Children – Judge’s finding that mother’s withholding of child was controlling behaviour that amounted to family violence under s 4AB of the Act was in error

In Carter & Wilson [2023] FedCFamC1A 9 (10 February 2023), the Full Court (McClelland DCJ, Bennett & Campton JJ) heard an appeal from a decision of Jarrett J for equal shared parental responsibility of a 6 year old child.

The parties agreed on all other parenting arrangements and consent orders were made for paternal time to incrementally increase to alternate weekends, plus an evening in each alternate week.

The family report writer recommended that the child live with the mother and that she have sole parental responsibility ([43]). The mother alleged physical violence by the father.

At first instance, the Court found that the father had engaged in one act of physical violence against the mother and he had also held his hand over the mouth of his daughter (of a previous relationship) to stop her from screaming. The Court also found that the mother’s insistence on supervision and withholding the child from paternal time was controlling behaviour of a family member that was family violence under s 4AB(1) of the Act.

On appeal, the mother contested the finding that she had engaged in family violence.

Bennett J said (from [68]):

“The primary judge found that the mother had engaged in family violence in relation to the child because she ‘initially’ prevented him from spending time with the father which … ‘controlled [the child] and controlled his relationship with the [father]. It also controlled the [father] in his relationship with [the child]. That control prevented [the child] from keeping connections with his family, namely his father’ (at [18]).

( … )

[71] Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. … [T]he section also catches behaviour which is both acceptable and necessary (for example, exerting control over child in the exercise of the parenting powers). … [I]n practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.

( … )

[74] ‘Coercive control’ is a technical phrase in social science literature. It is a concatenation of coercive behaviour and controlling behaviour and is a subcategory of one or both types of behaviour. Whilst the term ‘coercive control’ has been attributed a legal definition in legislation in some jurisdictions, s 4AB of the Act does not do so. …

[75] If the legislature intended to provide a definition of ‘coercive control’, it would have done so. The very wide definition in s 4AB(1) coupled with the non-exhaustive list in s 4AB(2) conveys an intention of width. … [W]hen s 4AB is interpreted and its application to a particular set of facts considered, there needs to be a consideration of whether the application of the definition meets the purpose of the statute.

( … )

[83] The mother’s behaviour in restricting time between the father and the child could be behaviour caught by s 4AB as behaviour which is controlling without being coercive. However, conduct does not amount to family violence simply because the primary judge labels it thus. In determining whether a party has engaged in a pattern of coercive or controlling behaviour, context is important. As observed by the Full Court in Helbig & Rowe and Ors [2016] FamCAFC 117 at [91], a finding that a party has engaged in such conduct will generally require a description of what was said and done and the context in which the conduct occurred.

[84] A finding of family violence is a conclusion which must be based on an evaluation of evidence. … [S]ome situations will require a more detailed evaluation than others. Behaviour which is subtle or comprised of common, everyday behaviours is likely to require a greater degree of context to qualify as family violence under s 4AB than would, say, behaviour to which no ambiguity attaches.

[85] … [T]here is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father ‘initially’ (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s 4AB(1) as family violence.

( … )

[90] On the facts of this case, relevant context included the circumstances in which the mother had herself been the subject of actual physical violence at the hands of the father …

[91] There is, with respect, force in the submission by the ICL that to characterise the uncontextualised behaviour of the mother in this case as family violence within the meaning of s 4AB(1) risks family violence being alleged in virtually every case where a party has genuine concerns regarding a child spending time with the non-resident parent. It cannot sensibly be contended that the definition of family violence was intended to apply to such circumstances.

( … )

[94] … I conclude that the primary judge erred in finding that the mother engaged in family violence as defined in s 4AB of the Act. It is, however, necessary to determine the consequence of the primary judge’s error.

[95] … [T]he father conceded that his behaviour … constituted family violence, which was sufficient to sustain the finding by the primary judge that the presumption was rebutted. That is, irrespective of the unsustainable finding that the mother’s behaviour constituted family violence, there was a sound basis for the primary judge’s determination that the presumption of equal shared parental responsibility did not apply on the facts of this case.”

