Massalski & Riley

[2019] FamCA 1013

FAMILY COURT OF AUSTRALIA

MASSALSKI & RILEY [2019] FamCA 1013

FAMILY LAW – PROPERTY – DE FACTO RELATIONSHIP – Where parties agree there was a de facto relationship for the purpose of Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) – Where proceedings brought in the Supreme Court of Victoria in relation to the parties property interests has been cross vested to the Family Court of Australia – Where the de facto wife contends she has an equitable interest in the property of the de facto husband – Where claims the de facto wife’s equitable interest in the de facto husband’s property are dismissed in full – Where the de facto wife seeks an adjustment in favour to her as a result of contended contributions made – Where Orders for a slight adjustment to the de facto wife are made in respect to one property.

Family Law Act 1975 (Cth) ss. 75, 79, 106A, 90SF, 90SM
Evidence Act 1995 (Cth) s. 50
Family Court Rules 2004 r. 13.04, pt. 15, cl 6 pt 1 sch 1
Strata Schemes Management Act 2015 (NSW)

Allen v Snyder [1977] 2 NSWLR 685
Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Antmann and Antmann (1980) FLC 90-908
Baumgartner v Baumgartner (1987) 11 Fam LR 915
Biltoft and Biltoft (1995) FLC 92-614
Bircher & Bircher and Anor (2016) FLC 93-721
Bonnici & Bonnici (1992) FLC 92-272
Briese & Briese (1986) FLC 91-713
Calverley v Green (1984) 155 CLR 242
Calvin v McTier (2017) 57 Fam LR 1
Chang v Su (2002) FLC 93-117
Commonwealth v Verwayen (1987) 164 CLR 137
D & D [2003] FamCA 473
Dickons & Dickons (2012) Fam LR 244
Donis v Donis (2007) 19 VR 577
Efthidmiadis & Efthidmiadis (1993) FLC 92-361
Evans and Braddock [2015] NSWSC 249
Giumelli v Giumelli (1999) 196 CLR 101
Grefeld & Grefeld (2012) FLC 93-508
Hearne & Hearne [2015] FamCAFC 178
Kowaliw and Kowaliw [1981] FLC 91-092
Lenehan & Lenehan (1987) FLC 91-814
Livesey (formerly Jenkins) and Jenkins [1985] 1 All ER 106
Lovine & Connor [2012] FamCAFC 168
Mallet v Mallet (1984) 156 CLR 605
Massalski & Riley [2018] FamCA 678.
Miklic & Miklic and Anor [2010] FamCA 741
Muschinski v Dodds (1985) 160 CLR 583
Norbis v Norbis (1986) FLC 91-712
Norman & Norman [2010] FamCAFC 66
Ogilvie v Ryan [1976] 2 NSWLR 504
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep. 403
Paragon Finance PLC v DB Thakerar & Co [1999] 1 All ER 400
Petruski & Balewa (2013) 49 Fam LR 116
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Riley & Massalski [2016] FamCA 1169
Rodgers & Rodgers (No. 2) (2016) 55 Fam LR 167
Stanford v Stanford (2012) 247 CLR 108
Stoddard & Glover [2016] FamCA 674
Vedejs v Public Trustee [1985] VR 569
Wainohu v New South Wales (2011) 243 CLR 181
Weir & Weir (1993) FLC 92-338

APPLICANT: Ms Massalski

RESPONDENT: Mr Riley

FILE NUMBER: SYC 496 of 2015

DATE DELIVERED: 24 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 1-2 August 2018, 11 December 2018, and 25 January 2019

REPRESENTATION

COUNSEL FOR THEAPPLICANT: Mr Hayes

SOLICITOR FOR THE APPLICANT: Keypoint Law

COUNSEL FOR THE RESPONDENT: Mr Coleman SC

SOLICITOR FOR THE RESPONDENT: Russell C Byrnes Solicitor

Orders

1. The proceedings in the Supreme Court of Victoria, case number …, are dismissed with the question of costs reserved.

2. That within 14 days, the Applicant forthwith sign all documents and do all things necessary to cause all caveats she has lodged over property known as and situated at B Street and C Street, Suburb A in the State of Victoria (“the Suburb A property”) and property known as and situated at F Street, Suburb G, being the land in folio identifier … ("the F Street property") to be withdrawn.

3. The parties are to expeditiously do all acts and things and sign all documents required to complete the registration of the proposed strata plan and associated dealings of the F Street property.

4. For the purposes of Order (3), the Applicant is to execute the following documents and return those documents properly executed and witnessed as is required by each document, to the solicitor for the Respondent, within 14 days of the date of delivery of those documents to the Applicant's solicitor.

   (a)Any application form(s) and any other forms or documents required by the H Council to complete the approval of the proposed strata plan of the F Street property;

   (b)The Strata Plan Administration Sheet and Strata Plan;

   (c)Any authority required by the Commonwealth Bank of Australia to produce the Folio Identifier at the LPI NSW; and

   (d)Such other document or documents as may be provided by the Respondent to the Applicant which is, or are, reasonably required to enable the registration of the strata plan.

5. Within 28 days of registration of the strata plan for the F Street property, the parties are to do all acts and things and sign all documents required to effect the following:

   (a)Authorise the Commonwealth Bank of Australia to discharge the mortgage, registration number …65, secured over Lot 1 as shown on the Strata Plan, being the Lot at the front of the property ("Lot 1"), and to secure the debt then owing to the Commonwealth Bank of Australia by a mortgage secured over Lot 2 as shown on the Strata Plan, being the lot at the rear of the property ("Lot 2"); and

   (b)To hold a meeting of the Strata Committee of the Strata Plan (by proxy if preferred) to pass the necessary resolutions as required by the Strata Schemes Management Act 2015 (NSW).

6. The parties are to each pay one half of the costs and fees payable in respect to the preparation of the registration of the Strata Plan and associated documents, except for, any fees payable to the Commonwealth Bank of Australia which shall be the sole responsibility of the Respondent.

7. That within 14 days of the registration of the strata plan, the Applicant prepare a transfer in registrable form by which the Respondent transfers all of his right, title and interest in Lot 1 in the proposed strata plan to the Applicant and deliver such document to the solicitor for the Respondent.

8. That within 7 days of receipt of such transfer, the Respondent sign such document and exchange it for the transfer to be signed by the Applicant.

9. That within 14 days of the registration of the strata plan, the Respondent prepare a transfer in registrable form by which the Applicant transfers all of her right, title and interest in Lot 2 in the proposed strata plan to the Respondent and deliver such document to the solicitor for the Applicant.

