Grech v Deak-Fabrikant (No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2009 04930

BETWEEN:

STEPHEN PHILLIP GRECH and JELVIE GRECH	Plaintiffs
- and -
LARISSA DEAK-FABRIKANT and REGISTRAR OF TITLES	Defendants
AND BETWEEN:
LARISSA DEAK-FABRIKANT	Plaintiff by Counterclaim
- and -
STEPHEN PHILLIP GRECH AND OTHERS (according to the schedule attached)	Defendants by Counterclaim

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21–25 July, 28 July, 30 July, 6–8 August, 11-13 August, 24–30 September, 1–3 October, 21 October, 23–24 October, 27–28 October, 30 October, 3 December 2014, deadline for written submissions closed 16 January 2015, application to re‑open case heard on 22 July 2015, ruling delivered on 6 August 2015, further oral submissions on 31 August 2015
DATE OF JUDGMENT:	28 October 2015
CASE MAY BE CITED AS:	Grech v Deak-Fabrikant (No 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 581

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PROPERTY – De facto relationship – Relationships Act 2008 (Vic) - Adjustment of property interests under s 45 – Financial contributions to acquisition, conservation and improvement of property – Financial contributions to financial resources of other party – Non-economic contributions to welfare – Section 51 factors considered – Length of relationship – Needs and circumstances of each party.

PROPERTY – De facto relationship – Whether transfer of properties intended to defeat claims – Section 63 Relationships Act 2008 (Vic) – Section 106B Family Law Act 1975 (Cth) compared – Causal connection between transfer and defeat of any order – Reasonably foreseeable that transfer would defeat an order – Transfer of Sanctuary Lakes property set aside.

PROPERTY – De facto relationship – Resulting trust – Indefeasibility of title – No actual contributions to the purchase price of Braybrook and Kensington properties – Presumption of advancement.

PROPERTY – De facto relationship – Properties not held on trust for the other party – Promise not made – Position not altered in reliance upon any such promise – No resulting or “common intention” constructive trust.

TORT – Allegations of assault – Standard of proof.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs (First and Second Defendants by counterclaim)	In person
For the First Defendant (Plaintiff by Counterclaim)	In person until 3 December 2015 (Mr D Carlile of Counsel 22 July 2015, 6 and 31 August 2015)	Altona Legal
For the Second Defendant	No appearance
For the Third Defendant by counterclaim	Mr A Robinson	Clancy Triado
Amicus curiae	Mr A Saunders, 6 and 7 August 2014

TABLE OF CONTENTS

Introduction and determination...................................................................................................... 1

Summary of the parties’ claims and contentions......................................................................... 3

The legislative framework and the parties’ pleadings.............................................................. 16

Procedural History........................................................................................................................... 22

The Evidence..................................................................................................................................... 40

Credit issues.................................................................................................................................... 132

Duration of de facto relationship................................................................................................ 143

Was there ever an agreement between Ms Deak-Fabrikant and Paul Grech that they would share their assets and income for their common benefit?..................................................................... 152

Does Paul Grech and/or Ms Deak-Fabrikant have a beneficial interest in the properties in Braybrook and Kensington?....................................................................................................................... 153

Did Paul Grech ever promise to Ms Deak‑Fabrikant that he held any or all of the properties referred to on trust for her as to 50% of their value?.............................................................................. 162

Identification of the Asset Pool................................................................................................... 164

Did Ms Deak-Fabrikant make contributions to the acquisition, conservation or improvement of the properties referred to in the statement of claim or any of them?.................................... 164

Did Ms Deak‑Fabrikant make contributions to the financial resources of Paul Grech or Stephen Grech?...................................................................................................................................................... 166

Did Ms Deak-Fabrikant make contributions to the welfare of Paul Grech and/or his children, including as a homemaker and/or a parent?....................................................................... 167

Has the value of any of the properties referred to in the statement of claim been diminished by the conduct of the parties?............................................................................................................. 169

Were the transfers of the Altona property and/or the Sanctuary Lakes property intended to defeat any potential claims by Ms Deak‑Fabrikant against Paul Grech?.......................................... 170

Did Paul Grech and/or Stephen Grech assault Ms Deak-Fabrikant, and if so, what damages is she entitled to as a result?.............................................................................................................. 172

Conclusions..................................................................................................................................... 177

HER HONOUR:

Introduction and determination

The plaintiffs in this proceeding, Stephen and Jelvie Grech, are the registered proprietors (either singly, or jointly) of five properties in suburban Melbourne. On 23 October 2008, the defendant and plaintiff by counterclaim, Larissa Deak-Fabrikant, lodged caveats over each of the five properties claiming an interest in fee simple in the properties at 178 Queen Street, Altona (‘Altona property’); 12 Heron Way, Point Cook (also known as Sanctuary Lakes) (‘Sanctuary Lakes property’); 18 Speakmen Street, Kensington (‘Speakmen Street property’); 17 Errol Street, Braybrook (‘Errol Street property’); and 4/233 Ballarat Road, Braybrook (‘Ballarat Road property’). The interest claimed in the caveat is as follows:

By virtue of the resulting implied or constructive trust in favour of the caveator arising from the contribution made by the caveator towards the acquisition, conservation and improvement of the said land.

Ms Deak-Fabrikant is the former de facto partner of Paul Grech, Stephen Grech’s father. Ms Deak-Fabrikant and Paul Grech separated in September 2008 in acrimonious circumstances. Paul Grech was, until January 2008 and September 2008 respectively, the registered proprietor of two of the five properties referred to above, being the Altona property, and the Sanctuary Lakes property. The Altona property was transferred to Stephen Grech on 4 January 2008, and the Sanctuary Lakes property was transferred to Jelvie Grech on 30 September 2008. After Paul Grech left the Altona property on 28 September 2008, Ms Deak-Fabrikant continued to reside in the Altona property, and she remains there today.[1]
[1]Throughout the course of these reasons, I refer to Larissa Deak‑Fabrikant as ‘Ms Deak‑Fabrikant’ and Paul, Stephen and Jelvie Grech (and the witness Joseph Grech) by their full names or their first names, so as to distinguish between those parties using the surname ‘Grech’. This reflects the manner in which the parties were addressed and referred to during the course of the trial.

On 26 February 2009, Stephen and Jelvie Grech issued this proceeding, seeking, among other things, removal of the caveats over the five properties, and compensation pursuant to s 118 of the Transfer of Land Act 1958 (Vic).

On 16 June 2009, Ms Deak-Fabrikant issued a counterclaim joining Paul Grech to the proceeding, seeking, among other things, certain declarations as to the interests claimed by her in respect of the five properties, and a claim under the Relationships Act 2008 (Vic) (‘Relationships Act‘) for an adjustment of the property interests of Paul Grech in her favour.

For the reasons which follow, the proper disposition of the parties’ claims in the proceeding is as follows:

(a) in relation to the claims made by Stephen and Jelvie Grech:

(i) the caveats over the Altona property, the Errol Street property, the Speakmen Street property and the Ballarat Road property be removed;

(ii) an order that Stephen Grech have possession of the Altona property, such order to be stayed for ninety days;

(iii) there be directions for the further hearing of the claims made by Stephen and Jelvie Grech for damages and/or compensation in the event they seek to press those claims; and

(b) in relation to the claims made by Ms Deak-Fabrikant:

(i) the transfer of the Sanctuary Lakes property from Paul Grech to Jelvie Grech be set aside pursuant to s 63(2) of the Relationships Act;

(ii) an order pursuant to s 45(1) of the Relationships Act that Paul Grech pay Ms Deak-Fabrikant the sum of $256,000 (‘judgment sum’) (being twenty per cent of the combined value of the Altona property and the Sanctuary Lakes property), to be secured by a charge over the Sanctuary Lakes property;

(iii) payment of the judgment sum be stayed until after the hearing and determination of the issue of the costs of the proceeding;

(iv) upon payment of the judgment sum to Ms Deak-Fabrikant, or by agreement between the parties, or further order, the caveat over the Sanctuary Lakes property be removed; and

(v) the claims made in Ms Deak-Fabrikant’s amended counterclaim be otherwise dismissed.

Further, I will reserve the question of the parties’ costs of the proceeding for determination on a further date, and give directions for the filing and service of submissions and affidavits in that regard.

Summary of the parties’ claims and contentions

Ms Deak-Fabrikant claims she met Paul Grech in April or May of 1991 in the Registry Office of the Family Court. She was there attending to matters concerning her divorce from her former husband. Paul Grech was enquiring as to how to make an application for custody of his son Stephen, who was then thirteen years old. They became friends, and shortly after romantically involved. Paul Grech visited her at her apartment in Richmond, where she lived with her son Alex and his partner Karen. She was working as a registered nurse at that time.

Ms Deak-Fabrikant contends that after a few weeks or months of dating, Paul Grech asked her to come and live with him and Stephen as a family at the Altona property, with a view to marrying once his divorce from his wife Gail Grech was finalised. She agreed, albeit cautiously, given her age and stage of life, and they all moved into the Altona property together in late 1991. The Altona property was in very poor condition, having been operated as a boarding house for a number of years. She and Paul cleaned and repaired the Altona property together.

Ms Deak-Fabrikant brought all of her furniture and household goods to furnish the Altona property. They celebrated their first Christmas there in December 1991 with her parents and her brothers and their families.

At the time that Ms Deak-Fabrikant went to live at the Altona property she was working full time as a nurse, and had savings from her property settlement with her ex‑husband. Paul Grech at that time was receiving a supporting parent’s pension, having been injured in a motorcycle accident in the late 1980s. Stephen was not doing well at school, and she encouraged Paul to consider enrolling him in a private school. As a result of this encouragement, in February 1992, Stephen was enrolled at Westbourne Grammar, to commence in July 1992. Ms Deak‑Fabrikant paid for the initial instalment of Stephen’s school fees, as well as his school uniform and other educational expenses. She arranged for her son, Alex Fabrikant, to tutor Stephen in mathematics. She treated Stephen as if he were her own son, was proud of his achievements, and maintained a good relationship with him until he left home in 2001, after a conversation when she asked him to contribute to household expenses given that he had commenced working. Prior to that time, she and Paul funded his educational and living expenses, including travel, vehicles and electronic goods. Both she and Paul were upset about Stephen’s subsequent estrangement from the family, which she worked hard to repair.

Ms Deak-Fabrikant contends that she lived at the Altona property as the domestic partner of Paul Grech continuously between mid to late 1991 and September 2008, when the relationship ended after Paul Grech assaulted her and he was removed from the Altona property by the police. While it had its ups and downs, like any relationship, it was a happy relationship until about late 2007 or early 2008. She and Paul attended and hosted a number of happy family gatherings, involving both her side of the family, and Paul’s side of the family, including Paul’s other children from his first marriage, James and Kathy. She helped care for James, who has an intellectual disability, and Kathy, who has psychiatric problems, and helped care for James’ baby son, setting up a nursery for him at the Altona property. She and Paul shared a number of interest and hobbies, including gardening, and caring for their numerous pets.

Ms Deak-Fabrikant ceased working as a nurse in December 1992, retiring for health reasons. Since that time, she has received a disability pension, and some income from her work as a casual cleaner. She has contributed all of her income and her savings to the household, has paid for furniture, decoration, landscaping and gardening expenses, and pet care. She carried out all of the usual homemaking duties, and assisted Paul in his renovation business, taking phone calls and delivering materials, and assisting him in loading and unloading materials and tools. She assisted and supported Paul with the settlement of his family law proceedings with his ex‑wife in mid‑1992, which resulted in him becoming the sole registered proprietor of the Altona property, along with an investment property in Ramu Parade, West Heidelberg. She assisted Paul to clean up this property before its sale in 1993. The proceeds of sale were used to pay for Stephen’s school fees and to create a fund for their forthcoming wedding and honeymoon.