In separate reasons, McClelland DCJ & Campton J cited Illgen & Yike [2018] FamCA 17 and Ramzi & Moussa [2022] FedCFamC2F 1473 and said (at [15]-[17]):

“ … What is clear is that the determination of what constitutes behaviour ‘that coerces or controls’ must be considered in the context in which the conduct occurred …

In the context of the facts and circumstances of this case, we respectfully agree with Bennett J that the conduct of the mother in limiting the amount of time that the child spent with the father could not reasonably be determined to be coercive or controlling conduct for the purposes of s 4AB(1). In that respect, there was no finding that the mother’s concerns for the welfare of the child were other than genuine in the context where she had herself been the subject of one violent assault by the father …

The mere fact that the mother’s conduct in limiting the child’s time with the father could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence as defined in s 4AB(1). Context is all important. …”

The appeal was dismissed. Costs certificates were granted.

Procedure – Judicial Registrar upheld eight objections to subpoena – Upon review, only two objections were upheld

In Haldar & Santosh [2022] FedCFamC2F 1594 (22 November 2022) Judge Murdoch heard an application where a subpoena compelled the husband’s father’s company (B Pty Ltd) to produce documents that included company constitutions and 9 years’ worth of tax returns, financial statements, bank statements, company activity statements, employment records, ledgers and fringe benefit returns ([5]).

The company and husband objected. They argued that the subpoena was an abuse of process and a fishing expedition.

When the matter came before a Judicial Registrar, all objections were upheld save for “employment records of the husband” and loan ledgers in respect of the husband and B Pty Ltd ([7]).

Considering the wife’s application for review, the Court said (from [12]):

“The wife deposes in her affidavit …

  • the husband ‘operates’ B Pty Ltd and throughout the parties’ cohabitation and post separation has had unfettered control of the company accounts and uses company funds to pay for personal living expenses including personal shopping, dining out, holidays and TAB bets …
  • … the husband made drawings on his loan account with B Pty Ltd of an unspecified amount …

( … )

  • The wife worked at B Pty Ltd from January 2016 until 2019. During this time the wife observed that deposits from clients were mainly paid in cash and the husband received the cash personally …

[13] The husband deposes in his Affidavit …

  • During the marriage he worked on a full-time basis as the general manager of B Pty Ltd. He is not and has never been an officeholder or shareholder of the company …
  • The husband is currently employed as the manager of the company. …
  • From his employment he has been provided with the benefit of a company credit card which he uses for both company and personal expenses …

( … )

[22] Rule 14.07 states that the hearing of an Application for Review of a Registrar’s decision is an ‘original hearing’; that is, the court will hear the whole matter afresh rather than determining whether the original decision was in error. The court may receive further evidence in addition to the evidence before the Registrar: rule 14.07(2).

( … )

[25] A subpoena must only be used for a legitimate forensic purpose. It is unnecessary for the party issuing the subpoena to establish actual relevance. The test is one of ‘apparent relevance.’ If it is not apparently relevant, it is an abuse of process: Hatton v Attorney-General of the Commonwealth of Australia & Ors [2000] FamCA 892 … Whilst the bar for establishing relevance is not high, the party seeking to rely upon the subpoena must nonetheless establish that it is ‘on the cards’ that the documents would bear upon and have relevance to the issues in the substantive proceedings: Baumann & Ors & Rushbrook & Anor [2016] FamCA 905 … ‘Expressed in the reverse, it is not legitimate to issue a subpoena on the basis of an “outside chance” that something useful might turn up in the documents’: see X Pty Ltd & Ors & Merhi [2015] FamCA 622.

[26] This is to be distinguished from the process of discovery where such a motive is permissible.

[27] A subpoena must not cast a serious and unfair or reasonable burden or prejudice upon the respondent to the subpoena … It must describe with reasonable particularity the documents for which it calls: Campbell J in Dunn v KAZ Group (2006) NSWSC 8. …

( … )

[28] I am satisfied that, subject to variation as detailed below, the subpoena to B Pty Ltd to produce documents is for a legitimate purpose.

[29] The court ought not be circumspect in undertaking an evaluation of the threshold of apparent relevance at this stage of the proceedings. It is to be remembered that a determination as to an absence of apparent relevance to the documentation sought by the wife is akin to summary determination of that issue in the litigation on a preliminary basis.

