Hake and Lawford & Ors - [2020] FamCA 906

FAMILY COURT OF AUSTRALIA

HAKE & LAWFORD AND ORS

[2020] FamCA 906

FAMILY LAW- PROPERTY SETTLEMENT – relationship of 17 years duration – documentary evidence of contributions poor – application undefended – no contradicting version of events given by first respondent – applicant and second plus third respondent resolving their differences – applicant proposing a division of assets on a percentage equating to 65% to the applicant and 35% to the first respondent – evidence of family violence – held, that percentage division is just and equitable – orders made as propounded by the applicant.

Bacall & Zagar [2020] FamCA 350
Breskvar v Wall (1971) 126 CLR 376
Stanford v Stanford (2012) 247 CLR 108
Wei & Wei [2020] FamCAFC 224
Wei & Wei (No. 3) [2020] FamCA 98

Family Law Act 1975 (Cth) ss 90RD, 90SF, 90SM
Family Law Rules 2004 (Cth)
Residential Tenancies Act 1997 (Vic)
Transfer of Land Act 1958 (Vic)

APPLICANT:

Ms Hake

FIRST RESPONDENT:

Mr Lawford

SECOND RESPONDENT:

Ms Nelson

THIRD RESPONDENT:

B Pty Ltd

FILE NUMBER:

MLC

11655

2019

DATE DELIVERED:

28 October 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

22 September 2020

DATE OF FURTHER EVIDENCE:

23 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Barbayannis

SOLICITOR FOR THE APPLICANT:

Pearce Webster Dugdales

COUNSEL FOR THE FIRST RESPONDENT:

Not applicable

SOLICITOR FOR THE FIRST RESPONDENT:

Not Applicable

COUNSEL FOR THE SECOND RESPONDENT:

Not Applicable

SOLICITOR FOR THE SECOND RESPONDENT:

Wightons Lawyers

COUNSEL FOR THE THIRD RESPONDENT:	Not Applicable
SOLICITOR FOR THE THIRD RESPONDENT	Wightons Lawyers

Orders

Leave is granted to the applicant to proceed with her application as against the first named respondent on an undefended basis.
All previous orders are hereby discharged.
Pursuant to s 90RD of the Family Law Act 1975 (“the Act”) I declare that a de facto relationship existed between the applicant and the first named respondent from about 2002 to about September 2019.
The property known as and situated at C Street, Suburb D in the state of Victoria being the whole of the land more particularly described in certificate of title volume … Folio … (“the C Street property”) will remain on the market for sale with E Group or such other agent as nominated by the applicant, at such price as is determined by the applicant in conjunction with her selling agent.
The applicant have the conduct of the sale of the C Street property to the exclusion of the first named respondent.
The proceeds of sale of the C Street property, including the deposit, are applied as follows –
(a) first, to pay all selling agent’s costs and commission;
(b) secondly, to pay conveyancing costs and disbursements;
(c)thirdly, to discharge the mortgage to the ANZ Bank (“the mortgage”) registered dealing number …9S; and
(d)fourthly the balance to be paid to Pearce Webster Dugdales, solicitors, to be distributed as follows:
(i)to Ms F Lawford the sum of $210,000; and
(ii)as to the then remaining balance:
(1)65% thereof to the applicant; and
(2)35% thereof to the first named respondent.
On or before 4:00pm on 4 November 2020 the first named respondent at his expense shall withdraw all or any caveats registered over the C Street property by him or on his behalf including but not limited to Caveat Number ….
In the event that the first named respondent fails to withdraw the caveat lodged by him or on his behalf on the property within 7 days, the applicant, pursuant to s 106A of the Family Law Act 1975, is appointed and authorised to executed any deed or instrument in the name of the first named respondent that may be required to cause the removal of the said caveat.
The applicant and the first named respondent and each of them shall do all such acts and things and sign all such documents as are necessary to facilitate orders 4 to 6 hereof inclusive, and in the event the first named respondent refuses or fails to do all acts and things and execute all such documents as may be necessary to give effect to these orders within 7 days of being requested to do so in writing, the applicant be and is hereby authorised pursuant to s 106A(1) of the Act to execute all such documents in the name of the first named respondent and to do all acts and things necessary to give validity and operation to the said orders.
Pending the completion of the C Street property sale and settlement and distribution of the proceeds of sale pursuant to order 6 hereof –
(a)the applicant shall have the sole right to occupy the C Street property; and
(b)the applicant shall pay all rates and outgoings of the C Street property as they fall due including the instalments on the mortgage save as provided for in order 10(c) hereof;
(c)the first named respondent pay the sum of $1,500 per calendar month towards the mortgage by depositing the said sum on or before the 21^st day of each calendar month to ANZ Bank account BSB … account number …89.
On or before 4:00pm on 4 November 2020 the first named respondent at the applicant’s expense shall do all such acts and things necessary to transfer or cause G Pty Ltd to transfer the motor vehicle 1 registration number … to the applicant.
The applicant shall otherwise retain for her sole use and benefit absolutely –
(a) all or any bank accounts in her sole name –
(b) all shares or other investments in her sole name;
(c)the motor vehicle 1 registration … in her possession as at the date of the making of these orders; and
(d)the chattels and personal effects in her possession as at the date of the making of these orders.
The first respondent shall otherwise retain for his sole use and benefit absolutely –
(a)       all or any bank accounts in his sole name –
(b)       all shares or other investments in her sole name;
(c)the motor vehicle(s) in his possession as at the date of the making of these    orders;
(d)the chattels and personal effects in his possession as at the date of the making of these orders; and
(e)       the artwork in his possession or the proceeds of sale of same.
Save as provided for in these orders, the applicant shall indemnify the first named respondent and keep him indemnified in respect of all or any debts in her sole name.
The first named respondent shall indemnify the applicant and keep her indemnified in respect of all or any debts:
(a)due to the second named respondent, MS NELSON, or due to the third named respondent B PTY LTD; and
(b) due by him or G PTY LTD; and
(c) all or any other debts in his sole name.
The first named respondent pay the applicant’s costs of and incidental to her application.
The application filed 16 October 2019 is otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hake & Lawford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11655 of 2019

MS HAKE

Applicant

And

MR LAWFORD

First Respondent

And

MS NELSON

Second Respondent

And

B PTY LTD

Third Respondent

REASONS FOR JUDGMENT

Introduction

This proceeding came before me in the Judicial Duty List on 22 September 2020. It proceeded on an undefended basis pursuant to orders made by Registrar Moser on 7 August 2020. The first respondent was given notice of the listing to be held on 22 September as I canvas below.
The first respondent has not participated in any aspect of this litigation.
Consent orders were agreed between the applicant, the second and the third respondents. A significant number of matters were unaddressed by the applicant. I required further evidence. That was filed on 23 October 2020.
On behalf of the applicant, Mr Barbayannis contended that orders should be made altering the property interests of the parties under s 90SM of the Family Law Act, in percentages of 65% to the applicant and 35% the first respondent.