In 1993, when Paul established his renovation business, she and Paul agreed that they would work together and pool their funds for their mutual benefit. They took their ‘honeymoon’ in 1996, and she was introduced to Paul’s relatives in Malta as his wife. Paul paid for their four month long trip to Europe and the Middle East.

In 1998, Paul suggested to her that they invest their accumulated savings in property, and they started to search for an investment property. They located the Errol Street property, and Paul paid the deposit and signed the contract of sale in her presence. Just prior to settlement, Paul brought home a large quantity of cash. As they counted it out together, he discovered he was $2,000 short. Ms Deak-Fabrikant offered to contribute $2,000 from her own savings, which Paul accepted. Paul assured her that he held her fifty per cent interest in the Errol Street property on trust for her because they had used their family funds to purchase the property. She and Paul did a lot of cleaning and repairing of the Errol Street property. Between 1999 and 2007, the property was leased at various times to Paul’s children, James and Kathy, and their respective partners and friends, who paid rent to Paul. In 2008, Paul spent about six months and $20,000 renovating the Errol Street property to prepare it for lease.

After their separation in September 2008, Ms Deak-Fabrikant was shocked to discover that the Errol Street property was registered in Stephen Grech’s name. At the time the Errol Street property was purchased in 1998, Stephen was a full time university student, living at the Altona property, and had no savings or income. He qualified for Austudy payments, which is consistent with him having a low income. She had never heard Stephen referring to the Errol Street property as his property, and he never visited his siblings there. Paul continues to use the Errol Street property to store his tools and ‘junk’ there. It is now very run-down and neglected.

Unbeknown to her, the equity in the Errol Street property was used by Stephen to secure a loan made to him to fund the purchase of the Ballarat Road property. Paul spent a number of weeks renovating the Ballarat Road property after its purchase in 2006. At that time, she believed this property had been purchased by Jelvie Grech’s brother.

In March 1999, Paul purchased the Sanctuary Lakes property ‘off the plan’. They intended to build a new family home there for their retirement. Paul assured Ms Deak-Fabrikant that before they moved there they would register their de facto relationship and add her name to the title of the Sanctuary Lakes property and the Errol Street property. She spent many nights around the table at the Altona property discussing the plans for the home with Paul, Stephen, Alex and Alex’s wife, Michelle. They discussed their plans to move there together with their family and friends.

Paul obtained a building permit to commence construction on the Sanctuary Lakes property in 2003, but did not commence construction until 2004. From this time until 2007, he worked almost full time constructing their home. Paul asked her to contribute more to household expenses as he was not able to engage in other paid work. She also provided to him $5,000 in cash, which she inherited from her mother after her death in 2005, to pay for building materials. By the end of 2007, the house at the Sanctuary Lakes property was almost complete. However, Paul’s failure to complete the Sanctuary Lakes property and to take steps to add Ms Deak-Fabrikant to the titles of the Sanctuary Lakes and Errol Street properties was becoming an increasing source of conflict between them.

The Sanctuary Lakes property was transferred to Jelvie Grech two days after Paul Grech left the Altona property. Since that time, the condition of the Sanctuary Lakes property has deteriorated sharply, with various fixtures and fittings having gone missing.

Ms Deak-Fabrikant bases her claim to the Speakmen Street property, which was purchased by Stephen and Jelvie Grech in 2001 and is their family home, on the proposition that given their resources at the time, Stephen having only just finished university, while Jelvie was a full time student, they could not possibly have funded a substantial cash deposit and paid their mortgage off within six years without significant funding from Paul Grech. In essence, Ms Deak-Fabrikant accuses Paul Grech of systematically siphoning off the family funds (to which she is entitled to a half share, by reason of Paul’s promises to her, and their matrimonial relationship) for the benefit of Stephen and Jelvie Grech. This is consistent with a conversation she had with Stephen Grech when he was still a teenager living at the Altona property, to the effect that he despised his family and planned to acquire his father’s assets for himself. As such, each of the five properties of which Stephen and/or Jelvie Grech are registered proprietors need to be brought into the ‘pool’ of assets of the relationship, which in turn ought to be equally divided between her and Paul Grech in recognition of their lengthy relationship and the financial and non-financial contributions she has made to the welfare of Paul and his family. Such a division would also be consistent with the promises Paul made to her at various times in their relationship. She relied upon those promises, and continued to contribute to the relationship upon the strength of those promises, such that it would be unreasonable for Paul, Stephen and Jelvie Grech to deny her interest in those properties.

Ms Deak-Fabrikant also contends that, in making an order for the adjustment of property interests, an allowance needs to be made for the deterioration in the value of the Sanctuary Lakes and Errol Street properties caused by the neglect of Paul, Stephen and Jelvie Grech. Further, an allowance ought to be made for the loss of opportunity to invest capital in other ways, and to receive rental income from the Errol Street and Sanctuary Lakes properties.[2]
[2]This ‘loss of opportunity’ claim was not pleaded in Ms Deak-Fabrikant’s further amended counterclaim.

Further, Ms Deak-Fabrikant seeks an award of damages against both Paul Grech and Stephen Grech for assaults said to have been committed by each of them upon her. Her claim against Paul Grech arises out of an alleged assault on the day he departed the Altona property, which she says has resulted in a physical disability and a diminution in her quality of life. She suggested the sum of $100,000 as an appropriate award of damages. As against Stephen Grech, she claims the sum of $50,000, on the basis that the threats he made to her physical safety and that of her pets shortly after the separation have caused her to live in fear for six years.

Finally, Ms Deak-Fabrikant stated that she wishes to be awarded the Altona property as part of her entitlement. At the conclusion of her opening statement at trial, she stated as follows:[3]

it is not only that I live there for so many years, I also created magnificent garden. It’s the labour of my love and I will be not able anymore to do this due to my injury. It’s also a large amount of pets which make provision and it will be catastrophe, like, pond with the fish, … and enclosure for the cats, it will be very impossible, you know. And another very serious things why, apart from all this, it’s cause I do not drive the car and facility of this house is so easy to access, just short walking for absolutely everything, from doctors, from chemist, from dentist, everything a short distance that I can live and manage in this location and I got magnificent supporting team of neighbours who always helping me if I need. So I would like it to ask if possible to leave it this property as part of my entitlement that I can continue to live in the location which is make my life easier.

[3]Transcript 55, 1-17.

As can be seen from the above extract from the transcript, English is not Ms Deak‑Fabrikant’s first language. She emigrated to Australia from the then Soviet Union in the 1970s. However, from my observations of her at trial, she is clearly intelligent, on her own account well educated and well read, and her English vocabulary and comprehension is excellent.

In making submissions on her behalf at the resumed trial on 31 August 2015, counsel did not repeat (or resile from) Ms Deak‑Fabrikant’s claim equal to half of the value of the five properties, including a transfer of the Altona property to her, but submitted that her contributions and her needs warranted an award of a home to live in and some cash. However, counsel had no instructions, and I had no evidence before me as to what such an award would amount to in financial terms.

Paul, Stephen and Jelvie Grech’s version of events is somewhat different than that put forward by Ms Deak-Fabrikant. Paul says he first met Ms Deak-Fabrikant in June 1992, on a day that he attended at the Family Court with his solicitor to reach a property settlement with his ex-wife, who was also represented by solicitors. At that time, he had been living with Stephen at the family home at Polly Woodside Drive, Altona Meadows (‘Altona Meadows property’). Stephen had been living with him since late 1991. A property settlement was reached on that day, but Paul required no assistance and received no assistance from Ms Deak-Fabrikant in that regard. He and Stephen moved to the Altona property together shortly after the property settlement, vacating the Altona Meadows property. The Altona property had been tenanted, and required some cleaning, all of which was carried out by him and Stephen.

He maintained contact with Ms Deak-Fabrikant after their first meeting. Sometime later in 1992, Ms Deak-Fabrikant told him she was having difficulties with her landlord and her son and his partner at her Richmond apartment, and asked if she could come and stay at the Altona property until she ‘got on her feet’. She did so, and remained there until sometime in early 1993, when she moved to an apartment in Elsternwick (‘Elsternwick property’). She remained there until mid to late 1994, when she returned to live in the Altona property. While she was living in the Elsternwick property, Paul carried out some minor renovations at that property, and they continued to see each other socially, both alone and in company.

Paul Grech steadfastly denies having ever asked Ms Deak-Fabrikant to marry him, and denies that he agreed that they would pool their resources for their common benefit and future retirement. He says that they kept their finances entirely separate, and that he told her on a number of occasions that he had no desire to remarry, and whatever he owned was for his children. He accepted that they were in a domestic relationship from 1994 to 2008, but says that after they returned from their overseas holiday in 1996, their relationship began to deteriorate. He was unhappy about the way in which Ms Deak-Fabrikant treated Stephen after the breakdown in the relationship between them in 1997, and about Ms Deak-Fabrikant’s criticisms of his extended family. He accepted that Ms Deak-Fabrikant played a role as homemaker, but that he also contributed to cooking and cleaning for the household. He denied that Ms Deak-Fabrikant played any particular role in caring for his other two children or his grandchildren. He was critical of the changes she unilaterally made to the garden at the Altona property, and of the increasing number of pets she kept at the Altona property.

As for the properties said to form part of the asset pool of the relationship, he denied having any financial interest in the properties purchased in the name of Stephen and/or Stephen and Jelvie, including the Errol Street property. He agrees that he gave Stephen and Jelvie substantial cash gifts on two occasions: first at about the time of their engagement and wedding, and again on the occasion of Stephen’s 30^th birthday in 2007. He otherwise denies the allegation that he ‘siphoned’ off large sums of money to Stephen and Jelvie.

Paul Grech accepts that, for the purposes of the current proceeding, the Altona property and the Sanctuary Lakes property ought properly be considered as the asset pool of the relationship. He noted that the Altona property was acquired by him as a result of the property settlement between him and his ex-wife. He carried out some minor renovations on the property in 1995 (not 1993 as asserted by Ms Deak-Fabrikant), to which he contributed his labour and paid for materials. His ultimate plan for the Altona property, which he shared with Stephen when they first moved there in 1992, was to redevelop the land, and he and Stephen had made enquiries regarding finance and town planning requirements in the period leading up to the separation. The transfer of the Altona property to Stephen in January 2008 was made to facilitate Stephen obtaining finance to pursue the development of the Altona property. Those plans have been put on hold by reason of the caveats and this proceeding.

As for the Sanctuary Lakes property, Paul Grech says the original purchase was financed by the repayment of moneys lent by him over time to his brother, Joe Grech. The Sanctuary Lakes property was not purchased by him as a ‘dream home’ for their retirement, but as an investment opportunity, one of a number he and Stephen were considering at the time. He denies the assertion that he made promises to Ms Deak-Fabrikant that he would marry her and put her name on the title. He was in no rush to construct a house at the Sanctuary Lakes property, but did so, with Stephen’s assistance, after receiving pressure from the Sanctuary Lakes Resort Management to do so. He denies that Ms Deak-Fabrikant made any direct or indirect contribution to the Sanctuary Lakes property, and, in fact, she frequently expressed her lack of interest in living there, as she does not drive, and it was too far from shops, transport, and facilities.

Paul Grech denies assaulting Ms Deak-Fabrikant on 28 September 2008, and says in fact she attempted to assault him when he returned to the Altona property some days after he left to collect his possessions. He did plead guilty to charges laid against him upon the advice of his lawyers ‘to put the matter behind him’.