[30] … I am satisfied that on the whole the documents sought have a forensic purpose and are therefore not an abuse of process subject to my further findings below.

[31] The wife’s evidence supports the closely intertwined financial relationship of the husband and the company. I accept that the husband can use the loan account without quantification or qualification.

[32] It is to be remembered that it is the husband’s case that, as a mere employee of the corporation he would not in the ordinary course have access to the documents sought by the wife for what I have found to be a legitimate forensic purpose for the purposes of disclosing them pursuant to Chapter 6 of the Rules. The only forensic process whereby the wife can achieve access to the relevant documents is by way of subpoena.”

The Court set aside the Judicial Registrar’s order. It ordered that the documents be produced, save for the company constitution ([35]) and company activity statements ([38]).

Children – “Intractable and probably enduring conflict” rebuts presumption of equal shared parental responsibility – Orders for Australian and foreign passports

In Becker & Waterman [2022] FedCFamC2F 1611 (28 November 2022) Judge Glass heard a parenting application in relation to a 3 and a half year old child (“X”), where the primary issues in dispute were equal shared parental responsibility and the issue of a passport for the child in “Country B”.

The father opposed the child obtaining a passport for “Country B”, although it was agreed that the mother would be able to take the child there to see maternal family there.

The Court said (from [24]):

“ … Whilst Mr Becker may have paid child support in accordance with his legal obligations, that it did not occur to him that the mother of his child might benefit from sharing in his substantially increased income at the time he was receiving it, reflects poorly on him.

( … )

[44] Mr Becker opposes the issuing of a Country B passport for X. He gave evidence that it is something on which he is ‘non-negotiable’. It is common ground that X will travel to Country B to visit his maternal family as he has done previously.

[45] When Mr Becker was asked why he opposed the issuing of a Country B passport to X, he answered ‘if he had a Country B passport, he couldn’t be the Prime Minister of Australia.’ …

[46] Mr Becker’s position, said to be informed by legal advice, is fanciful. X is a Country B citizen by virtue of having been born to a Country B mother, and had that citizenship on the day he was born in accordance with Country B law. …

[47] On Mr Becker’s own evidence of his understanding of the law, X is disqualified from being a member of Federal Parliament as a result of being a Country B citizen by virtue of Country B law. His ‘non-negotiable’ opposition to the issuing of a Country B passport for X is not even rationally based on his own understanding of the operation of Australian law.

[48] Mr Becker also gave oral evidence that a number of senators had to renounce their dual passports to remain in Parliament. On his own evidence, X could similarly himself do so and nevertheless be the Prime Minister of Australia. … The complete inconsistency between Mr Becker’s own evidence and his ‘non-negotiable’ position reflects very poorly on his attitude to the responsibilities of parenthood.

[49] The issuing of a Country B passport for X is not a matter of mere convenience when Ms Waterman travels with him to Country B. She called expert evidence from a Country B lawyer in the following relevant terms:

In the case a [Country B] citizen travels to [Country B] but does not hold a [Country B] passport and/or is unable to present it at the border, there will be a fine of up to EUR 5,000 …

( … )

[52] Mr Becker’s opposition to the issuing of a Country B passport for X leaves his mother in the position of breaching Country B law each time she travels to Country B with him as is agreed between the parties. …

( … )

[54] Mr Becker has travelled on three occasions to Queensland with X, without advising Ms Waterman in advance. So much also reflects poorly on his attitude to the responsibilities of parenthood by depriving X’s mother of information as to his whereabouts. …

( … )

[60] … Ms Waterman’s evidence that he subjected her to daily insults was not challenged. Her evidence that she found Mr Becker’s behaviour towards her controlling and difficult to cope with was also unchallenged, as was her evidence that there have been many occasions where she felt intimidated and scared at changeover. …

( … )

[62] In March 2020, Ms Waterman successfully applied for an Intervention Order protecting herself and X from Mr Becker. Mr Becker breached the Order on two occasions by sending messages to Ms Waterman. His criminal charges for doing so were resolved by way of a Diversion.