10. That within seven (7) days of receipt of such transfer, the Applicant sign such document and exchange it for the transfer signed by the Respondent.

11. Within 14 days of the Applicant complying with her obligations pursuant to these Orders, the Respondent is to pay to the Applicant the sum of $18,263.50.

12. That other than as provided in these Orders, each party against the other party shall be entitled to:

    (a)Any items of personalty, chattels, goods, furnishings, bank accounts, motor vehicles and/or other property, at the date of these Orders, in each party’s’ name, possession and control, respectively;

    (b)Any moneys, shares, debentures, superannuation and/or employment entitlements which stand in each party's sole name, possession and control, respectively.

13. That each party keep the other indemnified in relation to any liability in their sole name.

14. That each party forthwith do all acts and things and sign all documents, deeds or instruments necessary to give effect to these Orders.

15. That if either party refuses or neglects to sign or execute any document, instrument or writing after seven (7) days of being required to do so, each party consents to any application filed by the other party seeking Orders, pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”), that a Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to these orders.

16. That in the default of any party doing any act or things and executing such document necessary to give effect to these Orders, the Registrar of the Family Court of Australia at Sydney be appointed pursuant to s 106A of the Act to execute all such documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to such documents and the defaulting party shall pay the costs of the non-defaulting party in relation thereto.

17. That each party have liberty to apply in relation to the implementation of these Orders on giving the other party and the Court not less than seven (7) days' notice in writing.

18. The parties have liberty to apply in respect to the question of costs.

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 Massalski & Riley 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 SYDNEY

FILE NUMBER: SYC 496 of 2015

Ms Massalski

Applicant

And

Mr Riley

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an Application brought by Ms Massalski (“the Applicant”) for final property orders arising from a de facto relationship with, Mr Riley (“the Respondent”), which she contends lasted for a period of approximately four and a half years. Ms Massalski contends that as result of the conduct of the Respondent, including in the period prior to and subsequent to the parties relationship, that orders should be made giving her an equitable interest in the property of the Respondent. I have found those contentions to be without any evidentiary basis and wholly without merit. 

2. The fact that such contentions were made has resulted in an unfortunate waste of the parties’ and the Courts time. I have endeavoured, as best I can, to set out my understanding of Ms Massalski’s submissions and why I have rejected them.  

3. After the unmeritorious contentions have been swept away, this case is essentially straightforward and comes down to an assessment as to the extent of contributions the parties have made to property which they own individually and jointly. Having undertaken that analysis, in the context of an asset by asset approach, I have determined that Ms Massalski is entitled to a slight adjustment in respect to her contributions to one (1) of the properties that the Respondent jointly owns with Ms Massalski’s husband, Mr K.

Background

1. The parties agree that they were in a de facto relationship which commenced in early 2009. The parties differ, however, as to the date of cessation of their relationship. The Applicant contends the relationship ended in October 2013. The Respondent contends the relationship ended in October 2012.

2. Since January 2015, the parties have been engaged in litigation in this Court and other State Court’s.

3. In 1951, the Respondent was born. He is currently aged 68 years.

4. In 1958, the Applicant was born. She is currently aged 61 years.

5. In 1982, the Applicant married Mr K.  The marriage is said to have ended, by separation, in 2002. The Respondent, however, disputes this separation date and alleges that, up until March 2009, the Applicant and Mr K were still living together. The Respondent alleges that the Applicant and Mr K continue to maintain a close relationship. In her response to the Respondent’s submissions, the Applicant acknowledged that she and Mr K “maintained a cordial relationship which had intermingled finances due to a long marriage.”[1]

   [1] Ms Massalski, ‘Applicant’s submissions in reply to the Respondent’s submissions’, Submission in Massalski & Riley SYC496/2015, [109].

6. When Mr K was re-examined by counsel for the Applicant, on 11 December 2018, he advised the Court that he had “filed for the divorce” between himself and the Applicant and that he anticipated that would take place in February 2019.  The marital status of the Applicant and Mr K is not an issue that is relevant to these proceedings, save to the extent that it is relevant background in the determination of the nature of the financial relationship between the Applicant and Mr K.

7. In 2002, the Applicant moved to the H Region of New South Wales and met the Respondent. The Applicant contends that, in 2002, the parties began an intimate relationship.

8. In 2005, the Applicant and Mr K purchased two (2) apartments in their respective names at the W Street Complex, entering into a joint mortgage to finance the purchases. On 16 March 2005, Mr K registered the business name “Suburb G Apartments.”  The business concerned the rental of the two (2) apartments in the W Street Complex which he and the Applicant separately owned. From 16 March 2011, the address for service of documents in respect to the business was F Street, Suburb G NSW.[2]  

   [2] Annexures to the Affidavit of Mr Riley, pg. 310 (marked ‘Exhibit 39’ in the proceedings).

9. In 2006, the Respondent and Mr K purchased a property at B Street, Suburb A VIC (“B Street property”) for $300 000 as tenants in common in equal shares. It was their intention to build two (2) townhouses on the property. The Respondent paid $15,000 from his own funds and borrowed $135,000 from the Commonwealth Bank to put towards the purchase of his share of that property.

10. Between 2006 and 2009, the Respondent, with some assistance from the Applicant, secured council approval for the transfer of what has been described as a “revenge” strip of land 19 m² in the area adjoining the B Street property. This enabled a separate entrance to be created to the B Street property and, as a result, the B Street property had an entry via B Street and also C Street, Suburb A.

11. After the purchase of the B Street property, the Respondent and Mr K constructed two (2) townhouses on the land. The townhouses are to be known respectively as B Street and C Street (collectively as the Suburb A property”). As at the date of the hearing, the plan of subdivision had not yet been registered.

12. The Respondent alleges that, in 2007, the parties began an intimate relationship.

13. In December 2008, the parties purchased land at F Street, Suburb G, with a view to constructing two (2) townhouses (“the F Street property”). The Respondent asserts, and the Applicant acknowledges, that at the time the property was bought the parties intended to share in the cost of the construction of those townhouses.

14. The F Street property was purchased by the parties as tenants in common in equal shares and the purchase price was $330 000. The Applicant retained possession of, and continues to reside in Unit A, which is at the front of the property, whilst the Respondent has retained possession of Unit B, which is located at the back of the property.

