. I make reference to those circumstances in these reasons as I am satisfied that the expectations of each of the parties both at the commencement of and over the duration of the relationship, particularly with respect to their own financial interests, significantly coloured the evidence of both of them but more so that of the respondent. Both parties were very clear in their evidence in chief as to how the relationship came about.
I referred in paragraph 11 of these reasons as to how the applicant came to know of a person in Adelaide known as “[Mr B]”.
The applicant deposed to wanting to come to Australia with both of her sons but only being able to travel with her youngest son Mr Y who was under the age of 18 years.[48] She further deposed to:
[48] Applicant’s trial affidavit, filed 28 February 2022, paragraph 42.
·Asking Mr B about migrating to Australia;[49]
·Mr B giving her information about the types of visas and requirements of each type of and the expenses associated with visas to come to Australia;[50]
·Applying for a visa for her youngest son Mr Y aged 15 years and a visa for herself;[51]
·Mr Y being aged 15 years and not able to speak or read English other than to say “hello”, “yes”, and “no”;[52]
·Her former husband agreeing for her and Mr Y to come to Australia;
·Mr B preparing all the paperwork for her and Mr Y to travel to Australia and dealing with all Government authorities in Australia;[53]
·Mr B telling her that her visa had certain conditions attached to it including not working, living with Mr Y as he was a student, not leaving Australia without Mr Y, Mr Y not leaving Australia without her and not being able to apply for a further visa;[54]
·Mr B telling her that if she found work in Australia she could get permission from migration authorities to work and change the “no work” condition on her visa;[55]
·Meeting Mr B for the first time at the Adelaide airport in late 2009; and
·Telling Mr B’s mother in law that she was looking for housekeeping and cleaning work.[56]
[49] Applicant’s trial affidavit, filed 28 February 2022, paragraph 39.
[50] Applicant’s trial affidavit, filed 28 February 2022, paragraph 41.
[51] Applicant’s trial affidavit, filed 28 February 2022, paragraph 43.
[52] Applicant’s trial affidavit, filed 28 February 2022, paragraph 55.
[53] Applicant’s trial affidavit, filed 28 February 2022, paragraph 47 & 48.
[54] Applicant’s trial affidavit, filed 28 February 2022, paragraph 50.
[55] Applicant’s trial affidavit, filed 28 February 2022, paragraph 51.
[56] Applicant’s trial affidavit, filed 28 February 2022, paragraph 67.
It was the respondent’s evidence that:
·He had confided in Mr B prior to these events that he had been living alone in the years since his divorce and was sometimes a bit lonely;[57]
·That in late 2009 he had mentioned to Mr B that he was looking for someone to do cleaning work at his Suburb L property once he had finished renovating it;[58] and
·That Mr B had told him that if he found anyone suitable he would let him know.[59]
·Mr B had telephoned him at about 5pm on a date in late 2009 telling him that he had a lady who had just moved to Australia from Country G who was looking for a cleaning job;[60]
·Replying to him that he was not ready to meet with her as his home was under renovation;[61]
·Mr B insisting that he meet the applicant;[62] and
·Mr B telling him he was coming to his house with his wife and the applicant in five minutes.[63]
[57] Respondent’s trial affidavit filed 29 March 2022, paragraphs 36-38.
[58] Respondent’s trial affidavit filed 29 March 2022, paragraph 39.
[59] Ibid.
[60] Respondent’s trial affidavit filed 29 March 2022, paragraphs 41 and 43.
[61] Ibid.
[62] Respondent’s trial affidavit filed 29 March 2022, paragraphs 41, 43-44 and 46.
[63] Ibid.
The parties met in late 2009, some fourteen days after arriving in Adelaide with her son Mr Y.
The applicant deposed to:
·Visiting the respondent at his home at the Suburb L property in late 2009;[64]
[64] Ibid.
·Being surprised that the property was under construction;[65]
[65] Ibid.
·Not believing that the respondent would want to interview anyone for a cleaning job with the property in that state;[66]
[66] Ibid.
·Not having any information as at late 2009 as to the respondent’s background, wealth, occupation or any of his circumstances;[67]
[67] Applicant’s trial affidavit, filed 28 February 2022, paragraphs 76 and 78.
·Not believing the respondent would want to interview anyone for a cleaning job; [68]
[68] Ibid.
·It not having been possible to clean the house whilst it was under construction;[69]
[69] Ibid.
·Telling Mr B and his wife in front of the respondent that she could not possibly work there;[70]
[70] Ibid.
·There was nothing she could do until the house was completed;[71]
[71] Ibid.
·Mr B and his wife interpreting for her as to what the rooms being renovated would eventually become and what renovations would be undertaken;[72]
·Mr B telling her at that meeting that the respondent had asked whether she was married and her replying that she didn’t want to tell anyone whether she was married or not;[73]
·Not wanting anyone to know that she was single because she did not particularly want to go out with any man at that stage;[74]
·The respondent being very old and her having no interest in having a relationship with him whatsoever;[75]
·Telling Mr B that she had two older sons and was looking for a younger man if anyone at all;[76]
·Mr B telling her to tell the respondent that she was separated;[77]
·Telling Mr B that it was ok to tell the respondent that but that she was not willing to start any relationship with the respondent and if she was to go out with a man she would want to take it slowly;[78]
·Mr B telling her on the way home from dinner with the respondent that the respondent had asked him whether she would go out with him;[79]
·Mr B telling her that he had told the respondent that she did not want a relationship with him or anybody;[80] and
·Mr B asking her if she was interested in a relationship with the respondent and her replying that she was not interested in any relationship.[81]
[72] Applicant’s trial affidavit, filed 28 February 2022, paragraph 77.
[73] Applicant’s trial affidavit, filed 28 February 2022, paragraph 79.
[74] Ibid.
[75] Applicant’s trial affidavit, filed 28 February 2022, paragraph 80.
[76] Applicant’s trial affidavit, filed 28 February 2022, paragraph 81.
[77] Applicant’s trial affidavit, filed 28 February 2022, paragraph 82.
[78] Ibid.
[79] Applicant’s trial affidavit, filed 28 February 2022, paragraph 87.
[80] Ibid.
[81] Applicant’s trial affidavit, filed 28 February 2022, paragraph 92.
