DAULTREY & TAVENER (No.2) - [2020] FCCA 2885

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAULTREY & TAVENER (No.2)

[2020] FCCA 2885

Catchwords:
FAMILY LAW – Interim property proceedings and enforcement after earlier interim judgment heard in October/November 2019 and judgment delivered in March 2020 – Application by Respondent for a stay of the March 2020 Orders – significant delays in filing material by Respondent and no updating evidence regarding the Respondent’s financial position – consideration of principles in what amounted to a de facto application to re-open – application refused with costs – final hearing still listed for May 2021.

Legislation:

Family Law Act 1975 (Cth), s.106A

Federal Circuit Court Rules 2001 (Cth), rr.16.05, 29.04, 29.11 & 12

Federal Court Rules 2011 (Cth), r.41.11

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300

Chapman v Chapman (2015) 51 Fam LR 176

Commissioner of Taxation v Bosanac (No.2) [2016] FCA 945

Daultrey & Tavener (No.2) [2020] FCCA 399

Gronow v Gronow (1979) 144 CLR 513

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681

Medlow v Medlow (2016) 306 FLR 183; (2016) 54 Fam LR 389

Smith v New South Wales Bar Association (1992) 176 CLR 256

Applicant:

MR DAULTREY

Respondent:

MS TAVENER

File Number:

CAC 374 of 2018

Judgment of:

Judge WJ Neville

Hearing date:

21 September 2020

Date of Last Submission:

21 September 2020

Delivered at:

Canberra

Delivered on:

22 October 2020

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Walsh & Blair, Wagga Wagga

Counsel for the Respondent:

Mr G Blank (appearing pro bono on direct brief)

Solicitors for the Respondent:

Self-represented

ORDERS

The Application in a Case filed by the Respondent on 12 August 2020 be dismissed, with costs to be agreed or taxed.
Within 7 days of the date of these Orders, being by 29 October 2020, the Respondent is to pay the Applicant the sum of $200,000.
Absent compliance with Order 2 herein, A Street, Town B, NSW is to be sold and the current offer for its purchase accepted. The net proceeds of sale are to be distributed as per the Orders of 11 March 2020.
The solicitors for the Applicant are to immediately forward to the Registrar of the Federal Circuit Court at Canberra the relevant contract for sale of A Street, Town B, NSW.
The Registrar of the Federal Circuit Court at Canberra is appointed, pursuant to section 106A of the Family Law Act1975, to forthwith sign the contract for the sale of A Street, Town B, NSW and any other document specified in the Applicant’s Application in a Case filed 7 August 2020. Those documents are to be held in escrow, pending compliance (or otherwise) with the payment to the Applicant, or other Orders of the Court.
The Respondent is to pay the Applicants costs of the current Application, either as agreed or taxed.
All outstanding Interim Applications be dismissed.
The matter remains listed for Final Hearing on 28 May 2021 commencing at 10:00am in CANBERRA.

NOTATIONS:

(A)The March 2020 Orders in relation to any of the parties’ other properties are also to be enforced, with the assistance of the Registrar, pursuant to section 106A of the Family Law Act1975 if necessary.

IT IS NOTED that publication of this judgment under the pseudonym Daultrey & Tavener (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 374 of 2018

MR DAULTREY

Applicant

And

MS TAVENER

Respondent

REASONS FOR JUDGMENT

Introduction

On 11 March 2020, I delivered an interim property judgment in this long-running matter.[1] There is a final hearing scheduled for May 2021. In no overly critical way, it has consumed very significant Court resources, and in many respects, needlessly so. It continues to do so.
[1] Daultrey & Tavener [2020] FCCA 399.
Amongst the 11 March 2020 Orders (“the March 2020 Orders”), under the heading “Default”, Order 16 provided for any circumstances in which there was relevant non-compliance or default within 14 days of the provisions of the Orders for the Registrar of the Court “to execute all deeds and documents in the name of the defaulting party ….” The power to make such an Order, apart from the Court’s extensive powers under its own Act, is contained in s.106A of the Family Law Act 1975 (Cth).
Thus far, the Applicant de facto Husband has filed three Applications in a Case to seek the assistance of the Court, the Registrar in particular, regarding compliance with the March 2020 Orders. Those Applications were filed on 31 March, 13 May and 7 August 2020. It is only the last of these Applications that is relevant to these reasons.
In passing, why formal Applications were filed remains something of a mystery. Given the terms of Order 16 in the March 2020 Orders, all that would have been usually required was for the Registrar to be satisfied of relevant default. This would usually be done simply by filing an Affidavit, rather than an Application in a Case, which invariably means that it must come before a Judge (which in turn means finding a listing date in an always over-stretched calendar) rather than being dealt with directly and discretely by a Registrar.
The Respondent de facto Wife also filed an Application in a Case, on 12 August 2020. In short, she sought Orders that effectively stayed the March 2020 Orders (and any Orders made under the Applicant’s 7 August 2020 Application).
During the interim hearing on 2 September 2020, Counsel for the Respondent (acting pro bono), summarily, submitted that because the Orders in March 2020 were interim, there was no prohibition or other reason why the Court could not (and presumably, should not) re-visit those earlier Orders. He also submitted that it was appropriate to do so because there had been a genuine or significant change in circumstances.
Also summarily, the long-time lawyer for the Applicant submitted that there was, in fact, no substance in the Respondent’s arguments and that all matters now raised were essentially the same as those ventilated at the interim hearing in October 2019, and upon which the Court pronounced Orders and delivered reasons in March 2020.
Rather than deal separately with the two substantive Applications by each of the parties (and make a separate determination, for example, on the Wife’s Application before hearing argument on the Husband’s), after brief discussion with the lawyers, the Court said that it would hear argument on both Applications before making any determination.
At the conclusion of the most recent hearing (in September 2020), there was at least agreement that the Respondent should have 14 days to make payment to the Applicant of the $200,000 pursuant to the operation of the March 2020 Orders, and if that payment was not made, the Orders sought by the Applicant should be made. The Court will make that Order however the Respondent must make the payment within 7 days.
Given the delays that have attended almost everything to do with the matter, notably compliance with Orders, there will be a further “machinery” Order (a) requiring the Applicant’s lawyer to forward immediately to the Registrar of the Court the relevant contract for sale of A Street, Town B, and (b) directing the Registrar to sign that document, which is to be held in escrow, pending compliance (or otherwise) with the payment to the Applicant, or other Orders of the Court.
Otherwise, for the reasons set out below, (i) the Respondent’s Application, filed 12 August 2020 must be dismissed, with costs to be agreed or taxed, and (ii) the Orders sought in the Applicant’s Application, filed 7 August 2020, should be made, also with an Order for costs, either as agreed or taxed.