Synopsis

For the reasons that follow, in my judgment the orders proposed by the applicant are just and equitable. Similarly, the consent orders to which the applicant and the second and third respondents have agreed are just and equitable and should be made. The precise terms of the orders appear above.

Relevant factual setting

As Mr Barbayannis pointed out, the background to this dispute is intensely fact specific and called for some little explanation. In view of the fact that the first respondent did not participate in this litigation, Mr Barbayannis quite properly submitted that the true financial picture in this case did not emerge by reason of the first respondent’s failure to put relevant documentary evidence before the court. Mr Barbayannis submitted that such omission more than supported property alteration orders being made in the terms sought by the applicant. He agreed that my distillation of principle in Bacall & Zagar[1] represented the learning when defective disclosure (or in this case, no disclosure) was given as required by Chapter 13 of the Family Law Rules.
[1] [2020] FamCA 350, [330] – [353].
The information on which I have based these reasons and the orders emanate almost wholly from the information obtained from the applicant’s trial affidavit made 16 September 2020 and the exhibits to that affidavit. I have also considered the affidavit sworn by the second respondent in her personal capacity and also in her capacity as a director of the third respondent. The applicant’s affidavit made 23 October 2020 filled many evidentiary gaps.

The applicant – an introduction

In early October the applicant turned 56 years of age. She is an educator by profession working four days a week with one organisation and for one day a week with another organisation.
The applicant has two children from her previous marriage. The eldest is a daughter aged 25 and the youngest is a son aged 22.

The first respondent – an introduction

The first respondent will soon turn 59. The applicant indicated she had very little knowledge of his circumstances at present. Pursuant to an order of this court authorising it so to do, the first respondent was served with all process relevant to this litigation by email.
The applicant deposed to her relationship with the first respondent commencing in 2002 and ending in September 2019, 17 years in all. They did not marry so the provisions of s 90SM of the Family Law Act applied to their property alteration proceeding.
According to the applicant, the first respondent owned and controlled a company called G Pty Ltd. That was later verified by a company search of the ASIC records of that company.
The applicant stated that she believed the first respondent carried on a business as a property developer, although Mr Barbayannis could not verify that with certainty.
According to the applicant, the first respondent had three children from a previous relationship, the eldest 37, the middle 31 and the youngest 22.
The applicant and the first respondent have a son together. He is 17. Their son lives with the applicant.

The other respondents – an introduction

The applicant stated in her trial affidavit that she believed the first respondent had a relationship with the second respondent during the currency of the applicant’s relationship with the first respondent, although the applicant stated that she had no information about the nature and duration of the relationship.
According to the applicant, the second respondent advanced funds to the first respondent and his company. There were two episodes of such money lending –
a)the first between the first respondent and his company as borrower in April 2015 and the second respondent as lender; and
b)the second, in December 2016 in a transaction in which the third respondent was lender and the applicant and first respondent were borrowers.
As mentioned earlier, the applicant compromised her claims in this case with the second and third respondents on terms that are detailed below.
The third respondent is a company owned and controlled by the second respondent.

Property interests at commencement

The applicant deposed to her financial circumstances in 2002 at the commencement of her relationship with the first respondent. It was modest, made up of the following –
a)the land and improvements known as H Street, Suburb I being the whole of the land described in certificate of title volume … folio …;
b)a motor vehicle; and
c)some superannuation.
Drawing from paragraph 22 of her trial affidavit, the relevant history about the Suburb I property may be shortly stated. It was this –
a)the applicant and her then husband acquired the property in 1999 or thereabouts for $170,000;
b)on 27 September 2001, the title to the Suburb I property was transferred into her sole name and NN Ltd was the mortgagee;[2]
c)in 2002 at the commencement of the applicant’s relationship with the first respondent the applicant estimated that the Suburb I property “would have been worth approximately $220,000 and subject to a mortgage of approximately$190,000” (her words); and
d)her net equity in the property, on her own arithmetic, was $40,000 ($220,000 value less the mortgage debt of $190,000).
[2] According to exhibit “H2” to the applicant’s affidavit made 23 October 2020 the mortgagee was BB Bank Ltd, not NN Ltd so the applicant may have been mistake on point but the identity of the mortgagee is presently unimportant.
She did not give the value of her motor car as at 2002. She did not say how much superannuation she had as at 2002.
In paragraph 24 of her affidavit the applicant said that at the commencement of her relationship with the first respondent she believed he had an interest in real estate in Suburb JJ[3] and in Suburb OO although she did not give the basis of her belief nor did she provide copies of certificates of title to verify her belief that he had an interest in those two parcels of land. She said he rented his accommodation in Suburb QQ. She said the first respondent told her he was a property developer by occupation. She said throughout their relationship the first respondent told the applicant very little about his business affairs and investments.
[3] In paragraphs 29 and following of her 23 October 2020 affidavit the applicant addressed the Suburb JJ property stating that the property was sold by the first respondent for $1,330,000.
When five months pregnant, the applicant learned of the fact of her pregnancy to the first respondent with their son. The applicant said she took a year as leave from work in 2003 for which she was paid three months on full salary. The applicant said in paragraph 26 of her affidavit that the first respondent supported her financially while she took maternity leave in 2003. She said she returned to full time work later in 2003, her son being placed in child care.
The applicant said that she made the entirety of financial contributions to her Suburb I home, other than while she was on maternity leave as addressed above, when the first respondent provided unspecified financial support.

Events between 2002 and 2008

Helpfully, the applicant’s affidavit narrated in chronological sequence certain factual events, which although useful in a factual context, did not go very far to the determination of issues with which s 90SM of the Family Law Act was concerned. Among them was the following –
a)the first respondent’s nine week marriage in 2004 to the girlfriend of a friend of the first respondent who he met in jail;
b)the first respondent’s rental of his residential accommodation in the Z Area;
c)resumption in 2006 of the applicant’s relationship with the first respondent;
d)regular visits by police to the Suburb I home during 2006, although the applicant said she was unable to say why the police visited her; and
e)the first respondent’s imprisonment for three to four months during 2006 or 2007 during which the applicant visited the first respondent by driving over 1000 km or flying to the relevant jail because the first respondent was imprisoned in New South Wales.
The applicant said in 2008 she refinanced the loan facility on the Suburb I property. She said she –
a)discharged the mortgage loan from NN Ltd;
b)borrowed from BB Bank Ltd secured by a mortgage in its favour;[4] and
c)with the refinanced sum she reduced her credit card debt and purchased a stove.
[4] The BB Bank Ltd mortgage is verified on the title search of the Suburb I property.
It is relevant to the factual narration of events in this case that the applicant deposed in her trial affidavit to an extensive array of real property in which she said the respondent held an interest yet she offered no verification of her contentions. It would have been a simple enough task to have obtained title searches of the property to which she deposed, especially on the hearing of this undefended trial. Yet Mr Barbayannis argued that it fell to the first respondent to have diligently discharged his disclosure obligations under Chapter 13 of the Family Law Rules and had the first respondent done so, as he was required to have done, much better insight could have been gained into the first respondent’s financial circumstances.
There is considerable force in the contentions of Mr Barbayannis in that regard. That said, after the hearing of this proceeding in the Judicial Duty List I requested Mr Barbayannis to arrange for his client to make a further affidavit deposing to documentary issues.
The applicant gave evidence (and in some instances that “evidence”

