Ettridge and Somers (No 2)

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS (NO. 2)

[2019] FamCA 420

FAMILY LAW – PROPERTY – Enforcement – where the applicant is seeking enforcement of final orders for the sale of the parties’ property – where a private offer for the sale of the property has been accepted by the applicant – where the respondent refuses to sign the contract of sale – where the respondent submits that the purchaser should be made aware of his application for leave to appeal the final orders – where the wife seeks that she have sole conduct of the sale – order that the wife be appointed as trustee to have sole conduct of the sale of the property – order that the respondent vacate property within 21 days of these orders.

FAMILY LAW – PROPERTY – Enforcement – where the respondent asserts that the applicant has failed to carry out her duties as a trustee of a superannuation fund pursuant to the final orders – where the respondent produces no evidence to support his contentions – application for such an order must fail.

FAMILY LAW – PROPERTY – Where the respondent seeks that the parties be referred to arbitration – where the parties have already had two trials – no basis for arbitration – application that parties’ attend arbitration dismissed.

Family Law Act 1975 (Cth) ss 13E, 13F
Family Law Rules 2004 (Cth)

APPLICANT:

Ms Ettridge

RESPONDENT:

Mr Somers

FILE NUMBER:

MLC

11262

2015

DATE DELIVERED:

4 July 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

18 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Paterson

SOLICITOR FOR THE APPLICANT:

Carew Counsel Pty Ltd

THE RESPONDENT:

In Person

Orders

That the applicant Ms Ettridge be appointed as Trustee to have sole conduct of the sale of the property situated at and known as B Street, Suburb C, Victoria (“the Suburb C property”).
That forthwith, the applicant in her capacity as trustee for the sale of the Suburb C property execute a Contract of Sale of the Suburb C property in the sum of $830,000, in favour of Ms HH or her nominee (“the purchaser”), along with all other necessary documents in order to give effect to the sale of the Suburb C property.
That in the event that the sale to the purchaser named in order 2 hereof is not able to be completed, the applicant as Trustee continue to have the sole conduct of the sale of the Suburb C property on such terms and for such sale price as she deems appropriate, on condition that:-
(a)She provide no less than 72 hours written notice to the respondent of any offer to purchase the Suburb C property (“the offer”) prior to her acceptance of the offer; and
(b)The respondent have liberty to apply to the Court in the event that the offer is either not sincere or a contrivance or there are other purchasers immediately available who will pay more than the offer.
That forthwith the respondent do all such acts and things as may be required to facilitate inspection of the Suburb C property by any valuer acting on behalf of the purchaser’s lending institution within 48 hours of a written request to so inspect.
That the respondent vacate the Suburb C property within 21 days of the date of these orders and the applicant thereafter have sole use and occupation of the Suburb C property save that in the event of the respondent’s failure to comply with Order 4 hereof, the respondent vacate the Suburb C property within 7 days of the date nominated for inspection by the valuer.
That the applicant be authorised (and these orders shall act as this authority) to:-
(a)Remove any property or possession left on the property by the respondent after vacating pursuant to Order 5 hereof, provided that she give the respondent up to 7 days to nominate a location for delivery (with the date and time of delivery to be as nominated by the applicant and occurring within 2 weeks of the respondent’s nomination), and in the event that the respondent fails to nominate the location within the timeframe specified, then the applicant be entitled to otherwise dispose of the property; and
(b)Dispose of rubbish left on the property by the respondent.
That the applicant is to be responsible in the first instance for any costs of complying with orders 6(a) and 6(b) hereof, such costs to be reimbursed to the applicant upon the settlement of the sale of the Suburb C property after:-
(a)The payment of any expenses of the sale, agent commissions, conveyancing fees and any adjustments for outstanding rates and taxes arising therefrom; and
(b)The discharge of the following liabilities to F Bank:
(i)Mortgage home loan number …89; an
(ii)The F Bank line of credit numbered …14,
In accordance with paragraph 6(a) and (b) of the orders made by Cronin J on 29 October 2018.
That any notice required to be given to the respondent by either the applicant or her solicitors pursuant to these orders is to be by email to the following email addresses:-
(a)…; and
(b)…
The applicant be at liberty to provide a copy of these orders to the purchaser of the Suburb C property, the conveyancer Mr GG and such police stations or police officers as she considers necessary, without such disclosure amounting to a breach of s 121 of the Family Law Act 1975 (Cth).
That any application for costs arising out of these proceedings be by way of written submissions to be submitted the Chambers of the Honourable Justice Johns not later than 4.00pm on Friday 28 June 2019.
That paragraph 7 of the applicant’s Application in a Case filed 12 June 2019 be adjourned to a date to be fixed.
That the applicant have liberty to apply to have paragraph 7 of her Application in a Case filed 12 June 2019 listed on short notice upon the filing of an affidavit evidencing the respondent’s non-compliance with Order 5 hereof and notification of the filing of that affidavit to the Associate of the Honourable Justice Johns.
That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ettridge & Somers (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11262 of 2015

