JENNINGS & HORRIGAN

[2017] FamCA 1084

FAMILY COURT OF AUSTRALIA

JENNINGS & HORRIGAN [2017] FamCA 1084

FAMILY LAW – PROPERTY – Jurisdiction – De-facto property matter – Where the husband alleged the parties were in a de facto relationship from 1987 to April 2009 – Where the wife alleged the parties’ relationship ended in 2002 – Where the first application in the proceedings was filed by the husband in 2010 – Where the parties entered into consent orders in March 2011 and those orders were fully implemented – Where the March 2011 orders were subsequently discharged on the ground that the Court did not have jurisdiction to make those orders – Where in mid-2016 the wife conceded the relationship ended after March 2009 – Concluded the Family Court of Australia has jurisdiction

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal or Striking Out - Where the wife seeks an order to dismiss the husband’s Application in a Case and for an additional payment to her – Where the parties ended their financial connection five years ago and hold no jointly owned property – Where the husband proposes it would not be just and equitable to make any property adjustment – Concluded there is no principled reason to adjust the interests of the parties in the assets and liabilities they each currently hold

Family Law Act 1975 (Cth) ss 79, 90SF, 90SM, 90SN

Bevan & Bevan (2014) 51 Fam LR 363
Stanford & Stanford (2012) HCA 52

APPLICANT: Mr Jennings

RESPONDENT: Ms Horrigan

FILE NUMBER: NCC 3264 of 2012

DATE DELIVERED: 21 December 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 18 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain

SOLICITOR FOR THE APPLICANT: Smallwood Lawyers

COUNSEL FOR THE RESPONDENT: Mr Tregilgas

SOLICITOR FOR THE RESPONDENT: Byrnes Lawyers

Orders

1. That there be no adjustment to the property interests of the applicant and respondent.

2. The following applications and responses as amended are dismissed:

   (a)The Initiating Application of the husband filed 16 September 2010;

   (b)The Response of the wife filed 22 December 2010 (as amended on 19 July 2016 and on 5 August 2016);

   (c)The Reply of the husband filed 29 July 2016 and on 18 November 2016;

   (d)The Initiating Application of the wife filed 4 December 2012 (as amended on 13 March 2015);

   (e)The Response of the husband filed 25 January 2013 (as amended on 4 March 2013 and on 30 March 2015).

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 Jennings & Horrigan 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

FILE NUMBER: NCC3264/2012

Mr Jennings

Applicant

And

Ms Horrigan

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a matter with an unusual history in this Court.

2. These reasons should be read in conjunction with reasons given in two prior applications.[1]

   [1] Reasons for Judgment dated 17/09/2015 and 28/01/2016

3. The applicant is Mr Jennings (54), the former de facto partner of the respondent, Ms Horrigan (53).

4. I will refer to the parties as the applicant husband and the respondent wife. It is now established that the relationship between them endured for twenty four years (1987-2009).

5. The husband is the applicant for historical reasons and not because he is the moving party for financial orders. He opposes any adjusting orders being made.

6. The husband seeks three orders contained in an Application in a Case[2] which replicates his proposed orders in the Reply to (Further) Amended Response[3] in the past:

   1.That there be no adjustment to the property interests of the applicant and respondent.

   2.Each party shall retain to the exclusion of the other all assets and/or financial resources in their respective names, possession, custody and control including but not limited to all choses in action, any monies standing to the credit of any account conducted by either of them with a financial institution, shareholdings, motor vehicles, superannuation entitlements, insurance policies and any present or future expectation under a trust or entitlements, insurance policies and any present or future expectation under a trust or estate and shall indemnify the other with respect to any liability of whatsoever nature and kind arising as a consequence of their respective retention of property in accordance with these orders.

   3.The respondent pay the applicant’s costs of and incidental to the proceedings.

   [2] Application in a Case filed by the husband on 30/01/2017

   [3] Reply filed by the husband on  18/11/2016

7. The primary application is for the Court to determine that it would not be just and equitable to make any adjustment to current legal and equitable interests in the property of each of the parties. The husband also seeks a declaration that each party retain property currently in his and her possession and for mutual indemnities. The third order sought is for costs.

8. By way of Response[4] the wife seeks an order for dismissal of the Application in a Case and costs. The primary application of the wife contained in her Further Amended Response[5] is for a payment to her of $300,000.

   [4] Response to an Application in a Case filed 31/03/2017

   [5] Further Amended Response filed by the wife on 5/08/2016

Documents relied on

1. In support of their respective positions each party filed an affidavit and Financial Statement:

   1.Affidavit of the husband filed 30/01/2017;

   2.Financial Statement of the husband filed 18/01/2017;

   3.Affidavit of the wife filed 24/02/2017; and

   4.Financial Statement of the wife filed 13/04/2017.