Paul Grech accepts that by reason of their long relationship, Ms Deak-Fabrikant is entitled to an adjustment of property interest in her favour. However, he rejects Ms Deak-Fabrikant’s claim for an adjustment equivalent to fifty per cent of the value of the five properties, plus additional adjustments and damages. Counsel for Paul Grech submitted that an appropriate order would be in the range of ten to fifteen per cent of the asset pool of the relationship, depending upon the size of that pool, based upon the financial and non‑financial contributions of Ms Deak‑Fabrikant to the properties and the welfare of Paul Grech. Counsel submitted that if any further adjustment is warranted upon the basis of financial need or other like factors, then such an adjustment should not exceed a further five to ten per cent of the asset pool.

Stephen and Jelvie Grech’s position in this proceeding can be summarised as follows:

(a) as to the duration and nature of the relationship between Paul Grech and Ms Deak-Fabrikant, they support, to the extent they are able to do so, Paul Grech’s version of events;

(b) they reject Ms Deak-Fabrikant’s contentions regarding the nature of the relationship between Ms Deak-Fabrikant and Stephen and the contribution made by Ms Deak-Fabrikant to Stephen’s education and welfare; and

(c) they reject Ms Deak-Fabrikant’s contention that she (or Paul) made any financial contribution to properties purchased by them, save for two cash gifts made by Paul in 2001 and 2007.

In relation to (b) above, Stephen says that the decision for him to enrol at Westbourne Grammar School was made before his father even met Ms Deak-Fabrikant, and, while Alex Fabrikant tutored him in mathematics on two or three occasions, he was largely tutored by his aunt Christine Grech or by another local tutor. While until 1997 he generally had a good relationship with Ms Deak-Fabrikant, their contact between 1993 and 1995 was relatively limited, in that she lived in Elsternwick for most of 1993 and 1994, and he lived with his grandmother in Coburg for most of 1994 and 1995, completing his VCE at Coburg Preston Secondary College, following which he returned to live at the Altona property prior to commencing his tertiary studies at La Trobe University. His relationship with Ms Deak‑Fabrikant deteriorated after an incident at the kitchen table in 1997 where Ms Deak-Fabrikant turned on him (in Paul and Alex’s presence) and they had an argument. After that time, they ceased to communicate, and she refused to allow him to eat food from the refrigerator.

Between 1997 and 2001, Stephen was busy with part-time work, university, and travel. He was very good friends with Alex Fabrikant, who ultimately was his best man at his wedding to Jelvie in 2003. He met Jelvie in 2000, when he was in his final year of university, and she was in her final year of school, and they formed a relationship. Early in 2001, not long after he returned to Australia after some overseas travel, he took Jelvie to visit the Altona property. Ms Deak-Fabrikant verbally abused both him and Jelvie. For Stephen, this was the final straw, and he left the Altona property and moved in with Jelvie and her mother. After that time, while he continued to maintain a close relationship with Paul Grech, he had next to no contact with Ms Deak-Fabrikant. She was not invited to his engagement party, his wedding, or he and Jelvie’s annual birthday celebrations. She did not visit Jelvie and their first born son, Noah, in hospital after his birth in 2006, or attend Noah’s first birthday party. She visited their home in Speakmen Street, Kensington on one occasion only, uninvited and in Paul’s company, and he and Jelvie visited the Altona property on two occasions only, being a birthday dinner for Alex in 2005, and Paul’s sixtieth birthday party in 2007.

In relation to the issue of whether Ms Deak-Fabrikant has any interest in any property purchased by them, Stephen Grech says that the purchase of the Errol Street property was funded by his savings, including funds in a trust account set up by his parents, and a gift from his father. Otherwise, Paul Grech did not contribute financially to the acquisition of the Errol Street property or the Ballarat Road property. Paul Grech carried out no renovations at any of their properties, the Speakmen Street property and the Ballarat Road property being almost brand new when purchased. They were able to fund a sizeable cash deposit on the Speakmen Street property from their savings from employment, and substantial cash gifts from friends and relatives (including Paul) on the occasion of their engagement and wedding. Stephen and Jelvie were able to devote a substantial part of their earnings to repayment of their mortgage through the assistance of Jelvie’s mother, Elysabeth Pangalila, who lived with them at the Speakmen Street property for two years and paid most of the household expenses from her earnings, with the objective of enabling Stephen and Jelvie to repay their mortgage as soon as possible.

Stephen and Jelvie agree that the condition of the Errol Street and Sanctuary Lakes properties has deteriorated. The explanation in relation to the Errol Street property is that it was only ever purchased for its land value. It is zoned for commercial purposes, not residential purposes, and the building on the property has always been in poor condition. Stephen and Paul have been largely using it for storage, and Stephen eventually plans to construct a building suitable for commercial use on the Errol Street property.

As for the Sanctuary Lakes property, while an occupancy certificate was granted in early 2008, further internal works were required to make the property habitable, and further external works are required to comply with the requirements of the Sanctuary Lakes Resort Management. The placing of caveats on the five properties has hampered their ability to fund the cost of the remaining works. The outstanding works required mean that the Sanctuary Lakes property is unlettable.

Stephen and Jelvie Grech’s position with respect to Ms Deak‑Fabrikant’s claim was less compromising than that of Paul Grech: they rejected that Ms Deak‑Fabrikant had any valid claims to any of the five properties. Their position reflects the submissions made by Stephen Grech on 31 August 2015 that ‘Ms Deak-Fabrikant has lied about the true nature of her relationship with my father, his children and his family to manipulate this Court into awarding her a claim that she isn’t entitled to.’

As can be seen from the above narrative, there are areas of common ground, and areas of disagreement. The common ground between the parties is that Paul Grech and Ms Deak‑Fabrikant met at the Family Court, that they were in a long term domestic relationship, and were recognised as a couple by family and friends. However, there are some key areas of disagreement, being:

(a) when the relationship commenced, and whether the parties were in a domestic relationship between 1991 and 1994;

(b) the nature of the commitments and promises made by Paul Grech to Ms Deak‑Fabrikant, particularly with respect to marriage, property, and other financial matters;

(c) the nature and quality of the relationship between Ms Deak‑Fabrikant and Paul Grech, and between Ms Deak-Fabrikant and Stephen Grech;

(d) the extent of the financial and non‑financial contributions made by Ms Deak‑Fabrikant to any of the five properties and the welfare of Paul and Stephen Grech and other family members;

(e) the events which took place during and immediately after the separation, and the consequences of those events, including the alleged assaults upon Ms Deak‑Fabrikant by Paul and Stephen Grech, and the transfer of the Sanctuary Lakes property to Jelvie Grech;

(f) the circumstances and events surrounding the purchase of the Errol Street, Sanctuary Lakes, Speakmen Street, and Ballarat Road properties;

(g) whether the conduct of Paul, Stephen and/or Jelvie Grech have caused or contributed to the devaluation of the Sanctuary Lakes property and the Errol Street property; and

(h) the level of financial assistance provided by Paul Grech to Stephen and Jelvie Grech (and whether any such assistance is relevant to the issues in this proceeding).

The legislative framework and the parties’ pleadings

In her amended counterclaim filed on 8 October 2009, Ms Deak-Fabrikant seeks, in summary, the following relief:

(a) declaration that Stephen and/or Jelvie Grech hold each of the five properties on trust for her in such proportions as the Court may determine;

(b) orders pursuant to s 63 of the Relationships Act that the transfers of the Altona property and the Sanctuary Lakes property to Stephen and Jelvie Grech respectively be set aside; and

(c) orders pursuant to s 45 of the Relationships Act for an adjustment of interests in respect of the property and financial resources of Paul Grech, including orders that Paul Grech transfer to Ms Deak-Fabrikant ‘such properties as are ordered by the Court’, or alternatively, that there be a sale of the properties and the distribution of proceeds of sale between Ms Deak-Fabrikant and Paul Grech; and

(d) damages for assaults allegedly committed upon her by Paul Grech.

On 10 July 2014, I granted leave for Ms Deak‑Fabrikant to file and serve a further amended counterclaim. The additional claims brought in the further amended counterclaim include:

(a) a claim against Stephen Grech for assaults said to have taken place on 29 September, 2 October, 3 October and 11 October 2008;

(b) an allegation that Stephen and Jelvie Grech acquired the Altona property and the Sanctuary Lakes property with notice of Ms Deak‑Fabrikant’s interest in those properties; and

(c) claims for loss of rental income and loss and damage caused to the Errol Street and Sanctuary Lakes properties.

Section 45 of the Relationships Act provides as follows:

Order for adjustment
(1)On an application by a domestic partner under section 41 for an order to adjust interests with respect to the property of one or both of the domestic partners, a court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to—
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and
(b)the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and one or more of the following—
(i) a child of the partners;
(ii)a child accepted by the partners as one of the family, whether or not the child is a child of one or both of the partners; and

(c) the nature and duration of the domestic relationship; and

(d) any relevant matter referred to in section 51.

Section 51 provides as follows:

51 Order for maintenance
(1)On an application by a domestic partner or a caring partner under section 41 for an order for maintenance, a court may make the order if satisfied that the applicant is unable to support himself or herself adequately because—
(a)the partner's earning capacity has been adversely affected by the circumstances of the domestic relationship or registered caring relationship; or
(b)of any other reason arising in whole or part from the circumstances of the domestic relationship or registered caring relationship.

(2)In determining whether to make an order and in fixing any amount to be paid under the order, a court must have regard to the following—
(a)the income, property and financial resources of each domestic partner or caring partner (including, subject to subsection (3), the rate of any pension, allowance or benefit paid, payable or entitled to be paid to either partner) and the physical and mental capacity of each partner for appropriate gainful employment;
(b)the financial needs and obligations of each domestic partner or caring partner;
(c)the responsibilities of either domestic partner or caring partner to support any other person;
(d)the terms of any order made or proposed to be made under section 45;
(e)any payments provided for the maintenance of—
(i)a child of the domestic partners; or
(ii)a child accepted by the domestic partners as one of the family, whether or not the child is a child of one or both of the partners;

(f)the standard of living that is reasonable for each domestic partner or caring partner in all the circumstances;
(g)the extent to which the payment of maintenance to the domestic partner or caring partner whose maintenance is under consideration would increase his or her earning capacity by enabling him or her—
(i)to undertake a course of education or training; or
(ii)to establish a business; or
(iii)otherwise to obtain adequate income;

(h)the extent to which the domestic partner or caring partner whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other partner;
(i)the age and state of health of each domestic partner or caring partner;
(j)the length of the domestic relationship or registered caring relationship;
(k)the extent to which the domestic relationship or registered caring relationship has affected the earning capacity of the domestic partner or caring partner whose maintenance is under consideration;
(l)any other facts or circumstances the court considers relevant.

Counsel for Paul Grech submitted that it would only be necessary for me to consider the matters set out in s 51(2) if I were to find that Ms Deak‑Fabrikant is unable to support herself adequately because her earning capacity has been adversely affected by the circumstances of the domestic relationship, or because of some other reason arising in whole or in part from the circumstances of the relationship. In that regard, Ms Deak‑Fabrikant has been in receipt of a disability pension since December 1992, her retirement from nursing being necessitated by an unusual medical condition. She does not assert that this medical condition was caused by or connected with the relationship between her and Paul Grech. However, I doubt that this construction of the Relationship Act is correct. It is necessary, in order for a party to seek an order for maintenance under s 41, that the threshold in s 51(1) must be satisfied. But no such threshold requirement is imposed by the terms of s 45(1)(d), which requires the Court, when determining whether it is just and equitable to make an order for adjustment under s 45(1), to have regard to any relevant matter referred to in s 51.