Procedural Matters

As already noted, the Respondent seeks a stay on any Orders made (or likely to be made) pursuant to the Applicant’s Application in a Case, filed 7 August 2020. Because that Application in a Case refers to the March 2020 Orders, it is tantamount to a stay of those interim property Orders regarding the sale of certain properties. In this instance, the relevant property in question is A Street, Town B, where the Respondent currently lives.
Properly, and subject to what is said later in these reasons, the Applicant noted that the jurisdictional basis and or power to “re-visit” the March 2020 Orders is located in Rule 16.05 of the Federal Circuit Court Rules, 2001. That Rule is in the following terms:
16.05 Setting aside
(1) The Court may vary or set aside its judgment or order before it has been entered.
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c) the order is interlocutory; or
(d) the order is an injunction or for the appointment of a receiver; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order is made consents.
(3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
There was little or no discussion about the ambit, or operation, of this Rule. However, in my view, that Rule, or the interim nature of the March 2020 Orders, by themselves, do not automatically admit of, or otherwise warrant, re-visiting of earlier Orders. In my view, what is required is something akin to an Application to re-open. This is also to say that a change in circumstances needs to have some grounding in principle – hence the reference to an Application to re-open. In this regard, I note the following from, among other authorities, the High Court’s comments in Smith v New South Wales Bar Association, and in Autodesk Inc v Dyason (No.2).[2] It is sufficient to note briefly the following matters.
[2] Smith v New South Wales Bar Association (1992) 176 CLR 256; Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300.
In Smith v NSW Bar Association, the High Court distinguished between considerations that go to an Application to re-open, on the one hand, and on the other, considerations when a case has actually been re-opened. Thus, at [32] and [33], the plurality (Brennan, Dawson, Toohey and Gaudron JJ) said (emphasis added):
[32] It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application (7) Barker v. Furlong (1891) 2 Ch 172, at p 184; Hughes v. Hill (1937) SASR 285, at p 287. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete (8) As, for example, in Watson v. Metropolitan (Perth) Passenger Transport Trust (1965) WAR 88; Murray v. Figge (1974) 4 ALR 612. or one in which reasons for judgment have been delivered (9) As, for example, in In re Scott and Alvarez's Contract (1895) 1 Ch 596. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side (10) As suggested by Sheppard J. in Joyce v. G.I.O. (N.S.W.) reported in Ritchie's, op cit, vol.2, pp 8551-8552. But cf. Watson v. Metropolitan (Perth) Passenger Transport Trust; Murray v. Figge; Hughes v. Hill. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called.
[33] Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it.
In Autodesk, comments regarding principle, one from Mason CJ and the other by Gaudron J, are apposite. This is in circumstances where Mason CJ was in dissent in the result, but his outline of principle was consonant with the other members of the Court, including Gaudron J, who was part of the majority in the decision. Mason CJ said, at pp.302 – 303 (emphasis added):
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
To similar effect, at p.322, Gaudron J said (emphasis added):
This is an application by the unsuccessful respondents in Autodesk Inc. v. Dyason (1992) 173 CLR 330) ("Autodesk No.1") ("the respondents") to vacate the judgment given in that matter on the ground that, without fault on their part, they had no opportunity to be heard on three issues involved in or decided by it. Judgment has not yet been entered and, in my view, should be set aside if the interests of justice so require ((41) Smith v. Bar Association (No 2) (1992) 66 ALJR 605; 108 ALR 55.). However, the circumstances in which justice requires that course are, in practice, extremely rare, particularly if there has been an opportunity for full argument …
While I accept the general submission by the Respondent in the current matter that the Court may re-visit interim Orders, in the light of the High Court’s comments noted above (accepting that they were made primarily in relation to final Orders), to re-consider earlier, interim Orders, is not automatic, carte blanche, or otherwise “at large.”
Further, as the Respondent sought to make clear in her Affidavit filed 17 August 2020 (although affirmed in April this year – why it took so long to file it was not explained), her Application was for a stay of the March 2020 Orders. In no submission – in writing or orally – was there any reference to any authority regarding stay Applications. Strictly speaking, absent relevant authority on the instant Application, the Court could simply dismiss it. At the very least, given the range of deficiencies in the evidence, noted below (and in the March 2020 judgment), the absence of relevant authority only adds to the ongoing difficulties for the Court (a) to continue to provide appallingly scarce resources to this matter, and (b) to do so in circumstances where the most general claims are advanced by the Respondent with little, if any, supporting documentation. It is a completely unsatisfactory situation imposed upon the Court.
I simply note for completeness, without referring to or setting out all relevant cases in full, the following principles regarding stay applications. I note that some of the following principles refer specifically to parenting matters and therefore can be ignored here. I stress too that the principles that follow apply in circumstances where an appeal has been lodged. That is not the situation here. Thus:
I record the following from the Full Court’s decision in Aldridge & Keaton (Stay Appeal).[3] At [17] – [18], the Court said (emphasis added):
[3] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion more generally in relation to appeals against interlocutory Orders in the specific context outlined, see Medlow v Medlow (2016) 306 FLR 183; (2016) 54 Fam LR 389; (2016) FLC 93-692.
[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
·    the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
·   a person who has obtained a judgment is entitled to the benefit of that judgment;
·   a person who has obtained a judgment is entitled to presume the judgment is correct;
·   the mere filing of an appeal is insufficient to grant a stay;
·   the bona fides of the applicant;
·   a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
·   a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
·   some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
·   the desirability of limiting the frequency of any change in a child’s living arrangements;
·   the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
·    the best interests of the child the subject of the proceedings are a significant consideration.
I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[4]
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
[4] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.