History of Events

1. An analysis of events since the first application was filed by the husband in 2010 is necessary to understand why, six and a half years later, not only are there no operative property orders but also that the husband is proposing that none be made.

First Initiating Application – Husband is Applicant

1. On 16 September 2010 solicitors for the husband filed an application in the Sydney Registry of this Court for adjustment of interests pursuant to Part VIII AB of the Family Law Act 1975 (Cth) (“the Act”).

2. Orders sought were as follows:

   1.That within 28 days of the date of these Orders, the wife do all acts and things and execute all documents, instruments and writings necessary to effect a transfer to the husband of all her right title and interest in the property at B Street, Suburb C, being the whole of the land contained in Folio Identifier ….

   2.That contemporaneously with Order 1 the husband pay to the wife the sum of two hundred thousand dollars ($200,000).

   3.That, except as provided in these Orders the husband shall retain, to the exclusion of the wife all his interest in the following:

   (i)All of his superannuation entitlements.

   (iv)sicAny shares held in his name.

   (v)sic    Any motor vehicle in his name.

   (vi)sic   Any monies standing to the credit in any bank, building society or credit union account in his own name.

   (vii)sicAny personal items in his possession, including furniture, household items, jewellery, contents and any other property of whatsoever nature in his possession, custody or control.

   4.That, except as provided in these Orders the wife shall retain, to the exclusion of the husband:

   i)Property in the D Town area being the whole of the land contained in folio identifier …43.

   ii)Property in the D Town area being the whole of the land contained in folio identifier …01.

   iii)All of her superannuation entitlements.

   iv)Any shares held in her name.

   v)Any motor vehicle in her name.

   vi)Any monies standing to the credit in any bank, building society or credit union account in her own name.

   vii)Any personal items in her possession, including furniture, household items, jewellery, contents and any other property of whatsoever nature in her possession, custody or control.

   5.In the event that either party neglects or refuses to sign any document to give effect to these orders the registrar is authorised, pursuant to s 106A of the Act, to give effect to the orders.

   6.That liberty be granted to the parties to apply on seven (7) days notice to the Court in respect of the implementation of these orders.

   7.That the respondent wife pay the applicant husband’s costs of and incidental to this application.

3. Significantly in Part C of the application the husband nominated the dates of the de facto relationship between the parties as being “1987 to 4/2009”.

4. The relevant date for jurisdiction of this Court in property disputes between parties to a de facto relationship commenced on 1 March 2009. The Court has jurisdiction to deal with such applications if there was a de facto relationship (as defined) which broke down finally after the relevant date (1 March 2009) or if there had been opting in to the legislation.

5. On 9 December 2010 the parties attended a Case Assessment Conference with a registrar. Orders and directions were made for a Conciliation Conference in February 2011.

6. On 22 December 2010 the wife filed a Response to an Application in a Case agreeing with certain orders proposed by the husband and seeking additional orders:

   1.That within 28 days of the date of these orders the husband do all acts and things and sign all documents instruments and writings necessary to effect a transfer to the wife of all his right title and interest in the property situate at [B Street, Suburb C], being the whole of the land contained in Folio Identifier ...

   2.That contemporaneously with order 1 the wife pay the husband the sum of three hundred thousand dollars ($300,000).

   3.That within 28 days of the date of these orders the husband transfer to the wife one half of the balance of his [E Bank] Saver Account No …19.

   4.The husband retain the following items currently contained in the property situate at [Suburb C]: Grandfather chair, outdoor setting, hall cupboard, [Ms G]’s bookcase, single bed, fridge, dryer, wall unit, television, pink chair, blanket box, dvd player, desk and drawers, tv cabinet, gas heater, small bookcase, dining chairs, whipper snipper, hedge trimmer, mower and his push bike.

   5.The wife retain all other items situate in the [Suburb C] property.

   6.The applicant husband pay the respondent wife’s costs in these proceedings.

7. In Part D of the Response the wife identified “facts not agreed” as follows:

   Date of final separation was 22 July 2002 not April 2009 as suggested by the applicant.[6]

   [6] Response to an Application in a Case filed 22/12/2010, page 5

8. On 22 December 2010 the husband filed a Financial Questionnaire pursuant to orders. Within that document he proposed a division of property 55/45 in favour of the wife.

9. On 14 February 2011 the parties filed a Balance Sheet.

10. On 24 January 2011 the wife filed a Financial Questionnaire proposing a division of property 80/20 in favour of herself.