Section 63 provides as follows:

63 Transactions to defeat claims
(1)If a court is satisfied that an existing or anticipated order in a proceeding under this Part is likely to be defeated by the making of an instrument or disposition by a party to the proceeding, the court may set aside or restrain the making of the instrument or disposition.

(2) The court may order that—
(a)any property dealt with by an instrument or disposition referred to in subsection (1) be taken in execution, or used or applied in, or charged with payment of—
(i)any sums payable under an order adjusting interests in the property of one or more of the parties to the proceeding; or
(ii)costs; or

(b)the proceeds of a sale be paid into court to satisfy an order of the court.

…

(5) In this section—
disposition includes a sale and a gift.

While Ms Deak‑Fabrikant’s claim is the primary claim in the proceeding, and she has been treated, in effect, as the moving party since 4 June 2013 when I made orders setting the matter down for trial, Stephen and Jelvie Grech also have claims which require adjudication in this proceeding. In their amended statement of claim filed on 22 September 2010, Stephen and Jelvie Grech seek:

(a) declarations that Ms Deak‑Fabrikant does not have the estate or interest claimed by her in the five properties or any of them;

(b) orders for the removal of the caveats lodged on her behalf over the five properties;

(c) an injunction restraining Ms Deak‑Fabrikant from lodging any further or other caveats over the five properties or any of them;

(d) compensation or damages at common law or pursuant to s 118 of the Transfer of Land Act 1958 (Vic) caused by the lodgement of the caveats; and

(e) possession of the Altona property, payment for use and occupation of the Altona property, and mesne profits.

There is a substantial overlap in the factual matters relied upon by Ms Deak-Fabrikant in support of her claims that the five properties be held upon trust for her, and her claim for an adjustment of property interests under the Relationships Act. Accordingly, prior to the commencement of the trial on 21 July 2014, I circulated amongst the parties a ‘List of Agreed Issues for Trial’, prepared following my review of the pleadings and the extensive affidavit material filed on behalf of the parties. Prior to the commencement of the trial, the parties agreed that this list of issues was a fair summary of the factual and legal disputes in the proceeding. These issues are:

1.        Duration of de facto relationship: did it commence in 1991 or 1994?
2.Does Paul Grech and/or Larissa Deak-Fabrikant have or did one or both of them ever have a beneficial interest in the following properties:
•        18 Speakmen Street Kensington;
•        17 Errol Street Braybrook;
•        4/233 Ballarat Road, Braybrook?
3.Did Larissa Deak-Fabrikant make contributions to the acquisition, conservation or improvement of the properties referred to in the statement of claim or any of them?
4.Did Larissa Deak-Fabrikant make contributions to the financial resources of:
•        Paul Grech; or
•        Stephen Grech?
5.Did Larissa Deak-Fabrikant make contributions to the welfare of Paul Grech and/or his children, including as a homemaker and/or a parent?
6.Did Paul Grech ever promise to Larissa Deak-Fabrikant that he held any or all of the properties referred to in the statement of claim on trust for her as to 50% of their value?
7.Did Paul Grech and/or Stephen Grech assault Larissa Deak-Fabrikant, and, if so, what damages is she entitled to as a result?
8.What relevance, if any, do the events which post-dated the separation of Larissa Deak-Fabrikant and Paul Grech have to the Court’s determination under s 45 of the Relationships Act 2008 (Vic)?

9. Identification and valuation of the asset pool?
10.Has the value of any of the properties referred to in the statement of claim been diminished by the conduct of any of the parties?

Upon reflection, the issue referred to at item 8 above is not a material issue in the proceeding, or can be considered in the context of other issues.

For completeness, I would add two further issues which emerged during the course of the trial: whether there was ever an agreement between Ms Deak-Fabrikant and Paul Grech that they would share their assets and income for their common benefit, and whether the transfers by Paul Grech of the Altona and Sanctuary Lakes properties were intended to defeat any potential claims by Ms Deak-Fabrikant against Paul Grech.

Procedural History

Stephen and Jelvie Grech issued this proceeding in February 2009, seeking the removal of the caveats over the five properties, following which Ms Deak-Fabrikant issued a counterclaim substantially in the form of the current version of her claim. However, on 11 February 2011, the proceeding was stayed pending the hearing and determination of charges laid against Paul Grech alleging he had raped Ms Deak‑Fabrikant, as at that time the counterclaim sought damages for sexual assault. The trial in respect of those charges (‘rape proceeding’) was scheduled for July 2012. In the days leading up to the commencement of the trial, the Office of Public Prosecutions (‘OPP’) withdrew the charges against Paul Grech in the rape proceeding, and the trial did not proceed. At the request of Paul Grech, this proceeding was listed for directions on 18 March 2013, when the proceeding was referred to judicial mediation. On 4 June 2013, following an unsuccessful mediation, I made orders for the filing and service of affidavit evidence, and fixed the proceeding for trial on 23 April 2014 on an estimate of 10 days. On 10 December 2013, I made orders extending time for the filing and service of further affidavits by Paul, Stephen and Jelvie Grech, and directing the parties to appoint an agreed valuer or panel of valuers to value the five properties. I made an order that if Paul Grech failed to appear at the next directions hearing, his defence to counterclaim would be struck out. At this time, Paul Grech was not represented by solicitors.

On 25 February 2014, the solicitors for Ms Deak-Fabrikant obtained leave to cease to act. Paul Grech appeared in person on that day. A further extension of time was given to Paul and Stephen Grech to file and serve the affidavits upon which they intended to rely. These orders were self-executing.

The solicitors for Stephen and Jelvie Grech were granted leave to cease to act on 20 March 2014. On or about that day, Clancy Triado commenced acting for Paul Grech. A large number of affidavits were filed on behalf of Paul and Stephen Grech on 25 March 2014. However, there was satisfactory evidence regarding the unsuccessful attempts to serve these affidavits upon Ms Deak-Fabrikant on 18 March 2014, the due date set by the orders of 25 February 2014, and I vacated the self-executing orders.

On 11 April 2014, being the next scheduled directions hearing, I made orders vacating the trial date of 23 April 2014, and re-fixed the trial to commence on 21 July 2014. Ms Deak‑Fabrikant failed to attend the hearing on 11 April 2014, having informed the Court by letter in the preceding days that she was unwell, and that she would not be able to participate in court proceedings for two months. The adjournment to 21 July 2014 was granted over the objections of the other parties in the light of that correspondence. However, I made a notation in ‘other matters’ that:

The defendant has produced to the Court medical evidence which indicates, with some precision, the medical conditions from which she is suffering, and her inability to attend this proceeding. The adjournment is intended to provide the defendant with ample time to recover and then prepare for trial. In the event that she seeks a further adjournment on health grounds, any medical evidence in support of the application should be by way of affidavit, and filed and served on the other parties in advance. The medical practitioners are likely to be required to attend Court to give evidence.

On 10 July 2014, the matter was listed for pre‑trial directions. On 23 June 2014, Ms Deak‑Fabrikant issued a summons, seeking, among other things, orders that paragraphs 74 and 167 of and exhibit ‘PG-7’ to the affidavit of Paul Grech sworn on 18 March 2014 be struck out. These parts of the affidavit referred to documents held on the file of Dr Albert Kaplan, Ms Deak‑Fabrikant’s treating psychiatrist, including handwritten notes apparently made by him and correspondence between him and Dr Slonim, Ms Deak-Fabrikant’s general practitioner (‘Dr Kaplan’s records’). At that hearing, I determined that any disputes regarding the admissibility of evidence would be dealt with at the commencement of the trial. During the course of that hearing, Ms Deak‑Fabrikant made remarks which suggested that she questioned the authenticity of Dr Kaplan’s records. As a consequence, the solicitors for Paul Grech caused to be issued subpoenas directed to Dr Kaplan and the OPP for the production of documents at trial. The production and inspection of these documents, and their admission into evidence, became a source of substantial disputation at the trial.

Also on 10 July 2014, Ms Deak‑Fabrikant indicated to the Court that she was not proposing to press her claim for damages said to arise out of alleged sexual assaults by Paul Grech upon her.

As noted above, the trial was fixed for hearing on an estimate of ten days, to commence on 21 July 2014, and to conclude on or about 1 August 2014. This proved to be a wildly optimistic estimate. In fact, the trial was listed on 28 days over the period between 21 July 2014 and 3 December 2014. A number of matters contributed to the length of the trial and the delays in concluding the trial, including:

(a) the failure of Ms Deak-Fabrikant to attend Court on seven listed hearing days;

(b) adjournments necessitated by Ms Deak-Fabrikant’s ill-health, Stephen and Jelvie Grech’s travel arrangements, and other Court commitments;

(c) a number of days were consumed in dealing with the issue of the admissibility of Dr Kaplan’s records, and the best part of another day was spent in the hearing and determination of Ms Deak‑Fabrikant’s application that I recuse myself for bias;

(d) the Court was required to rise early on a number of days owing to the unavailability of Ms Deak-Fabrikant’s witnesses;

(e) quite some time was spent in dealing with ongoing discovery issues during the course of the trial, in particular, the production during the course of the trial by Ms Deak‑Fabrikant of further photographs, greeting cards, receipts for utility bills and veterinary expenses, bank statements, and other sundry documents;

(f) I permitted Ms Deak-Fabrikant an opportunity to undertake a lengthy re-examination of herself, which, in addition to providing her with an opportunity to respond to the matters raised in cross‑examination, also involved her taking the Court through numerous and voluminous exhibits to her affidavits, including photographs, DVDs, greeting cards, and invoices for household expenses, and to present additional documents to the Court which had not previously been exhibited to affidavits or discovered; and

(g) the argumentative and combative manner in which the trial was conducted, which resulted in most witnesses taking far longer to give their evidence than might have been anticipated given their knowledge of and involvement in the issues in this proceeding, and the relatively brief affidavits sworn by them in the proceeding.

One of the difficulties associated with the conduct of the trial arose out of the late service of affidavits on the part of Paul, Stephen and Jelvie Grech. Voluminous and detailed affidavits were filed and served on their behalf in late March 2014, taking issue with each and every assertion made by Ms Deak‑Fabrikant and her witnesses, and going into the minutiae of a range of domestic and financial matters canvassing a period of approximately twenty years. These difficulties were compounded by what can now be seen as an unfortunate oversight during the course of the hearing on 11 April 2014, when the trial was adjourned from 23 April 2014 to 21 July 2014 (in Ms Deak‑Fabrikant’s absence), when no orders were made for the filing of affidavit evidence in reply. At the commencement of the trial, Ms Deak‑Fabrikant submitted she should be permitted to give oral evidence in reply, and ask further questions of her witnesses in reply. While she was perfectly entitled to take this course, it was productive of argument when Ms Deak‑Fabrikant’s questions strayed beyond the matters raised in the March 2014 affidavits, which caused further delays.

On 27 October 2014, part way through what appeared likely to be a lengthy cross-examination of Paul Grech by Ms Deak-Fabrikant, Ms Deak-Fabrikant again failed to attend Court, citing ill‑health. On 28 October 2014, when she failed to attend Court again, I adjourned the trial to 30 October 2014, and directed that Ms Deak-Fabrikant make available her treating doctor to appear in Court that day. The purpose of requiring that Ms Deak‑Fabrikant’s treating doctor attend was for him or her to provide the Court with an explanation for Ms Deak‑Fabrikant’s failure to attend Court, an opinion regarding her capacity to proceed further with the trial, and what measures the Court could take to alleviate the impact of the trial upon her health. On 30 October 2014, Ms Deak-Fabrikant failed to attend Court, having informed the Court that she would not make available her treating doctor. The other parties made an application to proceed with the trial in her absence.