15. The Applicant borrowed $165,000 from Mr K for her share of the purchase price of the F Street property. The Respondent borrowed $182,000 from his father to contribute to his share of the purchase price. The Respondent contends that he has contributed $30,000 more than the Applicant to the cost of the development however this is denied by the Applicant.

16. In early 2009, the Respondent moved out of the home where he was living with his then wife, Ms L Riley, to M Street, Suburb G (being a property owned by the Applicant) to oversee the construction of the townhouses at the F Street property (which was located at F Street).

17. Between January and March 2009, the parties commenced cohabitation.[3]

    [3] Transcript 1 August 2018 p.51 line 5.

18. On 12 March 2009, Mr K executed a registered power of attorney in favour of the Applicant authorising her to “deal with all real estate and banking matters.”[4]

    [4] Annexures to the Affidavit of Mr Riley, pg. 302 (marked ‘Exhibit 39’ in the proceedings). 

19. During the course of the proceedings the Applicant denied that she was responsible for managing Mr K’s financial affairs in Australia but she acknowledged that, since 2009, both herself and Mr K “had a common account in the National [Australia] Bank and [she] had access to the funds which [they] equally shared.”[5]  

    [5] Transcript 1 August 2018 p.45 line 35.

20. Between May 2009 and May 2010, the parties constructed the two (2) townhouses on the F Street property. The Respondent took seven (7) months off work to oversee the construction of the two (2) townhouses, known respectively as Unit A and Unit B of the F Street property.

21. Between December 2010 and October 2012, the Respondent’s father, the late Mr P Riley, resided in Unit B of the F Street property while the Respondent and the Applicant continued to reside in Unit A. The Respondent contends that, after October 2012, he lived with his father in Unit B until his father was placed in a nursing home in early 2014.

22. The Respondent alleges that in October 2012 the parties separated. The Applicant, however, alleges that the parties separated in or around October 2013. 

23. In 2013, the Respondent and Mr K obtained a joint construction loan of $660,000 for the construction of the two townhouses at the Suburb A property.

24. Between January 2013 and April 2014, the townhouses were constructed at the Suburb A property. The Respondent and Mr K have agreed that Mr K is to retain the townhouse at B Street, leaving the townhouse at C Street for the Respondent.

25. In January 2014, the Respondent’s father was relocated into permanent care at an aged care facility in Sydney and the respondent vacated Unit B of the F Street property.

26. By a deed of variation, dated 17 January 2014, the Respondent agreed to pay interest on the amount of $182,000 which he had borrowed from his father. That borrowing was confirmed in an original deed dated 19 June 2008.

27. Throughout 2014, the Respondent contends that he carried out lengthy negotiations with the surveyor and with H Council, paid for an engineer’s certificate, arranged Council inspections and paid fees to the Council and to the Commonwealth Bank to procure the issue of an Occupation Certificate for the F Street property. This was in order to proceed with the subdivision of the property. In giving oral evidence during the hearing, however, the Respondent acknowledge that, other than in respect to applying for the subdivision of the properties, he did receive some assistance from the Applicant in respect to those matters.

28. In February 2014, an interim Apprehended Domestic Violence Order (“ADVO”) was made by N Town Local Court against the Applicant for the protection of Ms L Riley and Ms O, the Respondent’s new partner. There was extensive litigation associated with that ADVO and subsequent Orders were made of a similar nature.  I have substantially disregarded those Orders and that litigation in these proceedings because I have formed the view that any costs associated with those proceedings should be pursued in the jurisdiction in which the proceedings occurred. 

29. The Respondent alleges that, without his consent, in March 2014, the Applicant took five (5) separate amounts of $5000 totalling $25,000 from the Commonwealth Bank loan account ending 6308. That loan had been taken out by the Respondent to finance the townhouse construction on the F Street property. 

30. The Respondent alleges that the Commonwealth Bank insisted on the Applicant’s name being placed on the loan due to the F Street property being registered in both parties’ names. The Respondent contends that the Commonwealth Bank loan is wholly his responsibility and he has met all repayments for it. The Applicant, however, alleges that it is a joint loan, which the parties intended to pay off utilising rental income generated by the Respondent’s father’s home in Suburb J.

31. In April 2014, an Occupation Certificate was issued for the Suburb A property.

1. In June 2014, the Respondent and his former wife, Ms L Riley, divorced. Around this time, the Respondent and Ms L Riley also finalised a property settlement – which included a term that the Respondent pay her the sum of $100,000 by 31 December 2015. Ms L Riley subsequently placed a caveat over the F Street property. The caveat was removed after payment was made.

2. On 12 June 2014, a final ADVO was made by Suburb H Local Court against the Applicant for the protection of the Respondent and Ms O, including an order that the Applicant not enter the respondent’s Unit B at F Street property. I have rejected the Applicant’s submission that the existence of an ADVO, which has been made against her, is a factor that I should consider in determining what orders should be made to effect the adjustment of the parties’ property interests.  In that context senior counsel for the Respondent advised the Court that his client would not seek to rely upon that Order, insofar as it was necessary for the parties to communicate with a view to giving effect to the Orders that I make in these proceedings.

3. In August 2014, the Respondent sold his father’s house at I Street, Suburb J (“the Suburb J property”). The Respondent was not challenged on his evidence that the sale occurred with the knowledge and consent of his father and was to the amount of $1,436,000. The proceeds of the sale were deposited in the late Mr P Riley’s Commonwealth Bank account ending …12 on 22 September 2014.  The net proceeds were subsequently gifted to the Respondent by payments of between $62,500 and $100,000 in the period between the date of sale in September 2014 and 28 January 2015.

4. In September 2014, the Respondent obtained an Occupancy Certificate for the F Street property. The F Street property was also valued, with Unit A being valued at approximately $700,000 and unit B being valued at $675,000.

5. In October 2014, the Respondent sent the documentation required to subdivide the M Street units to the Applicant but those documents were not returned to the Respondent.

6. The Respondent also alleges that, in November 2014, he sent another set of documents to the Applicant for her to sign in order to proceed with the subdivision of the F Street property and those documents were not returned to him.

7. Between December 2014 and February 2015, the construction of the townhouses at the Suburb A property was finalised and those townhouses were in a position to be tenanted.

8. On 12 December 2014, the parties were separately served with a Statement of Claim filed by H Council for outstanding rates relating to the F Street property. The Respondent alleges that he has since paid 50% of the outstanding rates.