It was the respondent’s evidence that upon Mr B’s arrival at his home with his wife and the applicant:
·He invited everyone inside, they all had a drink;
·There was no discussion about any cleaning work that afternoon; and
·He invited everyone to a restaurant for dinner.[82]
[82] Respondent’s trial affidavit, filed 29 March 2022, paragraph 46.
It was his further evidence:
·that Mr B had told him on one occasion that “lots of people who are single or divorced immigrate to Australia and I will let you know if I meet anyone who could be a potential companion for you”;[83] and
·that Mr B had introduced him to one other woman as a potential companion prior to meeting the respondent.[84]
[83] Ibid, para 37.
[84] Ibid, para 38.
By no later than 12 December 2009, on both parties’ cases, they had spent time together and had commenced a sexual relationship.
The applicant deposed in paragraph 73 of her trial affidavit to having not been given any information by Mr B about the respondent such as his background, wealth, occupation or any of his circumstances. She agreed in cross examination that it was obvious upon arrival at the respondent’s house in late 2009 that it was a large house but said it was old and destroyed, under construction and that although he had a luxury motor vehicle and a second luxury motor vehicle, one was old and one was new. When it was put to her that she knew perfectly well that he was wealthy she said that she didn’t know that and that she was not interested. I do not accept the applicant’s evidence in that regard.
On the applicant’s case she had been advised by Mr B that if she was able to obtain employment upon her arrival in Australia she may be entitled to apply for a change in her visa conditions. By 2011, with the assistance and support of the respondent, and at the cost of the respondent, the applicant had obtained permission to apply for a residency visa, obtained that visa in 2012 and by 2015 had obtained Australian citizenship.

On the respondent’s case he had told Mr B that the was lonely and looking for a cleaner but not until the renovations were complete. Mr B had introduced him to a potential companion prior to him meeting the applicant.
I am satisfied that upon meeting the applicant and spending a short amount of time with her the respondent realised he had been fortunate enough to meet someone to whom he was attracted and who also shared his values of hard work. I find he had determined almost immediately to pursue a relationship with her and did so with great alacrity. I find that he was prepared to be extremely financially generous to the applicant from early in the relationship as well as doing everything in his power to assist her to be able to remain in Australia in the long term. He was however very anxious to ensure that the applicant not be able to make any financial claim against him if their relationship broke down, hence his insistence on her signing the 2011 Binding Financial Agreement.
No evidence was adduced by either party as to exactly why this relationship ultimately broke down in 2016, but it is clear that the first serious cracks in the relationship began to appear in mid-2013 when negotiations commenced regarding a new Binding Financial Agreement. I am satisfied that by this time the respondent had become aware, and seriously concerned, that the applicant may be less malleable than he had anticipated and of there being a greater risk of her making a financial claim on his assets in the event of their relationship breaking down, a circumstance which he did not want to contemplate.
I find that both parties were mature, hardworking ambitious individuals who, almost immediately upon meeting both recognised the benefits they may gain from entering into a relationship with each other. I find that money and financial security was important to both parties notwithstanding the disparity in their respective financial circumstances at the time of meeting. In addition I find issues of residency were very important to the applicant when she arrived in Australia and became important to the respondent after the relationship commenced.
Regardless of the financial generosity of the respondent to the applicant from the start of their relationship I find that within a very short time she became acutely aware of the control he held over that aspect of her life, which led to insecurity and unhappiness on her part. I am satisfied that she was concerned that if the relationship broke down, particularly before the expiration of her visa, she would be left financially impecunious and without the likelihood of Australian residency or citizenship.
For his part, the respondent was acutely aware that in entering into a de facto relationship with the applicant he was at risk of a financial claim being made against him if the relationship broke down. In addition, and notwithstanding his protestations to the contrary, I am satisfied that the respondent genuinely enjoyed the care, assistance and company provided to him by the applicant which he would also lose if the relationship broke down. Both parties pursued the question of the applicant’s residency status as quickly as possible.
Nevertheless both parties, who shared similar cultural backgrounds and a serious work ethic “knuckled down” to fulfill what they perceived their respective roles to be, against the backdrop of insecurity to which I have referred. That is not to suggest that either party entered the relationship other than in good faith and with a determination that it should succeed for the long term. Both parties were aware of the benefits that it may hold for each of them.
For her part, I find that the applicant was at the very least coy about the circumstances of:
·Her meeting with the respondent;
·Her knowledge of the respondent’s financial circumstances;
·Her hopes that the relationship would lead to financial security and assist her with a goal of improving her residency status in Australia; and
·Her decision to enter into a relationship and to commence living with the respondent in a very short period of time, notwithstanding her visa status and the fact that her 15 year old son remained living in accommodation without her in circumstances where he spoke almost no English.
I reject the applicant’s evidence in cross examination that she was unaware as to how long she would need to reside with the respondent prior to being able to make any financial claim on his assets or that she was unaware the respondent was a wealthy man at the time of meeting.
Nevertheless, I find that she was more open to acknowledging the positive aspects of the parties’ relationship as well as the generosity of the respondent and although at times prone to exaggeration, gave her evidence, particularly with respect to aspects of her non-financial contributions to the respondent’s personal assets more reliably than did the respondent.
To the contrary, the respondent found it difficult in his evidence to recognise any really positive aspects of the relationship or the applicant’s contributions to that relationship. He was prone to downplay any contribution of the applicant and deny aspects of her case even when they were palpably true, denying that he ever told her that he loved her in the face of Exhibit A7, a birthday card from him to the applicant in his handwriting dated 2016, shortly prior to him telling the applicant that he wanted to separate from her wherein he said “To [Ms Corelli], I wish you the best happiness for your special day, with love forever [Mr Beroni].”
I find the respondent knew of the financial risk he was exposing himself to in cohabiting with the applicant without a fair and equitable Binding Financial Agreement in place prior to commencing the relationship. His evidence was that he had received advice to that effect upon the finalisation of proceedings between him and his ex-wife. I find that he was aware at all times after the 2011 Binding Financial Agreement was entered into that its terms were untenable and that, to use his words, it would be “thrown in the bin” by the court in the event of a contest.
RELEVANT LAW
In considering competing claims for settlement of property, the Court must be satisfied, upon an identification of the existing legal and equitable interests of the parties in the property, that it is just and equitable to make an order for settlement of property involving an alteration of those interests.[85]
[85] Stanford & Stanford [2012] HCA 52 (‘Stanford & Stanford’).