11. On 29 March 2011 in context of the Court based Conciliation Conference the parties reached agreement about the distribution of their property. Handwritten orders were prepared and signed and orders made (“the March 2011 orders”).

12. The date of separation was still contentious. It is an agreed fact the registrar was informed that the wife consented to the orders but pressed the date of separation as 2002.[7]

    [7] Reasons for Judgment dated 8 October 2015

13. The wife asserts that at the time of the conference she was living with Mr H although not in a marital relationship with him. There were two children born of the union of the wife and Mr H, one child in 1997 and another in 2004. Those two children, and J, the child of the relationship of the parties born in 2002, were members of the household formed by the wife and Mr H.

14. A copy of the orders was subsequently forwarded to the Court and sealed. The orders were as follows:

    1.That within 21 days of the date of these orders the parties obtain a valuation of the property [B Street, Suburb C] being all that land contained in …12 by a valuer agreed or if no agreement is reached within 7 days, by a valuer nominated by the Australian Property Institute Inc (NSW).

    2.That within 14 days of the receipt of the valuation referred to in order 1, the applicant or his solicitor will notify the respondent or her solicitor that he wishes to purchase the respondent’s share in the property or that the property be sold.

    3.That if the applicant elects to purchase the respondent’s interest in the property he will pay the respondent as follows:

    a)If the valuation is $1 million dollars or less, $520,000

    b)If the valuation is more than $1 million dollars, 52 per cent of such valuation

    Any such payment will be made within 28 days of the election being made and simultaneously the respondent will transfer her interest to the applicant and do all things necessary do(sic) discharge any mortgage against the property.

    4.If the applicant fails to make such payment or elects that the property be sold, the parties will do all things necessary and execute all documents, instruments and writing to effect the sale of the property by private treaty at and for a price agreed or failing agreement at a price fixed by the President of the Real Estate Institute of NSW or his nominee.

    5.In the event the property is not sold in accordance with orders 4, within 10 weeks the parties will do all things necessary to sell the property by public auction at a reserve price agreed or if no agreement, at a price determined by the President of the Real Estate Institute of New South Wales or his nominee.

    6.That if the property is sold in accordance with order 4 and 5, the proceeds of sale will be disbursed as follows:

    a)The payment of agents’ fees and legal costs of the sale;

    b)Reimbursement to either party any money expended since the date of these orders to effect the sale including minor repairs and selling expenses, subject to such repairs and expense being given prior approval by the other party;

    c)52 per cent of the remainder the respondent.

    d)The balance to the applicant.

    7.For the purpose of the implementation of Order 4 and 5 herein:

    a)The parties shall list the [Suburb C] property for sale with such agent as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the agent”) the costs of the incidental to such appointment to be borne equally by the parties as and when same fall due;

    b)The parties shall each execute a contract for sale in the form prepared by the solicitor having the conduct of determined price or as agreed upon by the parties and:

    a. The parties shall instruct such solicitor as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within fourteen (14) days of the date of these orders, shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales (“the solicitor”) the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due.

    8.The(sic) pending either the transfer of the [Suburb C] property in accordance with Order 1 herein or the sale of the [Suburb C] property in accordance with Orders 4 and 5 herein, the husband is responsible to meet payment of all rates and utility costs in respect of the said property as and when same fall due.

    9.That the husband hereby indemnify the wife and keep the wife indemnified in relation to all money owing in respect to council rates and utilities associated with the [Suburb C] property.

    10.That the husband forthwith and within 14 days of the date of these orders do all acts and things and execute all documents instruments and writings necessary to cause to be transferred to the wife all his right title and interest in [E Bank] accounts numbered: …82.

    11.Other than as provided in these orders, pursuant to section 78 of the Family Law Act 1975, each party is declared to be the sole owner in law and in equity of all real estate, items of personalty, chattels, furniture, furnishings, jewellery, bank accounts, superannuation and insurance entitlements and contributions now in that party’s possession or control and whether such entitlement is present, notional or contingent.

    12.In the event that either party neglects or refuses to sign any document to give effect to these orders the registrar is authorised, pursuant to section 106A of the Family Law Act 1975, to give effect to these orders.

    13.That the applicant husband and respondent wife have liberty to apply in relation to the implementation of these orders on seven days’ notice.

    14.That the respondent will within 28 days of these orders remove all items from the property which are packed in boxes and suitcases and the furniture as detailed in the schedule attached and marked “CAH”. Any items not removed in accordance with these orders may be disposed of the applicant. Any arrangement to remove these items will be mutually agreed by the parties. The respondent will remain outside the property while the items are collected by her agents.