In addition to the principles already outlined, for completeness and in the absence of anything from either of the parties regarding principles applicable to a stay arising from the enforcement of a judgment, I note the following.
First, the Federal Circuit Court Rules 2001 relevantly provide:
r.29.04 Application for stay of judgment or order
A party bound by a judgment or order may apply to the Court for an order that the judgment or order be stayed.
r.29.12 Stay of execution
A party may apply to the Court for a stay of execution of a judgment or order.
There is no prescribed form for such Applications.
Secondly, the cognate or equivalent to r.29.04 of this Court’s Rules in the Federal Court Rules 2011, is r.41.11. Cases in that Court which have discussed this Rule have stated that (a) the power to grant a stay “should be exercised sparingly”, and (b) the onus is on the party seeking the stay to justify the grant of such an Order.[5]
[5] See, for example, McKerracher J’s comments in Commissioner of Taxation v Bosanac (No.2) [2016] FCA 945.
Thirdly, admittedly in the context of an Application for special leave to appeal, in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1), Brennan J outlined the general criteria for a stay. After noting that the power to grant a stay is “an extraordinary jurisdiction” and that “exceptional circumstances must be shown before its exercise is warranted”, his Honour said (emphasis added):[6]
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider - first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
[6] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 684 – 685.
Not for the first time in these proceedings, the Court has had to make up for the deficiencies, less of facts, but more arising from the lack of reference to relevant principle. Each extra thing the Court has to do delays the completion of other tasks, such as writing the judgment. The principles outlined here provide the reference points for the consideration of the facts, such as they are, or can be, known, set out below.

The March 2020 judgment

In my view, it is important to note the following matters from my earlier judgment in March of this year to provide important context for the Applications currently before the Court.
First, in general terms, the findings that were made were in the Applicant’s favour because he supported each claim by documentary evidence. Almost invariably, the Respondent provided no documentation to support her various claims and contentions, many of which were highly generalised.
Secondly, at the following paragraphs from the earlier judgment, I was compelled to comment regularly on the Respondent’s lack of, or failure to provide, relevant evidence:
(a)At [38], after referring to the Respondent’s claim regarding mortgage payments over the Town B properties, I said: “the source of these funds is not identified”;
(b)At [41], again referring to mortgage payments regarding the same properties, I said: “She said that she has made the mortgage payments ever since [November 2018] but again did not say where those funds came from”;
(c)At footnote 1, at p.10 of the judgment, I noted that in the Respondent’s Affidavit, filed 23 May 2018, at par 4 she deposed that she had not been able to work since an accident in 2016. The Court is unaware of where and or how this earlier evidence sits in relation to the Respondent’s current contentions to the effect that she is now working in paid employment. Regrettably, details in this regard are sketchy at best;
(d)At [46], by reference to the Respondent seeking the release of funds of $7,500.00 held in trust from the sale of the M Street, Town B property, and that the funds were sought so that the Respondent’s Father might be re-paid and a credit card loan might be paid, I said: “No details were provided by the Respondent in relation to these … matters”;
(e)At [47], I referred to the Respondent’s claims regarding the two Town F properties, which at that time had mortgages of “approximately $208,000, which is higher than their likely sale value.” The Respondent said (noted in the reasons) that the Bank had agreed to place repayments on temporary hold. I stated: “Unfortunately, there are no documents provided that explain when, and how this arrangement came to be, nor for how long that “arrangement” might be in place”;
(f)At [48], I referred to the Respondent’s critical claims regarding the Applicant’s financial position, especially regarding various tax deductions and related matters, including national rental offset in the years 2016 – 2018. I stated: “Regrettably, again, documents to confirm and or explain these matters were not provided”;
(g)At [49], again regarding the Town F properties, the Respondent referred to various SMS messages with the Applicant. I stated: “Unfortunately, these messages were not annexed as claimed. The Respondent seeks to have the Applicant continue to pay the mortgages on the Town F properties.” This remains her position;
(h)At [50] – [54], I outlined various claims and contentions by the Respondent, including that she had earlier advised the Court that she was content for the Town F properties to be sold (subject to a few qualifications), and that her AirBnB income (of $3,274.20) was less than “the unspecified costs of setting up this business”, and that there was [again] no documentation in relation to these matters;
(i)Finally, at [56] – [58], I noted the Respondent’s confirmation of receiving $25,000 from her Father by way of a series of smaller individual “advances”, and that from conversations with him, her Father would continue to support her financially. I also noted that the Respondent’s Father was not on Affidavit to confirm any of the matters for which she contended.