In the event the court concludes that it is just and equitable to make such an order it should then assess the parties’ competing proposals in the following manner:
(a)Determine the asset pool available for distribution;
(b)Consider and make findings as to the parties' respective contributions to that pool in accordance with the provisions of section 90SM(4) of the Family Law Act 1975 (Cth) ('the Act');
(c)Consider and make any necessary adjustments to those findings taking into account the relevant matters under the provisions of section 90SF(3) of the Act; and
(d)Having considered these matters and in arriving at a determination as to the distribution of the parties' assets, the Court must be satisfied that such distribution effects justice and equity as between the parties.
DE-FACTO RELATIONSHIP
As I said previously herein, the existence of a de facto relationship between the parties to these proceedings was not in dispute and there was little dispute as to the period of time period over which that relationship existed.
In Recital C on page 1 of a Binding Financial Agreement signed by the applicant on 31 March 2011 and by the respondent on 7 April 2011 and dated 7 April 2011 (later set aside by Tree J in his order made on 2 December 2019), the date of commencement of a de facto relationship between the parties was stated to be February 2010.[86]
[86] Exhibit R20.
I am mindful that both parties signed that document including that statement relatively early in their relationship and not against a backdrop of litigation. It was the applicant’s evidence in cross examination that as at 31 December 2009 she stayed overnight at the respondent’s home every night. The respondent conceded in cross examination that as at 31 December 2009, the applicant stayed overnight at his house almost every night.
Prior to May 2010 the applicant’s address was that of the accommodation where she and her son Mr Y lived upon their arrival from Country G in late 2009. In a document provided to the Australian Department of Immigration & Citizenship headed “personal particulars for character assessment” signed by the applicant in mid-2011 she declared her residential address between November 2009 and May 2010 to be SS Street, Suburb MM, SA.
It was the respondent’s case that the de facto relationship commenced in May 2010.
The applicant denied in cross examination that May 2010 was the date that she moved in to live with the respondent and said that she had not changed her address earlier because:
·She simply hadn’t thought about it;
·She had been working hard at the Suburb L property and had not had time to think;
·When the house was finished and there was a new letterbox she thought that the respondent had said that he didn’t want to go to pick up her mail from her accommodation; and
·It was his idea that she should formally change her address.
I prefer the evidence of the applicant over that of the respondent with respect to the time at which the de facto relationship commenced. I accept her evidence that she commenced staying overnight at the applicant’s home every night after January 2010 and that she moved her clothes and her belongings into the respondent’s home in February 2010, noting in particular the respondent’s concession in cross examination as to how frequently the applicant was staying at the Suburb L property as and from January 2010.
Notwithstanding the evidence of both parties I am not satisfied that they were separated for a period of months in 2014. I accept their evidence that for a period of time during that year between approximately June and the latter part of August they slept in separate bedrooms. The applicant deposed to moving out of the bedroom she shared with the respondent in June 2014[87] and resuming sharing a bedroom with him some time shortly after August 2014.[88] The respondent deposed to there being times when the applicant chose to sleep in a separate bedroom but did not specify dates.[89]
[87] Applicant’s trial affidavit filed 28 February 2022, paragraph 462.
[88] Applicant’s trial affidavit filed 28 February 2022, paragraphs 468 and 471.
[89] Respondent’s trial affidavit filed 29 March 2022, paragraph 101.
The applicant’s unchallenged evidence was that for the months of June and July of that year she was not paid her monthly allowance of $3,000. Otherwise no evidence was adduced by either party about any changes in their day to day living arrangements, their socialising arrangements, their financial arrangements other than with respect to the months of June and July when the applicant did not receive her usual voluntary monthly payment from the respondent and there was no evidence called by either party to corroborate any period of separation. I am not satisfied that the parties were living separate and apart under the same roof during that time such that it could be said that there was a hiatus in the de facto relationship.
I am likewise not satisfied on the evidence adduced by either party that final separation occurred between them prior to December 2016. There is little doubt that their relationship experienced significant difficulties commencing in approximately late April 2016 and continuing until the applicant left the respondent’s home on 16 December 2016. The respondent deposed to the applicant moving out of the parties shared bedroom at the end of April 2016.[90]
[90] Respondent’s trial affidavit filed 29 March 2022, paragraph 101.
The applicant filed her Initiating Application on 16 May 2016. The applicant deposed to the respondent telling her that he wanted to separate on or about 30 May 2016 and that she told him that she did not and that she wanted to fix things up.[91] I find that evidence inherently unlikely in circumstances where by that time the applicant had already filed her Initiating Application some two weeks previously.
[91] Applicant’s trial affidavit filed 28 February 2022, paragraph 486.
The applicant deposed in paragraphs 487 to 489 of her trial affidavit to the parties continuing to live together under the same roof, to her having nowhere else to live and to her continuing to carry out all of the cleaning, washing and ironing daily and continuing to carry out gardening maintenance. That evidence was not challenged by the respondent nor was his evidence that he continued paying the $3,000 monthly allowance to the applicant until November 2016 (applicant’s evidence) or December 2016 (respondent’s evidence) challenged by the applicant. Again, neither party deposed to any other changes in their day to day living arrangements prior to December 2016 save as to the respondent deposing in paragraph 209 of his trial affidavit to having limited contact with the applicant from May 2016 and no real contact with her since she left his home on 16 December 2016. I am satisfied the respondent continued to meet all household expenses during that time.
I prefer the evidence of the applicant, namely that their day to day living arrangements were virtually unchanged between April 2016 and 16 December 2016. I am not satisfied that the parties were separated for the purposes of a finding that the period of the de facto relationship ended prior to December 2016.
For these reasons I find that the de facto relationship between the parties commenced in the early party of February 2010 and concluded on 16 December 2016, a period of approximately six years and ten months.