15. It is an agreed fact that the jointly owned property at Suburb C [the former shared home] was sold in November 2011 for $1,115,100 and the net proceeds divided according to the formula in the orders. Accordingly, 52 per cent to the wife and 48 per cent to the husband.

16. It is an agreed fact that the distribution of the asset pool represented an overall division of 59 per cent to the wife and 41 per cent to the husband.

17. By the distribution of proceeds of sale of the Suburb C property the March 2011 orders were fully implemented.

18. In December 2011 the husband began a de facto relationship with Ms K.

19. In May 2012 the husband and Ms K bought a property in L Town as either tenants in common or joint tenants. The husband asserts that he contributed $540,000 being his share of the sale of the Suburb C property.

Second Initiating Application – Wife is Applicant

1. On 4 December 2012 the wife filed an Initiating Application in the Federal Circuit Court in Newcastle.

2. The wife again identified 2 July 2002 as the date of separation.

3. The final orders sought were as follows:

   1.The orders made in the Family Court of Australia at Sydney on 29 March 2011 be set aside.

   2.In lieu thereof the following orders be made.

   3.Within 28 days the husband pay to the wife or as she otherwise directs the sum of $375,000.

   4.Except as otherwise provided in these orders the applicant and the respondent shall be entitled to be the sole legal and beneficial owners of all items of property including money, insurances, equities, business interests, superannuation interests and entitlements, shares, motor vehicles, personal effects and personal debts currently in the possession or control of each of them respectively.

   5.Each of the parties shall be solely responsible for and shall indemnify the other in respect of any liability attaching to any item of property to which that party is entitled pursuant to these orders.

   6.The respondent pay the applicant’s costs of and incidental to these proceedings.

1. The wife also filed a Financial Statement and an affidavit.

2. By this application, the wife raised for the first time setting aside the March 2011 orders. Alternatively, she sought an order for variation to include a further payment to her of $375,000. The proposed orders had the character of an application pursuant to s 90SN of the Act.

3. On 25 January 2013 the husband filed a Response seeking dismissal of the application of the wife and costs.

4. On 4 March 2013 the husband filed an Amended Response. This document sought summary dismissal of the application of the wife and costs on an indemnity basis. There were also a raft of interim and procedural orders sought.

5. The husband proposed a discrete hearing on the jurisdictional issue and “as to the applicant’s [wife’s] contention that there was a miscarriage of justice in the entry of the orders of the Family Court of Australia Sydney on 29 March 2011:

   Final orders sought:

   1.That the Initiating Application (Family Law) filed 4 December 2012 be dismissed:

   1.1Summarily; and

   1.2in any event.

   2.That the applicant pay the respondent’s costs of and incidental to the proceedings on an indemnity basis.

   Interim and Procedural orders sought:

   A.as to any issue of jurisdiction maintained by the applicant:

   3.That there be a separate hearing for one day as to the applicant’s contention that the Family Court of Australia, Sydney, had no jurisdiction to enter the orders of that Court of 29 March 2011 [the jurisdictional issue].

   4.That the applicant file and serve all evidence sought to be relied upon by her in relation to the jurisdictional issue within 28 days.

   5.That the respondent file and serve all evidence sought to be relied upon by him in relation to the jurisdictional issue within 28 days.

   6.That the applicant shall do all things and sign all documents and authorities necessary to authorise and permit the respondent to obtain from Centrelink and/or the Department of Human Services all documents held in relation to the entitlements of the application to any government benefit, pension, allowance or entitlement for the period from 2002 to the present time, including but not limited to:

   a.All declarations, information and correspondence forwarded by the applicant to the same; and,

   b.All decisions made in relation to the applicant’s entitlements, overpayment and/or repayment of such entitlements;

   B.in the event that the Court be determined and/or conceded by the applicant to have jurisdiction:

   7.That there be a separate hearing for one day as to the applicant’s contention that there was a miscarriage of justice in the entry of the orders of the Family Court of Australia, Sydney, on 29 March 2011.

   8.That the applicant shall provide to the respondent a list of all documents in her possession and/or control in relation to each of:

   a.The financial position of the applicant in the period from 1 April 2009 until the present time;

   b.The applicant’s dealings with Centrelink (or other relevant government department) in relation to any entitlement that she had or moneys that were received by her by way of any pension, benefit or entitlements, including but not limited to the circumstances in which any debt of the applicant to such entity arose;

   c.The applicant’s interest in her late mother’s estate, the receipt by her of any moneys or other assets or entitlements from such estate and her application or disposition of the same;

   d.The financial relationship between the applicant and [Ms H] in the period from 1 April 2009 until the present time; and

   e.All advice received by the applicant in relation to the entry of the orders of 29 March 2011 in the period between 1 April 2009 and 19 April 2011.

