Veni and Pallas

[2013] FamCA 607

FAMILY COURT OF AUSTRALIA

VENI & PALLAS [2013] FamCA 607

FAMILY LAW – Interim injunctions sought relating to property of the respondent where marriage and/or de facto relationship disputed – Requirement that there be evidence to satisfy the test that it must be proper to make the order – Order refused.  Caveat lodged order to be removed.

Family Law Act 1975 (Cth)

Mullen and De Bry [2006] FamCA 1380

APPLICANT: Mr Veni

RESPONDENT: Ms Pallas

FILE NUMBER: MLC 2916 of 2013

DATE DELIVERED: 20 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Nicholsons Lawyers & Consultants

COUNSEL FOR THE RESPONDENT: Mr Mort

SOLICITOR FOR THE RESPONDENT: Lampe Family Lawyers

Orders

1. That forthwith, the applicant Mr Veni remove Caveat … lodged on the property at B Street, Suburb C in respect of Certificate of Title Volume … Folio ...

2. That the application by the applicant for interim orders filed 8 July 2013 is dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That all outstanding applications are referred to the Registrar to await a trial before a judge.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2916  of 2013

Mr Veni

Applicant

And

Ms Pallas

Respondent

REASONS FOR JUDGMENT

1. Mr Veni (“the applicant”) filed an application in this Court on 16 April 2013 seeking a decree of nullity of what he said was his marriage to Ms Pallas (“the respondent”) which he said took place in 2011. It was not clear what the ground for the application was but on 8 July 2013, the applicant filed an amended application seeking an unidentified and imprecise alteration of property under s 79 of the Family Law Act 1975 (Cth) or, if his nullity application was dismissed, then declarations be made that he was in a de facto relationship with the respondent and consequential but again, unidentified and imprecise relief by way of alteration of property issues.

2. The respondent denied there was a marriage or a de facto relationship either. 

3. The issue before me in the Judicial Duty List on 9 August 2013 was whether the respondent should be restrained from selling, transferring, encumbering or otherwise dealing with a property in Suburb D and another in Suburb C.  The applicant also sought disclosure of the alleged marriage ceremony.

4. By her response filed 5 August 2013, the respondent sought a dismissal of the applicant’s application and orders that he remove a caveat over the Suburb C property. 

5. The background and facts of this case border on the bizarre.

6. In his affidavit filed 16 April 2013, the applicant said the marriage ceremony was performed at the Victorian Marriage Registry.  He said he had met the respondent in her role as a sex worker in late 2008/early 2009 and paid for her services.  In 2009, the professional relationship became personal when they exchanged telephone numbers.

7. Later in 2009, the applicant said they commenced a romantic “and committed de facto relationship”.  He said he knew of the respondent’s business indebtedness and even before their “romantic relationship” commenced, he agreed to assist her to discharge her debt so that she would cease working in the sex industry.

8. In her affidavit filed 20 May 2013, the respondent denied ever marrying the applicant.  She said she gave him her telephone number as he had described but she had never lived with him.  In relation to the applicant’s offer to help the respondent discharge her debt, she acknowledged it had been discussed but it was in the context of him giving her money privately for her professional services.  This arrangement seems to have begun in November or December 2009. 

9. From late 2009 onwards, the applicant gave the respondent large sums of money.  Her version was that she visited the applicant two to three nights per week but always returned to her home.  These visits were said by both parties to have mostly occurred at an apartment but the only inference open to me was that it was not the applicant’s home because he said he was living with his mother elsewhere.  In addition, there were times when the apartment was not available and they went to another rented apartment.  It was also common ground that the parties spent time together in other places such as on one occasion when they went to Singapore.

10. According to the applicant, he and the respondent lived together virtually every weekend and at the rented apartment most Tuesday and Thursday nights.  Despite saying she did not live with the applicant, the respondent said she would leave the apartment in the “early hours” of the morning to be home to take her son to school except where she had too much to drink in which case, she stayed at the apartment.  The respondent’s version was that she did not see the applicant on weekends.  That is curious because the applicant asserted that he had a significant role in running around to the various venues that the respondent’s son was involved in.

11. The applicant said that he paid for many things and he socialised with members of the respondent’s family.  The respondent said that this socialising was untrue although the applicant had met her family and indeed paid for meals and drinks if they were all out together.

12. In relation to their accommodation, the applicant said that the respondent suggested that they purchase a house together and that they looked at houses.  That was all denied by the respondent who said the applicant wanted her to move in with him and that a house would be bought in both their names. 

13. The applicant said he could not obtain finance to buy a home but in late 2009, his mother gave him $50,000 and he transferred the majority of it to the respondent.  It will be remembered that this was the period of time where this romantic arrangement between the parties seems to have started.  In November 2009 and December 2009, the applicant regularly gave the respondent money.  In April 2010, the applicant transferred to the respondent $100,000 to “demonstrate” his bona fides about buying a house.  This money came from his mother.  In transferring the money, he endorsed the transfer document as “payment from (his) house fund”.  I am not at all sure what that meant because as I understand his argument, he was putting money into the hands of the respondent for the purposes of buying a house.