was little more than assertion) about certain title details and legal interests in property. Before going to that evidence some preliminary comments are warranted. Solicitors preparing trial affidavits in a property case in this court must adduce the best evidence they can for their clients. That is so obvious it should go without saying. When asserting an entitlement to a legal interest in real property, the conventional orthodoxy by way of proof is to exhibit a copy of the relevant certificate of title. It is unsatisfactory for a deponent to state that the deponent has made enquiries (without saying what those enquiries were) and that based on those enquiries a certain state of affairs exists in relation to the legal or equitable interests of persons relevant to a particular parcel of real property. In the system of land registration stipulated under the Transfer of Land Act in which registration confers the interest,[5] I am only able to do what the High court states in Stanford v Stanford[6] that I must do in ascertaining the parties’ legal and equitable interests in property by having before me evidence of those legal and equitable interests. Evidence of legal and equitable interests is ascertained in part by reference to the registration of title or by certificates of title. None were put in evidence in this case in the applicant’s trial affidavit.
[5] Breskvar v Wall (1971) 126 CLR 376.
[6] (2012) 247 CLR 108.
Similarly, where corporate entities are concerned, evidence about directorships of and shareholdings in a company is usually given by a historical extract from records maintained by the Australian Securities and Investments Commission (“ASIC”). No such evidence was given in this case until I requested that evidence to be adduced.

To the specific items of real estate mentioned by the applicant in her trial affidavit I now turn.

J Street, K Town

The applicant asserted in her trial affidavit, without proof, that the first respondent had “an interest” (her words) in a parcel of real estate known as J Street, K Town. No details of that interest were given by the applicant in her trial affidavit. Instead, she asserted as follows in paragraph 36 of her trial affidavit –
36. In or about 2008 I understand, for reasons outlined below, that MR LAWFORD acquired an interest in property at J Street, K Town. I have no information as to the acquisition of this property save as a result of enquiries I have made. These enquiries establish that:
(a)The property was purchased in the name of G Pty Ltd;
(b)That at that time of the purchase MR LAWFORD was the sole Director of G Pty Ltd;
(c)there was a mortgage to the National Australia Bank;
(d)at that time MR LAWFORD was a majority shareholder in that company holding 90 of 100 shares.
No details of the shareholding in G Pty Ltd was given by the applicant in her trial affidavit so it was not possible when I heard this case in the Judicial Duty List to verify her assertion in paragraph 36(d).
The applicant deposed to the sale of the property at Cottle Street, K Town in paragraph 90 of her trial affidavit. She said that her solicitor’s searches revealed that the land was sold in 2018 by G Pty Ltd “for in excess of $900,000” (whatever the true value may have been) and that the mortgage was discharged upon payment to the mortgagee of the sum of $428,935. That was a dollar-precise account so it was surprising that the precise sale price could not have been ascertained and deposed to by the applicant. At all events she did not do so. The applicant deposed that ASIC deregistered G Pty Ltd in December 2019. That accorded with the ASIC historical company search in relation to that company that the applicant later exhibited. She said that she had no idea how the net proceeds of the sale were applied. In paragraph 39 of her 23 October 2020 affidavit the applicant stated that the purchaser of the K Town property paid $999,000 for the sale. It is a fair inference that the first respondent may have appropriated the net proceeds to his own use and benefit. He provided no disclosure about any aspect of this litigation, including the net proceeds of sale of K Town estimated by the applicant to be in excess of $500,000. It turned out to be more.

Suburb L

The applicant fleetingly alluded[7] to the first respondent renting a three bedroom house at Suburb L. No address was given. In any effect, as a tenant the first respondent had a contractual right to reside at that property but by reason of his tenancy he did not have a legal or equitable interest in that property.
[7] Paragraph 37 of her trial affidavit.

M Street Suburb N and 5 O Street Suburb N

In paragraph 42 of her trial affidavit the applicant stated that in 2009 or thereabouts she and the first respondent decided to acquire properties adjacent to one another in Suburb N. According to the applicant she selected M Street to purchase and the first respondent selected 5 O Street, Suburb N. She later said the address 5 O Street was in fact 10 O Street. She said she purchased M Street Suburb N “at Mr Lawford’s direction” (her words). She seemed to embed in that comment some form of coercion or compulsion exerted by the first respondent. I did not read her evidence as establishing either. She stated in paragraph 42 of her trial affidavit that she purchased M Street Suburb N for $315,000. She said P Bank provided mortgage finance.
In her trial affidavit the applicant did not exhibit the contract pursuant to which she purchased the property or mortgage documentation. Conversely, in her affidavit made 23 October 2020 the applicant stated she paid $315,000 and she exhibited the transfer of land pursuant to which she became the purchaser. However, as exhibit “H 1” to her trial affidavit the applicant exhibited an email but not the attachments to the email. The attachments included reference to certain settlement statements. Those settlement statements were not attached to the emails. The email did not readily support the applicant’s arithmetic in this case. The applicant said in paragraph 42 of her trial affidavit that she (personally) paid $315,000 for the acquisition of M Street Suburb N. She did not say how much she paid and how much was funded by her mortgagee, P Bank Ltd. She said she acquired that property in 2009. Yet the email exhibited as “H1” was referrable to the applicant’s sale of that land, not her purchase. The email was dated 15 August 2013 (printed 4 October 2019), referred to a sale to one Mr Q and it spoke of payment to (not from) P Bank Ltd of an amount of $326,594.37, an amount greater than the purchase price of $315,000 mentioned in paragraph 42.
Prior to her filing her 23 October 2020 affidavit no evidence existed beyond assertion about the applicant’s acquisition of M Street.
She said she serviced the mortgages over both properties (by which I assume she meant the Suburb I property and the M Street Suburb N property) at the rate of $3,200 per month with no financial assistance from the first respondent. She also said she was under a great deal of financial pressure at the time.
In her trial affidavit the applicant used vague details about the acquisition date and the sale date of M Street, Suburb N. She said she acquired the property in or about 2009 and she sold it in 2013, settlement of which was effected on 19 August 2013. Her use of the phrase “in or about 2009” was imprecise and I was unable to ascribe to that any particular month. In her 23 October 2020 affidavit the applicant said the following of relevance –
a)she became sole proprietor of M Street on 10 March 2010;
b)the mortgagee was BB Bank Ltd;
c)she sold that property to Mr Q on 22 August 2013;
d)she paid $315,000 for the land;
e)she sold it for $345,000;
f)she received net funds of $88,013.01;
g)of the net funds she paid $5800 for roof repairs at C Street, she took cash of $10,500, she paid $42,500 at the insistence of the first respondent and she paid $5,000 to the first respondent’s friend Mr R.
So far as 10 O Street was concerned, the applicant addressed those details in her 23 October 2020 affidavit. Relevantly distilled, her evidence was as follows –
a)the applicant purchased 10 O Street for $362,000;
b)she was sole proprietor thereof on and from 10 March 2010;
c)BB Bank Ltd was mortgagee;
d)she sold the property for $470,000;
e)she paid the mortgagee monthly instalments of $3080 from the date of acquisition until sale.
The applicant did not exhibit bank statements or any other form of statement to her trial affidavit by which it was possible to verify the fact of her paying $3,200 per month for many months. Her affidavit of 23 October 2020 rectified that situation.
She stated in paragraph 43 of her trial affidavit that she distributed the majority of the net proceeds of $88,031.01 to the first respondent. She said the funds were disbursed as follows –
a)$48,000 to the first respondent “at his insistence” (her words);
b)$5,000 to pay a third person’s tax liability “at Mr Lawford’s direction” (her words);
c)$10,000 to pay horse agistment fees “at Mr Lawford’s direction” (her words); and
d)the balance was applied towards meeting ordinary family expenditure.
It seemed to me that the applicant’s revision of the disbursement of funds as set out in her 23 October 2020 affidavit was more likely to be correct.
It will be noticed that in several places in her trial affidavit the applicant used wording “at his insistence” or “at his direction.” It was plain enough by the use of those words that the applicant was seeking to convey the notion that her disbursement of the funds described as disbursements at the first respondent’s direction or disbursements at the first respondent’s insistence were not disbursements as the exercise of her free and voluntary will. Yet the applicant gave no details to support her contention that the disbursements were at the first respondent’s insistence or direction. She did not describe any facts against which it was possible to assess who said what to whom, or what were otherwise the acts, facts, matters, omissions or circumstances on which the applicant relied to support her contention that the first respondent directed or insisted that the applicant pay certain sums in the manner she did.