Ms Ettridge

Applicant

And

Mr Somers

Respondent

REASONS FOR JUDGMENT

Introduction

This matter came before me in the Judicial Duty List on 18 June 2019. By Application in a Case filed 12 June 2019, the applicant, Ms Ettridge sought to enforce final property orders made by Cronin J on 29 October 2018 (“the Final Orders”). This is the third enforcement application brought by the applicant to enforce her rights under those orders.
The orders sought by the applicant relate to the sale of the parties’ principal asset, the property situate at B Street, Suburb C, Victoria (“the Suburb C property”) which was ordered to be sold pursuant to paragraph 1 of the Final Orders. In particular she sought that:-
· she be appointed as Trustee to have sole conduct of the sale of the Suburb C property, to enable her to execute a contract of sale for $830,000.00 with a prospective purchaser.
· in the alternative, that the Court make an order pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”), which would enable a Registrar of the Family Court to execute documents on behalf of the respondent, including the proposed contract of sale.
· the respondent vacate the Suburb C property, and that in the event the respondent fails to do so, a Warrant be issued for possession of the property in favour of the applicant.
The respondent, Mr Somers, filed a response to the applicant’s application on 14 June 2019 in which he sought orders that the applicant’s Application in a Case be dismissed, or in the alternative, that the Court refer the parties to arbitration pursuant to the Act. The respondent also sought orders for the removal of the appointed selling agent and that the applicant discharge the outstanding expenses he is owed.
The respondent also sought orders that the applicant comply with the Final Orders relating to the parties’ self-managed superannuation fund, G. He sought that the current nominated accountant appointed for G Fund be replaced by a professional nominated by the respondent and that the newly appointed accountant review and sign off on the G Fund accounts, which are to be provided by the applicant.
At the conclusion of submissions I made orders largely in the terms sought by the applicant, save that I declined to make orders for a warrant of possession of the Suburb C property in circumstances where there was no extant order requiring the respondent to provide vacant possession. At the time, due to the pressure of other matters awaiting hearing in the list I was not in a position to provide oral reasons for judgment and indicated to the parties that my reasons would be published at a later date. These are those Reasons for Judgment.

Material Relied Upon

The applicant relies upon the following material in support of her application:-
·    Application in a Case filed 12 June 2019;
·    Affidavit of Mr FF filed 12 June 2019;
·    Affidavit of the applicant filed 17 June 2019; and
·    Reasons for Judgment of the Honourable Justice Cronin dated 22 March 2019.
The respondent relies on the following material:-
· Response to Application in a Case filed 14 June 2019; and
· Affidavit of the respondent filed 14 June 2019.

The Hearing

The hearing was conducted on the papers. The applicant was represented by counsel. The respondent, as he has done in the past, represented himself at the hearing.
Although stating on several occasions that he was unfamiliar with Court process, the respondent was a forceful advocate. At the commencement of the hearing he indicated that he had not read the affidavit of the applicant filed 17 June 2019. As a consequence, the matter was stood down for approximately one hour and ten minutes to enable him to read that document.
Prior to the hearing commencing, I informed the parties as to how the matter would proceed on the papers. The respondent confirmed his understanding of the process.
At times during the course of the hearing the respondent became loud and verbally aggressive and I on occasion cautioned him to modify his tone. Throughout the hearing, the respondent was articulate and determined to press his position. During the course of his submissions he repeatedly stated that he sought justice, and indicated to the Court that he had not had a fair hearing before me or indeed the other Judges of this Court who have dealt with the matter previously.