14. Over the ensuing months of 2010, the applicant’s mother gave him about $400,000 and he said most of that went to the respondent.  The respondent did not dispute receiving the money but described the $100,000 as a gift.  She acknowledged the applicant talked about “our home” but that there were arguments over what she could do with the $100,000 gift.

15. The applicant said that when he found out what the respondent had spent all of the money that he had given her on, he asked for the $100,000 back.  During this time, the respondent sought legal advice and she deposed to the fact that she was advised to get the applicant to state in a declaration that the money was purely a gift.  That is exactly what the applicant did.  He explained that he did so because the applicant told him her mother was selling a home and that her entitlement from the proceeds of that home would be applied towards a house.  He thus felt comforted about signing the declaration.  He signed two declarations a week apart.  The applicant’s evidence seemed to be asserting that he signed them to satisfy the respondent’s demands and that they were therefore untrue declarations.  No doubt he will be able to explain having signed the declarations knowing (by his signature) that he might face perjury charges.

16. According to the respondent, the second declaration was the idea of her lawyer; no doubt in due course, she will produce that lawyer’s notes and advice.

17. The applicant said he loved the respondent so he signed the declarations.  All of the evidence of the parties can be seen to be controversial and uncorroborated save for one matter.  In his evidence, the applicant said that at the wedding ceremony, the respondent’s sister was present.  By an affidavit, the sister denied ever having attended that ceremony or taking photographs of any wedding involving her sister and the applicant.  It is also important to observe that there is no corroborative material otherwise such as a marriage certificate or confirmation of the parties’ attendance on the stipulated date at the marriage registry.  Furthermore, Commonwealth legislation requires notice provisions to be completed and as such, the version of the applicant seems implausible.

18. The applicant’s version of the marriage was that the respondent arranged to meet him at the Melbourne marriage registry and he then set out in his affidavit what occurred.  The respondent denied all of this happened.  She said in a 2013 search that she undertook at the marriage registry, the staff advised her that there was no record of any such attendance or indeed, a marriage.

19. It is not my task to determine the jurisdictional issue nor to make any finding as to whether or not a marriage took place but the implausibility of the applicant’s evidence on that issue based on the balance of probabilities test, can be taken into account in the consideration of the propriety of the Court making the injunctive orders sought by the applicant.  In part, that is because the relief sought is discretionary and long-standing principles in injunctive relief cases refer to the importance of the applicant being comprehensive as to the underlying facts but also having “clean hands”.  I turn then to the specific issue before the Court.

20. The applicant sought an order because he said he was unaware that the respondent had bought the Suburb C house in June 2010.  He was not aware of a caveat lodged by the respondent’s mother in October 2010. 

21. The respondent became the legal owner of the Suburb C property on 27 September 2010.  She had signed a commercial mortgage in June 2010.  The purchase price was $740,000 and the mortgage was stamped on the same day as the title was registered.  The respondent’s mother lodged a caveat as chargee under a loan said to have been executed in October 2010.  All of this evidence was produced by the applicant and none of it was denied by the respondent.  Thus, whatever the nature of the relationship between the applicant and the respondent, on his evidence, he was unaware of the variety of activities involved in the respondent’s acquisition of the Suburb C house in June 2010 through to October 2010.

22. Quite specifically however, the applicant knew that the respondent had moved into a property in Suburb E with her mother at the very time the registration of Suburb C was occurring.  After that occurred, the applicant said the respondent and he lived on weekends in the rented apartment and because of the respondent’s son, it was not feasible to stay during the week.  This evidence sounds remarkably unlike two people living as a couple on a genuine domestic basis.  Convenient or otherwise, the relationship as described by the applicant has little domesticity about it.  Again however, I am not asked to nor am I in a position to, make any findings about the nature of the relationship such as would satisfy the jurisdictional requirements of s 4AA of the Act.

23. In 2010, the applicant gave the respondent at least $350,000 because her “financial demands” were “continuous”.  The respondent did not dispute the receipt of the money but did not recall making or giving any assurances about buying a house with the applicant.  One might imagine that such a controversial conversation would be easily recallable if at the very time, the applicant’s money was being used towards the acquisition of the Suburb C property.

24. The arguments between the applicant and the respondent continued on.  The applicant complained that he had said that he was being “milked” and the respondent agreed that he had always said that.  Despite that, he continued to provide money to the respondent because he claimed she told him she would otherwise return to sex work.  The respondent’s reply was that she could return to that profession at any time she wished.  The inference I draw is that the applicant was providing significant money to the respondent when she requested it and consequently, did not return to her profession during much of the time that the parties’ asserted relationship.  Just what they were doing together is not obvious from the evidence.

25. During that latter period of the time these parties knew each other, further statutory declarations about gifts were signed by the applicant and I again observe the obvious casual approach that he took if he was meaning to assert that they were untrue statements.  A subsequent court may contemplate referring the papers to the appropriate prosecutorial authorities.

26. In April 2011, the applicant said he and the respondent discussed putting the “house purchase” on hold because he had bought a business.