( … )

[66] Mr Becker proposes that the parties have equal shared parental responsibility for X. I am to apply a presumption that such an order is in X’s best interests … However, the presumption is rebutted by evidence that satisfies me that it is not in X’s best interests for his parents to have equal shared parental responsibility for him …

( … )

[72] Consultant Ms O opines that the parties’ communication remains difficult, remains stressful and appears now to be fairly entrenched, which presents challenges when decisions need to be made. …

[73] I am satisfied that the history of the parties’ intractable and enduring conflict, amply establishes her fear and lack of confidence. Mr Becker has failed to engage in the specific counselling recommended by Consultant Ms O to assist him in developing more of an understanding of the impact of his communication on others. His ‘non-negotiable’ position of requiring Ms Waterman to break Country B law when travelling to Country B with X supports Ms Waterman’s evidence that he fails to accept views besides his own.

( … )

[75] It is not in X’s best interests for his parents to continue to be embroiled in ongoing disputes about major long term issues affecting him. Consultant Ms O opines that X will benefit from a lack of exposure to parental conflict. I have no confidence parental disputes could be resolved between the parties, even with mediation. As Mr Becker himself submits, an order for equal shared parental responsibility will lead to a likelihood that the parties will end up back in court and it will give them fuel to do so. …

[76] I conclude that an order for equal shared parental responsibility is not in X’s best interests. The statutory presumption is accordingly rebutted.

[77] I accept that to exclude Mr Becker from decision-making in relation to major long-term issues affecting X is a very significant step and a serious interference with fundamental rights … However, to leave both parties with parental responsibility would continue to expose X to the risk of further disputation and litigation in relation to decisions for him. I consider that risk justifies the relevant interference.”

Comprehensive parenting orders were made that included an order for sole parental responsibility and that the parties do all acts and things so that Australian and “Country B” passports issue for the child.

Children – Equal shared parental responsibility and week about time ordered despite parents’ “toxic relationship and a mutual disrespect for each other”

In Reddin & Bickett [2022] FedCFamC1F 910 (23 November 2022) Kari J heard a parenting application in relation to children of 8 (“X”) and 6 (“Y”) where “almost every independent expert that has had dealings” with the children “has formed a very dim view of the parents, their level of conflict, and their enmeshment of the children in their dispute” ([6]).

The parents had each retained the children from the other in breach of orders, the mother alleging welfare concerns of sexual abuse by the father, the father alleging welfare concerns of family violence in the mother’s household and the use of illicit substances.

Previous orders provided for the children to live with the mother and spend time with the father, the most recent order providing for paternal time of 4 nights per fortnight ([29]). After conduct of the mother that included delay in engaging supervision services, the father had “not spent any meaningful time with” the children “in excess of twelve months” at the time of trial ([56]).

Each parent sought sole parental responsibility and that the children live with them. The independent children’s lawyer (“ICL”) sought orders, in the alternative, that either the children live with the mother and spend alternate weekends with the father or that the children spend equal time between their parents via a week about arrangement ([70]).

The Court said (from [88]):

“Having regard to all of the material before the Court and having heard the oral evidence of both parents, the overwhelming impression that I formed during the trial was that both parents were keen to deflect blame and justify their actions.

[89] The father was disarmingly open in his oral evidence, at times making jarring admissions in a casual fashion. …

[90] The mother on the other hand … often failed to remember events, and/or sought to distance herself from her own poor behaviour. Of most concern however is that numerous inconsistencies arose in the mother’s version of events. Examples of such inconsistencies include but are not limited to her allegations of sexual abuse and matters pertaining to family violence with her former partner Mr M. I have come to the conclusion that the mother was calculated in her evidence and her apparent lack of memory. …

( … )

[103] … [I]t became clear during the course of the mother’s oral evidence that she maintained the allegations of sexual abuse.

( … )

[112] … [I]t is of significance that the CPS report records a different series of events leading to Y’s alleged disclosures to that which the mother deposed in either of her affidavits.

( … )

[116] During cross examination by the ICL, the mother ultimately gave yet another version of events as to how the alleged disclosures of sexual abuse had been made by Y. …

( … )

[122] I am satisfied that the mother spread rumours about the father to tarnish his reputation amongst parents at the children’s school and impact his relationship with the children.