Background

The applicant is aged 52 and is currently unemployed.
The respondent is aged 55 and owns a consultancy business, K Pty Ltd ATF K Discretionary Trust). The respondent stated during his submissions to the Court that he is currently unemployed.
The matter has a long procedural history. The proceedings commenced upon the applicant filing an Initiating Application on 1 December 2015, seeking final property orders. The applicant contended that the parties had been in a de facto relationship from January 2007 to 2 January 2015.
The respondent denies that the parties have ever been in a de facto relationship.
On 15 September 2017, following a 5 day hearing before Thornton J, it was declared pursuant to s 90RD of the Act that a de facto relationship existed between the parties from January 2007 until 2 January 2015, with the exception of one month in 2008.
Following that decision, the matter came before Cronin J for final hearing in relation to the applicant’s property application. On 29 October 2018, the Final Orders were made, which provide for:-
·    the Suburb C property to be placed on the market for sale by public auction;
·    the proceeds of the sale of the Suburb C property to be applied towards the costs of sale, discharge of identified liabilities and thereafter to be divided as to 58 per centum to the applicant and 42 per centum to the respondent, with each to meet certain identified liabilities from their share.
·    the applicant, in her capacity as a trustee of the parties’ self-managed superannuation fund to arrange for financial statements and taxation returns for that fund, to realise assets held by the fund and thereafter to roll out her member entitlements in the fund to a fund of her choice.
Order 3 of the Final Orders provides that if either party asserted there was non-compliance with orders regarding the arrangements for sale of the Suburb C property, the aggrieved party may apply and the matter be listed as a matter of urgency by the Court. Further, the Orders provided that if the Suburb C property failed to sell at auction, and the parties did not agree as to how it was to be sold, they shall have liberty to apply.
The applicant’s first application to enforce the Final Orders was heard by Cronin J on 7 December 2018. That day orders were made for the appointment of a selling agent for the Suburb C property, the method of sale (by public auction) and the fixing of a reserve price ($880,000). Orders were also made with respect to the terms of the contract for sale, the terms of engagement for the selling agent and the appointment of a conveyancer. An order was also made that the respondent pay the applicant’s costs fixed in the sum of $2,270.
In his Reasons for Judgment dated 10 December 2018, his Honour observed at paragraph 16 as follows:
The applicant’s argument is that the respondent will not facilitate the sale. Having regard to the findings of Thornton J, the orders of Johns J and my own expressed concerns about the respondent, there is some foundation for her view.
Given that some six months on, the applicant comes to Court again seeking orders to facilitate the sale of the Suburb C property, the applicant’s pessimism as to the respondent’s commitment to the sale appears well founded.
The matter again returned to Court in the Judicial Duty List on 20 March 2019, upon the applicant’s second Application in a Case filed 5 March 2019 seeking enforcement of the Final Orders. Following that hearing, on 22 March 2019, Cronin J made orders that provide as follows:-
(1) That to the extent it is necessary to say so, any order previously made relating to the sale of the property at B Street, Suburb C that is inconsistent with the present orders, is discharged.
(2) That commencing on Saturday 23 March 2019 or so soon thereafter as can be arranged, Mr FF of the FF Group is to market the said Suburb C property for a period of four weeks on the basis that interested purchasers are to advise him in writing of any offer to buy the property.
(3) That notwithstanding previous orders, the reserve price for the sale of the Suburb C property be fixed at $850,000.
(4) That during the period of marketing referred to in paragraph (2), if a purchaser offers $850,000 or more, the agent on behalf of both applicant and respondent, but in the name of the respondent, shall sell the property and the proceeds shall be disbursed and divided according to the otherwise extant orders.
(5) That paragraph [4] of these orders is subject to the condition that Mr FF confirms with both parties that the only offer he has is $850,000 or more and that he does not consider, arising from his inquiries, that there is any likelihood of a further offer greater than the sum of $850,000 or that offered.
(6) If at the conclusion of the four week marketing campaign referred to in paragraph (4), the property has not been sold, Mr FF shall continue to market it for sale but that there be no reserve price and that it be sold to any person offering to so buy it unless either party can show by an application to the court that the offer is either not genuine or a contrivance or indeed that there are other purchasers immediately available who will pay more than that offered.