   9.That for the purpose of such hearing:

   a.The parties shall forthwith do all things necessary to appoint a singer expert real property valuer to provide a valuation of the property at [M Street, N Town] as at 29 March 2011;

   b.The applicant shall file and serve all evidence sought to be relied upon by her not later than six weeks prior to the hearing date; and,

   c.The respondent shall file and serve all evidence sought to be relied upon by him not later than three weeks prior to the hearing date.

   C.for the purpose of any final hearing of the application pursuant to set aside the orders (other than separately of the jurisdictional and/or threshold issues):

   8.That the parties forthwith do all things necessary to appoint single expert real property valuers to provide a valuation of each of the following properties:

   a.O Street, P Town

   b.M Street, N Town

   both as at 29 March 2011 and currently; and

   c.Q Street, D Town

   d.R Street, D Town

   e.S Street, L Town

   currently.

   9.The applicant pay the respondent’s costs of and incidental to these proceedings on an indemnity basis.

6. Between March and July 2013 there were a series of procedural orders made in the Federal Circuit Court.

Transfer from Federal Circuit Court to Family Court on 30 July 2013

1. The matter was transferred from the Federal Circuit Court to this Court on a date and time to be advised.

2. Due to the miscommunication the file was not transferred to the Family Court but was instead sent to file storage.

3. The first enquiry or application about a next date for the proceedings was on 27 January 2015 when the solicitor for the wife raised the matter with the registrar of this Court.

4. The husband asserts that in August 2013 he was hospitalised for depression for four weeks.

Husband separates from his partner

1. In September 2013 the relationship between the husband and his partner Ms K ended.

2. On 16 December 2013 the husband and Ms K signed consent orders[8] [probably pursuant to s 90SM of the Act]. The orders provided for the husband and his partner to raise funds to complete the construction of a property and for the sale and division of proceeds of sale of that property thereafter.

   [8] Affidavit of the husband filed 1/02/2017, Annexure ATJ-16

3. In May 2014 the L Town property was sold.

4. In September 2014 the husband bought an apartment in Suburb T for $640,000.[9]

   [9] Exhibit 1, hearing 18/04/2017

5. On 30 January 2015 the first procedural orders were made in this Court, the logistical error in the registry having come to light.

6. On 11 February 2015 the matter came before the docket registrar. On that day “Notes to Orders”[10] reflected that the legal representatives for both parties sought the listing of the matter before a judge for a discrete hearing on the jurisdictional issue. Directions were made for filing of updating material.

   [10] Orders dated 11/02/2015, Note (C)

7. On 13 March 2015 the wife filed an Amended Initiating Application together with a Financial Statement. The final property orders sought were repeated.

8. Under the heading “Interim or Procedural Orders sought” the wife sought a declaration:

   Declaration that the parties separated prior to 1 March 2009

   [Implicitly if such a declaration was made the Court would not have jurisdiction to entertain the substantive application.]

9. On 30 March 2015 the husband filed an Amended Response seeking summary dismissal of the Amended Application and indemnity costs.

   1.That the Amended Initiating Application (Family Law) filed 13 March 2015 be dismissed:

   1.1Summarily; and

   1.2in any event.

   2.That the applicant pay the respondent’s costs of and incidental to the proceedings on an indemnity basis.

10. Again there were proposals for separate one day hearings in respect of the jurisdictional issue and depending on outcomes, a hearing in the nature of a contested hearing pursuant to s 90SN of the Act [application to set aside/vary orders].

11. On 1 May 2015 the matter first came before me and the following procedural orders were made:

    1.This matter is listed for a one day hearing at 10.00am on Thursday 17 September 2015 in relation to the jurisdictional issue.

    2.The parties are to file and serve any Affidavits upon which they rely by close of business on Thursday 13 August 2015.

    3.No later than Thursday 10 September 2015 each party shall provide to each other party and to my Associate via email … a Case Outline document which includes the following:

    a.List of documents relied upon;

    b.Summary of arguments;

    c.Authorities, if any.

12. On 13 August 2015 the parties each filed an affidavit. Both of those affidavits gave a history of the relationship.

13. On 17 September 2015 the matter was heard.

March 2011 Orders discharged

1. On 8 October 2015 the jurisdictional point was determined. The March 2011 orders were discharged on the ground that the Court did not at the relevant time have jurisdiction to make those orders. The reason being that the Court could not have been satisfied that the relationship had broken down after the relevant date.