[123] While these events are indicative of the toxic levels of contempt that the mother holds towards the father, what is of greater concern is that these events set in place a more serious chain reaction that escalated to the reporting of serious allegations of sexual abuse, and resulted in the children effectively having their relationship with the father severed …

( … )

[167] … [The family report writer] Ms G made it clear that the biggest impediment to the children having settled and workable living arrangements, was the parents themselves. Ms G’s clear opinion was that if these parents committed to abiding by Court orders and supporting the children’s relationship with the other of them, then any arrangement providing for the children to have regular time with both parents was able to be achieved and sustained.

( … )

[178] During her oral evidence Ms G ultimately conveyed the following opinions:

(a) She considered a need to minimise direct handovers between the parents …

(b) A shared care arrangement was one that could be facilitated if both parents were committed to supporting the other parents’ ongoing relationship with the children.

(c) The distance between the parents home … was not prohibitive to the success of a shared care arrangement …

( … )

(h) The children would likely be impacted by a move into the father’s primary care, and she could not support the children living with the father without giving the mother one last chance to facilitate an ongoing relationship between the children and their father, and comply with court orders.

(i) If the mother was unable to abide by the orders to be made at the end of this trial process, then the Court should entertain the prospect of a change of primary care to the father …

( … )

[187] … I … hold concerns about the parents’ poor attitude towards each other and the impact that this is likely to have on their ongoing co-parenting dynamic.

( … )

[193] While these matters appear to contra indicate these parents being able to effectively co-parent in any way moving forward, I am conscious that both parents spoke of a willingness and desire to co-parent into the future. …

[194] The father equally gave evidence that he hoped to communicate more civilly with the mother in the future, provided that the same occurred in writing.

( … )

[197] On the one hand the findings I have made in relation to the mother are serious and point to a finding that at times she is unable to meet the emotional needs of these children.

[198] On the other hand, the father’s conduct, particularly at the commencement of the current tranche of proceedings in withholding the children, has been equally merciless, and indicates that he too at times is unable to meet the emotional needs of these children.

[199] I accept that often times, such findings would suggest that it is best that the children have a primary base with one parent, and very limited time spending with the other parent.

[200] What is inescapable however, is:

(a) That both parents have contributed to the current state of affairs; and

(b) That these children, if permitted by each of their parents, derive significant benefit from the relationship that they have with each of their parents.

[201] Much like Ms G, I too am satisfied that it is the parents themselves that present the biggest impediment to these children having a carefree existence where they are able to maintain a relationship with each of their parents.

[202] The difficulty therefore is that where both parents from time to time seem incapable of prioritising their children’s needs ahead of their own desire to inflict harm on the other of them, the court is left in an invidious position of fashioning a parenting arrangement that does the least harm to these children.

[203] … I am deeply concerned that these children are at ongoing risk of emotional harm if they continue to be caught in the crossfire of their parents, particularly so if either parent chooses to prevent them having a relationship with the other parent.

[204] While I am satisfied that these parents have a toxic relationship and a mutual disrespect for each other … my firm view is that in circumstances where both parents have contributed to the current state of affairs, there presently exists no proper basis to rebut the presumption that the parties should equally share parental responsibility for the children.

[205] Additionally … I see no basis at the present moment for the children to live solely with one of the parent, to the exclusion of a meaningful relationship with the other parent in the short, medium or long term.

( … )

[207] … I am most concerned to implement an arrangement that would see the children maintaining a secure and meaningful relationship with both of their parents; as promoted by both the ICL and Ms G.

[208] … I am keen to limit the ability of either parent to sabotage the relationship that the children has with the other parent.

[209] It is for all of these reasons that I consider that the children should live in a week about equal shared care arrangement.”

Property – De facto wife ordered to remove caveats in the absence of her seeking a declaration of trust or any evidence that supported a trust – Injunction that sale proceeds be held for 14 days

In Pethrick & Folmar [2022] FedCFamC1F 905 (17 November 2022), Strum J heard an application involving caveats lodged by a de facto wife over two Victorian properties. One property was owned solely by the de facto husband and the other was owned by the de facto husband and his brother. The interests were owned for “more than a decade” prior to the relationship ([11]).

The caveats were lodged on the grounds of an “implied, resulting or constructive trust” ([14]). The de facto wife sought a property adjustment pursuant to s 90SM of the Act, but her Initiating Application sought “a just and equitable division of assets” without particularity, the Court describing the order sought by the wife as “meaningless” and “incapable of being made in that form” ([10]).