27. The applicant said that the respondent asked for $250,000 to be put towards a mortgage on the Suburb E property where she was living with her mother.  The respondent denied that conversation occurred.  Even if it did take place, it does not have any relevance that I can see as to whether or not injunctive orders should be made restraining the respondent in relation to her equity in Suburb C or indeed, in Suburb D.

28. It is obvious from the exhibits to the respondent’s affidavit that the relationship (whatever it was) was strained by November 2011 as his abusive messages appear unpleasant to say the least.  Despite that, the applicant and the respondent holidayed in Queensland in December 2011.  The respondent said that was a gift and suggested that there were separate accommodation arrangements but in the context of the November 2011 messaging, there was at least some semblance of a relationship but just exactly what it was, I cannot say.  Indeed, their association continued in 2012.  That came to an end in late 2012 with proceedings in the State courts for an intervention order.

29. It concerns me that:

    (a)there is no evidence upon which I could conclude that a marriage had taken place;

    (b)the possibility on the evidence of there having been a de facto relationship is also extremely limited.  Indeed the assertions seem limited to arguments about money and what the applicant thought the respondent was doing about property acquisitions.  In my view, much more would be needed to establish the existence of a de facto relationship;  and

    (c)the evidence justifying the making of an order even if there is jurisdiction, is extremely limited.  The assertions of the applicant are that the respondent “may diminish her financial position”.  That is not evidence but simply an opinion unsupported by facts.  There was no evidence of the sort of conduct that might prejudice a claim other than that the respondent may be able to borrow against the Suburb C property for the purpose of funding any litigation expenses she may incur in these proceedings.  The email produced by the respondent does not assist me to establish what the value of the property is.  A “conservative bank figure” is hardly a valuation.  I do not know therefore whether the respondent’s borrowing for litigation funding would prejudice a judgment of the applicant where he has all of the proof problems earlier mentioned.

30. On the applicant’s own evidence, he knew nothing about the Suburb C purchase.  He has lodged a caveat but neither party was able to produce a copy of that document to indicate the caveatable interest claimed.

31. In Mullen and De Bry [2006] FamCA 1380 the Full Court examined the question of the circumstances under which injunctions relying on s 114 of the Family Law Act should be made and specifically looked at the earlier decision of Waugh.

32. Questions must be asked as to whether or not there is a degree of prejudice to the respondent if the order is made.  General principles applicable in determining a Mareva type order include:

    (a)the applicant needs to show an arguable case that judgment against the respondent will be obtained;

    (b)he must demonstrate by real evidence, and not mere assertion, that a refusal to make the order involves a real risk that judgment in his favour would remain unsatisfied because of concealment or dissipation of assets; and

    (c)he must show that the balance of convenience requires the making of an order.

33. An order under s 114 of the Act is akin to a Mareva type order. In Mullen and De Bry, the Full Court did not say that there was a requirement that the applicant show a threshold question about the existence of a scheme to defeat any possible judgment before an order preserving property could be made.  There must however be a connection between the substantive proceedings and the relevant property.  Large sums of money have been provided to the respondent by the applicant and on any view, he kept providing that money.  I could not find on this evidence that the money was being given to the respondent for the purposes of buying a home.  He might have thought that some of it went to such a purpose but he also agreed that there were other purposes as well.  On any view also, the applicant was unaware of what the respondent was doing in relation to the acquisition of Suburb C at a relevantly critical time in whatever their relationship was.  It is important however to say that it is not essential that the applicant has to prove that his money went towards the acquisition of the Suburb C home.  However, if there is to be a jurisdictional determination of property proceedings, its focus will be on the alteration of the interests of the respondent and the Court will be examining whether it is just and equitable to make any order at all.  Much will therefore depend on whether or not the Court finds there was a de facto relationship or marriage and then that these monies were indeed gifts as the respondent asserts, and the applicant acknowledges, by way of the various statutory declarations. 

34. The test to be applied really has no fixed principle or formulation.  In all cases there is a need to establish by some objective evidence that there is a danger that the respondent has an intention to defeat the very purpose of the proceedings.  Nothing I have read, or any submission I heard, would confirm that that is indeed what the respondent is endeavouring to do.

35. Absent some real evidence to that effect, I could not find on the basis of s 114 of the Act that it is proper to make such an order. In the exercise of discretion as I earlier mentioned, the Court is entitled to take into account the most unusual way in which the applicant conducted his relationship with the respondent. The signing of the declarations and the implausibility that I have found in relation to the marriage, militate against the Court accepting that it is proper to make an order in this case. Accordingly, the application by the applicant must be refused.

36. Having regard to the finding just made, there is no basis for the applicant to retain the right to caveat the property owned by the respondent.  As earlier indicated, I do not know the basis upon which the caveatable interest was claimed.  To the extent that it may have been some form of trust, it was certainly not evident from the evidence presented to me.  On that basis, the caveat is improper and should be immediately withdrawn.   

I certify that the preceding Thirty Six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 August 2013.

Associate:

Date:  20 August 2013