ALTERATION OF PROPERTY INTERESTS
The applicant in these proceedings seeks an alteration of the parties’ property interests. It is the position of the respondent that there should be no such alteration. That question is to be determined by the court in accordance with the provisions of section 90SM and section 90SF of the Act. The relevant provisions of section 90SM are as follows:
(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; or
…
(3)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.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account
(a)      the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)     the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)      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 and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)     the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)      the matters referred to in subsection 90SF(3) so far as they are relevant; and
…
…
Section 90SM(3)
Pursuant to the provisions of section 90SM(3) of the Act the court must not make an order for alternation of property interests pursuant to the provisions of section 90SM of the Act unless it is satisfied that in all the circumstances it is just and equitable to make the order. The corresponding section of the Act relating to competing applications with respect to division of property between parties to a marriage is section 79(2) of the Act. That provision of the Act was discussed at length in Stanford & Stanford [2012] HCA 52 (“Stanford & Stanford”) in paragraphs 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.[92] 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"[93], 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" (emphasis added). 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[94] that a power[95] 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[96]:
"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"[97]. 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"[98]. 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"[99]. 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.
[92] See Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ; [1984] HCA 21.
[93] Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ.
[94] (1956) 98 CLR 228 at 231-232; [1956] HCA 71.
[95] Given by The Married Women's Property Acts 1890-1952 (Q), s 21, a provision which corresponded with s 17 of the Married Women's Property Act 1882 (Imp).
[96] (1976) 136 CLR 248 at 257 per Barwick CJ, Gibbs, Stephen and Mason JJ; [1976] HCA 39.
[97] Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J; [1963] HCA 49.
[98] Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J. See also Wirth v Wirth (1956) 98 CLR 228 at 231-232 per Dixon CJ.
[99] R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 257.

She said she did not separate from the respondent in 2014, notwithstanding having described the respondent as someone who on three or four occasions a month raised his hand as if to hit her, told her she was stupid, wouldn’t let her sleep in and wouldn’t let her socialise. She agreed that all those allegations were true and that she resumed the de facto relationship with the respondent after he was released from hospital in mid-2014 because she loved him, was unable to split up with a second husband, never wanted to split up with him and was never after his money.
She agreed that when she had seen a lawyer Mr E in 2011 he had told her something like that she should stay with the respondent for another two years but that she didn’t really know what he meant by that. When it was put to her that the respondent had said to her that if she stayed with him for two years she would have rights like a wife, she said he did say that but she didn’t understand what he meant.
In the medical notes relied on by the applicant contained in Annexure (A) to the applicant’s trial affidavit it was recorded that in mid-2012 she had told the relevant medical practitioner that she had relationship issues, that her partner was troubling her, yells at her, she cannot leave, she’s getting no sleep and is stressed and that her partner is not physically abusing her but verbally abusing her and she is crying.
In early 2013 it was documented that she reported to her doctor that she was “still unsettled, relationship issues, regarding that matter” and in medical records dated mid-2014 it was reported that she told the medical practitioner that she was suffering stresses, had a controlling ex-partner, that she needed support from a psychologist at that point and was not sleeping well for the past year and had a breakup 4 – 5 months ago but “issues for years”.
In late 2014 the medical records documented the presenting issues to be relationship issues, she was having relationship problems with her husband who is aged 82 years, that she feels she is being used by him, thought he was seeing his ex-daughter in law but he denied that strongly and that she wanted to be ensured that if she stays with him she will be looked after financially and wants this drawn up now.
It was further reported in the same note that she was afraid that she would be left with nothing after he dies as he would not allow her to work, she cares for him and does all the home chores and wants to be with him and not separate but only if she feels valued and cared for by knowing that she has a sum of money to back her up if he dies.
By early 2015 it was reported in the medical notes that she cannot go out of the house without her partner believing she is cheating on him, that she feels very trapped there, that she is not allowed to work and she does not go out unless with him or with someone that he knows and that she had been in Australia for five years but had spent almost all of that inside.
In mid-2016 the notes recorded that the applicant reported to her doctor that when she was feeling angry and arguing she felt pain in her central chest and at times to her left arm lasting until 2:00am and a short time later she was recorded as reporting she had not been sleeping well due to stresses with her partner “ongoing for a while but building” and described the husband as very controlling.
The notes recorded her reporting that she had ongoing issues with her controlling older partner, that he was picking arguments with her and screaming at her, that he had always been demanding and she had worked hard, that she was worried about supporting herself as she had been unable to work elsewhere, she could still speak only limited English and she was worried about supporting herself. In late 2016 the notes recorded that she made further report to the medical practitioner that she was crying, feeling lost but no thoughts of self-harm, that she was still angry at her partner and talked about his control over the years and how he had only allowed her to mix with his friends from his culture. She described having few supports, declining to take anti-depressants and being keen to see a psychologist again for support.
The applicant was not cross examined to any extent about these issues.
It was put to the respondent in cross examination that it was the applicant’s evidence that he had grabbed her by her hair, pushed her down and made her have oral sex in mid-2014, and on the next night he had tried to have sex with her again and she had said to him “don’t touch me”. He responded that both of the allegations were lies and that he had not forced himself on the applicant sexually in mid-2014.
It was further put to him in cross examination that on 12 December 2016 he had put three suitcases in front of his roller door and told the applicant to get out of his house. He agreed he had told her to go back to where she came from and that he had seen a man at the gate and was very disappointed.
When asked why he had told the applicant to go back to where she had come from he said that he was tired and that his house was not a brothel and that over the last few years men had been coming to the house.
When asked if the applicant had gone from the house he said “no, she cried, said she had nowhere to go, that she was going to see her lawyer and asked for $1,000,000 to go away, and on 16 December 2016 I received a letter from her lawyer asking for $90,000 to leave the house or $2,000,000 to settle the matter.”
It was common ground that when the applicant left the Suburb L property for the last time on 16 December 2016 the respondent paid to her the sum of $90,000. That nature of that sum was not specified as being by way of spousal maintenance or interim property settlement. The only funds she had at the time of trial were in the sum of $54,086 which I have included in the pool in light of my refusal, in reasons delivered on 13 October 2021, to order the payment of spousal maintenance for the period from 16 May 2016 to 31 January 2020.[151]
[151] Corelli & Beroni [2021] FedCFamC1F 125.
He denied that on 12 December 2016 he had said “get out you bitch” to the applicant. He denied that he had pushed her in the back but said he thought she lost her balance when he grabbed the case. He denied that he had grabbed her on her forearm with both hands and again denied that he had pushed her in the back. When it was put to him that he had yelled at her he said maybe he told her in a loud voice to go back to where she came from. When asked if after living with the applicant for about three months they had begun to have arguments from time to time he replied, “not really” and denied that he frequently went to hit her.