Sale of Suburb I

The applicant stated in paragraph 44 of her trial affidavit that she sold the Suburb I property in or about 2009 “at Mr Lawford’s insistence.” No evidence was adduced by which I could assess the veracity of her statement that she sold the Suburb I property at the first respondent’s insistence. She seemed to have known and agreed to the consequences of her selling the Suburb I property because it meant living in the first respondent’s rented home in Suburb L. Self-evidently, as a tenant the first respondent’s tenure at the property was governed by the provision of the Residential Tenancies Act whereas the applicant had been the owner of an indefeasible fee simple estate in a free-hold interest as registered proprietor of the Suburb I property. In a seemingly contradictory manner she said in the third sentence of paragraph 44 of her trial affidavit that she was agreeable to the sale of the Suburb I property.
She said the sale price for the Suburb I property was $560,000, settlement of which took place in March 2010.
When the applicant settled the sale of the Suburb I property in March 2010 she paid out the mortgage held by BB Bank Ltd. She said in her trial affidavit that the amount was $284,000. In her 23 October 2020 affidavit the applicant said the net proceeds she received was $296,738.08. She said she “gave” (her word) the first respondent $100,000 in cash “under pressure from him” (her words). Once again she did not describe the circumstances in which the $100,000 was provided as a gift. She gave no information at all about it. Yet she said she was “under pressure from him,” meaning the first respondent. She did not give any details of the pressure she said he exerted. One wonders rhetorically why she was as pressured as she asserted having regard to the fact that the applicant provided the first respondent with $100,000 in separate instalments of $30,000. The applicant devoted a degree of detail to her deteriorating mental and emotional fabric after moving into the first respondent’s rented accommodation in Suburb L. The applicant said she gave $1,500 to a Country S woman who was the mother of one of the first respondent’s child then aged 22. The Country S woman then departed Australia permanently leaving the 22 year old daughter in the applicant’s care.

T Street City U

The applicant said in paragraph 52 of her trial affidavit that in 2010 the first respondent suggested vacating the Suburb L rented accommodation and renting in City U. She said they selected a rental premises at T Street, City U that the applicant and the first respondent let in their joint names for a term of two years. She did not exhibit the lease nor did she give any evidence about amounts paid in rent.
She said they moved to City U in August 2010. She said in 2010 the first respondent proposed marriage to her.

V Street, W Town

In paragraph 57 of her trial affidavit the applicant deposed to the first respondent purchasing vacant land known as V Street, W Town. That was the land more particularly described in certificate of the title volume … folio ….[8] The applicant said she provided the first respondent with $50,000 of the purchase prince although she did not say how much the contract sum was, the settlement amount nor the sum financed, if any. In her 23 October 2020 affidavit the applicant gave greater details. She said the first respondent became the registered proprietor of that land on 6 August 2010 assisted by mortgage finance from National Australia Bank Ltd. The applicant said the first respondent transferred his legal interest in the property to the second respondent on 24 August 2018. She said the relevant documentation revealed that the transfer of the property from the first respondent to the second respondent was for $325,000 “although it is common ground that no consideration was ever paid”(her words). She said she provided $50,000 from the sale of her Suburb I property to enable the first respondent to acquire the W Town property.
[8] In relation to this parcel of land the applicant had no trouble identifying the title particulars yet she did not exhibit to her trial affidavit a copy of the search of that title to reveal the registered proprietor.
It will be recalled that upon receiving the proceeds of sale of the Suburb I property, the lion’s share of the net funds was applied towards the first respondent’s acquisition of the W Town property. Once she provided that money to the first respondent the applicant said she was left in a tight financial condition. Yet somehow, the applicant said she found funds to acquire another property for $1,175,000 in Suburb D.
The applicant deposed in paragraph 93 of her trial affidavit to her discussion in 2018 with the first respondent during which he told the applicant that the respondent had transferred the W Town property to the second respondent. She said she had no knowledge of any such transfer. As the first respondent did not participate in this litigation the only other person capable of giving evidence about the alleged transfer of the W Town property was the second respondent.
The second respondent made an affidavit on 2 September 2020. Relevantly paraphrased, she deposed to the following –
a)she and the first respondent were in a de facto relationship (whose first name she spelt differently to the applicant’s spelling of the same name, a peculiarity in itself);
b)their relationship commenced in late 2016 and ended in late 2018, essentially two years in total;
c)during their relationship she lived at C Street Suburb D with the first respondent;
d)on selling a parcel of real estate she owned in the Z Area she accumulated savings of almost $600,000;
e)pursuant to a loan agreement made on 8 April 2015 between the second respondent as lender, G Pty Ltd as the borrower and the first respondent as guarantor, the first respondent advanced to G Pty Ltd the Sum of $150,000 on certain terms (“the 2015 loan agreement”);
f)the terms of the 2015 loan agreement required the borrower to repay the loan in full within 12 months unless otherwise agreed;
g)the 2015 loan agreement contained a provision entitling the lender to require the borrower to give a charge over land at J Street K Town;
h)the second respondent advanced to G Pty Ltd the sum of $150,000 repayable on an unspecified date in April 2015;
i)in late 2015 the first respondent requested the second respondent to advance to him $325,000 to be “advanced through a company to both himself and the applicant” (her words);
j)the second respondent thereafter incorporated the third respondent;
k)on 22 December 2016, the applicant, the first respondent and the third respondent entered into a loan agreement pursuant to which the third respondent as lender is recorded as having advanced to the applicant and to the first respondent jointly the sum of $325,000 on certain terms (“the 2016 loan agreement”);
l)the 2016 loan was to be repaid in 12 months from the date of the loan agreement;
m)the first respondent repaid the second respondent $100,000 of the combined debt under the 2015 loan and the 2016 loan, namely $475,00;
n)the applicant and the first respondent were indebted to the second respondent for $375,000 plus interest;
o)the land and improvements at C Street Suburb D has been listed for sale for $2.7m to $2.8m;
p)the first respondent transferred the property at V Street W Town to the second respondent;
q)the transfer of that property was made in consideration of the payment of the sum of $375,000;
r)the second respondent holds the certificate of title for the W Town property;
s)the first respondent gave the second respondent a motor vehicle she said was valued at $22,000 as a gift, now registered in the second respondent’s name;
t)the W Town property was listed for sale for $500,000; and
u)the applicant and the second respondent have settled their differences.
In paragraph 115(j) of her trial affidavit the applicant said she was coerced into entering into the 2016 agreement yet she gave no details.