On 30 October 2014, I determined that the trial would proceed in the absence of the Ms Deak-Fabrikant in accordance with rule 49.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’). In my reasons,[4] I noted that Ms Deak‑Fabrikant had frequently failed to attend Court without first making an application for an adjournment with adequate evidence in support. Further, Ms Deak-Fabrikant had failed to comply with my direction that her treating doctor attend Court to provide details of her medical condition and the implications for the future conduct of the trial. I noted that the solicitors for Paul Grech had notified Ms Deak-Fabrikant two days prior to the application for leave to proceed that such an application would be made unless a formal application to adjourn was made. I determined that the above conduct demonstrated that Ms Deak‑Fabrikant had breached her obligations under the Civil Procedure Act 2010 (Vic) (‘CPA’).
[4]See [2014] VSC 558.

I observed that litigants disobey court orders at their peril and that the Court must be pro-active in promoting the overarching purpose of the CPA. While some allowances must be made for self-represented litigants, there comes a point when granting further allowances and indulgences creates an undue burden on the other parties to the proceeding and the Court, and there was ample evidence of prejudice to the other parties.

The evidence was concluded on that day, and the trial was adjourned to 3 December 2014 to enable the parties to make final submissions. Once again, Ms Deak-Fabrikant failed to attend Court, having sent through to the Court a bundle of medical certificates the previous day. She also failed to avail herself of the opportunity to file and serve written submissions by 16 January 2015. As during the course of her evidence Ms Deak‑Fabrikant had frequently referred to her intended reliance upon bank statements of Paul Grech and Stephen Grech to make good her contentions that Paul Grech had paid for the Errol Street property and made substantial contributions to the Speakmen Street property, I directed that the solicitors for Paul Grech deliver to the Court all bank statements discovered in the proceeding.

Of the witnesses called on behalf of the Grech parties, only Joe Grech and Paul Grech were subject to cross‑examination by Ms Deak‑Fabrikant, Joe Grech having been interposed during the first week of trial as he had pending overseas travel. Paul Grech’s cross‑examination had been underway for the best part of a day when Ms Deak‑Fabrikant ceased attending Court.

On 8 April 2015, while judgment was reserved, Altona Legal filed a notice that they had commenced acting for Ms Deak‑Fabrikant. On 16 June 2015, Ms Deak‑Fabrikant filed a summons seeking the following orders:

(a) that she have leave to re-open the proceeding; and

(b) further or alternatively, she have leave to resume presentation of her evidence in the proceeding and her cross‑examination of Stephen and Paul Grech.

However, at the hearing of the application on 21 July 2015, counsel for Ms Deak‑Fabrikant clarified that what was really being sought was the opportunity to cross‑examine Paul and Stephen Grech and possibly other witnesses called on their behalf.

On 6 August 2015, I determined not to allow Ms Deak‑Fabrikant’s application to re‑open the trial, but allowed the parties to make further submissions on 31 August 2015.[5] I treated Ms Deak‑Fabrikant’s application as being, in substance, an application to set aside my orders of 30 October 2014 that the trial proceed in her absence. Accordingly, the principles ordinarily referable to an application under rule 49.02(2) of the Rules were considered, being Ms Deak‑Fabrikant’s explanation for her absence from Court on 30 October 2014, any delay in making the application, whether there was a bona fide issue to be tried, and any prejudice caused to the other parties by granting the application.[6] In summary, I held that while Ms Deak‑Fabrikant would suffer prejudice by reason of being unable to cross‑examine the Grech parties, the situation was largely of her own making, and her delay in making the application and the prejudice to the other parties which would be occasioned by granting the application weighed in favour of refusing the application. Other relevant matters were the importance of finality of litigation, the need to give effect to the overarching purpose of the CPA, and the efficient use of Court resources.
[5]See [2015] VSC 389.
[6]Relying upon the principles referred to by the Court of Appeal in Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2012] VSCA 316.

Before turning to the evidence, some mention ought to be made of two issues which arose during the course of the trial: the admission into evidence of Dr Kaplan’s records, and the state of the evidence regarding the valuation of the five properties.

The issue of the admission of Dr Kaplan’s records was first raised at the directions hearing on 10 July 2014, which was also the return date for Ms Deak-Fabrikant’s application to strike out certain paragraphs of, and an exhibit to, Paul Grech’s affidavit.

Paragraph 74 of Mr Grech’s affidavit is the critical paragraph, and is reproduced below:

Larissa moved out of Queen Street in approximately March 1993. There is documentary evidence showing that Larissa moved out of Queen Street in early 1993. In late 2008 Larissa made false allegations to the police that I had raped her and criminal proceedings were commenced. I will depose further as to these allegations and proceedings later in my Affidavit, however as part of the criminal proceedings a Brief of Evidence was produced for the Committal Mention on 29 November 2010. The Brief of Evidence contains copies of Larissa’s medical files and includes and now shown to me at the time of swearing this affidavit and marked ‘PG7’ are extracts from the Brief of Evidence as follows:

(a) Letter of referral dated 11 May 1993 from Larissa’s GP, Dr David Slonim, to Dr A Kaplan. This letter notes Larissa’s address as 15/211-213 Hotham Street, Elsternwick and in reasons for referral states ‘recent separation from de facto relationship’.

(b) Letter from Dr Albert Kaplan to Dr Slonim dated 24 June 1993, thanking him for his referral and stating among other things that ‘to compound her problems she has been experiencing difficulty in a new relationship she developed a year ago which now seems to be floundering.’

(c) Notes made by Dr Kaplan (page 122 of police brief). Highlighted sections on those notes have the number 1, 2, 3 and 4 placed next to them. At number 1, the notes confirm that Larissa left Queen Street around early 1993, with Dr Kaplan writing ‘left him April 93’. At number 2, Dr Kaplan recorded ‘Difficulties adjusting to small flat’. At number 3, Dr Kaplan makes reference to Larissa moving into Queen Street in mid‑1992, writing ‘ … I thought had put things behind her mid-92 when moved in [with] boyfriend … ‘. At number 4, Dr Kaplan records ‘Doesn’t feel has future with him.’

Exhibit ‘PG-7’ is described as follows:

Extracts from County Court Police Brief of Evidence:

(a) letter of referral dated 11 May 1993 from Dr Slonim to Dr Kaplan (page 123 of Police Brief);

(b) letter from Dr Kaplan to Dr Slonim dated 24 June 1993 (page 185 of Police Brief);

(c) notes made by Dr Kaplan in 1993 (page 122 of Police Brief).

The documents included at exhibit ‘PG-7’ match the description contained in Paul Grech’s affidavit and exhibit note cover.

As indicated earlier, at the hearing on 10 July 2014, Ms Deak‑Fabrikant made remarks which indicated that she disputed the authenticity of Dr Kaplan’s records. On the following day, the solicitors for Paul Grech issued subpoenas for the production of documents directed at Dr Kaplan and the OPP. The subpoena directed at Dr Kaplan sought the following documents:

1. In relation Larissa Deak-Fabrikant born 2 August 1947:
(a)Document titled ‘Request for Consultation,’ dated 11 May 1993, address to Dr A Kaplan from Dr David Slonim;
(b)Letter from Dr Albert Kaplan to Dr D Slonim dated 24 June 1993;
(c)Any notes or records or other documents relating to Larissa Deak‑Fabrikant’s appointments or attendances with or upon Dr Albert Kaplan in June and/or July 1993; and
(d)Any notes or records or other documents relating to Mrs Larissa Deak‑Fabrikant’s appointments or attendances with or upon Dr Albert Kaplan in October 1998.

The documents sought from the OPP were:

Any Brief of Evidence prepared in relation to proceedings involving:

(a) the accused, Paul Grech born 21 August 1947; and

(b) alleged victim, Larissa Deak-Fabrikant born 2 August 1947.

Ms Deak-Fabrikant, in a notice dated 16 July 2014, objected to the subpoenas on the basis that, in relation to Dr Kaplan, ‘the medical file is strictly confidential record concerning my medical condition’ and in relation to the OPP, on the basis that the documents sought are ‘not relevant to the matter in the Supreme Court’.

Dr Kaplan complied with the subpoena, under protest. In his covering letter dated 10 July 2014, Dr Kaplan wrote as follows:

I am writing to register my objection to providing copies of confidential information contained in my medical records of Mrs Deak-Fabrikant.
I object to the information being released to the individual requesting that information, as that individual was involved in the stress and trauma which Mrs Deak‑Fabrikant experienced. Access of this information to that individual is likely to cause Mrs Deak-Fabrikant considerable distress.
I am also deeply disturbed and alarmed that the information requested is specific and indicates that the requester is in possession of knowledge that Mrs Deak-Fabrikant’s general practitioner wrote a referral to myself dated 11 May 1993 and that I wrote a letter to the referring doctor on 24 June 1993. In addition, it requests copies of my records on two specific dates. I have only in the past provided copies of my records to Mrs Deak-Fabrikant and I have not provided copies of these records to any other individual or authority.

As it turns out, the last sentence in the letter was not correct, Dr Kaplan having provided his file to the informant in the rape proceeding, with Ms Deak-Fabrikant’s consent.

Partly in response to Dr Kaplan’s and Ms Deak-Fabrikant’s concerns, I ordered that inspection of the subpoenaed documents be limited to the solicitors and counsel of Paul Grech. That order remains in force.

On 22 July 2014, I dismissed Ms Deak-Fabrikant’s objection to documents relating to records of her medical treatment being produced for inspection and admitted into evidence. The key issues raised were whether the documents were illegally obtained, whether they were confidential and contained sensitive material and whether they were relevant to the proceeding. I noted that Dr Kaplan’s records had been provided by Dr Kaplan to the informant in the rape proceeding in 2010. Further, I determined that the documents contained relevant information regarding the commencement of the relationship and the nature and quality of the relationship. The fact that documents were of a confidential or sensitive nature did not preclude their admission.

During the course of the argument regarding the inspection of the subpoenaed documents, Ms Deak-Fabrikant relied upon s 28(2) of the Evidence Act 1958 (‘medical privilege provision’). Both counsel for Paul Grech and I noted that this Act had been superseded by the Evidence Act 2008 (Vic), which contained no equivalent provision. Unfortunately, neither counsel for Paul Grech nor I at the time appreciated that the medical privilege provision had survived as s 28 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘EMPA’). Section 28(2) of the EMPA provides that:

(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.

On 6 August 2014, Ms Deak‑Fabrikant maintained her opposition to the admission into evidence of Dr Kaplan’s records. Counsel for Paul Grech submitted that, relying upon the principles regarding the waiver of privilege as provided for in Mann v Carnell,[7] Ms Deak‑Fabrikant had waived any claim for confidentiality by, first, making a claim for psychological injury in her claims against Paul and Stephen Grech, and secondly, by exhibiting a report by Dr Kaplan to her primary affidavit. This report had been ruled as inadmissible, on the basis that Ms Deak‑Fabrikant did not intend to call Dr Kaplan as a witness. As events unfolded, Dr Kaplan was subpoenaed by Paul Grech, and did give evidence.
[7](1999) 201 CLR 1.