Having had the opportunity to observe both parties in the witness box over the period of the trial I find as I have said earlier herein, that they each went into the relationship very shortly after meeting with firm ideas as to what they were each seeking from that relationship. I am satisfied that those goals coloured their evidence, in particular the example of information provided to the Department of Immigration and Citizenship by each of the parties and by various friends of the respondent’s extolling the virtues and harmony of the relationship, contrasting with the evidence of the applicant at trial as to the respondent’s conduct towards her. It was concerning that she told the court that she didn’t tell the Department of Immigration and Citizenship what her husband was like because he was her husband but that she had to tell the truth in court before the judge. I find the applicant’s evidence in that instance was simply self-serving.
Nevertheless, as I have said earlier herein, as time went by I am satisfied that the respondent formed the view that the applicant was less malleable than he had anticipated in terms of the likelihood of any claim against his money, that he was a successful man with very fixed views and used to getting his own way. I have little doubt that his financial generosity to the applicant during the relationship was balanced by very high expectations of what the applicant would contribute in return by way of his demands.
The applicant became increasingly concerned about being able to remain in the country and financially support herself in circumstances where she was not working outside of the respondent’s home, thereby having the opportunity to improve her ability to speak English and gain work experience in this country. I find that this insecurity led on occasions to a volatile relationship. I am satisfied that the applicant did not complain to her doctors or the police about the respondent’s conduct towards her during the incident in mid-2014 because of her insecurity regarding residency and money. I find that the respondent persisted with demands for oral sex from the applicant notwithstanding her reluctance to participate. I noted the irascibility of the respondent in the witness box on numerous occasions and his often self‑serving determination to downplay the applicant’s contributions both towards the renovations and home making, including household chores and companionship. I prefer the evidence of the applicant over that of the respondent with regards to him yelling at her on occasions, threatening to hit her and physically assaulting her in late 2016.
I find with respect to the medical records to which I have referred that the applicant’s stress and accompanying distress as reported to her doctors was as much related to the uncertainty about her financial and citizenship security as it was related to the irascible nature of the respondent. I am not satisfied overall that the matters to which I have referred support a Kennon v Kennon claim.
I specifically note her evidence in cross examination that:
·She never wanted the relationship to finish;
·She wished to remain living with the respondent;
·She did not want to separate from the respondent in either in 2014 or 2016;
·She had taken numerous and various photographs shortly before leaving the respondents home for the last time in December 2016, including of the vacuum cleaner and the mop to have memories; and
·She had wanted to stay with the respondent and the mop was a good memory.
I have no doubt that the respondent’s behaviour towards the applicant was at times very trying. I do not accept that it impacted such as to make her contributions significantly more arduous than they ought to have been.
Section 90SM(4)(d)
I find that the order I propose to make in this matter will have no effect upon the earning capacity of either party to the de facto relationship.
Section 90SM(4)(e)
I will refer to these factors when considering s 90SF(3) of the Act.
Taking all of those matters into account I am satisfied that in this matter having:
·Set out my findings as to the parties’ respective contributions pursuant to section 90SM(4) of the Act;
·Found that the applicant made no financial contributions to Apartment 1 in Country G, her jewellery, the respondent’s personal assets and the respondent’s business assets either during the relationship or in the period between separation on 16 December 2016 and the time of trial;
·Found that the applicant made financial contribution to her assets post separation prior to trial save as to Apartment 1 in Country G and her jewellery;
·Found that the respondent paid the sum of $90,000 to the applicant upon her vacating the Suburb L property on 16 December 2016;
·Found that the applicant made a very limited non-financial contribution to the respondent’s business assets in her home making role during the relationship;
·Found the respondent’s direct financial contribution to the acquisition, conservation and improvement of his business and personal assets as well as Apartment 1 in Country G and the applicant’s jewellery was overwhelming and explicable by the enormous disparity between the parties’ respective financial circumstances at the beginning and during the period of the de facto relationship;
·Found that during the relationship the applicant made no financial contribution to any day to day living expenses of the parties, and in addition received a generous monthly allowance from the respondent during the entirety of the de facto relationship (save for possibly two months during 2014), in respect of which she was not accountable to the respondent in relation to her expenditure thereof in circumstances where he made the payments to her voluntarily at his own discretion;
·Found the respondent provided a home and living expenses for the applicant’s son Mr Y for the second year of his stay in Australia, paid for a significant quantity of food and other necessities for the applicant’s sons and their families during a trip to Europe in late 2015 and provided funds for the applicant to travel to Country G to visit her family on two occasions during that holiday; and
·Found that the applicant made a direct non-financial contribution to the conservation and improvement of the Suburb L property and a contribution to the welfare of the family particularly in her capacity as a home maker
that it is appropriate in the circumstances of this particular case to recognise the wife’s contributions by payment to her of a specific monetary sum of $500,000.
I find that such a sum properly recognises the applicant’s contributions to which I have referred at length. I find the matters set out in paragraph 75 of Thackary J’s reasons in Cook & Langford (2008) FLC 93-374 are apposite to this matter namely:
…in the circumstances of this case, it was well open to find it was inappropriate and/or artificial to attempt to evaluate the actual contributions of the husband as a percentage of the large pool of assets which were sourced exclusively from the wife’s sole pre-marriage assets, maintained and improved significantly by her during the marriage, and substantially increased post separation…
SECTION 90SF(3)
At the time of trial the applicant was aged almost 55 years. She deposed to:
·Having been involved in a car accident post separation in mid-2018;
·Having some residual health problems;
·Having average health;
·Feeling “stressed and down”; and
·Not wanting to take medication and managing stress by walking and exercise. [152]
She did not otherwise adduce any further evidence with respect to suffering ill health.
[152] Applicant’s trial affidavit, filed 28 February 2022, paragraphs 525 and 552.
At the time of trial the respondent was aged 90 years. He appeared to be suffering from some hearing issues. He did depose to suffering ill health including cardiac issues during the parties’ overseas trip in 2015.
There was and no doubt continues to be an enormous disparity between the income property and financial resources of each of the parties. I have made findings earlier herein as to the property owned by the parties and the composition of the asset pool.
In her financial statement filed on 28 February 2022 the applicant deposed to income of $1,587 per week. This was comprised of:
·Earnings in the sum of $512 working 22.5 hours work per week;
·Compulsory superannuation contribution from employer - $45;
·Share dividends - $30; and
·Spousal maintenance - $1,000.