C Street Suburb D

In paragraph 58 of her trial affidavit the applicant deposed to her execution of a contract for the acquisition of C Street, Suburb D being the land more particularly described in certificate of title volume … folio …. She said the purchase price was $1,175,000. She gave similar evidence in her 23 October 2020 affidavit. Her evidence as to the circumstances of the payment of that sum was less than clear. She gave a narration in paragraph 58 of her trial affidavit based on the best of her knowledge. She acknowledged her belief in the truth of her statements yet she said she was not sure. She was required to prove her claims in this case on the balance of probabilities.
So far as C Street Suburb D was concerned the applicant deposed to purchasing the property solely in her name. She did not exhibit in her trial affidavit the contract of purchase or any conveyancing documentation. She said the following about the source of the funds for that purchase –
The funds applied towards the purchase of the property may also have come from a combination of the money I gave to MR LAWFORD and from MR LAWFORD’s other business endeavours, the details of which I was never apprised. The balance of the purchase was funded by way of a loan from ANZ Bank that was secured by way of a mortgage over the property. The loan was for approximately $800,000 and the purchase settled in or about December 2010.
Her factual narration improved vastly in her affidavit of 23 October 2020. In it she deposed to becoming the sole registered proprietor of the C Street property on 4 January 2011, that mortgage finance was provided by Australia and New Zealand Banking Group Ltd, that she paid $1,175,000 for that property, that about $800,000 was provided by the mortgagee and that over $660,000 was owing.
The applicant did not substantiate in her trial affidavit her assertions about the mortgage, whether as to the amount borrowed or who paid what by way of instalments. No details were given about the circumstances in which the applicant became the sole registered proprietor having regard to the fact, on her version of events, that almost all of the funds associated with the acquisition of the property came from the first respondent. As the applicant was the registered proprietor (she said the contract was in her sole name) the mortgage was likely to also have been in her sole name and it was for a very substantial amount, $800,000. For an unexplained reason in her trial affidavit the applicant did not exhibit any documentation concerning that loan or the repayment of it. She said she felt pressured into agreeing to whatever financial agreements the first respondent decided. Those were her words. Without identifying what and between which persons the arrangement was, she said in the passive tense “the financial arrangement was that we would both pay the Suburb D mortgage.” That left unexplained how much per month each would pay and in the applicant’s case, whether she had the financial capacity to regularly meet whatever sum she agreed to pay.

Moving forwards chronologically, the applicant stated in paragraph 105 of her trial affidavit that on 12 February 2020 this court ordered the sale of C Street Suburb D. It was auctioned on 14 March 2020 with a selling range between $2.8m and $3m. She said an offer emerged for $2.6m which was rejected. Since then the property has remained on the market yet no offers have emerged. The applicant said she hopes to obtain $2.7m for that property.
The applicant stated she and the second respondent resolved their differences in accordance with consent orders. Mr Barbayannis and Ms Fridey proposed that I make those consent orders and that those consent orders were in the circumstances just and equitable.

II Street, Suburb JJ

The applicant said in paragraph 68 of her trial affidavit that the first respondent was under pressure from a financer to sell a parcel of land at II Street, Suburb JJ. She did not give the street address or any title particulars about that parcel of land. She did not produce a certificate of title to verify the first respondent’s registered proprietorship of a parcel of land in that street. That was surprising as it was simple enough for the applicant to have conducted an index search at the Land Titles Office.
At all events, the applicant said in paragraph 66 of her trial affidavit that the Suburb JJ property was sold in late 2013 for $1,330,000. She said she did not know how much the first applicant received by way of net distribution. In her 23 October 2020 affidavit the applicant’s evidence about the Suburb JJ property improved immeasurably. She said that the land was acquired by the first respondent on 15 March 2001, funded in part from a loan from National Australian Bank Ltd. She said that the first respondent sold that parcel of land to AA Pty Ltd for $1,330,000.

Property at CC Street, DD Town

The applicant deposed in her trial affidavit that the first respondent purchased a property in DD Town. No details were given. It seemed that the purchase may have been pursuant to a terms contract because the applicant said in paragraph 85 of her trial affidavit that the first respondent purchased the property in 2015, that by 2017 the sale had not settled and that in April 2018 the property was destroyed by fire so the sale was cancelled and the deposit returned.
The applicant said she and the first respondent finally separated in mid-September 2019. The applicant said that thereafter she moved back into the Suburb D property.

Artwork

The applicant asserted that the first respondent collected what she called in paragraph 100 of her trial affidavit “high end artwork.” She said the artwork increased “while we were together.” She said that in the course of one particular bank loan application the first respondent attributed the amount of $200,000 to the artwork collection because the first respondent used that amount in his financial statement.
Several things must be said of the alleged artwork collection in the applicant’s trial affidavit. In no special order those include –
a)the items that constituted the artwork collection were not identified;
b)the location of the artwork was given variously as being in EE Town, Suburb L and Suburb D;
c)the applicant said she did not see it all;
d)an expert valuer did not give evidence of its value; and
e)no details were given about the source of funds for the artwork’s acquisition.
Had matters stood as they did in her trial affidavit, I was not persuaded about the applicant’s evidence of artwork and I did not accept the value she attributed to it of $200,000. No expert valuation evidence was given. However, the evidence did not stand at that point. In her 23 October 2020 affidavit the applicant gave evidence about the relevant paintings. They include the following –
a)Artwork 1, the value of which was unstated;
b)Artwork 2 the value of which was not given;
c)Artwork 3, the value of which was not given;
d)Artwork 4, the sale price derived for which was $30,125;
e)Artwork 5, the value of which was not given;
f)Artwork 6, the sale price of which was $18,105;
g)Artwork 7, the value of which is unknown;
h)Artwork 8 depicting a girl, the price of which is unknown;
i)Artwork 9, the value of which is unknown;
j)Artwork 10, the value of which is unknown;
k)Artwork 11, the value of which is unknown;
l)Artwork 12, the value of which is unknown; and
m)Artwork 13, the value of which is unknown.