After requesting the wife to remove her caveats, the husband sought formal orders for removal as he wished to sell the properties to pay debts and fund his legal fees, including funding a criminal defence (as he was in jail ([15])).

The Court said (from [21]):

“ … At issue is whether, as required by s 89(1) of the Transfer of Land Act 1958 (Vic), the wife is a ‘person claiming any estate or interest in land … [who] may lodge with the Registrar a caveat in an appropriate approved form …’ (emphasis added).

( … )

[26] It is trite that contributions do not, in and of themselves, give rise, without more, to an interest in property. If that were so, ss 79 and 90SM of the Act might well be otiose. Further, an order under those sections ‘altering the interests’ of the parties to the marriage or the de facto relationship in their property or that of either of them does just that. It is well settled that those sections do not give a party any legal or equitable rights to, or interest in, property before an order is made under subsection (1) of either of those sections. In Fisher v Fisher [1986] HCA 61 … Mason and Deane JJ said that ‘orders made under s 79 do not give effect to antecedent rights arising in virtue of the marital relationship. Instead they perform a dual function by creating and enforcing rights in one blow, so to speak …’. This is so, no matter how likely it is that the Court will make an order under subsection (1) of either of those sections, as the power to do so is wholly discretionary.

( … )

[29] Other than the unqualified assertion by the wife that she believes … that she has a sound legal basis to have lodged caveats over the various properties, namely, ‘pursuant to a constructive, resulting and/or implied trust’, nowhere in these proceedings has she sought a declaration, either under s 90SL or in the exercise of the Court’s accrued jurisdiction, that the husband holds any property upon trust for her, whether constructive or otherwise.

( … )

[32] … [I]t is difficult to discern how a constructive trust might be said to arise in favour of the wife in this case. However, that is not to say that it may not be just and equitable to make an alteration of interests in favour of the wife … That determination must await trial.

[33] … [I]t was only during the course of the hearing, when it was pointed out to the wife’s solicitor that there was no claim by her in the proceedings to any interest pursuant to a constructive trust, that he sought an adjournment in order for her to bring such a claim. I refused the adjournment. …

( … )

[35] As ss 79 and 90SM do not give a party to a marriage or de facto relationship any legal or equitable right to property before an order is made, a right to apply for an alteration of property interests is not a caveatable interest in real property …

( … )

[37] … For these reasons, I conclude that the caveats lodged by the wife over H Street and W Street were improperly lodged, are not sustainable and must be removed, and I will so order. …

( … )

[56] … [I]n relation to the caveats, nowhere in these proceedings has the wife claimed an interest in the H Street or W Street. Her only claim is to an unparticularised just and equitable division of unspecified assets pursuant to s 90SM of the Act.”

After noting a “surprising absence of any evidence in support of the wife’s application for an injunction in relation to the proceeds of sale of the relevant properties” ([60]), the Court considered each party’s alleged net asset pool and said (at [65]):

“ … [N]otwithstanding the husband’s concession that the wife should have ‘comfort’ that … sufficient funds [post-sale] will remain available to meet her claim … she cannot take such comfort. Given the uncertainty as to the extent of such equity … I shall order that the net proceeds of sale of each [property] … be held briefly upon trust for the husband by his solicitors for a period of 14 days after settlement of each of the sales of those properties and, in the event there is no application made by the wife in relation thereto within such period, they be released to him absolutely. The husband’s duty of ongoing disclosure applies to the proceeds of sale … which will put the wife in a position to make a considered decision in relation to how to proceed, if at all.”

It was ordered that the de facto wife remove the caveats at her expense and that the proceeds of any sale be held in trust for 14 days. Costs were reserved.

Property – Husband’s voluntary liquidation of business – Add-back argument unsuccessful but conduct considered pursuant to s 75(2)(o)

In Crittenden [2022] FedCFamC1F 892 (18 November 2022), Baumann J heard an application for property division in respect of a 17 year marriage, followed by separation of 8 years. There were two children – the adult child lived independently and the youngest (14) lived with the wife.