9. On 30 January 2015, the Applicant commenced proceedings in the Family Court of Australia.

10. On 11 June 2015, the Applicant lodged a caveat over the Suburb A property.

11. On … June 2015, the Respondent’s father, Mr P Riley, passed away.

12. On 18 June 2015, the ADVO against the Applicant for the protection of the Respondent and Ms O was extended by Suburb H Local Court.

13. On 25 November 2015, the Respondent’s former wife, Ms L Riley, filed an Application in a Case seeking leave to be joined to the proceedings.

14. During the course of 2015, the Respondent paid, from his superannuation account, the sum of $182,000 to his father’s estate and the amount of $100,000 in respect to his family law settlement with Ms L Riley.

15. On 1 December 2015, Ms L Riley discontinued her Application to be joined to the proceedings.

16. On 16 December 2015, the Court heard an Application for interim orders to determine whether Unit B of the F Street property should be subdivided or the strata title be transferred to the Respondent or, alternatively, rented out.

17. On 15 January 2016, Mr K sold his Unit in the W Street Complex.

18. In 2016, the Applicant completed, on behalf of Mr K the transaction whereby he sold his apartment that he owned in the W Street Complex at Suburb G. The Applicant also acknowledged that in the period from 2009 until 2016 she was helping Mr K “with his bookings” in respect to the W Street apartment.[6] The Applicant also acknowledged that she was authorised to sign cheques on behalf of Mr K in respect to funds deposited into a bank account in his name which account was used to receive the rental income from the W Street apartment.

    [6] Transcript 1 August 2018, p.45 line 45.

19. By Application in a Case filed by the husband on 22 January 2016, the husband sought orders to reopen the hearing that had been listed before me on 16 December 2015. The Application was made in circumstances where despite having lived in Unit A of the F Street property, between December 2009 and January 2016 in January 2016, the Applicant moved into Unit B thereby preventing that property from being rented out.

20. By Orders made on 11 March 2016, the parties were required to attend to all necessary steps and sign all necessary documentation to effect the subdivision or stratering of the F Street property and for Unit B to be rented out. The Orders also dealt with the payment of outgoings, including utilities, rates, insurance, in respect of the property, and also maintenance.

21. On 24 March 2016, the Applicant filed an Application in a Case seeking a variation of the Orders of 11 March 2016, effectively seeking to interchange a reference to Units A and B. That is, the Applicant sought orders that would require Unit A, rather than Unit B, to be rented out.   

22. The Applicant’s Application, dated 24 March 2016, was dismissed by Orders made on 3 June 2016.[7]  

    [7] Riley & Massalski [2016] FamCA 1169.

23. In the period subsequent to my judgment delivered on 3 June 2016, Unit B of the F Street property has been tenanted and no issue was raised in respect to the rental income being applied in accordance with previous Orders. Currently, that Unit is rented out for the sum of $550 per week.[8]

    [8] Transcript 1 August 2018 p.73 line 15.

24. On 22 December 2016, the Applicant commenced proceedings in Supreme Court of Victoria seeking declaratory relief and consequential orders essentially in the nature of a declaration that she had a constructive trust in respect to the Suburb A Property. The Respondent and Mr K were named as defendants in those proceedings.

25. Those proceedings between the Applicant and Mr K were subsequently resolved with Mr K agreeing to a declaration of trust to the effect that Ms L Riley had a 5% interest in Mr K’s share of the Suburb A property.

26. On 18 August 2017, the proceedings commenced by the Applicant against the Respondent in the Supreme Court of Victoria were cross vested to the Family Court of Australia.

27. On 5 October 2017, the Respondent and Mr K signed consent orders in respect to those Supreme Court of Victoria proceedings which, among other things, provided for the two (2) Units that had been built on the Suburb A property to be partitioned such that each of the Units have a separate address one address being B Street and the other address being C Street. The Respondent also agreed to indemnify Mr K in respect to the guarantee Mr K had provided in relation to the Respondent’s portion of a $600,000 loan he and Mr K had obtained in order to develop the Suburb A property.[9]

    [9]Consent orders made 5 October 2017 (marked ‘Exhibit 24W’ in the proceedings).

28. On 17 January 2018, the Applicant sold her Unit in the W Street Complex.

29. This matter was originally listed for hearing for five (5) days scheduled to commence 30 July 2018, however, by Order made on 27 July 2018, for reasons which included the ill health of counsel for the Applicant, the matter was adjourned to 1 August 2018. Reasons for that adjournment are set out in my decision dated 27 July 2018.[10]

    [10] Massalski & Riley [2018] FamCA 678.

30. On the first day of the hearing, on 1 August 2018, the Applicant was self-represented. However, during the course of the proceedings, the Applicant’s legal advisers subsequently resumed their involvement in the proceedings.

Applications

Orders sought by Ms Massalski

1. On the first day of the hearing of this matter, the Applicant confirmed that she was seeking final relief in terms of her Initiating Application filed on 30 January 2015. The final orders sought by the Applicant, in that document, are as follows:

   1. A declaration pursuant to Section 90RD of the Family Law Act 1975 ("the Act") that the Applicant and the Respondent were in a De Facto relationship as defined in the Act from in or around 2005 to October 2013.

   2. That within twenty-eight (28) days of date of Order, the Respondent makes payment to the Applicant in an amount equivalent to 50% of the net assets by way of bank cheque made payable to [TT] Lawyers Pty Ltd or its nominee.

   3. That in the event the Respondent fails to comply with Order 2 above, within twenty (28) days of the Respondent's non-compliance, the Respondent do all things and sign all documents necessary to transfer his right title and interest to the Applicant in the property known as and situated at B Street, Suburb A in the State of Victoria ("Suburb A property").

   4. That the Respondent indemnifies the Applicant in relation to all taxation debts, land tax, construction loan(s) and all other debts in the joint names of the parties or in the sole name of the Respondent.

   5. That the Parties do all acts and things, give all consents and execute all documents and writings necessary to give effect to the Orders made herein.

   6. That in the event that either party refuses or neglects to execute a Deed and/or Instrument in compliance with the provision of these Orders, the Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute all Deeds and/or Instruments in the name of the defaulting party and do all acts and/or things necessary to give validity and operation to the Deed and/or Instruments.

   7. That the Applicant have leave to amend this Application for Final Orders after receipt of further disclosure from the Respondent.

   8. That pursuant to Section 90ST if the Act, these Orders are intended to operate to end all financial relationship including spousal maintenance between the parties and are an attempt to avoid further proceedings between them.