The only financial resource that would be readily available to the applicant in due course is her limited superannuation entitlements totalling some $7,000 at the time of trial. Taking into account her age, there will be significant limits to the amount of superannuation she will be able to accumulate in her working life.
She deposed to her occupation as being a manager in the business known as EE Company in Melbourne, having secured work with that company in late 2018. She deposed to asking for more hours but being declined, and to looking for full time employment but to nothing being available.[153]
[153] Applicant’s trial affidavit, filed 28 February 2022, paragraphs 527, 532 and 533.
In cross examination she said:
·Prior to the COVID lockdown she worked at EE Company on a full time basis for a short time;
·When she returned to work it was on a part time basis;
·That she was still looking for full time work;
·That she had made written applications;
·That she could not apply for full time work with EE Company as it wasn’t available and she would have to resign and go to another company for full time work;
·That her English was not good enough;
·That all managers at EE Company had part time jobs; and
·That she had not applied for any full time employment with another company whilst working for EE Company
In cross examination she described the work she was undertaking at EE Company involving:
·Making budget;
·Working hard;
·Being kind to customers;
·Being very patient;
·Manual labour;
·Dealing with customers;
·Responding to enquiries and other clerical duties;
·Being responsible for three staff who worked under her management; and
·That she also helped to train the staff.
I find that the applicant has the physical and mental capacity for appropriate gainful employment. I further find, taking into account her age, work history and the progress she has made with the English language during the time she has lived in Australia, that the employment she has is appropriate and gainful employment.
I find that she is not able to obtain full time employment with EE Company and that it is not reasonable to expect her to apply elsewhere for full time employment taking into account the apparent security of her employment with EE Company as well as her age and state of health.
The respondent deposed to a weekly income of $2,316 comprising interest from investments, in the sum of $451 and income paid by the Beroni superannuation fund in the sum of $1,865.
The respondent deposed to his extensive work history in paragraphs 7 to 25 of his trial affidavit filed on 29 March 2022. At the time of trial he was a director of both V2 Pty Ltd and V1 Pty Ltd. In Part O of his financial statement he deposed to the corporate structure under which his business operates and his role in that corporate structure.
In paragraph 25 of his trial affidavit he deposed as follows:
My business was set up to operate through a number of companies and Trusts on the advice of my accountants. Where I have described myself above as buying or selling commercial properties, this typically occurred through these arrangements as a result of my control over these entities. The correlation between the various companies and Trusts and my involvement with these companies and Trusts is set out in Part O of my financial statement filed on 25 March 2022. Basically I am the Trustee of the various Trusts and the sole shareholder/beneficiary…[154]
[154] Respondent’s trial affidavit filed 1 March 2022, paragraph 25.
I have earlier herein made findings as to the value of the respondent’s business assets and personal assets for the purpose of these proceedings. I find that the respondent has complete control subject, to Australian law, over the companies and trusts of which he is the trustee and the sole shareholder/beneficiary such that he is able to organise his financial affairs as he deems fit.
I find that at the time of trial and at the age of 90 the respondent had the physical and mental capacity for appropriate and gainful employment and by choice was so employed, albeit that the day to day operations of his business interests were overseen by various employees, in particular his youngest son Mr O Beroni.
I find, having had the opportunity to observe the respondent in the witness box during cross examination, that regardless of Mr O Beroni having taken over the day to day running of the business in more recent years, at all times throughout his business career the respondent had complete control over all major decisions, including financial decisions pertaining to his business interests and remained so as at the time of trial. I find that on a day to day basis he attended to his business endeavours on what he considered to be an “as needs” basis at whatever rate he chose, but that no significant decisions were made concerning his business interests without him being consulted for his approval.

The applicant’s weekly expenses of $1,322 comprised of:
·Income tax - $37;
·Rent payments - $550;
·Water rates - $7;
·Health insurance policy - $77;
·Car insurance - $8;
·Motor vehicle registration - $8; and
·Day to day living expenses as per Part N of her financial statement - $635
Total - $1,322
I find that none of the expenses claimed by her were unreasonable or unnecessary and I find that without the weekly payment of $1,000 from the respondent she would not have the capacity to meet commitments necessary to support herself.
The respondent’s personal expenditure as set out in his financial statement in the sum of $2,004 comprised of:
·Income tax - $434;
·Rates - E$171;
·Health and house and contents insurance – E$131;
·Motor vehicle registration - E$32;
·Credit card payments - E$346; and
·All other weekly expenditure as per Part N of his financial statement - $890
Total - $2,004
He did not depose to the expense of $1,000 per week by way of spousal maintenance for the applicant.
I find the respondent’s weekly commitments are both necessary and reasonable to support himself noting that at the time of trial he also had a responsibility by way of an order of this court to pay spousal maintenance to the applicant at the rate of $1,000 per week.[155]
[155] Carcani & Boscaini [2021] FedCFamC1F 125.
I accept the submission of the applicant’s counsel contained in paragraph 311 of the closing submissions filed on 3 June 2022 namely “it is safe to infer that the [Beroni Group] generates a much higher level of profit and that, but for tax planning, the husband would derive a greater annual taxable income. In other words, any assessment of his ability to meet his financial needs in life should be made by reference to the value of the assets he controls and not by reference to declared annual personal income for taxation purposes.”
I find that the applicant had no current eligibility for a pension or allowance or benefit due to her part time employment and further that she had limited superannuation resources. The respondent is both eligible and draws down on the significant superannuation fund to which I have referred earlier herein. He is not eligible for any pension allowance or benefit under any law of the Commonwealth or any other country.
No evidence was adduced by the applicant as to her standard of living prior to the commencement of the de facto relationship with the respondent. At the time she came to Australia in late 2009 she deposed to having only AUD$18,000 in cash and some €52,000 remaining in Country G available for the support of both she and her son Mr Y for a period of two years in accordance with their visa obligations.
She was cross examined at some length as to the inconsistences in her evidence regarding the amount of cash she brought to Australia and the funds remaining available to her in Country G but I am satisfied that on any assessment of the facts the standard of living in Country G had been in all likelihood modest, particularly since the €52,000 apparently comprised somewhere between €25,000 and €30,000 that she obtained from the sale of her dry cleaning business and some other funds provided to her by her brother as required.