the sale of the Suburb C property

The principal issue for determination before me was the question of whether the applicant should be appointed as trustee for the sale of the Suburb C property. In support of her position the applicant relies upon the affidavit of the selling agent, Mr FF filed 12 June 2019.
At paragraphs 6 to 14 of his affidavit, Mr FF deposes as to the steps taken by him to market the Suburb C property for sale. At paragraph 8 of that affidavit, Mr FF deposes as to the offers received in respect of the property. He deposes that a written offer to purchase the property for $830,000 was received by him on 3 June 2019. The offer was conditional on the purchaser obtaining finance within 14 days.
Mr FF deposes as to his efforts to secure the respondent’s signature on the contract of sale following receipt of the written offer. He deposes that he communicated with the respondent on 3 June 2019 requesting an appointment to enable the contract to be executed. At paragraph 11 of his affidavit he deposes that he “had multiple phone conversations with the Respondent, attempting to organise a time for him to sign the contract.”
Mr FF deposes that the respondent informed him that it was his view that a special condition should be included in the contract for sale giving notice to the purchaser of a pending appeal in this Court. Currently, there is no pending appeal before the Court, nor was there an appeal on foot at the time of those discussions.
At paragraph 13 of his affidavit, Mr FF deposes that:-
I had a final conversation with the Respondent at around 4 pm on Friday 7^th June 2019. He was irrational and somewhat abusive, and I could get very little sense out of him.
The respondent does not challenge the chronology contained in Mr FF’s affidavit, although he does challenge the contention that he has caused delay to the finalisation of the contract for sale or been abusive or irrational.
Mr FF deposes that he has been unsuccessful in his efforts to secure the respondent’s signature on the contract for sale. He also deposes as to the difficulties he has had in marketing and selling the property. It has taken him almost five months to secure an offer to purchase the property. At paragraph 16 of his affidavit he deposes that:-
The real estate market has been flat, the property requires significant work, and winter is not a vibrant market. Losing the sale at this point could be devastating in terms of the price offered and finding another buyer should this contract fall through due to the delay on the part of the Respondent.
Further, at paragraph 18 of his affidavit, Mr FF deposes that:-
Throughout the process of selling the Suburb C property, the Respondent has been challenging to deal with. He appears to have great difficulty accepting the Court orders to sell the property. Based on my experience with the Respondent to date, I believe I may have further difficulties with him regarding the negotiations and compliance for –
(i)Finalisation of the contract of sale;
(ii)Access to the property for the purchaser’s valuer;
(iii)Access to and maintenance of the property for the purchaser’s final inspection; and
(iv)Vacant possession at settlement in August.
It is as a result of that evidence that the applicant makes her application to the Court.
The proposed purchaser is still willing to proceed with her offer to purchase the Suburb C property. The applicant seeks to be appointed as trustee so that she may execute documents to enable the sale to proceed. Further, given the difficulties experienced by Mr FF, she seeks vacant possession of the property prior to any settlement of the sale. Accordingly, she seeks orders that the respondent vacate the property within 7 days.