At [61] of the March 2020 judgment, I set out the Respondent’s written submissions. These included the submission that:
I am able to make the mortgage payments as and when they fall due from a combination of my income, the AirBnB income and the financial assistance from my Father.
At [71] – [76], I noted a number of aspects of the Respondent’s financial plight, thus (emphasis added here):
71. Secondly, in very basic terms, according to her most recent Financial Statement, filed 9^th October 2019, the Respondent’s average weekly income is $812.00, while her total expenditure is $1,826.50. In her most recent Affidavit, filed 14 November 2019, the Respondent confirmed (par.5) that the cost of setting up the Airbnb that she runs (at one of the properties that the de facto Husband seeks to have sold, and without stating or providing evidence of what those set-up costs were, how they were paid, and by whom) “was more than the gross income.”She deposed that the gross income from this venture totalled $3,274.20, which equates to $81.85 per week, based on 39 nights of occupation out of 40 weeks (i.e. 280 nights). She said that she had bookings for the Airbnb until May 2020.
72. Thirdly, the Respondent further deposed (see the Affidavit affirmed 1 November 2019, par.6) that her “income/expenses for 2018-2019 financial year was under the tax free threshold.”
73. Fourthly, also in her Financial Statement, the Respondent declared that she is indebted to her Father for $25,000, and that she has outstanding legal fees of approximately $36,000. Between these sums alone the Respondent has debt of $61,000, and has no obvious funds from which she can or could pay these debts, let alone any of her other liabilities.
74. Apart from general descriptions of the various smaller amounts of money given by her Father for specific items, there is no other detail about the “loan” from her Father. Unfortunately, her Father is not on Affidavit.
75. Somewhat curiously, in her most recent Affidavit, filed 14 November 2019, the Respondent deposed (par.13) that her Father had been contributing to payment at least of, presumably some, Counsel fees (but presumably not towards her outstanding fees owed to her former solicitor), and that Counsel was [now] acting on a pro bono basis.
76. Fifthly, the Respondent confirmed that there are outstanding amounts owing in relation to corporate “rates” and utilities regarding two properties in Town F, Queensland. In this regard, she noted that she had recently been served with a statement of claim seeking recovery of $14,937.91. A similar amount is owed in relation to the second of these properties. The Respondent has joined the Applicant to these proceedings in Queensland.
I concluded the judgment, at [77], in the following terms:
77. In short, in my view, on the evidence of both parties, it borders on the irresponsible to let this matter continue to run in the way that it has. In my view it is imperative that there be some appropriate cauterising of the significant, and on-going, financial wound the parties (to varying and various degrees) have inflicted upon themselves, in the circumstances summarised above. On the Respondent’s own evidence, (a) she is unemployed, (b) she has no discernible appreciable income (other than the modest income from the Airbnb and some funds from her Father, which she said she treats as a loan of some undefined kind), (c) she has significant past and ongoing debts, such as in relation to mortgage payments owing over the two Town F properties, (d) she faces litigation in relation to those properties for unpaid body corporate fees and outstanding utilities, and (e) her weekly outgoings far exceed her “income”.
In her Affidavit, affirmed on 3 April 2020 but lately filed on 17 August 2020, at pars.7 – 10, the Respondent stated that she had been advised that (a) she had a strong case and “will be successful at appeal”, (b) the Notice of Appeal was sent to the Eastern Appeals “family law court in Sydney”, (c) she had been advised to upload “this document” [presumably this Affidavit] with an unsealed copy of the Notice of Appeal, and (d) she was seeking leave to appeal and that the Notice of Appeal “has already been filed.”
During the hearing on 21 September 2020, I inquired of the Respondent’s Counsel if there was in fact an Appeal on foot, noting that the Court is notified when an Appeal is filed. He confirmed that there was in fact no appeal.
In the light of this information, which the Court obviously accepts from the Respondent’s Counsel, at its worst, filing this Affidavit on 17 August 2020 with the information outlined regarding the status and steps taken to appeal the March 2020 judgment and Orders, was patently false and obviously incorrect. It could also be characterised as misleading. No adverse comment or criticism can be directed at Counsel for the Respondent who is acting again on a pro bono basis, and who confirmed that he came back into the matter only on the weekend before the hearing on 21 September.
Such inaccurate and misleading information, even if it goes solely to procedural issues concerning an alleged appeal, does not advance the Respondent’s case and potentially harms it. Even more concerningly, and more damagingly, it added almost a level of insult regarding the lack of supporting or credible evidence for her other contentions, many or most of which were essentially the same as those ventilated in the hearing in October 2019, and in her written submissions of November 2019.