2. On behalf of the husband it was argued unsuccessfully that the wife should be estopped from pursuing her jurisdictional argument having failed to pursue when the March 2011 orders were made.

3. In retrospect, given the subsequent concession of the wife about date of separation, this exercise was a waste of the Court’s time.

4. The Application and Response were adjourned to 5 November 2015 to enable the parties to consider their respective positions.

5. On 4 November 2015 the wife filed an application for costs.

6. On 8 December 2015 the husband filed a response seeking costs.

7. On 28 January 2016 the applications were heard.

8. On 29 February 2016 orders were made and reasons given. Both applications were dismissed.

9. Procedural orders were made:

   1.That the Application in a Case filed 4 November 2015 and the Response to an Application in a Case filed 8 December 2015 is dismissed.

   2.Each party may re-list their respective application and/or response within 14 days of the date of these orders and in the event there is no such application to re-list, the following applications and responses will be dismissed without further notice to the parties:

   (a)Initiating Application of [Mr Jennings] filed 16 September 2010;

   (b)Response to Initiating Application of [Ms Horrigan] filed 22 December 2010;

   (c)Initiating Application of [Ms Horrigan] filed 4 December 2012;

   (d)Response to Initiating Application of [Mr Jennings] filed 25 January 2013 (in [U Town] Local Court);

   (e)Amended Initiating Application of [Ms Horrigan] filed 13 March 2015; and

   (f)Amended Response of Mr Jennings filed 30 March 2015.

10. With reference to those orders the applicant applied within 14 days to relist her application and the respondent advised the Court likewise.

11. On 16 March 2016 the matter came before a registrar.

12. All outstanding applications were listed before a registrar for a Case Assessment Conference on 27 June 2016.

13. On 13 April 2016 the wife filed a Financial Statement.[11]

    [11] Financial Statement of the wife filed 13/04/2016

14. On 28 June 2016 all applications were adjourned to 5 August 2016. The matter was delayed by the need to recall the Sydney file:

    1.All or any outstanding applications are adjourned to a Judge in a duty list at 10.00 am on 5 August 2016.

    Notations:

    a)The solicitor for the applicant [Ms Horrigan] informed the Court that he attempted to e-file an amended Response as recently as yesterday however such amended Response would need to be filed in the file SYC5865/2010 which is currently travelling with court file NCC3642/2012. All other applications have been dismissed by the orders made 29 February 2016 including the Initiating Application filed by the respondent [Mr Jennings] on 16 September 2010 in Court file SYC5865/2010.

    b)The court file SYC5865/2010 has been un-finalized and is located in the Newcastle registry.

    c)The counsel for the respondent [Mr Jennings] advised the Court that there is no jurisdictional basis for the Court to consider the Response filed in Court File number SYC5865/2010 and referred to the affidavit material filed on behalf of the applicant [Ms Horrigan] in the proceedings in Court file NCC3264/2012 asserting that separation occurred prior to 2009 (as early as 2002).

    d)The solicitor for the applicant [Ms Horrigan] asserted that his client’s remaining application contained in her Response filed 22 October 2010 could now proceed as an undefended matter in the Family Court of Australia, at Newcastle.

15. By this point the parties or at least one of them [the husband] had appreciated that the Court had no jurisdiction to hear any outstanding application whilst the dispute over the date of the breakdown of the relationship remained unresolved.[12]

    [12] Orders dated 28/06/2016, Notation (c)

16. On 19 July 2016 the wife filed an Amended Response. [The wife reverted to the position of Respondent to the first Initiating Application filed by the husband in 2010 which was once again open]. She sought the following orders:

    1.Within 28 days of the date of making these orders the applicant husband pay to the respondent wife, or as she directs, the sum of $300,000.

    2.As between the parties the applicant husband is the sole owner of and the respondent wife relinquishes any claim on the following:

    2.1All items of personalty in his possession as at the date of these orders.

    2.2All monies standing to his credit in any bank, building society, credit union or other financial institution accounts.

    2.3Any real property owned in his name.

    2.4Any motor vehicles owned by him.

    2.5His superannuation entitlements.

    3.As between the parties the respondent wife is the sole owner of and the applicant husband relinquishes any claim on the following:

    2.6 sicAll items of personalty in her possession as at the date of these orders.

    2.7 sicAll monies standing to her credit in any bank, building society, credit union or other financial institution accounts.

    2.8 (sic)Any real property owned in her name.

    2.9 (sic)Any motor vehicles owned by her.

    2.10 (sic)Her superannuation entitlements.