At the hearing on 6 August 2014, Mr Andrew Saunders of counsel appeared, at my request, as a friend of the Court. He submitted that it was open to me to find that Ms Deak‑Fabrikant, by disclosing Dr Kaplan’s report, had waived her claim for confidentiality in respect of Dr Kaplan’s records. However, he submitted that given that Ms Deak‑Fabrikant had made allegations of sexual assault against Paul Grech, the provisions of Division 2A of Part II of the EMPA would apply to Dr Kaplan’s records. The provisions in this division of the EMPA provide further protection from disclosure of communications to medical practitioners and counsellors by persons against whom a sexual assault has been committed or is alleged to have been committed. Mr Saunders submitted that these provisions would apply to Dr Kaplan’s records, notwithstanding that the OPP had withdrawn the charges of rape against Paul Grech, Ms Deak‑Fabrikant had withdrawn her claims against Paul Grech in relation to the alleged sexual assaults in this proceeding, and the cross‑examination of Ms Deak‑Fabrikant did not traverse those parts of Dr Kaplan’s records which recorded parts of those communications where Ms Deak‑Fabrikant reported to Dr Kaplan allegations of sexual assault. I agreed that these provisions of the EMPA applied, and the outstanding issue was whether I ought to grant leave for Dr Kaplan’s records to be adduced into evidence under the provisions of s 32D of the EMPA.

Section 32D of the EMPA provides as follows:

32D Restriction on granting leave
(1)A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that—
(a)the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and
(b)other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and
(c)the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.
(2)Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account—
(a)the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;
(b)the extent to which the protected evidence is necessary to allow the accused to make a full defence;
(c)the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;
(d)whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;
(e)whether the protected confider objects to the disclosure of the protected evidence;
(f)the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.

(3) A court may grant leave to compel the production of, or to produce or adduce, part of—
(a)a confidential communication; or
(b)the contents of a document recording a confidential communication—

and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.
(4)The court must state its reasons for giving or refusing to give leave under this section.
(5)If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.

On 7 August 2014, I determined that Ms Deak-Fabrikant had waived privilege in the contents of Dr Kaplan’s file by disclosing his report as an exhibit to her primary affidavit in support of her claim for damages for psychological injury, and adjourned the question about whether leave be granted pursuant to s 32D of the EMPA until a date after Dr Kaplan attended Court.

I referred to the decision of Judd J in Elliott v Tippett[8] and stated that it was generally unfair for a party to maintain an assertion of confidentiality over the whole of confidential communications where that party has sought to disclose a part of the otherwise privileged communications so as to achieve some forensic or commercial advantage. I further stated that ‘[o]nce a confidential communication has been disclosed, it loses its character of confidence and that disclosure cannot be reversed’ even if the claims to which the evidence relates have been withdrawn. While Dr Kaplan’s report had earlier been ruled as inadmissible at trial, it was the disclosure of the report, not the attempt to admit the report into evidence that raised the question of whether privilege had been waived.
[8](2008) 20 VR 195.

Finally, I waived the notice requirements under section 32C of the EMPA, as both Ms Deak-Fabrikant and Dr Kaplan had been aware of Paul Grech’s intention to put Dr Kaplan’s notes into evidence for some weeks, and a further delay of the proceeding was undesirable. I determined that Dr Kaplan and Ms Deak-Fabrikant could address the issue of whether the Court ought to admit Dr Kaplan’s records into evidence under s 32D at the next day of hearing (Dr Kaplan having been subpoenaed to attend Court on 11 August 2014).

As it turned out, Dr Kaplan was excused from attending Court on 11 August 2014 owing to his ill health. The trial was adjourned part heard on 13 August 2014. In the meantime, Ms Deak-Fabrikant issued a subpoena to the OPP for the production of their file in relation to the rape proceeding in order to obtain evidence in support of her contention that Dr Kaplan’s records had been obtained by Paul Grech by unlawful means. On 29 September 2014, senior counsel for the OPP appeared and successfully argued that a substantial part of the file was immune from disclosure on the grounds of legal professional privilege.

Dr Kaplan appeared on 25 September 2014, the day after the trial resumed. During the course of giving evidence, Dr Kaplan verified the authenticity of the documents contained in his records, including his notes and the correspondence between him and Dr Slonim, gave evidence as to the circumstances in which his records were produced to the informant in the rape proceeding, and gave evidence in response to questions from counsel for Paul Grech and me regarding the potential impact upon Ms Deak-Fabrikant of the admission of his records into evidence, by reference to the considerations required to be taken into account in determining whether to grant leave under s 32D of the EMPA.

Dr Kaplan gave evidence that he was disturbed to find that Paul Grech’s solicitors had access to his file, and that he considered that it would be distressing for Ms Deak-Fabrikant to discover that the information in her medical records had been disclosed. He considered that this distress would be alleviated to some extent by the orders limiting inspection of the documents produced to the Court to the solicitors and counsel for Paul Grech, but that it was the public disclosure of the contents of his file that would be distressing to her. He considered that the cause of distress would include disclosure of the records concerning sexual assaults, other assaults, and difficulties in the relationship over many years. He confirmed that Ms Deak-Fabrikant consulted him between 1993 and 1998, again between 2001 and 2003, and then from 2008 to the current day.

It was put to Dr Kaplan that Ms Deak-Fabrikant had denied a number of the matters which were referred to in his notes. He agreed that being ‘caught out’ might be distressing to Ms Deak-Fabrikant, and his swearing to the accuracy of his notes might compromise the therapeutic relationship between them. He was unable to say whether the disclosure of personal matters by Ms Deak-Fabrikant in her affidavits filed in this proceeding would mean that it was less likely that she would suffer harm by reason of admission of his records into evidence. He was unsure as to the use to which his records might have been put in the rape proceeding.

Ms Deak-Fabrikant questioned Dr Kaplan as to whether a woman suffering from the symptoms of menopause may be experiencing depression and anxiety, and might be unbalanced. He agreed that such a person’s objectivity might be affected by their mood. He confirmed that Ms Deak-Fabrikant told him that the OPP had told her that his records had been disclosed to Paul Grech, and that she had told him at that time she felt violated and vulnerable, and was deeply distressed.

On 1 October 2014, I delivered written reasons for my decision on 30 September 2014 to grant leave for Dr Kaplan’s medical records to be adduced into evidence pursuant to s 32D of the EMPA.

I am not persuaded, having regard to the concerns I have about the credibility of Ms Deak‑Fabrikant’s evidence, and the evidence of the other parties, including documentary evidence relied upon by Paul and Stephen Grech, that Ms Deak‑Fabrikant made any direct or indirect financial contribution to the acquisition, conservation, or improvement of the Sanctuary Lakes property.

Ms Deak‑Fabrikant conceded that no payments were ever made by her with respect to the purchase and development of the Sanctuary Lakes property, notwithstanding her earlier assertions that she provided Paul Grech with cash for materials, and she also conceded that any additional household expenses borne by her were unrelated to the development of the Sanctuary Lakes property.

Did Ms Deak‑Fabrikant make contributions to the financial resources of Paul Grech or Stephen Grech?

I accept that Ms Deak‑Fabrikant made financial contributions to the household, which included herself, Paul Grech, and at times, Stephen Grech, by contributing to household expenses, and the provision of furniture and household goods for their mutual use. I accept that Ms Deak‑Fabrikant brought more furniture and household goods into the Altona property than that conceded by Paul and Stephen Grech. However, I am not satisfied that Ms Deak‑Fabrikant provided any direct financial assistance to Paul Grech or Stephen Grech over and above her contributions to household expenses, and I accept that Ms Deak‑Fabrikant also benefited from being able to live at the Altona property and share her expenses with Paul Grech. I do not accept Ms Deak‑Fabrikant’s contention that she supported Stephen Grech in an indirect way by reason of Paul providing Stephen Grech with financial support. I accept that Stephen Grech was largely financially self‑sufficient during his university years, there being documentary evidence of his earnings from employment and other sources of income. In any event, given my findings regarding the financial arrangements within the household, if Paul Grech did provide Stephen Grech with financial assistance from time to time, that would not amount to a financial contribution on the part of Ms Deak‑Fabrikant.

Having regard to the fact that Ms Deak-Fabrikant also benefited from the sharing of expenses and the provision of rent free accommodation by Paul Grech, I do not consider her financial contributions warrant a further adjustment in her favour.

Did Ms Deak-Fabrikant make contributions to the welfare of Paul Grech and/or his children, including as a homemaker and/or a parent?

As indicated earlier, I accept that Paul Grech and Stephen Grech tended to downplay the contributions made by Ms Deak-Fabrikant to the household and family over the course of the relationship. While I accept the general thrust of Paul and Stephen Grech’s evidence regarding the quality of their relationships with Ms Deak-Fabrikant over time, and the evidence of other Grech family members regarding her lack of involvement with the extended Grech family, I consider that Ms Deak-Fabrikant’s role as homemaker was much greater than Paul and Stephen Grech gave her credit for. Paul Grech was working in his business from 1993, and constructing the house at the Sanctuary Lakes property from 2004. Stephen Grech, upon his own evidence, was away from the Altona property in 1994 and 1995, at the Altona property alone for a number of months in 1996, busy with university, part time work, and sport until 1999, travelling overseas for much of 2000, and rarely visited the Altona property after he left in 2001. Therefore, his evidence regarding the domestic work carried out by Ms Deak-Fabrikant was of limited assistance. Further, photographs and videos of the interior and exterior of the Altona property show a tidy and well cared for house and garden, with the house being well furnished and decorated. While in later years one might expect Paul Grech to have complained about the large number of pets in the household, there is evidence that he cared for and enjoyed the pets. My observations of Paul Grech from the photographs and DVDs suggest that he was a generally gregarious and easy going person who enjoyed the company of family and friends, and that Ms Deak‑Fabrikant‘s family and friends formed part of his social network.

Accordingly, I accept that Ms Deak-Fabrikant made non‑economic contributions to the welfare of the family and provided Paul Grech with companionship and support that warrants recognition under s 45 of the Relationships Act, noting that in Apostolidis v Kalenik,[30] the Court of Appeal cautioned against giving insufficient recognition to a de facto partner’s contributions to discharging the bulk of domestic and parental obligations, which enabled the other partner free to focus his talents on the growth of his business. Similarly, in Cressy v Johnson,[31] the judge found that the plaintiff’s role as a homemaker and as the primary carer of three children, along with contributions from part time earnings warranted a significant adjustment in her favour.
[30](2011) 35 VR 563.
[31][2009] VSC 52.

The distinction between the facts in the proceedings referred to above and Ms Deak-Fabrikant’s claims in the current proceeding is the role played by the claimants in those proceedings in caring for school aged and younger children. In the current case, I accept the evidence that Ms Deak-Fabrikant played a relatively limited role in Stephen Grech’s life while he was at school, given her absences and his absences from the Altona property between 1993 and 1996, and an even more limited role after that. I accept Stephen Grech’s evidence that the argument at the kitchen table in 1997 precipitated a complete breakdown in the relationship between him and Ms Deak-Fabrikant. I am also not satisfied that Ms Deak-Fabrikant played a significant role in the lives of Paul’s older children, given that they lived with their mother and later their partners.

Has the value of any of the properties referred to in the statement of claim been diminished by the conduct of the parties?

The question of ‘waste’ is relevant to only two of the five properties, being the Sanctuary Lakes property and the Errol Street property. In regards to the Sanctuary Lakes property, I accept that it is likely that the Sanctuary Lakes property has diminished in value by reason of the house and exterior of the property remaining incomplete and unoccupied over the past seven years. However, there is no evidence as to what that diminution of value might be. Further, I accept the evidence of Paul and Stephen Grech to the following effect:

(a) notwithstanding the issue of an occupancy certificate for the Sanctuary Lakes property, there was still work to be done to the Sanctuary Lakes property to make it habitable and to comply with the requirements of the Sanctuary Lakes Resort Management; and

(b) the lodgement of the caveat over the Sanctuary Lakes property by Ms Deak‑Fabrikant hampered their ability to raise funds to complete the necessary works, and that Stephen and Jelvie Grech made an overly optimistic judgement call as to how long this proceeding might take to finalise.