Current asset pool

The applicant provided something of a balance sheet as at the date of her affidavit. It was as follows –
Assets
C Street Suburb D   $2,600,000
sum received by G Pty Ltd   $500,000
motor vehicle 1  $14,800
artwork   $200,000
Total  $3,314,800
Liabilities
mortgage over Suburb D  $660,000
land tax on Suburb D   $4,500
organisation fees  $6,300
debt to first respondent’s daughter  $210,000
credit cards  $25,848
Total  $906,648
Superannuation was said by the applicant to be as follows –
a)the applicant’s $199,982
b)the respondent’s $44,805
Those superannuation amounts were estimates.

General comments about the applicant’s evidence

It will be immediately apparent that the applicant’s evidence on many of the details given above was scant and bereft of detail. Some of that was explicable whereas other aspects of the gaps in evidence were unsatisfactory.
In consequence, while I reserved my decision I called the parties’ legal representatives back before me inviting them to adduce any further evidence. I gave them 14 days within which to do so. The applicant’s further evidence was based on her affidavit made 23 October 2020.

Contributions

As has already been recorded, the applicant contended that she had made the greater financial and non-financial contributions in this case.
Whatever may have been the true circumstances of this case, by reason of the first respondent’s failure to participate in the proceeding by the filing of affidavit evidence, his position went unknown. Unlike the position in Wei & Wei [9] where affidavit material had been sworn but the deponent did not appear to press her claims[10] in it, in this case the first respondent has not participated in the litigation at all. The consequence of non-participation and its impact on gaining a true picture of the financial position of the parties was surveyed by me in Bacall v Zagar.[11]
[9][2020] FamCAFC 224.
[10] As to the use that may be put of an affidavit where a deponent does not adopt his or her affidavit in evidence, see Wei & Wei (No. 3) [2020] FamCA 98. That examination of the learning is unarguably correct.
[11] [2020] FamCA 350.
That said, even though the first respondent did not participate and the case went forward undefended, the applicant nevertheless was required to prove her case to the requisite evidentiary standard, namely, on the balance of probabilities. She was required to adduce evidence of matters set out in Stanford & Stanford.
For the purpose of s 90SM of the Family Law Act I was required to consider the direct and indirect financial contributions of the parties. The sources of evidence on point were the affidavits of the applicant on the one hand and of the second respondent on the other hand. The applicant devoted paragraph 115 and 116 of her affidavit to record those matters. Relevantly distilled, she said her financial contributions were as follows –
a)at the commence of her relationship with the first respondent in 2002 she owned the whole of the land and improvements known as H Street, Suburb I;
b)she refinanced the Suburb I property in 2008;
c)in 2009 she sold the Suburb I property for $560,000;
d)from the net proceeds of the sale of the Suburb I property she gave $100,000 to the first respondent;
e)from the net proceeds of the sale of the Suburb I property she provided $50,000 for the purchase of the W Town property;
f)she paid all sums due to the mortgage of the Suburb I property;[12]
[12] She did not quantify the sum paid.
g)she was responsible for meeting mortgage repayments for the M Street project;
h)she applied $88,000 derived from the sale of M Street as to $48,000 to the first respondent and $5000 to one of the first respondent’s friend at the direction of the first respondent, as to $10,000 for the first respondent’s horses’ agistment fees, as to $5000 for repairs to C Street and the balance to meeting ongoing family expenses;
i)she said she paid the mortgage on the Suburb D property for 10 of 12 months in 2016 at the rate of $2000 per month and for nine months in 2019 and for a time in 2020 also at the rate of $2000 per month;
j)she paid the rent on the Suburb FF property between 2016 and 2019 where the first respondent regularly stayed;
k)the applicant derived no benefit from her borrowings from the second and third respondent;
l)she pledged her credit for the first respondent’s unsuccessful attempts to acquire properties in GG Town Victoria and in HH Town South Australia;
m)she contributed her time to support the family including supporting the first respondent’s children;
n)she paid her son’s organisation fees as well as the organisation fees of one of the first respondent’s daughters;
o)she has received no financial support from the first respondent since 2019 for her son;
p)she paid land tax of $12,000 on C Street reducing the balance to $4,500; and
q)her credit card debt is fixed at $25,848.
The applicant conceded that the first respondent made certain financial and non-financial contributions. She said –
a)he owned II Street Suburb JJ at the commencement of their relationship;
b)he contributed about $500,000 to the purchase of the Suburb D property in 2010;
c)he provided extensive physical renovation activity at the Suburb D property; and
d)the applicant was unable to give evidence about the first respondent’s income.
So far as non-financial contributions were concerned, the applicant advanced a handful of reasons why she said in paragraph 116 of her trial affidavit that her non-financial contributions were significant. Those reasons were as follows –
a)from 2002 to 2019 the applicant was the primary home-maker for the first respondent, the applicant’s son and one of the first respondent’s daughters;
b)the applicant has been her son’s primary carer since 2002;
c)the applicant was the primary carer for the first respondent’s daughter now aged 22 when the daughter was aged between 9 and 17;
d)the first respondent provided no support when he was in prison and the applicant received no support from the mother of the first respondent’s 22 year old daughter who has long term chronic health issues;
e)on the acquisition of the W Town property and the DD Town property, she contributed time and labour to clearing the land on each; and
f)she devoted time to renovating the Suburb D property.

Family violence

Embedded in the applicant’s trial affidavit is repeated reference to various forms of family violence as defined in the Family law Act. The applicant said the following in paragraph 46 of her affidavit –
During arguments he would tell me that if I left him I would be “found as a heroin addict with my finger-tips cut off” or “wearing a concrete overcoat.”
She also deposed to remaining in the relationship despite family violence. She said the following –
As I had feared, the happy period was short lived and he soon began to verbally abuse me, calling me “slut” in front of X, berating me in public, verbally abusing me in restaurants, kicking me out of cars, leaving me stranded, ordering me out of the house. He also physically assaulted me in front of X, throwing oranges at me and yelling at me. Despite MR LAWFORD’s behaviour I continued in the relationship because I felt powerless to do anything else.
The applicant’s evidence of violence was not limited to its perpetration on the applicant and various children. She said the following at paragraph 55 of her trial affidavit –
Around this time MR LAWFORD was also assaulting X and being aggressive with Y. He would frequently humiliate X deliberately and left bruises around the child’s neck and throat after X failed to water plants to MR LAWFORD’s satisfaction. He referred to X and Y as “Dumb and Dumber” in front of them. Further he ordered me to discipline X with a belt threatening that if I did not do so, he would. I was constrained under enormous duress to follow his instructions for fear that it would be even worse for X. I became terrified to disobey MR LAWFORD. However, KK and her father Mr PP became most concerned about MR LAWFORD’s behaviour and reported the circumstances to DHS (sic).
Then there was evidence of intervention orders and their breach. She said this paragraph 74 of her trial affidavit –
On a number of occasions MR LAWFORD had breached the Intervention Orders I obtained on our separation in 2014. His behaviour would include grabbing me around the throat frequently, pushing me over, spitting in my face, smashing my personal items, ordering me out of the house, hurting X, confiscating my keys or mobile. He would also threaten to assault me on many occasions. I recall one episode when my friend Ms LL made an official complaint and statement to the police after MR LAWFORD came to Ms LL’s home when X and I were staying there and caused a scene and took my phone. I recall she had arrived home to find MR LAWFORD at the front of her property. At that time I had just had my appendix out and was unwell. He was convicted of breaches but appealed his conviction to the County Court.