   9. That the Respondent pay the Applicant's costs of and incidental to this Application

2. In addition, the Applicant sought orders be made in accordance with her Statement in a Claim filed in the Supreme Court of Victoria on 18 July 2018, as follows:

   1. That there be a settlement of property between the Applicant and Respondent that this Honourable Court considers just and equitable.

   2. Such further or other order or orders as this Honourable Court shall deem appropriate in all of the circumstances.

   3. Damages

   4. Interest

   5. Costs

   6. Such further or other Order as the Court thinks fit.

3. In her document titled “Submissions of the Applicant – Part 1” which were provided to the Court on 8 March 2019, the Applicant sought the following orders:

   Section 1 - Orders sought if the settlement of assets is to be dealt with 'globally'

   1. Declaration that the Respondent holds 50% of his share of the land known and situated at B Street and C Street, together with the improvements on trust for the Applicant.

   2. Order that all assets remaining in the pool between the parties owned jointly and severely be distributed between the parties in equal shares.

   3. Order that the Applicant's share of the assets to be satisfied as follows:

   a) That the Respondent do all acts and things necessary to transfer to the Applicant all his rights to the title and interest in the properties known as and situated at B Street, Suburb A, VIC and his rights to the title and interest in the revenge strip - Reserve 2 on Plan of Subdivision …, PARENT TITLE Volume … Folio …, and that the Respondent indemnifies the Respondent with respect to the mortgages thereon.

   (i) That the amount of money needed to be satisfied by the Respondent in relation to repayment of his current share of the Suburb A loans will be satisfied by equitable charge over Respondent's share of the Suburb G properties.

   (ii) That the parties do all acts and things necessary to transfer the amount of $50,000 currently available as draw-back facility on the CBA loan No …08 mortgaged against the property known as and situation at F Street to the CBA loan account No …09, to reduce the Respondent's liability created against the land at B Street, by his loan guaranteed by Mr K.

   (iii) That the Applicant indemnifies Mr K against the remaining loan in respect of which the Respondent consented to have Mr K indemnified in the Consent Order 3 a), signed in the Supreme Court of Victoria on 05 Oct 2017.

   (iv) That to give effect to the orders between the Respondent and Mr K, made for the purpose of subdividing and partitioning the properties at B Street in accordance with Plan of Subdivision PS … subject to the loans numbered …09 and …08, the Applicant will indemnify the Respondent against his share of the construction loan No …08 and the remaining amount of the land loan No …09 that will be discharged by the way of the Applicant refinancing these loans.

   (v) That for the purpose of implementing Order 3 (a) (iv), the Applicant will draw a new loan to discharge any liabilities that are preventing partitioning of the land as consented in orders made the Supreme Court of Victoria on 05 Oct 2017.

   (b) That, upon registration of the Strata Plan with respect to the property known as and situated at F Street, Suburb G in the State of New South Wales ("Suburb G"), the parties do all acts and things and execute all necessary documents to cause Lot 1 in the said strata plan to be transferred absolutely and beneficially into the name of the Applicant, Ms Massalski, and Lot 2 in the said strata plan to be transferred into the name of the Respondent, Mr Riley, and that the Respondent indemnify the Applicant with respect to the mortgage thereon.

   (c) That the unit B (Lot 2) be sold upon registration of the strata plan and the proceeds from sale of the property, be distributed as follows:

   (i) The loan drawn by the Applicant for the purpose of implementing Order 3 (a) (iv) be paid off to release any mortgage that the Applicant would need to have registered against the property at B Street, Suburb A, as specified in Order 3 (a) (v).

   (ii) The balance of the proceeds from the sale of Unit B to be distributed between the parties to satisfy the payment of the balance of 50% of the value of the total asset pool to be paid to the Applicant and the remaining amount to be paid to the Respondent.

   4. That the Respondent pays the Applicants costs of and incidental to these proceedings and the cross-vested proceedings in the Supreme Court of Victoria on an indemnity basis.

   Section 2 - Orders sought if the settlement of assets is to be dealt with on 'asset by asset' basis.

   1. Declaration that the Respondent holds 25% of his share of the properties known and situated at F Street, Suburb G in trust for the Applicant.

   2. Declaration that the Respondent holds 50% of his share of the land known and situated at B Street and C Street, together with the improvements on trust for the Applicant.

   3. That the sum of $25,000, removed by the Applicant from the draw-back loan account, mortgaged against the property at F Street, held in joint names between the Applicant and the Respondent be added back to the asset pool as a notional asset.

   4. That the sum of $15,632.67, removed from the draw-back account by the Respondent and distributed by the Respondent for his personal needs or for his family needs, be added back to the asset pool as a notional asset.

   5. That the amount of $3,507.70 being a refund of the security deposit for the roadwork held by the H Council as one of the conditions of the DA that was paid back to the Respondent by the H Council on 17/12/14, be added back to the asset pool as a notional asset.

   6. That the sum of $850,000, being a profit made on the property preserved by the Applicant, known as and situated at I Street, Suburb J including the profit made on the property known as and situated at D Street, Suburb E which was paid for with the proceeds from sale of the property at I Street, be added back to the asset pool as a notional asset.

   7. That the amount of $100,000 paid to Ms L Riley, upon consent orders made in the Family Court in Newcastle be added back to the asset pool as a notional asset.

   8. That the amount of $53,500 spent on the engagement ring, travelling and on the pappy dog be added back to the asset pool as a notional asset.

   9. That, upon registration of the strata plan with respect to the property known as and situated at F Street, Suburb G in the State of New South Wales ("Suburb G"), the parties do all acts and things and execute all necessary documents to cause Lot 1 in the said strata plan to be transferred absolutely and beneficially into the name of the Applicant, Ms Massalski, and Lot 2 in the said strata plan to be transferred into the name of the Respondent, Mr Riley, and that the Respondent indemnify the Applicant with respect to the mortgage thereon.

   10. That the parties do all acts and things necessary to transfer the sum of $50,000 from the draw-back funds available on the CBA loan No …08 mortgaged against the property known as and situation at F Street to the CBA loan account No …09, to reduce the Respondent's liability created against the land at B Street, by his loan guaranteed by Mr K.