    4.The applicant husband pay the respondent wife’s costs of and incidental to these proceedings.

17. The wife sought a payment for a lesser figure [$300,000] than in her 2012 application.

18. On 29 July 2016 the husband filed a Reply to the Amended Response seeking dismissal on the basis of want of jurisdiction and costs:

    1.That the orders sought in the Amended Response to Initiating Application of the respondent wife filed 19 July 2016 be dismissed due to the Court’s lack of jurisdiction.

    2.That the respondent wife pay the applicant husband’s costs of and incidental to these proceedings.

19. On 5 August 2016 the wife filed a Further Amended Response in the same terms as her Amended Response, being a payment of $300,000, a declaration as to ownership and costs.

Wife contemplates remedy in Supreme Court

1. On 23 August 2016 the matter came back before me. On that occasion the Court was advised that the wife was contemplating filing an application in a [New South Wales] State Court in respect of her property claim.

2. Over the opposition of the husband the matter was adjourned to accommodate that course of action. The following notation was made in relation to the matter being otherwise struck out:

   In the event that the legal representatives for the Applicant have not been served with an initiating process in a NSW State Court in respect of this matter before the adjourned date, then these proceedings in the Family Court of Australia will be struck out and the Applicant’s costs application will be dealt with on the adjourned day.

Wife concedes date of separation asserted by husband

1. Subsequently the wife changed course. In August/September 2016 in correspondence between the lawyers the wife conceded for the first time that the relationship between the parties had broken down after 1 March 2009.

Husband commences new relationship

1. In September 2016 the husband became a party to a new de facto relationship.

2. The husband whilst acknowledging, as he had done throughout, that the Court would now have jurisdiction to hear a fresh Part VIIIAB application, objected to the exercise being undertaken.

3. On 16 December 2016 directions were made for the filing of an Application in a Case and Response with supporting material - two hours allocated for hearing submissions:

   1.The husband is to file and serve an Application in a Case together with a supporting Affidavit upon which he wishes to rely by close of business on Friday 27 January 2017.

   2.The wife is to file and serve a Response to the Application in a Case together with a supporting Affidavit upon which she wishes to rely by close of business on Friday 24 February 2017.

   3.The Application in a Case is listed for hearing [submissions] at 10.00 am on Tuesday 18 April 2017 for a period of not more than 2 hours.

   THE COURT NOTES THAT

   (A)The issue of jurisdiction has been resolved by the concession of the wife that the relationship between the parties broke down after 1 March 2009.

   (B)It is agreed between the parties that the preliminary issue of whether or not it is just and equitable for the Court to make any order will be heard first.

Hearing – 18 April 2017

1. On 18 April 2017 the matter came before me for short, though nevertheless final, hearing.

2. The interests in property of the parties were disclosed in the Financial Statements and affidavits relied upon by the parties.

3. There is no dispute that the parties do not hold any assets jointly. There is disagreement over current property values.

4. The applicant husband framed his opposition to any adjustment of interest within the authorities on the four distinct steps to be taken in resolution of property disputes.

5. Counsel for the applicant husband submitted that after consideration of all the material filed in the application the matter should be determined on the basis that it would not be just and equitable to make any adjustment to current interest as disclosed.

6. The respondent wife pressed the argument that the parties have not had the benefit of valid consent orders nor a judicial determination of the evidence and that they should have that opportunity.

7. Quite properly counsel for the wife, who had not appeared on the day when orders and notations were made, raised the reference in the second notation to “the preliminary issue” as inappropriate.

8. Counsel for the wife submitted that the Court would err in an approach which did anything other than consider the first step in the context of a fully contested hearing.

9. In any event there was no application for the matter not to proceed as a short hearing. The matter effectively proceeded on the evidence of both parties at its highest and in my view both counsel referred to relevant matters for consideration.

Argument and Analysis

1. By both counsel I was taken to the decision of the High Court in Stanford & Stanford (2012) HCA 52 and the principles enunciated in that decision:

   Under s 79(2) of the Act a Court shall not make a property settlement unless satisfied that it is just and equitable to do so.

   [It was accepted that the authority extends to de facto property; and relevantly s 90SM(3) of the Act].

2. The decision establishes three fundamental propositions:

   37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

   38.Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:

   The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.

   40.Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   [Citations omitted]

1. The Court is enjoined to have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about party interests during the continuance of the marriage.

2. Counsel for the husband submitted that the onus is on the wife to establish a principled reason.

3. I accept that submission in these circumstances where:

   (a)The parties have in fact undertaken the exercise of adjusting interests in property to reflect circumstances and ended their financial connection five years ago. They expressly considered and re-arranged their property interests by selling their jointly owned property.