The Respondent’s recent affidavit evidence

In support of her Application in a Case, the Respondent filed an Affidavit on 12 August 2020. In it, the Respondent deposed that she was “self-employed.” No details of her employment or her income were provided. The lack of detail in this regard extended to her Affidavit, filed in Court on 21 September 2020. The Applicant did not object formally to this remarkably late (and in my view procedurally unfair) Affidavit primarily on the ground that to do so would risk delaying the resolution of the matter, which he wished to avoid.
I have already noted from the March 2020 reasons that there was a singular lack of information and supporting documentation regarding the claims made by the Respondent. It remains the case in relation to her current Application, including what income she receives from her “self-employment.” She has filed no updated Financial Statement since filing a Financial Statement on 9 October 2019, on which more below.
Summarily stated, the following from her Affidavit, affirmed 10 August and filed 12 August, will suffice.
The Respondent’s August affidavit sought to address the following matters:
a)The Applicant’s secured loans;
b)The status of what might generally be described as the Town B mortgages;
c)A range of advice that has purportedly been given by the National Australia Bank (“NAB”) which includes reference to the manager at the time (Mr S) allegedly notifying the Respondent of different financial arrangements having been made by the Applicant in relation to real estate and various company matters;
d)Her alleged potential liability under guarantees (which has since been confirmed in writing by the NAB to no longer exist, and as such she has been released from her previous guarantee liability);
e)Her purported payments of a mortgage over Town B for the last 4 and a half years, the sum of which, she says, is in excess of $50,000;
f)What she described then as the state of play regarding purchase offers in relation to both of the Town B properties, which include allegations of the Applicant accepting “below cost offers” which would benefit him but not the Respondent (exactly how this was so was not explained);
g)Some further claims in relation to the status of the Town F properties, and
h)Finally, claims in relation to the sale by the Applicant of sheds at N Street in City D.
One of many concerning matters raised in this Affidavit is the Respondent’s claim that the Manager of the local branch of the NAB had given her advice in relation to not signing certain “bank documents.” This had the effect of delaying settlement on the sale of Lot C, A Street, Town B that was due to occur on 7 August 2020. As noted below, the Applicant denies that any such advice could have, or would have, been given. Moreover, there is nothing to support this remarkable contention of a bank employee giving legal advice to a customer regarding the execution of documents that impacted upon the completion of the sale and purchase of a property, and which in turn could have led to the Respondent being exposed to a range of significant, adverse legal consequences.
In general terms by way of observation only at this stage, most, if not all, of the matters raised by the Respondent (Ms Tavener), to some degree were the subject of the judgment and Orders published in March 2020.
What is also to be noted here, again by way of observation at this stage, is the continuing lack of supporting documentation and details of the claims made. This is consistent with what is set out above from the March 2020 judgment where the Respondent then failed to provide documentation to support her various and wide-ranging claims.
The Respondent’s Affidavit (filed 17 August 2020), in general terms sought to confirm that her Application was for a stay of the Orders dated 11 March 2020. It should be recorded here, and as spelt out in more detail earlier in these reasons, that at no time did anyone address principles in relation to the operation of a stay.
In the first part of this Affidavit the Respondent outlined what she said was a delay in obtaining the Orders and reasons in March 2020.
I have noted elsewhere in these reasons her contention that an Appeal had been filed but which her pro bono Counsel, Mr Blank, confirmed at the hearing was in fact not the case.
The next part of her Affidavit (par. 12 and following) sought to lay out a range of alleged misunderstandings by the Court in its March 2020 judgment regarding “the equity positions of the properties” which she said, in turn, led to “a detrimental forced sale decision of all four properties belonging to the Respondent.” She deposed that this would have “financial hardship consequences for both parties.” In this regard she annexed various home loan balances in relation to the Town F properties, body corporate arrears, and related matters (see annexures E, H, I, J and K). In noting such matters and referring to these Annexures (and others elsewhere), it should not be taken that the Court (a) agrees with the contentions being made, and or (b) accepts that the documentation annexed supports the proposition(s) advanced by the Respondent.
The Respondent also contended that the March 2020 reasons misunderstood the Respondent’s contributions to “the Town B property.” Unfortunately which Town B property being referred to here was not identified.
In paragraphs 14 - 18, among other places, the Respondent sought to outline, including by reference to various other annexures, what she says is a more accurate statement of the asset pool in 2019. She also set out various other alleged flaws in the March 2020 judgment. She concluded at (pars. 19 and 21) that “it is unjust and unfair to the Respondent to allow interim property orders to proceed before final hearing” and that it is “unjust and unfair to the Respondent to allow interim property orders to proceed in present property market with current COVID-19 restrictions.” There was no reference to any authority for such assertions.
The Respondent claimed (at par.25) that the impact of the current pandemic had affected the property market both in Town F and elsewhere, and that the sale of the properties would in fact be “financial suicide for the Respondent and the Applicant.”
At par. 27 and following, there are further claims about the purported errors in, and precarious impact that the March 2020 Orders would have primarily on the Respondent. For example, the Respondent alleged that evidence relied upon by the Court and referred to in the judgment was “false” and that there are “bank statement, emails and affidavits that support this.” She further maintained that the two hours allocated for the Interim Hearing was not sufficient to present the facts and also that the Applicant had failed to provide full disclosure where “large sums of money are unaccounted …”
The Respondent contended that Annexures E, P, M1-10 and S1 and 2, show only partial disclosure of some of the Applicant’s accounts, but “no real disclosure of tax returns” or “the current financial positions of the four properties.” Presumably such an accounting and auditing exercise seemingly proposed here awaits everyone at the final hearing, bearing in mind that there is abundant authority that states specifically that family law property proceedings are not, and cannot be, an arithmetical, accounting exercise.[7]
[7] See, for example, the Full Court decision in Chapman v Chapman (2015) 51 Fam LR 176 at [39] (emphasis added): “The consideration of the relevant matters referred to in s.75(2) of the Act, pursuant to s.79(4), like the assessment of contributions, is holistic. Also, like the assessment of contributions, it is not an accounting exercise.” The basal principle articulated here applies to all relationships before the Court.
The Respondent also contended that, in its March 2020 judgment, the Court referred repeatedly to the financial complexity of the matter, and further that she had a right to a Final Hearing in “the family law courts despite the shortage of judges.” In this regard I simply note that Orders were previously made by consent confirming that a Final Hearing has been fixed for May 2021. Further, the contentions alleged here significantly misunderstand (and mis-state) the reasons of the Court.