   11. That the Respondent do all acts and things necessary to transfer to the Applicant all his rights to the title and interest in the properties known as and situated at B Street, Suburb A, VIC and his rights to the title and interest in the revenge strip - Reserve 2 on Plan of Subdivision …, PARENT TITLE Volume … Folio …, and that the Respondent indemnifies the Respondent with respect to the mortgages thereon.

   a) That to give effect to the orders between the Respondent and Mr K, made for the purpose of subdividing and partitioning the properties at B Street in accordance with Plan of Subdivision … subject to the loans numbered …09 and …08, the Applicant will indemnify the Respondent against his share of the construction loan No …08 and the remaining amount of the land loan No …09 that will be discharged by the way of the Applicant refinancing these loans.

   b) That for the purpose of implementing Order 11a), the Applicant will draw a new loan to discharge any liabilities that prevent partitioning of the land as consented in orders made the Supreme Court of Victoria on 05 Oct 2017.

   12. That the Respondent pays to the Applicant the sum of $23,100, comprising of the sum of $8,800 being 50% of the lost rental income from Unit "B" that the Respondent caused or occasioned the Applicant to suffer in the period prior to Mr P Riley moving to Unit "B", and the sum of $14,300 after Mr P Riley moved out from Unit B, due to failure to complete the construction works to obtain Occupation Certificate and failure to clear the unit from the belongings left in the unit by his father, P Riley.

   13. That, the Respondent pays to the Applicant the sum of $36,804 comprising of 50% ($31,106) of the rental income received by the Respondent from his share of the properties in B Street and C Street, Suburb A ('Victorian properties') in the period from Jan 2015 to Feb 2019, and the sum of $5,698 lost rental in the period from June 2014 to Jan 2015 caused by Respondent's refusal to complete the landscaping works which prevented the properties from being rented out after occupation certificate was issued.

   14. That no later than date xxx (June) 2019, the Respondent pays to the Applicant by the way of order pursuant to s79 of the Family Law Act 1975 the sum of $ xxx , comprised of the sum identified in Order 12, Order 13 plus 50% of the sum identified as the Notional Asset Pool plus the sum equal to the value of 25% of the Respondent's share of the properties known and situated at F Street, which he holds in trust for the Applicant.

   15. That the amount of money needed to be satisfied by the Respondent in relation to Order

   14, will be secured by equitable charge over Respondent's share of the Suburb G properties.

   16. That the parties otherwise retain absolutely and beneficially, all property, real or personal, possessed by either of them.

   In addition to Orders specified in Section 1 and in Section 2, whether the Court decides to deal with the assets globally or on asset by asset bases, the Applicant seeks the following orders:

   1. That the Respondent pays the Applicants costs of and incidental to these proceedings and the cross-vested proceedings in the Supreme Court of Victoria on an indemnity basis.

   2. In default of any party doing any act or thing and executing any such document necessary to give effect to these Orders the Registrar of the Family Court of Australia at Sydney be appointed pursuant to Section 106A of the Family Law Act to execute all such documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to such documents and the defaulting party shall pay the costs of the non-defaulting party in relation thereto.

   3. That either party have the liberty to apply on seven (7) days' notice in the event of any difficulty arising out of the implementation and enforcement of these orders.

Orders sought by the Respondent

1. The orders sought by the Respondent were set out in his Minute of Proposed orders (marked ‘Exhibit 2H’ in the proceedings) which was tendered on the first day of the hearing. Those proposed orders are as follows:

   1. That, upon registration of the strata plan with respect to the property known as and situate at F Street, Suburb G in the State of New South Wales (“Suburb G”), the parties do all acts and things and execute all necessary documents to cause Lot 1 in the said strata plan to be transferred absolutely and beneficially into the name of the Applicant, Ms Massalski, and Lot 2 in the said strata plan to be transferred absolutely and beneficially into the name of the Respondent, Mr Riley, and that the Respondent indemnify the Applicant with respect to the mortgage thereon.

   2. That, by way of property settlement, the Applicant pay to the Respondent the sum of $92,000, comprising the sum of $25,000 drawn by the Applicant against the Respondent’s Commonwealth Bank of Australia loan facility, the sum of $20,000 which the Respondent paid in excess of his obligations with respect to Suburb G and the sum of $47,000 lost rental of Lot 2 which the Applicant caused or occasioned the Respondent to suffer, payment of which she be and remain charged on the interest of the Applicant in Suburb G until paid in full.

   3. That the Respondent retain absolutely and beneficially the whole of his right title and interest in the property known as and situate at B Street, Suburb A in the State of Victoria (“Suburb A”).

   4. That the claims of the Applicant, at law, in equity or pursuant to the Family Law Act with respect to Suburb A be dismissed.

   5. That the Respondent’s costs orders in State proceedings as agreed or assessed be and remain charged upon the Applicant’s interest in Suburb G until such costs have been paid in full.

   6. That the parties otherwise retain absolutely and beneficially, all property, real or personal, possessed by either of them.

   7. That the Applicant pay the Respondent’s costs of and incidental to these proceedings and the cross-vested proceedings in the Supreme Court of Victoria as agreed or assessed on an indemnity basis.

   8. In default of any party doing any act or thing and executing any such document necessary to give effect to these Orders the Registrar of the Family Court of Australia at Sydney be appointed pursuant to Section 106A of the Family Law Act to execute all such documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to such documents and the defaulting party shall pay the costs of the non-defaulting party in relation thereto.

   9. That either party have the liberty to apply on seven (7) days’ notice in the event of any difficulty arising out of the implementation and enforcement of these orders

2. In his document titled “Submissions of the Respondent”, which was provided to the Court on 18 April 2019, the Respondent sought the following orders:

   A. That proceedings in the Supreme Court of Victoria being case number … are dismissed and the Applicant is to pay the respondent's costs of such proceedings as agreed or assessed.

   B. That within 14 days the Applicant forthwith sign all documents and do all things necessary to cause all caveats she has lodged over the Suburb A and Suburb G properties to be withdrawn.

   C. The parties are to expeditiously do all acts and things and sign all documents required to complete the registration of the proposed strata plan and associated dealings of the property known as and situated at F Street, Suburb G, being the land in folio identifier … ("the F Street property").

   D. For the purposes of Order B above, the Applicant is to execute the following documents and return those documents properly executed and witnessed as is required by each document, to the solicitor for the respondent, within fourteen (14) days of the date of delivery of those documents to the Applicant's solicitor.

   a. any application form(s) and any other forms or documents required by the H Council to complete the approval of the proposed strata plan of the F Street property;

   b. the Strata Plan Administration Sheet and Strata Plan;

   c. any authority required by the Commonwealth Bank of Australia to produce the Folio Identifier at the LPI NSW; and

   d. such other document or documents as may be provided by the respondent to the Applicant which is, or are, reasonably required to enable the registration of the strata plan.