   (b)The wife for six and a half years adhered to her position that the de facto relationship broke down either in 2002, or at the latest 2007; in any event long before the critical date.

   This adherence was the cause of the hearing on the jurisdictional point and the procedural unfolding of the matter thereafter until late 2016 when the wife conceded that the husband’s assertion as to the date of separation was correct.

   The wife had it within her power to have an application for variation of the March 2011 orders heard expeditiously without the costs and delay incurred by her contest to the jurisdiction after its filing.

4. I give some weight to the submission that the parties have not to date had a judicial determination of their original applications or the applications of the wife to vary the orders /to make fresh orders., This consideration is hardly determinative when both parties believed that they had valid orders and acted on those orders accordingly. Further that the wife had it within her control to have her application to vary dealt with expeditiously.

5. I also accept that the decision in Bevan & Bevan (2014) 51 Fam LR 363 is authority for the proposition that consideration of whether or not it is just and equitable to make any adjustment to financial interests is not to be undertaken as a “threshold issue”, a term rejected by their Honours as a “misleading description”. However providing all steps are considered, in whatever order may be appropriate the extent of expositions of reasons will vary from case to case.[13]

   [13]Chapman v Chapman (2014) 51 Fam LR 176, [181]

6. I accept that submission in circumstances where during the six and a half year period (2010 – 2016) the parties’ circumstances have changed. The husband was a partner in a subsequent de facto relationship, intermingled his finances with that partner and when that relationship ended, entered into orders to settle property interests.

7. There is now another new relationship for the husband.

8. The husband has changed occupation and for some years has earned significantly less than he did at the time of the 2011 orders ($210,000 pa 2010/2011 and $68,000 pa since 2013).  He asserts that he has also been hospitalised for a bout of mental illness (depression).

9. The financial position of the wife may have improved. Both her income and her net asset position is superior to that of the husband.

10. This has two possible consequences. One is that the outcome of further proceedings might, in respect of s 90SF factors, favour the husband. The other is that the husband is less well placed to fund a fully defended hearing, including valuations.

11. During the six and a half year period, the wife has proposed a further payment to herself by the husband of $375,000 reducing to $300,000. She had it within her power at all times to concede the jurisdictional point.

12. I am told that the parties have together already paid $140,000 in costs. A fully defended hearing would likely require retrospective valuations of assets and current valuations. Substantial further costs would be incurred.

13. I take into account that there is no evidence of events not known at the time of the orders. The wife had the majority of care of the parties’ youngest child, then aged about seven years at separation. The wife had received an inheritance from her mother in instalments over the last two and a half years of the relationship.

14. I take into account that the parties were both legally represented when the March 2011 orders were entered into and implemented. In my view, this makes a complaint of duress in respect of consenting to orders less likely. In any event the wife pursued the jurisdictional point only, not her claim of duress and not failure by the husband to adequately disclose details of his superannuation.

15. Parties are entitled to move on after a property settlement. Moving on includes disposing of documents, buying and selling property, entering new relationships.

16. The decision in Bevan & Bevan (2014) 51 Fam LR 363 is authority for the proposition that s 79(2) (s 90SM(3)) confers a wide discretion and therefore each case will turn entirely on the view taken by the judicial officer of the facts and merits of that case.

17. I consider that this case is an unusual one. The mutuality of the relationship was severed by separation. The mutual desire to put an end to a financial relationship was effected. The wife has pursued, although not vigorously, since 2012 her application for orders to be set aside. Even after achieving that result she did not concede until 2016 the husband’s position on the date of separation.

18. Clearly she made an informed choice not to take the foreshadowed course of initiating proceedings in the State Courts.

19. For all of the reasons set out above I conclude that there is no principled reason to adjust the interests of the parties in the assets and liabilities they each currently hold.

20. Order one in the Application in a Case of the husband is granted which is otherwise dismissed except in respect of costs.

21. The following applications and responses as amended are dismissed:

    (a)The Initiating Application of the husband filed 16 September 2010;

    (b)The Response of the wife filed 22 December 2010 (as amended on 19 July 2016 and on 5 August 2016);

    (c)The Reply of the husband filed 29 July 2016 and on 18 November 2016;

    (d)The Initiating Application of the wife filed 4 December 2012 (as amended on 13 March 2015);

    (e)The Response of the husband filed 25 January 2013 (as amended on 4 March 2013 and on 30 March 2015).

22. Orders are made accordingly.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 21 December 2017.

Associate: 

Date:  21 December 2017