The Respondent further contended that by the time of any Final Hearing, if the sale of the parties’ properties proceed, it will be pointless as there will be nothing left to divide. At par. 41 the Respondent stated that the “current property orders will force the Respondent and her children into becoming homeless.” In this regard, it is unclear which children she is referring to. In different proceedings regarding the Respondent which were before this Court, her three sons with a previous partner all now live with their Father in Queensland.
At pars. 46 – 51, the Respondent returned to matters canvassed in the previous judgment of the Court in relation to outstanding body corporate fees over the Town F properties, and claims made by the Applicant about various tax returns in relation to them. It appears that ongoing litigation, which is directly against the Respondent, involving those properties in Queensland, and the outstanding body corporate fees, remain unresolved.
At pars. 53 – 65, the Respondent returned to various claims regarding contributions to the Town B properties and mortgages. It is unnecessary for me to canvass each and every claim, save that she makes a claim involving a solicitor, named as “Mr W”, to the effect that he gave her advice in relation to a loan and or guarantee over these properties which she implies was erroneous, if not worse.
At pars. 66 – 69, the Respondent referred to what she describes as “our financial analysis of the evidence” of matters during the relationship and how the Applicant benefited “extraordinarily.” She does not explain or otherwise detail who it is who did the financial analysis which led to the reference to “our financial analysis.” It is sufficient here to note that matters of contribution, and other standard considerations, will be the subject of evidence and submissions, and importantly relevant principle, at the Final Hearing in 2021.
Pars. 71 – 74 all relate to the regularly recurring complaints about lack of financial disclosure by the Applicant.
Pars. 75 – 76 deal with so called “professional opinion” from various real estate agents in City D regarding the sale of one or more of the parties’ properties. The Respondent goes on to contend that “matters identified by the accountant are being referred to the banking ombudsman for investigation.” Again, regrettably, no details are provided. She maintained further (par. 78) that the “Respondent was/is a victim of financial abuse” and that “the fraud team at NAB and the accountant has advised the Respondent to go to the police and report the money that’s been taken so that there is a police investigation.” Again, regrettably, no details are provided.
Earlier in these reasons I referred to a notation in the March 2020 judgment that referred to Ms Tavener suffering an injury to her back from an accident in 2016 which limited her ability to work. It was at least implicit in that evidence from her that her capacity to earn income, sufficient to meet mortgage and other financial responsibilities, was clearly compromised. This significant difficulty to meet her financial obligations was further confirmed by her Financial Statement, filed 9 October 2019, in which she deposed that her total average weekly income (obviously at the date of swearing/filing) was $812.00, and that her total personal expenditure was $1,826.50. No updating financial statement has been filed since. This was confirmed at the recent Hearing by her Counsel.
In this regard, at par. 79 of this Affidavit, the Respondent stated, “the medical conditions suffered by the Respondent since a severe accident in 2016 has disadvantaged the Respondent’s ability to act.” Such a statement, in the light of all the other evidence, continues to foster significant caution if not extreme doubt by the Court in the Respondent’s ability to earn sufficient income to meet her ongoing financial responsibilities. To state the obvious: all of the comments and observations made here are based almost exclusively on the Respondent’s own evidence, and/or lack of supporting documentation to support her various claims.
At pars. 81 – 82, the Respondent further confirmed that she had lodged an Appeal “within time”. Again I note her Counsel’s confirmation that no Appeal was, or has been, lodged. No appeal is on foot. I need not, and will not, repeat earlier comments about the inaccuracy and misleading nature of this evidence.
The last part of her Affidavit returned to the following matters:
a)The difficult financial position regarding the Town F properties;
b)A solicitor, “Mr W”, who acted for both parties regarding the purchase of what was previously known as the H property, and alleged negligence and/or complicity by him in some implicitly nefarious dealings that related to the Applicant’s alleged financial position and tax avoidance;
c)Problems in relation to access to various bank statements, and failure to receive trust fund statements from an accountant, credit card debts and much else, are all referred to somewhat in passing by the Respondent. She confirmed a number of times in the course of her Affidavit that her dyslexia has made her ability to pursue and/or check documentation, especially in relation to bank statements, even more difficult;[8]
d)There are some further general, critical comments made about the solicitor “Mr W” earlier referred to, and equally about her more recent representation from Farrell Lusher Lawyers about the conduct of the proceedings. She said that, due to the extreme stress she was under, she reluctantly took the legal advice, which was not otherwise particularised but which, it may be inferred, she now contends has put her to some disadvantage.
[8] In passing, I note that “dyslexia” relates specifically to learning difficulties in relation to reading and comprehension; “dyscalculia” relates specifically to learning difficulties in relation to arithmetic and numbers.
I do not propose to go through the significant number of annexures to this Affidavit other than to note that Annexures N2 and O are correspondence to the Respondent from real estate agents respectively in relation to the sale of (a) the Town F properties and (b) the Town B properties.
From the Respondent’s most recently affirmed, and filed in Court Affidavit (21 September 2020), I note the following matters.
Ms Tavener confirmed that Lot C, A Street, Town B was finally sold and that settlement occurred on 24 August 2020. Among other things, although she had yet to receive a settlement statement, she deposed that from the net proceeds of sale, “approximately” $35,000 was applied to each of the Town F properties
She deposed further to some agreement reached with Mr Daultrey in May 2020 (which had not been detailed in earlier material) regarding funds held in trust from the M Street, Town B sale ($8,000), which were also applied to the arrears of rates on the Town F properties, and further some arrangement regarding the NRAS funds being applied to outstanding body corporate fees on the same properties. She said that she applied some $14,000 in this regard. There remains outstanding an amount for rates on these properties.
Ms Tavener said that there was a moratorium on the mortgage payments on the Town F properties until an unspecified date in October. She said that she proposed to continue to pay the mortgages over these properties. The source of such funds was again not identified.
Pars. 3 – 7 raised a range of issues regarding the Respondent’s liability under certain guarantees, and liability in relation to the Town B property.
At pars. 14 – 17, Ms Tavener outlined some general claims or comments regarding what are described as the “N Street, City D Properties Pty Ltd” and the sale of shares in that company. No supporting documents or other detail was provided regarding these matters, save that in the course of the hearing, the lawyer for Mr Daultrey confirmed, and Counsel for Ms Tavener acknowledged, that certain documents and other information had recently been provided to illuminate or clarify these very generally stated matters.
Finally, at pars. 17 – 19, the Respondent proposed certain courses of action regarding payment to Mr Daultrey under the March 2020 Orders. They were presented more in terms of either her preference for how such payment should be made, and or to seek to place such a payment (of $200,000 or thereabouts) into a controlled moneys account pending the final hearing.
At par. 20, Ms Tavener said that she would be lodging her first BAS at the end of September 2020 quarter, which would provide her income. Apparently she is working, on a contract basis, as a “health care worker.” In the absence of any information, notably and preferably documentary evidence, it is completely unclear how any of the financial responsibilities/liabilities that remain outstanding can be serviced by the Respondent.
I only need to note here the regularly repeated observation that, despite three Affidavits filed in recent times, the Court remains without any relevant information regarding the Respondent’s income, and in turn, how she proposes to satisfy relevant, regular payments for which she is responsible and or which she says to the Court, she tells the Court she will meet. More directly, the Respondent’s evidence, as it was in October 2019, and since, remains a litany of accusations, bald assertions, and hopeful expectations, none of which are supported by independent evidence.
Further, following a question from the Court sent on 25 September 2020, via email, to both parties, Ms Tavener responded by email, dated 30 September 2020. In this missive she said that (a) she would contact her [pro bono] Counsel shortly to check matters, (b) she had filed a further Affidavit “today”, which had two annexures that were said to be bank statements “to clear up the confusion over the A Street, Town B property”. She also stated that Annexure 1 confirmed that A Street, Town B “is currently utilised as supporting security for the following loans which correspond with mortgages against units [sic] E1&E2 Street, Town F by Ms Tavener as trustee for the E1&E2 Street, Town F property unit trusts. There is no mortgage or any other property secured against the property at A Street, Town B.”
Again, regrettably, no such Affidavit has been filed. In no critical way, Ms Tavener’s Counsel has provided no comment on any of the matters previously raised, or raised in the most recent email. Accordingly, whatever the various and ongoing assertions by Ms Tavener, (i) there remains ongoing lack of independent evidence to support her various and wide-ranging assertions, (ii) the financial situation of the parties remains essentially the same as it was at the hearing in October 2019 and as set out in the March 2020 judgment (apart from the recent sale of the Lot C, A Street, Town B property), and (iii) the legal circumstances and consequences remain as set out in that judgment. These include the ongoing liability of the parties for, among other things, the two Town F properties, and the complete lack of evidence from Ms Tavener as to how she can, in any way, service (as she continues to claim that she can) any of the ongoing debts set out in the March 2020 judgment.