   E. Within twenty-eight (28) days of registration of the strata plan for the F Street property, the parties are to do all acts and things and sign all documents required to effect the following:

   a. authorise the Commonwealth Bank of Australia to discharge the mortgage, registration number AF…65, secured over Lot 1 as shown on the Strata Plan, being the Lot at the front of the property ("Lot 1"), and to secure the debt then owing to the Commonwealth Bank of Australia by a mortgage secured over Lot 2 as shown on the Strata Plan, being the lot at the rear of the property ("Lot 2");

   b. to hold a meeting of the Strata Committee of the Strata Plan (by proxy if preferred) to pass the necessary resolutions as required by the Strata Schemes Management Act 2015.

   F. The parties are to each pay one half of the costs and fees payable in respect to the preparation of the registration of the Strata Plan and associated documents, except for, any fees payable to the Commonwealth Bank of Australia which shall be the sole responsibility of the respondent.

   G. That within 14 days of the registration of the strata plan the Applicant prepare a transfer in registrable form by which the respondent transfers all of his right title and interest in lot 1 in the proposed strata plan to the Applicant and deliver such document to the solicitor for the respondent.

   H. That within 7 days of receipt of such transfer the respondent sign such document and exchange it for the transfer to be signed by the Applicant.

   I. That within 14 days of the registration of the strata plan the respondent prepare a transfer in registrable form by which the Applicant transfers all of her right title and interest in lot 2 in the proposed strata plan to the respondent and deliver such document to the solicitor for the Applicant.

   J. That within 7 days of receipt of such transfer the Applicant sign such document and exchange it for the transfer signed by the respondent.

   K. That the Applicant pay to the respondent the sum of $13,237 within 28 days.

   L. That other than as provided in these orders each party against the other party shall be entitled to:

   (a) Any items of personalty, chattels, goods, furnishings, bank accounts, motor vehicles and/or other property at the date of these orders in each party's name, possession and control respectively;

   (b) Any moneys, shares, debentures, superannuation and/or employment entitlements which stand in each party's sole name, possession and control respectively.

   M. That each party keep the other indemnified in relation to any liability in their sole name.

   N. That each party forthwith do all acts and things and sign all documents, deeds or instruments necessary to give effect to these orders.

   O. That if either party refuses or neglects to sign or execute any document, instrument or writing after seven (7) days of being required to do so, each party consents to any application filed by the other party seeking orders pursuant to Section 106A of the Act that a Registrar of the Federal Circuit Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to these orders.

   P. That in the default of any party doing any act or things and executing such document necessary to give effect to these Orders the Registrar of the Family Court of Australia at Sydney be appointed pursuant to Section 106A of the Family Law Act to execute all such documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to such documents and the defaulting party shall pay the costs of the non-defaulting party in relation thereto.

   Q. That each party have liberty to apply in relation to the implementation of these orders on giving the other party and the Court not less than seven (7) days' notice in writing.

Evidence

Documents relied upon by the Applicant

1. On the first day of the hearing the Applicant advised the Court of her intention to rely upon the following:

   ·her case outline document provided to the Court on 31 July 2018;

   ·her Affidavit filed on the 24 July 2018;

   ·her Affidavit filed on 31 July 2018;

   ·the Affidavit of Mr K filed on 24 July 2018;

   ·the Affidavit of Ms L Riley, the Respondent’s first wife, filed on 30 July 2018; and

   ·the Applicant also relied upon a Statement of Claim filed in the Supreme Court of Victoria on 18 July 2018. That document is, or course, in the nature of pleadings and, while the document refers to evidentiary matters, it does not itself constitute evidence.

2. It was clarified on the first day of the hearing that the annexures to the Affidavit of the Applicant dated 24 July 2018 were provided to the Court on 30 July 2018 and, in the case of the Affidavit of Mr K it was confirmed that the annexures were also provided to the Court on 30 July 2018.

3. On the first day of the hearing, there was debate as to whether the Applicant should be able to rely upon her further Affidavit filed on 31 July 2018. No objection was taken to the late service of that document but rather to the fact that the Affidavit contained schedules which, it was contended, by senior counsel for the Respondent, were not in accordance with s 50 of the Evidence Act 1995. Specifically, objection was taken to the fact that the schedules were provided without having provided the Respondent with the opportunity of examining the source documents upon which the schedules were said to have been created. In those circumstances, I indicated that I would read the Affidavit of the Applicant filed on 31 July 2018. However, I determined that the schedules she had prepared and which were attached to that Affidavit were read as an aide memoir and not as evidence of the information contained in the primary documents that had apparently been relied upon by the Applicant to prepare the schedules.

4. Appropriately, no objection was taken to the tender of the source documents themselves.  Those documents were subsequently tendered during the course of the proceedings.

5. At the hearing of this matter on 11 December 2018, counsel who, on that day, appeared for the Applicant sought to further rely upon the following affidavits:

   ·Affidavit of the Applicant filed 10 December 2018; and

   ·Affidavit of Mr RR filed 6 December 2018.

6. In response to that proposal, senior counsel for the Respondent proposed an alternative course to counsel for the Applicant seeking leave to reopen her case to include the evidence set out in her Affidavit of 10 December 2018. That alternative course was for counsel for the Applicant to put the relevant material, attached to her Affidavit dated 10 December 2018, to the Respondent in cross examination and if, after completion of the cross examination, the Applicant or her legal advisers thought there were additional matters that should be placed before the Court that it should be done by way of a case in reply. Senior counsel for the Respondent indicated that, subject to the material being relevant, he would not have objection to such a case in reply being presented by the Applicant. That course of action was agreed to by counsel for the Applicant.[11] However, no such Application to present a case in reply was made by the Applicant after the completion of the cross examination of the Respondent.

   [11] Transcript 11 December 2018 at pg. 16 line 40.

7. At the hearing on 11 December 2018, I informed counsel for the Applicant that insofar as the Applicant sought to rely on the report of Mr RR as an expert quantum surveyor she would need to make an Application in accordance with Part 15 of the Family Law Rules 2004 (“the Rules”) to rely on an expert report. Again, senior counsel for the Respondent invited counsel for the Applicant to present any relevant material from the contents of the report of Mr RR to the Respondent in cross examination and at the conclusion of cross examination of the Respondent counsel for the Applicant could consider whether he felt it necessary to make a formal Application to rely on the Affidavit of Mr RR. That course of action was similarly agreed to by the Applicant.[12] However, once again, no such Application was made.