By contrast, the respondent had enjoyed a very comfortable standard of living for many years provided by the fruits of his business endeavours. Co-incidentally that standard improved at or about the time the de facto relationship commenced, with significant renovations to the home he and his former wife had built in 1979 in Suburb L having commenced during 2009 shortly prior to the parties meeting. The value of the assets both personal and business owned and controlled by the respondent at the time of trial will ensure that he is able to maintain a standard of living that in all of the circumstances is reasonable for the remainder of his life.
Almost immediately upon the commencement of the relationship and during the period of the relationship the respondent commenced paying an allowance to the applicant, initially in the sum of $2,000 per month and in or about April 2013 increasing to $3,000 for the remainder of the relationship until November or December 2016, save and except that possibly, although nothing turns on this point, he failed to make the payment of $3,000 per month in each of July and August 2014. It was common ground that she had complete control over how she chose to utilize those funds.
In addition, he showed what the applicant described in paragraph 496 of her trial affidavit as “generosity” to her during the period of the relationship including, as referred to earlier herein:
·Gifting her expensive jewellery worth many thousands of dollars;
·Gifting her a share portfolio at a cost of approximately $100,000;
·Paying for clothes, hair dressing and medical expenses, regular meals at restaurants and interstate trips as well as a three month overseas holiday;
·Providing her with the use of a luxury motor vehicle after she obtained her driver’s licence; and
·Generally providing a standard of living that was in all the circumstances reasonable in an extremely comfortable home with all household expenses including food, utilities and health insurance paid by the respondent.[156]
[156] Applicant’s trial affidavit, filed 28 February 2022, paragraphs 505-509.
In addition to the above matters, in 2016 the respondent provided the sum of $30,000 to the applicant to purchase a motor vehicle. She conceded she did not do that but rather retained those funds. Further, on 16 December 2016, the day the applicant left the Suburb L property, she received the sum of $90,000 from the respondent.
There was no evidence to suggest that any of the living expenses paid for the applicant by the respondent, the gifts both monetary and otherwise provided to her by him and the funds provided to her by him (save for the sum of $90,000 paid to her on 16 December 2016 and the spousal maintenance payments made pursuant to the order made on 13 October 2021) were made or provided other than at the absolute discretion of the respondent. I have referred to that issue earlier herein when considering whether it is just and equitable to make an order for settlement of property.
I find that during the six years and ten months of the parties’ de facto relationship the respondent chose to ensure that the applicant enjoyed a standard of living involving significantly greater wealth and standard of comfort than that which she had enjoyed in Country G, but commensurate with that which he had enjoyed for many years.
I find that it would be unreasonable, in making orders for settlement of property, that the result would leave the applicant in financial circumstances that resulted in her being unable to maintain a standard of living that in the circumstances of this case is reasonable. I find that this is an important consideration in determining this matter. I find that it is reasonable in the circumstances of this case that the applicant should be left in the position where she is able to purchase a modest home for herself freehold of any mortgage commitments and be able to meet reasonable expenses. This was clearly the intention of the respondent when in 2012 and again in 2014 he made significant provision for the applicant in his will in the event of his death without any such request from her and indeed where he did not tell her of his actions until well after the event.
I find taking into account the parties’ respective financial circumstances, income, financial resources and superannuation that such an order would not involve a payment to the applicant by the respondent of such magnitude that it would effect his ability to support himself or continue to enjoy a standard of living that in all the circumstances of this case are reasonable and commensurate with the contribution he has made to the asset pool.
In paragraph 564 of the applicant’s trial affidavit she set out the weekly expenses she anticipated would be incurred to provide her with a reasonable standard of living, totalling $2,464. Save as to amounts ascribed by her to:
·Clothing and shoes - $200 per week;
·Holidays - $20,000 p.a. - $500 per week;
·Household supplies - $200 per week;
·Personal trainer - $40 per week; and
·Rent - $550 per week.
I find that the balance of her anticipated expenses are reasonable. I find that the sum of $550 per week should be deducted from the anticipated expenses in circumstances where I intend to make an order that will provide sufficient funds to the applicant to purchase a modest property freehold if she so chooses. I find that reasonable expenses for clothing, shoes and household supplies and holidays on a weekly basis would be less than those claimed by the applicant, and would reasonably total $500 per week. I do not consider a personal trainer to be a necessary expense.
Taking those matters into account I find that the applicant would be able to maintain a reasonable standard of living in a modest freehold house with approximate weekly expenses of $1,414. At the time of trial she was earning $475 net per week.
The applicant deposed to liking the idea of undertaking a course to improve her English to assist her in obtaining better paid employment. She deposed to then being in a better position to undertake a course.
She adduced no evidence as to any efforts to undertake English courses since December 2016 notwithstanding that she did not obtain employment until late 2018 and thereafter other than for a short period has only been working part time. Likewise she adduced no evidence about any interest she may have shown or enquiries she may have made with respect to undertaking a course. I am satisfied that should she remain interested in such courses these matters will be able to be addressed by her in due course from funds that will be available to her by way of settlement of property and that this factor is relevant but not of high priority.
I have already referred, when considering the relevant factors pursuant to s 90SM(4), to contributions made by the applicant to the income earning capacity, property and financial resources of the respondent.
The de facto relationship encompassed a period of six years and ten months and commenced at a time when the applicant had come to Australia with her child Mr Y for a two year period. The visa upon which she entered Australia in 2009 did not permit her to work. I find that the applicant is a person with a good and strong worth ethic as described earlier herein. I find that the duration of the de facto relationship may have had impacted on the speed at which the applicant familiarised herself with the English language, such that it may have impacted on her earning capacity. I am not satisfied however that it is an important consideration in this matter.
Neither party was cohabiting with another person at trial.
I propose to make an order that will provide sufficient funds for the applicant to purchase a modest freehold home and provide her with a cash payment such that she will be able to generate income in addition to her employment income to provide herself with a reasonable standard of living. It was the applicant’s evidence that she would like to buy a house in Melbourne and would need at least $1 million for reasonable accommodation.
I have already referred to the fact that the Binding Financial Agreement entered into by the parties on 7 April 2011 was set aside by the Honourable Justice Tree and that the appeal against that order was dismissed.
I am mindful, when considering any fact or circumstance which in the opinion of the court the justice of the case requires to be taken into account, that I accepted the position of the applicant in declining to reduce the value of the respondent’s business assets by what were described as “anticipated” taxation obligations with respect to Div 7A of the Income Tax Assessment Act or the estimated Capital Gains Tax payable on both real estate and the V2 Pty Ltd listed share portfolio.