Accordingly, to the extent that the value of the Sanctuary Lakes property can be attributed to neglect, any responsibility for that can be sheeted home to all parties. Strictly speaking, it is not necessary for me to deal with the question of whether the value of the Errol Street property has deteriorated. However, for completeness, I accept the evidence of Stephen Grech that the Errol Street property was purchased for its land value, has always been in poor repair, and no substantial works have ever been or are intended to be carried out on it.

Were the transfers of the Altona property and/or the Sanctuary Lakes property intended to defeat any potential claims by Ms Deak‑Fabrikant against Paul Grech?

While the circumstances and timing of the transfer of the Altona property do raise some suspicions regarding Paul Grech’s motivation for the transfer of the Altona property to Stephen Grech, I am not satisfied to the requisite standard of proof that at the time of making the transfer an anticipated order of this Court was likely to be defeated by the transfer.

Section 63 of the Relationships Act is in similar, albeit not identical terms, as s 106B of the Family Law Act 1975 (Cth). Section 106B(1) provides as follows:

Transactions to defeat claims
(1)In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

Section 63, unlike s 106B, does not include the phrase ‘irrespective of intention’. However, in my view, the absence from s 63 of any requirement that the disposition must be made with the actual or constructive knowledge that the disposition may defeat an existing or anticipated order leads to the same result: the focus is upon the likely effect of the transaction, not the motivation to enter the transaction. In Halabi v Artillaga (Halabi),[32] when considering a predecessor provision to s 106B, Nicholson CJ stated that the Court’s jurisdiction to set aside a transfer was enlivened when:

an instrument has been made with the intention of defeating an anticipated order in the proceeding, or secondly, regardless of the intention with which it has been made it is likely to have the effect of defeating such an order.

[32](1993) 17 Fam LR 675, 679.

The following principles emerge from the Family Court authorities concerning the operation of s 106B of the Family Law Act:[33]
[33]Marriage of Whitaker (1980) 5 Fam LR 769; Pflugradt and Pflugradt (1981) 7 Fam LR 188; Hajduk and Hajduk (1993) 109 FLR 218; Ivanfy and Ivanfy (1978) 4 Fam LR 542; D and D (1984) 10 Fam LR 73.

(a) it is necessary to establish a causal connection between the transaction and the defeat of the order;

(b) an order must be objectively foreseeable, not just a claim;

(c) the transaction must be foreseeably likely to defeat that order; and

(d) ‘anticipated’ means ‘expected’ or ‘reasonably probable’ according to an objective test.

The focus in the authorities upon the objective effect of a transfer is a little difficult to reconcile with the statement by Nicholson CJ in Halabi that it is sufficient for there to be an intention to defeat an anticipated order in order to enliven the jurisdiction under s 106B. However, it is not necessary to reconcile that tension in the current case, and in any event, s 63 of the Relationships Act makes no reference to the intention behind any transaction. In the case of the transfer of the Altona property in January 2008, I am not satisfied that the transfer was made with the intention to defeat an anticipated order, or was foreseeably likely to defeat such an order. The opposite is the case with the transfer of the Sanctuary Lakes property: in my view, the transfer was made with both the intention and the likely effect of defeating such an order.

To the extent that Paul Grech’s motivations in transferring the Altona property are relevant, I accept that as at January 2008 the relationship was in difficulties. However, I also accept that at that time, there were plans underway with respect to the redevelopment of the Altona property, and that evidence was corroborated by the evidence of Ms Deak‑Fabrikant’s friend Mr Sverdlin. Given Paul Grech’s age and income, it is plausible that Stephen Grech would have had a better opportunity to raise funding for any development, as is evidenced by the offer of finance made in October 2008, and that raising loan finance would be easier if the property was in his name. In any event, I am not satisfied that as at January 2008 the transfer of the Altona property could have been foreseeably likely to defeat an order that was reasonably likely to be made in Ms Deak‑Fabrikant’s favour. After all, the Altona property had been brought into the relationship by Paul Grech. Even after the transfer of the Altona property, Paul Grech still held an asset of sufficient value to meet any reasonably foreseeable award in favour of Ms Deak-Fabrikant, being the Sanctuary Lakes property.

However, I am satisfied that the Sanctuary Lakes property was transferred in order to defeat any claims by Ms Deak‑Fabrikant over Paul Grech’s assets, and that at that time it would be reasonably likely that the transfer would defeat any order made in a proceeding such as this. Of course, the timing of the transfer would have aroused suspicions in any event, being two days after the separation. Further, by that time Paul Grech knew that the Sanctuary Lakes property was his only asset, and he knew, if his evidence regarding the threats said to have been made against him by Ms Deak‑Fabrikant is correct, that she ‘knew her rights’, and would be likely to make a claim against him if they failed to reconcile after their separation. In any event, any doubt was dispelled by Paul Grech’s evidence when questioned by me about the transfer. Further, as at 30 September 2008 it was objectively foreseeable that there would be an order made in favour of Ms Deak-Fabrikant. Paul Grech had been forced to leave the Altona property in acrimonious circumstances. The police were involved. According to Paul Grech, Ms Deak-Fabrikant often threatened to take his properties when they argued. They had been in a long term domestic relationship, and, notwithstanding Paul Grech’s own views about his entitlements to his properties and her contributions, there was always likely to be some award in favour of Ms Deak‑Fabrikant. The transfer ought to be set aside.

Did Paul Grech and/or Stephen Grech assault Ms Deak-Fabrikant, and if so, what damages is she entitled to as a result?

There were no witnesses to the incident in the garden at the Altona property on 28 September 2008. Ms Deak‑Fabrikant says Paul Grech assaulted her by grabbing her shoulder violently and shaking her. Paul Grech says she lunged at him during an argument, and he grabbed her shoulder after he lost his balance. There is no dispute that there was a fierce argument between them, and that Paul Grech was arrested by the police that evening. Paul Grech, despite subsequently pleading guilty to one of the charges brought against him arising out of this incident, denies assaulting Ms Deak‑Fabrikant, and said that his plea of guilty was made on the advice of his solicitor to ‘put the matter behind him’. Of course, by reason of s 91(1) of the Evidence Act 1958 (Vic), evidence of the decision in the Magistrates’ Court proceeding in which the guilty plea was made is not admissible to prove that Paul Grech did in fact assault Ms Deak‑Fabrikant. That must be based upon the evidence in this proceeding.

Ms Deak‑Fabrikant relies upon her own evidence, and the evidence of Dr Economidis to the effect that Ms Deak‑Fabrikant reported the alleged assault to her two days later. Paul Grech denies the assault, and alleges that, two days later, during a visit to the Altona property accompanied by police, Ms Deak‑Fabrikant tried to assault him. The police officer who witnessed this incident and made a statement to that effect was not called to give evidence at trial, although he had been subpoenaed to do so, and counsel for Paul Grech had on a number of occasions sought to schedule his appearance. I draw no adverse inference from his failure to give evidence. Ms Deak‑Fabrikant had made it clear that she did not wish to have witnesses called by the other parties interposed while she was running her case, and the trial concluded quite quickly, within a day, after I determined to proceed with the trial in Ms Deak‑Fabrikant’s absence. I can infer that the failure of the police officer to attend Court was owing to the logistical pressures facing the Grech parties on 30 October 2014.

An allegation of assault is a serious matter. Of course, Ms Deak‑Fabrikant is not required to prove beyond reasonable doubt that Paul Grech assaulted her. However, s 140(2) of the Evidence Act 2008 (Vic) provides that the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities, having regard to the nature of the cause of action, and the gravity of the matters alleged. This provision essentially codifies the common law test in Briginshaw v Briginshaw,[34] where the High Court held:

The truth is that, when the law requires the proof of any act, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to infinite gradations of certainty: and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.

[34](1958) 60 CLR 336.

Other judges of the Court in Briginshaw refer to the necessity for a decision‑maker to feel a ‘comfortable satisfaction’, ‘certainty of intellectual conviction’, and to not be ‘oppressed with reasonable doubt’.

Both parties agree that there was an argument and physical contact of some kind. Ms Deak-Fabrikant says that it was initiated by Paul Grech when he became enraged and grabbed her arm. Paul Grech stated he grabbed her arm when he lost his balance when she pushed him, so any contact on his part was accidental. Both parties have consistently maintained their version of events over a long period of time, during the course of hearings and correspondence regarding charges laid against Paul Grech, and applications for intervention orders against each other, so neither party’s version of events is the subject of recent invention. So in the end, it is a question of who I believe.

In the current case, it is contended that I should prefer Ms Deak‑Fabrikant’s version of events over the account of Paul Grech, in circumstances where serious allegations have been made and I have made adverse findings regarding the credibility of her evidence. I cannot achieve the state of comfortable satisfaction necessary to find in Ms Deak‑Fabrikant’s favour on this issue.

I accept that such a finding may sit incongruously with Paul Grech’s plea of guilty to a summary charge of unlawful assault. However, all that is proven by that fact is that he did plead guilty, and the reason he advanced for doing so, particularly in the context of a more serious charge being withdrawn, is plausible, particularly given that he and Ms Deak-Fabrikant were engaged in a number of legal proceedings.

In any event, if I had found that Paul Grech had assaulted Ms Deak-Fabrikant, there is insufficient material before me to make a finding that any injury arising out of the assault had long term physical consequences, in circumstances where the medical records in evidence show that she had other, pre‑existing conditions which affected her shoulder, arms and hands. She did not require strong analgesic medication to treat the injury, or at least her medical records do not disclose that she did. Ms Deak‑Fabrikant’s evidence regarding what she can and cannot do around the house without assistance is contradicted by the evidence of her niece, who describes her home as immaculate. In cross‑examination, Ms Deak‑Fabrikant said that she could not use a vacuum cleaner: other evidence shows that the house at the Altona property is serviced by a ducted vacuuming system. I accept that there is evidence that Ms Deak‑Fabrikant has suffered some psychological problems over recent years, and that according to Dr Kaplan’s letter of 7 December 2010, she has experienced stresses ‘in relation to her recent separation from Paul Grech’. However, the evidence of Dr Kaplan regarding the psychological injuries suffered by Ms Deak-Fabrikant arising out of the relationship was equivocal, and was largely directed at the impact of Ms Deak-Fabrikant’s allegations of sexual assault.[35] Further, Dr Kaplan’s letter predates the commencement of the trial by three and a half years.
[35]Dr Kaplan’s letter of 7 December 2010 was originally ruled as inadmissible, but given that Dr Kaplan was called to give evidence, I have considered his report.