Section 90SF matters

It is necessary for me to have regard to the matters in s 90SF(3). That is by operation of s90SM(4)(e). Not all of the 19 subsections are relevant. Those that are require me to record certain factual matters.
The age of the applicant and the first respondent has already been given. The second respondent did not give her date of birth in her trial affidavit. The respondent’s health was not the subject of particular attention. The applicant’s mental health has been adversely affected by the conduct of the respondent mentioned above in relation to family violence.
The income, property and financial resources of the applicant, the first respondent and the second respondent call for examination. The second respondent said she is unemployed. The first respondent gave no information in this proceeding. So far as the applicant was concerned, she said she is currently employed yet she fears that by reason of a restructure at the organisation where she works, she is at risk of losing her job. She said that at her age she was unlikely to gain other employment.
Section 90SF(3)(c) was relevant as the applicant has care of the child of the de facto relationship who is 17.
So far as s 90SF(3)(d) and (e) were concerned, the applicant’s income is modest and her commitments are mainly in educating and caring for her son. So far as the 22 year old daughter of the first respondent was concerned, the applicant did not have a legal duty to maintain her but since that person’s mother returned to Country S, the applicant has been the 22 year old’s carer assisting with that person’s significant health issues.
No mention was made in evidence or submissions about pensions, allowances or benefits for the purposes of s 90SF(3)(f).
The applicant wants this litigation to be determined so that she can attain a measure of certainty in her life, she said. Her proposal for the net sale proceeds of the Suburb D property to be divided as to 65% in her favour should provide her with a reasonable standard of living.
No party relied on s 90SF(3)(h).
For the purpose of s 90SF(3)(i), the creditor most relevant beyond the mortgagee of the Suburb D property was the second respondent and her corporate alter ego, the third respondent. The consent orders between those three parties address the discharge of those relevant debts.
No party made submissions about s 90SF(3)(j).
The de facto relationship existed between 2002 and 2019 as I find for the purposes of s 90SF(3)(k) and I declare for the purpose of s 90RD.
For the purposes of s 90SF(3)(l), there was no evidence applicable to it.
Section 90SF(3)(m) was not relevant.
I have elsewhere addressed the orders I propose to make under s 90SM.
For the purposes of s 90SF(3)(o) and (p), the second respondent did not seek a declaration under s 90RD.
No assessment under the Child Support (Assessment) Act was relevant in this proceeding for the purposes of s90SF(3)(q).
So far as any other matter relevant to s 90SF(3)(r) was concerned, several matter arose. The first was the applicant’s proposal to pay one of the daughters of the first respondent the sum of $210,000. That arose from what Mr Barayannis called a moral obligation. The applicant adduced that evidence in the following terms from her 23 October 2020 affidavit –
52. As I referred to in my trial affidavit, Mr Lawford has three adult children from other relationships. As stated at paragraph 113(d) of my trial affidavit, Mr Lawford and I owe the sum of $210,000 to Mr Lawford’s daughter Ms F LAWFORD (“Ms F”). The amount outstanding to Ms F is in fact $220,000 and not $210,000.
53. Ms F was in a relationship with a gentleman named Mr MM, who tragically died in a motorcycle accident in February 2012. Ms F received a TAC payment following Mr MM’s death of $159,750 on 21 May 2012. Attached hereto and marked “H41” is a true copy of page 5 of Ms F Lawford’s NAB Bank Statement in account ending #...00 showing a deposit of $159,750 on or about 21 May 2012. Ms F also received a payment from Mr MM’s superannuation fund in the amount of $140,000 on or about 18 December 2014. Attached hereto and marked “H42” is a true copy of page 3 of Ms F Lawford’s NAB Bank Statement in account ending #...00 showing a deposit of $149,124.21.
54. From the money Ms F received together with other funds she had saved, she loaned Mr Lawford and me $160,000 on 24 May 2012 and a further sum of $95,000 on 8 January 2015. I was present at the NAB Suburb RR in May 2012 when the first sum of $160,000 was advanced. It was put into Mr Lawford’s account. I was not present or directly involved when the further sum of $95,000 was advanced to Mr Lawford and me but believe it was also put into Mr Lawford’s account. Attached hereto and marked “H43” is a true copy of page 3 of Ms F Lawford NAB Bank Statement in account ending #...00 showing a deposit of $140,000. Of the $255,000 Mr Lawford and I borrowed from Ms F, approximately $35,000 has been repaid and there is an agreed sum of $220,000 outstanding to Ms F. The loans were never formalised within formal loan agreements, but there is and always has been an expectation that Ms F will be repaid. I propose for the sum of $220,000 to be paid directly into Ms F’s NAB Account – BSB …, Account number …00 from the proceeds of sale from the sale of C Street.
55. In the event that the Court does not Order that the payment be made directly to Ms F, I will pay half of the funds owing to Ms F directly to her from my property settlement and hope that Mr Lawford will do the same in due course. Ms F has been very patient and has assisted us enormously.
The second matter arose from Mr Barbayannis’s contention that the capital contributions made by the applicant and the first respondent were largely comparable. He submitted that the applicant will need recognition for her ongoing care of her 17 year old son and of the 22 year old daughter of the first respondent and the woman who departed for Country S without returning.

The third matter was Mr Barbayannis’s contention that the net value of the property to be divided was in the vicinity of $1.7m and $1.8m. He said that an additional amount must be factored into the orders to be made by reason of the applicant having ongoing care of her 17 year old son and 22 year old daughter of the first respondent. Mr Barbayannis attributed a percentage amount of 10% to that adjustment thereby deriving the division of 65% in favour of the applicant and 35% in favour of the first respondent.
Mr Barbayannis submitted that the facts of this case supported an adjustment of more than 65%. He did not volunteer a percentage. However, he did say that his client did not press for orders adjusting property interests so as to derive any greater distribution to the applicant beyond the 65% he sought. By other words, that seemed to amount to a contention that while the applicant was entitled to seek a percentage division greater than 65%, she sought 65% in this case.