Notwithstanding that determination, I am mindful however that the obligation to pay any such liabilities that are incurred pursuant to those matters will fall solely on the respondent. I have found however that he was at the time of trial in complete control of the various companies and trusts referred to in Part O of his financial statement and that he is at liberty to make decisions as to how those liabilities are best addressed in consultation with his accountants, including when, how and in what amounts the liabilities will be incurred.
I am also mindful that in determining the asset pool available for division between the parties I have included what is described as a “Apartment 1” in Country G owned by the applicant in her sole name. It is occupied by at least one of the applicant’s son’s and his family in circumstances where the totality of the purchase price was paid by the respondent.
It was the position of the applicant that the apartment should be excluded from the list of assets available for division in circumstances where the respondent was agreeable to providing the funds for the purchase of the property in the full knowledge that it would be occupied by at that time both of her son’s and their families. I find that the applicant adduced no evidence as to the financial circumstances of either of her son’s that persuade me that their financial circumstances were so impecunious that they required their mother to provide housing for them. I find that it is a matter entirely for the applicant as to how she treats the use of that property in the future.
I find that neither of these matters effect my overall determination. Taking all of those matters into account pursuant to the various factors referred to in section 90SF(3) of the Act I find that there should be a further adjustment to the applicant in the sum of $3,500,000.
CONCLUSION
As I said previously herein, I find that it is unhelpful in the circumstances of this particular case to attempt to attribute a percentage calculation to the applicant’s non-financial contributions referred to in my findings relating to section 90SM(4) of the Act.
I find that when considering the needs of the applicant it is likewise, in the particular circumstances of this case, more appropriate to affix an amount by which her contribution entitlement should be adjusted to take into account her future needs.
I find that a total payment to the applicant in the sum of $4,000,000 is a just and equitable recognition of her non-financial contributions to the parties’ assets at trial and her future needs as determined by reference to section 90SF(3) of the Act factors.
In paragraph 150 of these reasons I determined the value of the applicant’s property at trial to be $633,164 inclusive of $7,000 in superannuation. In paragraph 175 of these reasons I determined the value of the respondent’s property at trial to be $160,251,893 inclusive of $1,648,271 in superannuation.
I find that a payment by the respondent to the applicant in the total sum of $4,000,000, together with her retention of the property owned by her at trial will create an outcome where the applicant is in a position to purchase a freehold property for herself in Melbourne should she so choose. I find at her election that she would have sufficient funds remaining to invest such that the income from the investment, together with the funds she generates from her part time employment, will provide her with the ability to enjoy a standard of living that in all of the circumstances of this case is reasonable.
I find that the payment of such sum is well within the means of the respondent and is reflective of his overwhelming contribution to the property of the parties as at the time of trial. I find such payment will not affect his ability to maintain a standard of living that in all of the circumstances of this case is reasonable in the future.
I find that the orders that I intend to make effect a just and equitable distribution of the assets owned by the parties at trial.
For those reasons I make the orders as set out at the commencement of these reasons for Judgment.

I certify that the preceding three hundred and fifty-six (356) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 17 May 2024

File number(s):	ADC 1771 of 2016
Judgment of:	MEAD J
Date of judgment:	17 May 2024
Catchwords:	FAMILY LAW – PROPERTY – Application for property settlement – where there was a de facto relationship of almost seven years – where section 90SM and 90SF factors are considered - where there is an overwhelming imbalance between the parties’ financial positions at the commencement of the relationship - where assets owned by the respondent are significantly greater than that of the applicant – where the applicant seeks an alteration of the property interest– where the respondent seeks the application to be dismissed–where it is clear from the evidence of both parties that the husband intended to keep all of his property separate from the applicant throughout the relationship – where the applicant was dependent upon the respondent for her accommodation as she had no residence of her own in Australia – where at the time of the trial the respondent’s assets existed the same as they did at the commencement of the relationship – where the applicant acquired assets from the monthly allowances provided to her by the respondent during the relationship and by the respondent purchasing property and jewellery for her - consideration of approaching the matter by way of a “global approach” or an “asset by asset approach” – where it is common ground that during the relationship the applicant made no direct financial contribution to any of the assets held by the respondent –where the applicant’s homemaking vastly exceeded that of the respondent – consideration of the Kennon principles – where the court found the principles not applicable to the circumstances of this case – consideration of the applicant’s future needs determined by reference to section 90SF(3) – where it is unhelpful to attribute a percentage calculation to applicant’s non-financial contributions – where it is appropriate to affix an amount for her contribution entitlement and future needs – where it is just and equitable to make an order.
Legislation:	Family Law Act 1975 (Cth) ss 79, 79(2), 79(4), 90B, 90J, 90SF(b)(r), 90SF(3), 90SF(3)(r), 90SM, 90SM(1), 90SM(3), 90SM(4), 90SM(4)(a)(i), 90SM(4)(a)(ii), 90SM(4)(e).
Cases cited:	AJO & GRO (2005) FLC 93-218 Beroni & Corelli (2021) FLC 94-004 Bevan & Bevan [2013] FamCAFC 116 Corelli & Beroni [2019] FamCA 911 Chancellor & McCoy [2016] FamCAFC 256 Cook & Langford (2008) FLC 93-374 Edgehill & Edgehill [2007] FamCA 1102 Fielding & Nichol [2014] FCWA 77 Kennon v Kennon (1997) FLC 92-757 Norbis & Norbis (1986) FLC 91-712 Rodgers & Rodgers [2016] FamCAFC 68 Stanford & Stanford [2012] HCA 52
Division:	Division 1 First Instance
Number of paragraphs:	356
Date of hearing:	28, 29 & 31 March 2022, 4-6 April 2022, 17-18 May 2022 and 10 June 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Whitington QC with Ms Doyle of Counsel
Solicitor for the Applicant:	Angela Ferdinandy
Counsel for the Respondent:	Ms Nelson QC with Mr Bullock of Counsel
Solicitor for the Respondent:	Griffins Lawyers

ADC 1771 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CORELLI Applicant
AND:	MR BERONI Respondent

ORDER MADE BY:	MEAD J
DATE OF ORDER:	17 MAY 2024