The Applicant’s Affidavit Evidence

Briefly stated, the Applicant filed Affidavits on 7 and 21 August 2020. He also relied upon an Affidavit from the real estate agent, Ms V, which was affirmed and filed on 10 August 2020. It is sufficient to note that earlier Affidavits were filed both by Mr Daultrey and his lawyer earlier in the year (post the March 2020 Judgement) in relation to efforts either or to ensure compliance with the March 2020 Orders, and relevantly to get Ms Tavener to sign various documents and authorities. I need not canvass these matters any further.
For current purposes it is sufficient to note the following from the Affidavits mentioned.
From the Affidavit of Ms V, which concerns the sale of A Street, Town B, she outlined the agency agreement with Ms Tavener, dated 24 March 2020, and her assessment of the price range of the property at between $750,000 and $820,000. In this regard I note that the property was originally valued at approximately $650,000, agreed to by the parties as at 1 April 2019. Ms V said that, since the property had been on the market, there had been approximately ten inspections and that in recent times she had three genuine purchasers approach her wishing to buy the property. She confirmed that she had recommended to both parties that they accept the higher offer of $820,000.
Ms V further confirmed that on 7 August 2020 Ms Tavener rang her and said “I want to wait until the Court Orders expire before doing anything. I have two more weeks” or words to this effect. Ms V also confirmed that the property had been on the market for 10 weeks. She expressed, in my view, the reasonable observation that the buyers had all made their best offers and that if the parties did not accept the best offer and delayed further, the buyers could lose interest and withdraw from the purchase.
Mr Daultrey’s Affidavit, sworn and filed on 7 August 2020, related specifically to seeking enforcement, pursuant to the March 2020 Orders, of the sale of the A Street, Town B property and to have the Registrar sign all necessary documents. Mr Daultrey confirmed that he had given instructions to the agent to accept the offer but he was aware that Ms Tavener has not so instructed the agent. Correspondence from the agent to the parties is annexed to this Affidavit, which simply confirms the matters just outlined.
Mr Daultrey’s next Affidavit, sworn 20 August and filed 21 August 2020 is a response to Ms Tavener’s Application in a Case and her Affidavit filed in support of it. Mr Daultrey deposed to the following matters.
First, he maintained that the matters set out in Ms Tavener’s material was an attempt by her “to run the interim hearing [held in October 2019] for a second time.”
Secondly, he rejected Ms Tavener’s contention (at par. 11 of her Affidavit) that he arranged a second mortgage over the property at A Street, Town B for $300,000. He denied that this occurred. He outlined that the Respondent personally guaranteed a loan from NAB to his company K Pty Ltd for $300,000. At annexures A and B of this Affidavit are, respectively, a copy of the current title search of A Street, Town B, and a copy of the only mortgage, being reference ... dated 10 January 2012. Should it need to be observed, and as noted in the March 2020 Judgment, consistently (a) Ms Tavener rarely, if ever, provides documentation to support her general and wide-ranging claims, and (b) Mr Daultrey consistently provides documentation to support, or to refute, the claims made by or against him.
At paragraph 5 of this Affidavit, Mr Daultrey deposed that he had spoken with the NAB manager, Mr S, who confirmed that the bank did not advise Ms Tavener not to sign any documents.
At pars. 6 and 7, Mr Daultrey generally refuted various assertions in Ms Tavener’s Affidavit under consideration including that she purchased the Town B properties. Among other things, he said that he relied upon what was set out in the March 2020 Judgment that dealt with such matters.
At par. 8 of his Affidavit, Mr Daultrey disputed Ms Tavener’s suggestions that she can refinance the joint loan. He said that she had not paid any loan repayment on A Street, Town B since 6 March 2020. At annexure C to this Affidavit, he attached a copy of relevant loan statements. He confirmed that Ms Tavener had been removed as a guarantor in relation to a $300,000 security over K Pty Ltd. He also confirmed that he has no personal debt of $448,000 in his name; nor did he have a mortgage over Lot C, A Street, Town B.
Pars. 12 – 16 dealt with the sale of Lot C, A Street, Town B. Because the sale of that property has been recently concluded it is unnecessary to canvas such matters.
At par. 17, Mr Daultrey confirmed that (a) he does not want to retain the Town F properties, (b) they have been ordered to be sold, (c) there will be a loss on their sale in any event, and (d) he does not wish to continue to be financially tied to Ms Tavener in any way. He simply seeks to minimise the losses in relation to these properties.
Finally, par. 18 of his Affidavit referred to annexed correspondence in relation to exchanges with Ms Tavener regarding costs.
In response to the Court’s inquiry of 25 September 2020, Mr Daultrey relevantly responded as follows: (a) there are no surplus funds from the sale of the A Street, Town B property, (b) Ms Tavener continues to not provide financial disclosure, (c) there remains an outstanding loan owing on the A Street, Town B property of $144,972.70, (d) there is no evidence of Ms Tavener’s capacity to pay Mr Daultrey anything (including $200,000) under the Orders dated 11 March 2020, and (e) absent the immediate payment to Mr Daultrey of $200,000, the A Street, Town B property should be sold as per the March 2020 Orders. Otherwise, Mr Daultrey submitted that there was no basis for any variation of the March 2020 Orders, or that they should be set aside.