   [12] Transcript 11 December 2018 at pg. 31 line 45. .

Documents relied upon by Mr Riley

1. The Respondent relied upon the following documents;

   ·his financial statement filed on 7 July 2015;  

   ·his Affidavit filed on 7 July 2015;  

   ·Affidavit of Mr Russell Byrnes, the solicitor for the Respondent, sworn on 10 May 2017, read only for the purpose of introducing annexure C to that Affidavit into evidence;

   ·his Affidavit filed on 15 September 2015;

   ·his financial statement filed on 6 October 2017;

   ·his updating Affidavit filed on 23 July 2018; and

   ·his updating financial statement filed on 19 July 2018.

Exhibits tendered during the course of the hearing

1. The following exhibits were relied upon:

   a)Respondent’s Practice Direction Statement (‘Exhibit 1H’);

   b)Respondent’s Minute of Proposed orders (‘Exhibit 2H’);

   c)Applicant’s case outline document (‘Exhibit 3W’);

   d)email from Respondent’s solicitor dated 23 July 2018 (‘Exhibit 4H’);

   e)statement from CC Company dated 29 September 2016 (‘Exhibit 5H’);

   f)email from Applicant’s solicitor dated 5 July 2018 (‘Exhibit 6H’);

   g)email from Applicant’s solicitor dated 11 July 2018 (‘Exhibit 7H’);

   h)Deed of Variation dated January 2014 (‘Exhibit 8H’);

   i)receipts and bank records for payments made by the Respondent for the F Street property construction (‘Exhibit 9H’);

   j)email from Respondent’s solicitor to Applicant dated 2 August 2018 (‘Exhibit 10H’);

   k)email from Respondent’s solicitor to Applicant dated 2 August 2018 (‘Exhibit 11H’);

   l)email from Mr K to Respondent’s solicitors and copied to the Applicant dated 1 August 2018 (‘Exhibit 12H’);

   m)email from Applicant to the Court and Respondent’s solicitor attaching documents from Charles Schwab dated 1 August 2018 (‘Exhibit 13H’);

   n)email from Applicant to the Court and Respondent’s solicitor attaching draft letter by Mr K’s solicitor dated 1 August 2018 (‘Exhibit 14H’);

   o)medical certificate from Applicant’s doctor, Dr DD, dated 2 August 2018 (‘Exhibit 15W’);

   p)further information from Dr DD regarding the Applicant dated 2 August 2018 (‘Exhibit 16W’);

   q)settlement adjustment sheet (‘Exhibit 17’);

   r)Respondent’s Draft tax returns (‘Exhibit 18W’);

   s)photocopy of book receipts for the W Street Complex apartment bookings (‘Exhibit 19W’);

   t)bundle of invoices and associated documents from the F Street property construction project (‘Exhibit 20W’);

   u)further bundle of invoices and associated documents from the F Street property construction project (‘Exhibit 21W’);

   v)the last will and testament of Mr P Riley (‘Exhibit 22W’);

   w)declaration of assets of the Respondent dated 30 August 2018 (‘Exhibit 23W’);

   x)Minute of Consent Orders made in the Supreme Court of Victoria on 5 October 2017 (‘Exhibit 24W’);

   y)Commonwealth Bank Statement for the Respondent in the period of 1 August 2014 to 31 October 2014 (‘Exhibit 25W’);

   z)Commonwealth Bank Statement for the Respondent in the period of 1 November 2014 to 31 January 2015 (‘Exhibit 26W’);

   aa)Exhibits the Respondent’s Affidavit dated 22 July 2018 (‘Exhibit 27H’);

   bb)Commonwealth bank home loan summary for period 1 July 2016 to 31 December 2016 (‘Exhibit 28W’);

   cc)email with letter attached dated 9 August 2013 (‘Exhibit 29W’);

   dd)Commonwealth bank pensioner security account statement for period 21 June 2011 to 20 September 2011 (‘Exhibit 30W’);

   ee)Commonwealth bank pensioner security account statement for period 21 December 2011 to 20 March 2012 (‘Exhibit 31W’);

   ff)Commonwealth bank pensioner security account statement for period 21 September 2012 to 20 December 2012 (‘Exhibit 32W’);

   gg)Commonwealth bank pensioner security account statement for period 21 December 2012 to 20 March 2013 (‘Exhibit 33W’);

   hh)Commonwealth bank pensioner security account statement for period 17 September 2014 to 16 March 2015 (‘Exhibit 34W’);

   ii)email from the Respondent to the Applicant dated 2 September 2013 (‘Exhibit 35W’);

   jj)correspondence to the council of the F Street property (‘Exhibit 36W’);

   kk)tender bundle of invoices for period November 2008 to February 2012 (‘Exhibit 37W’);

   ll)Orders made on 18 July 2014 in the Family Court of Australia (‘Exhibit 38H’);

   mm)annexures to the Affidavit of the Respondent dated 22 July 2018 (‘Exhibit 39H’); and

   nn)tax return of the Respondent for 2016/2017 financial year (‘Exhibit 40H’).

Nondisclosure

1. The obligation of disclosure is fundamental to the effective functioning of this jurisdiction. It is an obligation that exists both at common law and pursuant to statute.

2. In Briese & Briese (1986) FLC 91-713 at [75,181], Smithers J applied the House of Lords decision in Livesey (formerly Jenkins) and Jenkins [1985] 1 All ER 106 in determining that:

   … in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion.  [Emphasis added].

3. His Honour further stated at [75,181]:

   In my view it is fundamental to the whole operation of the Family Law Act 1975 (Cth) in financial cases that there is an obligation of the nature to which I have referred. Livesey (formerly Jenkins) v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.  [Emphasis added].

4. In that regard, r 13.01(1) of the Rules relevantly provides that:

   … each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.

5. Further, r 13.04(1)(a) of the Rules provides that:

   A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:

   (a)  the party's earnings, including income that is paid or assigned to another party, person or legal entity;

   …

   (g)  any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:

   (i)  in the 12 months immediately before the separation of the parties; or

   (ii)  since the final separation of the parties; and …

6. Clause 6 of pt 1 sch 1 of the Rules relevantly provides:

   (6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to: …

   (i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.

   Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part).  [Emphasis added].

I certify that the preceding five hundred and ninety nine paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 24 December 2019.

Associate: 

Date:  24.12.2019