In support of her application Counsel for the applicant submitted that absent an order appointing the applicant as trustee for the sale, there is little prospect of the Final Orders being complied with and the applicant receiving her entitlements under those orders. The applicant points to the fact that this is the third enforcement application she has had to bring in order to secure a sale of the Suburb C property.
The applicant referred to and relied upon the observations of Cronin J in his Reasons for Judgment dated 22 March 2019 at paragraph 42 where he stated:-
I have little confidence that the respondent has the will to sell the property. His position consistently has been that the property belonged to him and it was only in the last stages of the trial that he conceded that it had to be sold. He still maintains that he and the applicant were not in a de facto relationship. A very strong impression that he gives, and which I accept to be his position, is that the applicant can wait for her money.
The respondent’s presentation before me was consistent with those observations. The respondent continues to maintain that he and the applicant were not in a de facto relationship.
Indeed during the course of his submissions, the respondent confirmed that on 7 June 2019 he had filed applications for leave to appeal against the orders of Thornton J dated 15 September 2017, regarding the declaration as to the existence of the de facto relationship, as well as the Final Orders made by Cronin J. The application for leave to appeal against the orders of Thornton J is made approximately 20 months out of time and the application for leave to appeal against the orders of Cronin J is approximately seven months out of time.
It was submitted on behalf of the applicant that in circumstances where the respondent does not accept the Final Orders, his role in implementing them should be taken out of his hands. She submits that the respondent has had ample opportunity to participate in the sale process but failed in his obligations to complete the necessary steps to enable the sale to proceed. It was submitted that if his involvement in the sale process continues, he will continue to thwart that process. Having regard to the history of the proceedings since the making of the Final Orders, I accept that submission.
It was also submitted that the need for a sale has become more pressing in circumstances where the respondent has failed to meet his obligations under the mortgage secured against the title to the Suburb C property. In support of that submission the applicant tendered the default notice served on her in her capacity as a caveator of the Suburb C property by F Bank dated 16 April 2019 (Exhibit A-1). Given the claim by the mortgagee, it was submitted that the sale was necessary to avoid the mortgagee exercising its rights under the notice.
During his submissions, the respondent conceded that the mortgage secured over the Suburb C property was approximately one year in arrears and that the current arrears under the mortgage were approximately $13,000. He attributed the blame for that circumstance to the applicant, whom he alleges has not complied with the Final Orders with respect to the rolling out of her superannuation interest from the self-managed superannuation fund. As a result, the respondent submits that he was unable to access his superannuation so as to meet his obligations under the mortgage.
Further, the respondent maintained that the default notice served by the mortgagee was “against the rules” and that that mortgagee had acted “improperly”. He maintained that there had been corruption and lies and that he was a victim of vexatious proceedings with respect to those matters.
The respondent submitted that as a result of his complaints to the Federal Police and other officials regarding the mortgagee’s conduct, the mortgagee would not exercise its rights under the default notice. Notwithstanding that submission, the respondent conceded that he had nothing in writing from the mortgagee which confirmed that it had stayed its action pursuant to the default notice.
Having regard to the terms of the default notice, I am satisfied, absent any evidence that would indicate that the mortgagee does not intend to exercise its rights under that notice, that the mortgagee is likely to commence enforcement action, which may include action to take possession of and sell the Suburb C property. I am satisfied that were the mortgagee to exercise its rights under the default notice there is a real prospect there would be a diminution of the parties’ entitlements under the Final Orders. The threat of such action in my view bolsters the applicant’s case that the sale of the Suburb C property should proceed without further delay in accordance with the Final Orders.
The respondent placed heavy reliance upon the fact that he has lodged an application for leave to appeal against the Final Orders and Thornton J’s orders as being a bar to the proposed sale proceeding. In support of his position, the respondent tendered the documents annexed to his affidavit filed 14 June 2019 (Exhibit R-1). That exhibit contains the proposed contract of sale of real estate in respect to the Suburb C property. During submissions, the respondent sought to highlight his concern that the proposed contract did not disclose legal proceedings which would render the sale of the land void or voidable or capable of being set aside as required pursuant to General Condition 2.4(e) at page 11 of the contract.
It is the respondent’s view that he will obtain leave and ultimately be successful on appeal. As I have already noted the respondent is more than a year-and-a-half out of time to appeal against Thornton J’s orders and some seven months out of time in appealing against Cronin J’s orders. That the application for leave to appeal is filed on 7 June 2019, at a time when the applicant and the selling agent are pressing him to execute the contract for sale is significant. It was evident from his submissions that he perceived that the filing of that application would operate as a stay to the enforcement of the order for sale.
When it was put to him that he had already conceded at the final hearing that the sale was necessary in order to achieve a property settlement, he denied that he had ever made such concession. Justice Cronin states at paragraph 140 of the Reasons for Judgment dated 29 October 2018 as follows:-
Notwithstanding the position portrayed earlier in these reasons as the positon of the respondent, it was remarkable that in the final submission, he said that he ultimately agreed that the house had to be sold and that all expenses should be paid “50/50”.
The respondent denied that he had ever made such concession before Cronin J.
Significantly, at the hearing before Cronin J on 22 March 2019, the respondent did not challenge the proposition that the property should be sold. Rather, he sought to challenge the orders sought by the applicant as to the method of sale.
Having regard to that history, coupled with the timing of the respondent’s application for leave to appeal, I do not accept the respondent’s submission that he did not make the concession recorded in Cronin J’s judgment. As I have noted, this is the third enforcement application in relation to the Final Orders, but it is only now, when a sale is imminent that he raises for the first time that he did not make any concession as to the sale of the property.
During the course of his submissions the respondent conceded that he had had the draft contract of sale and the vendor’s statement since approximately late-February 2019. The issue of pending legal proceedings and any challenge by him to the order for sale was first raised only after a willing purchaser had presented and he was required to execute a contract for sale. Having regard to that position it is my view that the respondent has been disingenuous and that Cronin J’s misgivings expressed on 22 March 2019 as to whether the respondent was bona fide in his commitment to sell the property have come to pass.
Having regard to the respondent’s conduct, in my view it is necessary that orders be made appointing the applicant as trustee for the sale to ensure that the current offer on the Suburb C property can proceed. Given the arrears under the mortgage secured against the title to the Suburb C property it is now more pressing than ever that the contract of sale be executed and that the sale proceed. Any further delay in the sale of the property may result in the mortgagee exercising its rights under the mortgage contract.
As to the question of whether or not there should be orders for the respondent to vacate the property, I am satisfied that such order should be made. Having regard to the history of the enforcement proceedings, I have no confidence that the respondent will do all that is necessary to ensure completion of any contract for sale.
During his submissions, the respondent sought to provide assurance that he would permit any valuer acting on behalf of the proposed purchaser access to the property. The applicant’s position was that the respondent should vacate the property within seven days.
In circumstances where the respondent has resided at the Suburb C property for many years, in my view it would be unrealistic to expect him to vacate that property within seven days. Accordingly, I will make orders that provide the respondent 21 days to vacate the property. That order is made on the basis of the assurance the respondent gives to the Court that he will facilitate access to the property by any valuer representing the purchaser’s lending institution. However, in the event that the respondent fails or refuses to provide such access to a valuer on the nominated date, the respondent will be required to vacate the property within seven days of the nominated date. In my view, having regard to the difficulties in effecting a sale of the property, it is essential that any valuer acting on behalf of the purchaser’s lending institution have the opportunity to inspect so as to enable a sale to proceed.
The applicant sought orders for the issue of a warrant for possession of the Suburb C property. In my view that application is premature, given that there was no order granting the applicant vacant possession of the property at the time the application was made. Accordingly, I decline to make an order in those terms.
As to the respondent’s application that the selling agent be removed, there is no evidence before the Court that would support the making of that order. Further, the respondent did not press that part of his application during his oral submission. Accordingly, I dismiss that application.