As for the alleged assaults by Stephen Grech against Ms Deak-Fabrikant, once again, there were no witnesses, and each party has steadfastly maintained their position since the allegations were first made by Ms Deak-Fabrikant on or about 3 December 2008. In her application for an intervention order made on 3 December 2008, Ms Deak-Fabrikant stated as follows:

The deft is my step-son. I was in a defacto relationship with his father for over 18 years. There are current bail orders against the deft’s father. This is listed before the court on 24 November 2008.
The deft used to live at the residence until he married. The AFM currently lives in the family home. The deft’s father was ordered to leave as a result of the pending hearing. The deft wants the AFM to leave the property. The deft has been telephoning and attending the residence in order to threaten and intimidate the AFM out of the residence. The deft has been loitering around. On 29 September 2008, the deft rang the AFM and threatened that the AFM was to get out of the house or she would be dead. The deft tried to conceal his voice, however, the AFM believes it was the deft. The AFM takes this threat seriously. On 30 September 2008, the deft told the AFM that he wanted to attend at the residence. The AFM denied his request. Police rang on deft behalf, stating that the deft wanted to attend the residence as it was his property. AFM refused request. The deft, deft’s father and police attended that night. The deft tried to enter the premises to which the AFM denied. The deft asked father to take photo’s of residence. On 2.10.08, the deft telephoned the AFM and made a threat that the AFM’s cat would disappear. On 3 October 2008, the deft rang and threatened the AM to “watch herself”, and that her birds will fly away. The AFM takes these threats seriously. The deft attended at the AFM’s house on 11 October 2008, with is father and another man. The deft made a gesture of slitting throat to the AFM. The AFM fears that this threat may be carried out. The AFM lives in constant fear of deft.

Stephen Grech appeared at the hearing on 3 December 2008 and denied all of the allegations made against him, but the application was granted. On 4 November 2009, Ms Deak-Fabrikant made an application to extend the intervention order, stating:

I am wanting to extend the order because I am in fear because of the respondents continuing behaviour and him putting his finger across my throat as if to say that I am dead. I live in constant fear of the respondent.

On 18 November 2009 the intervention order was extended, but the Magistrates’ Court refused an application by Ms Deak-Fabrikant for a further extension on or about 13 January 2010 after receiving correspondence from Stephen Grech to the effect that he denied all allegations made against him, and that he had no contact with Ms Deak-Fabrikant since the Magistrates’ Court hearing on 3 December 2008. Ms Deak-Fabrikant arranged for a fresh application to be served upon Stephen Grech by the police on 20 January 2010. Stephen Grech did not appear, but sent the Court a detailed letter outlining his position. The application was refused.

Once again, I am faced with two versions of events, and no independent witnesses. While it is possible that these events did occur, having regard to my view of Ms Deak-Fabrikant’s credibility, I am not satisfied that Ms Deak-Fabrikant has proven to the requisite standard of proof that Stephen Grech assaulted her.

Once again, even if I am wrong, there is scant evidence of any lasting impact upon Ms Deak-Fabrikant of any such threats. The highest the evidence gets is in Dr Kaplan’s letter of 7 December 2010, where he states in his final paragraph:

Ms Deak-Fabrikant has been engaged in litigation with Paul and his son, Steven, in relation to her property settlement. Steven, on one occasion, threatened to kill her and she is still fearful of him and feels anxious at night. Her anxiety in reaction to Steven has been an additional source of stress.

Conclusions

In summary, having regard to the determination of each of the issues in the proceeding, I make the following conclusions:

(a) neither Paul Grech or Ms Deak‑Fabrikant have any beneficial interest in the properties at Errol Street, Speakmen Street, or Ballarat Road. As such, the caveats over those properties ought to be removed immediately;

(b) I am not satisfied that Paul Grech declared that he was the trustee of Ms Deak‑Fabrikant’s fifty per cent interest in either the Altona property or the Sanctuary Lakes property (or for that matter, the Errol Street property), or made any legally enforceable promises to her to that effect;

(c) however, Ms Deak‑Fabrikant has a valid claim for an adjustment of property interests under s 45 of the Relationships Act, and the relevant asset pool for consideration includes the Altona property and the Sanctuary Lakes property;

(d) I consider that Ms Deak‑Fabrikant’s financial contributions to the conservation and improvement of the Altona property warrant an award of five per cent of the value of the asset pool;

(e) I consider that Ms Deak‑Fabrikant’s financial contributions to the financial resources of Paul Grech and Stephen Grech, including her contributions to household expenses and the use of the furniture and household goods brought by her into the Altona property have been offset by the contributions made to her financial welfare by Paul Grech, and do not warrant any further award in her favour;

(f) having regard to the non‑financial contributions of Ms Deak‑Fabrikant to the welfare of Paul Grech, a further adjustment equivalent to ten per cent of the value of the asset pool is warranted; and

(g) having regard to the relevant factors under s 51 of the Relationships Act, a further adjustment equivalent to five per cent of the asset pool is warranted.

Based upon the accepted valuations of the Altona property and the Sanctuary Lakes property, an award of twenty per cent of the asset pool translates to a cash sum of $256,000.

In relation to the factors under s 51 of the Relationships Act, the relevant factors in the current case are the length of the relationship, the capacity of each party for employment, the age and health of the parties, the assets and resources of the parties, and the needs and circumstances of each party.

It is accepted that the parties were in a long term domestic relationship. In relation to the respective resources and needs of the parties, both Paul Grech and Ms Deak-Fabrikant are retired persons, approaching their seventies, and have some health issues. No doubt their capacity to earn income from employment is extremely limited, although Paul Grech’s capacity to do some handyman work might be improved if he had access to his tools, which apparently remain at the Altona property. Both parties have rent free accommodation, for the time being, Ms Deak-Fabrikant at the Altona property, and Paul Grech at a property owned by his brother. At the current time, no party is the registered proprietor of any real property.

The evidence suggests that Paul Grech is the beneficiary of considerable family support, no doubt in part by reason of assistance provided by him to family members in the past. Stephen and Jelvie Grech have funded his legal costs in this proceeding, and his brother has provided him with accommodation. There is limited evidence before me regarding the support Ms Deak-Fabrikant has received from her family in the past apart from some cash payments from her adult children in recent years and the willingness of her family members to come to Court to give evidence in this proceeding. There was a statement by Katya Dewan in her evidence that her extended family is appreciative of Ms Deak-Fabrikant for arranging their emigration to Australia. Whether that sentiment would translate to practical material support no doubt remains to be seen. Her adult children live either interstate or overseas. Accordingly, Ms Deak-Fabrikant’s financial circumstances and needs warrant an adjustment in her favour.

Counsel for Ms Deak-Fabrikant submitted that Ms Deak-Fabrikant needs a home to live in and some cash. That submission highlights some of the difficulties in the manner in which Ms Deak-Fabrikant has put her case. It is abundantly clear that Ms Deak-Fabrikant’s primary objective is to have the title of the Altona property transferred to her, and possibly a monetary award as well to provide her with a nest egg. However, her aspirations to that outcome, along with her claims to an interest in each of the five properties, in the context of her having brought no real property into the relationship and bringing no substantial earned income into the relationship, are unrealistic in the extreme. If she is seeking to make good her claim in part on the basis of need, there is a lack of logic in a single woman of advancing years and limited income maintaining a claim to a two storey, four bedroom, two bathroom property with a large high maintenance garden, valued in excess of ten per cent above the median house price for the neighbourhood, and nearly fifteen per cent of the median house price for the Melbourne Metropolitan area.[36] Normally, one would expect to see in a family property dispute of this nature evidence about what award would be required to enable a party in the position of Ms Deak-Fabrikant to live in modest but reasonable accommodation in a neighbourhood close to family, friends and facilities. That evidence is completely absent in the current case, which is most unfortunate, because it gives the Court nothing to sensibly consider or work with.
[36]In March 2014 the median house price in Altona was $657,500; while the median house price for the Melbourne Metropolitan area was $646,500. Source: Real Estate Institute of Victoria.

It was agreed that any adjustment in Ms Deak-Fabrikant’s favour ought to be calculated on a global basis, rather than an ‘asset by asset’ basis. In determining an appropriate award, some assistance can be derived from other decisions of this Court under the predecessor legislation to the Relationships Act which have adopted a global approach to distributing the asset pool. As noted in paragraph 393 above, in Kalenik v Apostolidis[37] and Cressy v Johnston,[38] the Court recognised the non‑financial contributions made by the claimants, particularly to the care of children. In Kalenik v Apostolidis,[39] the Court of Appeal awarded an amount equivalent to twenty seven per cent of a substantial asset pool to a claimant who was the primary homemaker and caregiver over the course of a six year relationship, and in Cressy v Johnston,[40] the Court awarded the claimant a fifty per cent share of a relatively modest asset pool after a nine year relationship. In Morgan v Bell,[41] the claimant, who was the primary homemaker and caregiver in a six year relationship, was awarded sixteen per cent of a large asset pool. In Giller v Procopets,[42] a homemaker and caregiver in a three year relationship received just over ten per cent of the asset pool, while in Kenyon v Akeroyd,[43] a homemaker and caregiver in a five year relationship received fifty per cent of a modest asset pool. In Zegarac v Tomesevic,[44] the homemaker and caregiver in a fourteen year relationship received an award of fifty per cent of the value of the home. However, the claimant had also made financial and non‑financial contributions to the family home, including payment for materials and tradespeople for renovations, and her earnings were used to pay household expenses. In Bennett v Parker,[45] the claimant in a twelve year relationship pooled her earnings, and made a substantial non‑financial contributions as a homemaker and in improving two properties, which involved engaging in heavy physical labour. She was awarded forty per cent of a modest asset pool.
[37](2011) 35 VR 563.
[38][2009] VSC 52.
[39](2011) 35 VR 563.
[40][2009] VSC 52.
[41][2011] VSC 302.
[42](2008) 24 VR 1.
[43][2008] VSCA 277.
[44][2003] VSC 150.
[45][2000] VSC 401.

As can be seen from the above, the larger awards in proportional terms are generally made to claimants where the asset pool is relatively modest, the relationship is lengthy, the claimant has made significant direct and indirect financial contributions to the properties and resources of the household, and the claimant has borne the burden of the homemaker role, particularly with respect to the care of children. In the current case, the relationship was a relatively long relationship, and while the asset pool is not large, it is not small either. Ms Deak-Fabrikant has made contributions as a homemaker and to the improvement of the Altona property, but she has had limited income to share, and has not been engaged to any great extent with the care of children. As such, an award at the lower end of the scale in proportionate terms is appropriate, albeit not a negligible award.

I note that, coincidentally, an award of the sum of $256,000 is less than, but only slightly less than half of the value of the Sanctuary Lakes property. I was not satisfied that Paul Grech made legally enforceable promises to Ms Deak-Fabrikant that he would put her name on the title of the Sanctuary Lakes property, although I do consider that is a possibility, and there is some, if not completely reliable corroborative evidence to that effect. However, if I am wrong about my findings that Ms Deak-Fabrikant has not established her claim to half share of the Sanctuary Lakes property, I would have found that, in the light of her half interest in the Sanctuary Lakes property, no further adjustment in her favour under s 45(1) of the Relationships Act would be warranted. Accordingly, the result would be substantially the same.

Finally, while I have found that I am not satisfied to the requisite standard of proof that Ms Deak-Fabrikant was assaulted by either or both of Paul Grech and Stephen Grech, if I was found to be wrong, I would have made no more than a nominal award of damages in her favour. I am not satisfied on the state of the evidence that she was caused any long lasting physical injury over and above her pre‑existing medical conditions, and any psychological injury may well have been overcome by the stress imposed by the rape proceeding and this proceeding.

I shall hear further from the parties on the precise form of orders to give effect to these conclusions, and the question of costs.

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SCHEDULE OF PARTIES

STEPHEN PHILLIP GRECH and JELVIE GRECH (also known as JELVIE PANGALILA)	Plaintiffs
- and -
LARISSA DEAK-FABRIKANT	First Defendant
REGISTRAR OF TITLES	Second Defendant
LARISSA DEAK-FABRIKANT	Plaintiff by Counterclaim
STEPHEN PHILLIP GRECH and JELVIE GRECH (also known as JELVIE PANGALILA)	First and Second Defendants by First Counterclaim
PAUL GRECH	Third Defendant by Counterclaim

[2015] VSC 581

28 October 2015