The wife argued that the husband had engaged in unilateral dealings that warranted notional add-backs, including dealings with motor vehicles and placing his business as a tradesman in liquidation but thereafter trading in his personal name. The wife alleged that “after causing the business to be placed in liquidation” the husband “commenced a new business as sole trader and thereby ‘took over’ the old business clients for no real consideration” ([25]).

As to the vehicle dealings, the Court said (from [40]):

“ … At separation, the husband owned [vehicle 1] … I am satisfied he purchased the vehicle in mid-2012 for approximately $29,500 … I accept it is a vehicle attractive to car enthusiasts. The extent of the husband’s response to the wife’s allegations … is … where he says that ‘[t]his was purchased after separate [sic] and sold for $9,500 in an unworthy state.’

[41] Although it is true that the parties separated in January 2013, the husband … utilised the funds and I regard the withdrawal as a premature disposition for the husband’s sole benefit in a Townsend & Townsend [1994] FamCA 144 … sense.

( … )

[43] The husband made no attempt to reconcile the inferences available from the documents that notwithstanding the asserted sale in April 2015 of a car in poor condition, he is insuring the vehicle some years later. Furthermore, there is no evidence he offers as to how the condition of the vehicle … deteriorated in two (2) years. The wife says … without particularisation, that the husband has ‘also driven the car after its date of sale by him and entered the car in car shows’. The wife was not challenged on this assertion in her brief cross-examination.

[44] I am not prepared to attribute a self-claimed (even if agreed) insurance value for the vehicle of $80,000. In my assessment, the husband’s failure to adequately explain the transactions after its purchase, support my determination that the husband obtained a benefit of $29,500 and it should be ‘added back’.”

As to the post-separation business dealings, the Court said (from [53]):

“ … [T]he wife seeks to include in the balance sheet a number of additional ‘add backs’. The claims relating to the ‘loss’ of the business upon its liquidation appears to be based on a submission that the husband ‘caused’ the business to be liquidated as a result of his ‘reckless, wanton or negligent behaviour’ …

( … )

[55] It bears reminder, that notionally ‘adding back’ funds is the exception to the overarching oft stated principle, that the Court assesses and identifies the interests of the parties at the time of trial. The Court is therefore not bound to ‘add back’ any amount, however … in an effort to achieve justice and equity, at times consideration of behaviour that might lead to an ‘add back’ is best achieved by taking the matter into consideration under s 75(2)(o). …

( … )

[57] … The evidence supports a finding that the husband operated the business as he wished – supported at times by his parents – but that as the qualified tradesperson, the profitability of the business critically relied upon his efforts. The liquidators reports revealed that as the business began to falter, the husband withdrew available funds for his own use (by example, his salary for the 2012/2013 year was $135,846) and also reduced his loan account. …

[58] … [A]n argument is advanced that culminates in a contention that based on a report by Mr Q, a single expert pursuant … at 31 December 2014 (being approximately three months prior to liquidation) the business had a value of $119,000. This is despite the husband’s evidence … that there were circumstances which arose in respect of the business operation to cause its profitability to decline quickly.

[61] I am far from satisfied that the husband’s conduct amounted to a ‘wasting’ of a valuable asset. … I accept the wife and the husband made both direct and indirect contributions to the business, but that ultimately the husband was the key man and his skills as a tradesperson enabled the business to provide a modest income but some benefits to the family. It can be seen that the husband did withdraw funds from the business when other expenses should have been given priority. However, rather than seeking to attribute a notional value and ‘adding it back’, the proper way to deal with the matter is to recognise that the husband … continued to earn an income and withdraw funds from cash flow, to some extent, was able to retain some connection with previous customers. These are appropriate matters to take into consideration under s 75(2) …

( … )

[62] … [I]t is likely the wife devoted significant time and effort personally to analysing hundreds of transactions around the time of separation and thereafter. ( … )

[63] However the precise attention given by the wife to so many transactions, many not challenged by the husband, misunderstand the Court’s function. The Court is not required to conduct an audit, and more importantly when a relationship breaks down, the parties’ lives are not suspended. Absent injunctions, they are perfectly entitled to spend money they have access to – including post separation income – as they wish.”