The superannuation fund

The respondent sought orders with respect to the implementation of the Final Orders relating to the management of the self-managed superannuation fund and the rolling-out of the applicant’s interest in that fund. He seeks to appoint a different superannuation specialist to ensure the fund’s compliance and he requires the applicant to purchase a death and disability insurance policy for the benefit of the respondent. Those applications are opposed by the applicant. She relies on her affidavit filed 17 June 2019 in response to those matters.
The challenge for the respondent with respect to this part of the application is that he produces no evidence to support his contentions. His complaint is that the applicant has not attended to her obligations under the Final Orders with respect to the superannuation fund in a timely manner. However, he puts no evidence before the Court regarding those matters.
The applicant does respond to those allegations. In her affidavit filed 17 June 2019 the applicant deposes at paragraph 23 as to the steps taken by her to implement those parts of the Final Orders. She deposes that she has appointed an accountant from JJ Group to undertake a number of tasks to ensure that the self-managed superannuation fund is compliant including instructing him to prepare financial statements and taxation returns for the fund.
Further, the applicant deposes that she has had difficulty in collating documentation necessary to complete those financial statements. She alleges that there has been delay arising from the respondent’s actions in removing her as a trustee of the fund on the records of F Bank, where the self-managed superannuation fund’s cash accounts are held, and with the Australian Taxation Office. Before she could commence the process of preparation of financial statements for the fund those matters needed to be rectified.
The respondent’s attitude to the evidence of the applicant as contained in that affidavit is that it was largely irrelevant. He did not specifically respond to the matters deposed to by the applicant with respect to the steps taken by her to implement Cronin J’s orders regarding the superannuation fund.
In the circumstances, absent evidence to support his allegations, the respondent’s application as contained in paragraphs 5 to 8 in his Response to Application in a Case filed 14 June 2019 must fail.

arbitration

The respondent also seeks orders pursuant to sections 13E and 13F of the Act, that the parties attend an independent arbitration. That application is opposed by the applicant. The proceedings in this matter have been on foot since 2015. The parties have had two trials, first with respect to the question of the existence of the de facto relationship and secondly in respect to the applicant’s application for property orders. Those trials have concluded. Having regard to that history in my view there is no basis for an order as sought by the respondent with respect to arbitration. Accordingly I dismiss that part of his application.

Conclusion

For the reasons set out herein orders were made at the conclusion of submissions on 18 June 2019. The orders appear at the commencement of these reasons.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 July 2019.

Associate:

Date: 4 July 2019

[2019] FamCA 420

4 July 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Jurisdiction

Remedies

Procedural Fairness