The Applicant’s (Mr Daultrey’s) submissions

Summarily stated, Mr Daultrey’s submissions were as follows.
Nothing has changed in the parties’ financial circumstances from March 2020, except the very recent sale of the A Street, Town B property.
The matter was originally set down for hearing on 28 August 2020, but for reasons of lack of judicial availability, everyone, including Ms Tavener, had an additional three weeks to provide proper evidence. This had still not occurred, including that there remained a complete lack of evidence from the Respondent about her financial circumstances. Nor had she filed or provided independent evidence regarding the financial state of the Town F properties. Because he is not the registered proprietor of the properties, Mr Daultrey has no capacity to make relevant inquiries regarding these properties.
Mr X confirmed that there remained an outstanding loan regarding the A Street, Town B property of $144,972.70. Thus, there remain outstanding debts, including over the two Town F properties, and a property, originally valued at $650,000 but which now has an offer of purchase of $820,000.
A letter from the NAB, dated 3 September 2020 (which became Exhibit B), confirmed that Ms Tavener had been removed from any relevant guarantee liability to the Bank in relation to the loan to K Pty Ltd of $300,000.
In short, as stated at the outset of his submissions, Mr X contended that nothing has changed since the March 2020 judgment (other than the sale of Lot C, A Street, Town B): the parties still have the debt on the two Town F properties, and the loan relating to A Street, Town B.

The Respondent’s (Ms Tavener) submissions

There was a certain fluidity in the submissions, I suspect in part because Counsel had only very recently come back into the matter, and also because there remained significant factual matters about which there was no relevant evidence, certainly no updated evidence.
For example, Counsel confirmed that (a) Ms Tavener had not filed an updating Financial Statement since October 2019, (b) there was no updating information regarding the debts over the Town F properties, and (c) nor was there information regarding payment of Ms Tavener’s outstanding legal fees to her former solicitors, and possibly also to previously incurred Counsel’s fees. These amounts were estimated to be some $36,000 or thereabouts according to Ms Tavener’s Financial Statement of October 2019. There was also no information regarding the legal proceedings against Ms Tavener brought in Queensland by the Body Corporate of the Town F properties.
Counsel’s understandable focus was on the import and effect of the sale of Lot C, A Street, Town B and the availability of funds arising from it. Those funds, he submitted, were a material or significant change in the financial circumstances of the parties which (a) warranted the March 2020 Orders to be re-visited, and (b) in turn, a stay be granted in relation to the sale of A Street, Town B. Various options were proposed in relation to the use of the net proceeds of sale from Lot C, A Street, Town B, which have been detailed earlier in these reasons.

There was little or no response to the question by the Court, arising out of the principles set out in AON v ANU, (colloquially put) as to how many bites of the cherry should be permitted (notably to Ms Tavener) of previously determined matters (interim or otherwise). This is especially so in circumstances where there remains so little known about the matters set out above, and most especially, where there is no information about (a) Ms Tavener’s income and (b) how that income can possibly service the loans and other financial responsibilities that remain outstanding. Unfortunately, there was little response to these questions. Moreover, submissions that Ms Tavener could continue to service, for example, the loans owing on the Town F properties, remained submissions without relevant or proper evidence.
Finally, Counsel submitted that, where there remained significant dispute regarding a range of factual matters, and where there were now significant funds from the Lot C, A Street, Town B sale, all matters in dispute should be stood over for resolution at the final hearing next year.

Consideration & Disposition

Given the outline of principle set out earlier in these reasons under the heading “Procedural Matters”, the current Applications, of both parties may be disposed of relatively summarily.
First, the abject lack of independent evidence from, as well as the sweeping but unsupported statements by, Ms Tavener, give the Court no relevant evidentiary basis to interfere with or to vary the Orders made on 11 March 2020. As the cases earlier referred to point out, to interfere with an earlier decision is (a) a rare and extraordinary exercise of the Court’s function, and (b) requires relevant evidence to do so. Here there is no such evidence.
Further, as the same cases also make plain, even if there is relevant evidence, there remains a discretion to interfere or to re-visit an earlier judgment. As Mason CJ observed in Autodesk (at pp.302 – 303):
The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
Similarly, in the same case, (as also noted above), Gaudron J said (at p.322) (emphasis added):
… Judgment has not yet been entered and, in my view, should be set aside if the interests of justice so require... However, the circumstances in which justice requires that course are, in practice, extremely rare, particularly if there has been an opportunity for full argument …
Secondly, not only is there a singular lack of independent evidence, there have been multiple opportunities for Ms Tavener to provide independent evidence, especially regarding her financial circumstances, but she has not done so. Although the judgment in March 2020 was an interim one, there have been many opportunities for her in the months since to provide evidence. She has not done so. As such the conclusions reached in the March 2020 judgment must remain undisturbed.
Moreover, although an appeal was purported to be filed, Ms Tavener’s Counsel confirmed that there is no appeal in relation to that judgment. Accordingly, that opportunity was either not taken or not pursued.
Each of the sweeping claims made by Ms Tavener remain unsupported by independent (or any other) evidence.
Accordingly, as noted earlier in these reasons, absent Ms Tavener paying Mr Daultrey $200,000 within 7 days, the A Street, Town B property is to be sold and the current offer for its purchase accepted.
Pursuant to previous Orders, and repeated here, pursuant to s.106A of the Family Law Act 1975, the Registrar is immediately to sign a transfer for the said property. The net proceeds of sale are to be distributed as per the previous Orders of the Court. The March 2020 Orders in relation to any of the parties’ other properties are also to be enforced, with the assistance of the Registrar, pursuant to s.106A of the Act if necessary.
As I stated in the reasons in March 2020, (a) the parties have separated and they should also separate their financial ties as soon as practicable, and (b) given the financial plight, especially of Ms Tavener, it would be bordering on the negligent not to liquidate the limited assets of the parties as soon as possible to staunch their ongoing financial bleeding.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville

Associate:

Date: 22 October 2020