Orders proposed by the applicant

In her trial affidavit the applicant set out the precise terms of the orders she sought. They were as follows –
The Orders I seek on a final basis as between me and MR LAWFORD are as are set out in my Amended Initiating Application are as follows:
(1)That upon making Final Orders in terms of the Minutes of Consent Orders dated 7 August 2020 as between the Applicant and Second and Third Named Respondents, filed this day, this Honourable Court thereafter make Orders 2 – 20 hereof.
(2)That this Honourable Court grant leave to the Applicant to proceed with her Application as against the First Named Respondent on an undefended basis.
(3)That all previous Orders be and are hereby discharged.
(4)That pursuant to Section 90RD of the Family Law Act 1975 (“the Act”) this Honourable Court declare that a de facto relationship existed between the Applicant and the First Named Respondent from about 2002 to about September 2019.
(5)That the property known as and situate at C Street, Suburb D in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the C Street property”) remain on the market for sale with E Group or such other agent as nominated by the Applicant, at such price as is determined by the Applicant in conjunction with her selling agent.
(6)The Applicant have the conduct of the sale of the C Street property to the exclusion of the First named Respondent.
(7)That the proceeds of sale of the C Street property, including the deposit, be applied as follows:
(i)First, to pay all selling agent’s costs and commission.
(ii)Secondly, to pay conveyancing costs and disbursements;
(iii)Thirdly, to discharge the mortgage to the ANZ Bank (“the mortgage”) registered dealing number …9S;
(iv)Fourthly the balance to be paid to Pearce Webster Dugdales, solicitors, to be distributed as follows:
1.To Ms F Lawford the sum of $210,000 TWO HUNDRED AND TEN THOUSAND DOLLARS;
2.As to the then remaining balance:
a.65% thereof to the Applicant; and
b.35% thereof to the First Named Respondent.
(8)That within 7 days of the making of these Orders the First Named Respondent at his expense shall withdraw all or any caveats registered over the C Street property by him or on his behalf including but not limited to Caveat Number ….
(9)In the event that the First Named Respondent fails to withdraw the caveat lodged by him or on his behalf on the property within 7 days, the Applicant, pursuant to s106A of the Family Law Act 1975, be and is here by appointed and authorised to executed any deed or instrument in the name of the First Named Respondent that may be required to cause the removal of the said caveat.
(10)That the Applicant and the First Named Respondent and each of them shall do all such acts and things and sign all such documents as are necessary to facilitate Orders 5 to 7 hereof inclusive, and in the event the First Named Respondent refuses or fails to do all acts and things and execute all such documents as may be necessary to give effect to these Orders within 7 days of being requested to do so in writing, the Applicant be and is hereby authorised pursuant to Section 106A (1) of the Act to execute all such documents in the name of the First Named Respondent and to do all acts and things necessary to give validity and operation to the said Orders.
(11)That pending the completion of the C Street property sale and settlement and distribution of the proceeds of sale pursuant to Order 7 hereof:
i.The Applicant shall have the sole right to occupy the C Street property; and
ii.The Applicant shall pay all rates and outgoings of the C Street property as they fall due including the instalments on the mortgage save as provided for in Order 11(iii) hereof;
iii.The First Named Respondent pay the sum of $1,500 per calendar month towards the mortgage by depositing the said sum on or before the 21st day of each calendar month to ANZ Bank account BSB … account number …89.
(12)That within 7 days of the making of these Orders the First Named Respondent at the Applicant’s expense shall do all such acts and things necessary to transfer or cause G Pty Ltd to transfer the motor vehicle 1 registration number … to the Applicant.
(13)That Applicant otherwise retain for her sole use and benefit absolutely:
i.All or any bank accounts in her sole name;
ii.All shares or other investments in her sole name;
iii.The motor vehicle 1 registration … in her possession as at the date of the making of these Orders;
iv.The chattels and personal effects in her possession as at the date of the making of these Orders.
(14)That First Respondent otherwise retain for his sole use and benefit absolutely:
i.All or any bank accounts in his sole name;
ii.All shares or other investments in her sole name;
iii.The motor vehicle( ) his possession as at the date of the making of these Orders;
iv.The chattels and personal effects in his possession as at the date of the making Of these Orders;
v.The artwork in his possession or the proceeds of sale of same.
(15)Save as provided for in these Orders, the Applicant shall indemnify the First Named Respondent and keep him indemnified in respect of all or any debts in her sole name.
(16)That the First Named Respondent shall indemnify the Applicant and keep her indemnified in respect of all or any debts:
i.Due to the Second Named Respondent, MS NELSON, or due to the Third Named Respondent B PTY LTD; and
ii.due by him or G PTY LTD; and
iii.all or any other debts in his sole name.
(17)That there be such further or other Orders pursuant to Section 90SM of the Act as deemed appropriate by this Honourable Court including as to costs to effect a just and equitable property adjustment as between the Applicant and First Named Respondent.
(18)That the First Named Respondent pay the Applicant’s costs of and incidental to her Application.
(19)That the Applicant forthwith cause a sealed copy of these Orders to be served on the First Named Respondent by email to …
(20)That the Application filed 16 October 2019 be otherwise dismissed.
By the first respondent’s non-participation in this proceeding I was not able to gain a full appreciation of documentation that most likely would have demonstrated or at least gone some way to demonstrating the overall financial picture of the parties, especially relating to direct and indirect financial and non-financial contributions. Of course, the first respondent was entitled to not participate in this litigation. But if, by reason of that non-participation, the first respondent did not provide disclosure of documents in his own possession, power and control he denied this court the ability to exhaustively discharge its obligation to make a just and equitable property settlement. As the authorities surveyed above at paragraph 76 show, in those circumstances the court is entitled to take a robust approach towards the orders it makes.
In my view a division of property as to 65% to the applicant is just and equitable. I agree that the parties’ capital contributions are largely equal. Even on the applicant’s own evidence the first respondent provided certain non-financial contributions. This was a 17 year relationship. The applicant will have the ongoing care of her son for a time and also it seems, for the 22 year old daughter of the first respondent, into the future. Allowance must be made for that.
Turning now to the orders sought, I take the view that the orders sought by the applicant are in order and represent the mechanism by which a property adjustment is to be made in this case that is just and equitable.
So far as the orders agreed between the applicant and the other respondents were concerned, they have the effect of conferring full legal and beneficial ownership in the W Town property upon the second respondent. That may seem a curious result as the applicant gave evidence that the first respondent somehow borrowed from the second respondent without the applicant’s consent freely and voluntarily obtained. The 2016 loan documentation bore the applicant’s signature yet she maintained that she was coerced into executing it. By adopting that position yet agreeing to the second respondent holding the legal and beneficial title to the W Town property the applicant appeared to be propounding an inconsistent position. I can only deduce that the applicant has taken the view that unless she applied to the court for relief, she was bound by the apparent indefeasible title[13] that the second respondent held in the W Town property as registered proprietor and that the real grievance was with the first respondent for committing her to an indebtedness of $425,000 entered into without her consent. In the circumstances the consent orders are, to my mind, just and equitable and the 65% 35% division as between the applicant and the first respondent is equally just and equitable.
[13]Breskvar v Wall (1971) 126 CLR 376.
I make the orders recorded in the early pages of these reasons.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 28 October 2020.

Associate:

Date: 28 October 2020