The net asset pool was $1,462,115 (including superannuation). Contributions were assessed at 55:45 in favour of the wife (the wife’s case including 8 years’ of care for the youngest child, with limited child support to the extent that the father owed $21,000 of arrears). A further 10 per cent adjustment was made for s 75(2), the division being 65:35 in favour of the wife overall.

Property – Father fails to rebut presumption of advancement as to $75,000 paid to his daughter for the purchase of real estate – Constructive trust argument also fails

In Koprivnjak [2023] NSWCA 2 (2 February 2023) the New South Wales Court of Appeal heard an appeal from a decision of Peden J of the equity division of the Supreme Court of NSW, where a father (“John”) unsuccessfully sought a declaration that his daughter (“Natalie”) held a property at Shoal Bay, NSW on trust for him, via resulting and constructive trust.

John had separated from Natalie’s mother. The property was sold as part of family law proceedings and the sale proceeds held in trust pending a determination as to beneficial ownership ([12]).

It was common ground that Natalie had bought the property for $300,000; and that John had paid $15,000 for the deposit and $60,000 to Natalie for the purchase (total $75,000). It was also agreed that he liaised with a mortgage broker and then her bank to assist Natalie obtain a $240,000 loan to fund the purchase; and that he subsequently transferred $1,400 per month to Natalie’s account to meet mortgage outgoings. 

John sought a declaration that Natalie held 25% of the property for him by way of a resulting trust; and her remaining 75% interest by way of common intention constructive trust. 

Griffiths AJA said (from [13]):

“There is and was no dispute that if the $75,000 paid by John was properly characterised as a contribution towards the purchase price of the property, the presumption of advancement placed the burden of proof on John to show a contrary intention.

( … )

[17] … John denied any knowledge that Natalie received a first home owner’s grant and a stamp duty exemption of approximately $9,000 (contentions which her Honour rejected) …

( … )

[19] … [A]s to resulting trusts, the primary judge relied upon the statement of the relevant principles by Ward CJ … in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [161]–[168] … The central points may be summarised as follows (without reference to relevant authorities):

(1) where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it;

(2) once the primary fact giving rise to the presumption of a resulting trust is established, the burden falls on the party disputing the existence of a resulting trust to rebut the presumed fact on the balance of probabilities;

(3) consequently, the presumption of resulting trust is the starting point of a factual enquiry about the intention of the party (or parties) who provided the funds for the relevant purchase;

(4) the search for the intention of the relevant party (or parties) is as to proof of a ‘definite’, and not ‘nebulous’, intention, as opposed to a subjective uncommunicated intention;

(5) the relevant intention is to be found as at the date of purchase (or immediately thereafter), although evidence of later acts and declarations is admissible as admissions against interest; and

(6) for the presumption of resulting trust to apply, the purchase price must have been provided by the purchaser in their capacity as purchaser and not, for example, by way of loan.

[20] The primary judge also identified some relevant legal principles referred to in the decision of the Full Court of the Federal Court in Commissioner of Taxation v Bosanac (No 7) [2021] FCAFC 158 … [and] the following passage from the Full Court’s decision … at [3]:

… The second is the presumption of advancement. Where it applies, the presumption of advancement operates to prevent a resulting trust from arising because the relationship between the relevant parties provides a reason against presuming a trust. The presumption operates on the hypothesis that, because a certain relationship exists between two parties, a benefit provided by one party to the other at the cost of the first was intended to be provided by way of “advancement”; absent evidence to the contrary, the relationship supplies a reason for why a gift was intended.

( … )

[24] As to John’s claim that there was a common intention constructive trust, the primary judge … adopted as a correct statement of the legal principles the judgment of Ward CJ … in Bassett v Cameron [2021] NSWSC 207 … In brief, those principles were identified as follows:

(1) equity may intervene to prevent the unconscientious denial by the legal owner of another party’s rights where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention;

(2) it is sufficient that the parties intend that the claimant should have a beneficial interest or some form of proprietary interest … ;

(3) a less stringent test applies to the requirement of detriment once the common intention has been established … ; and

(4) a common intention constructive trust may arise after the acquisition of the relevant property if the evidence establishes that the relevant common intention was formed at some later time.

( … )

[26] … [T]he primary judge found that the only money which John paid directly to the vendor for the purchase and/or mortgage was $15,000 … The balance of the purchase price was paid from the $60,000 John placed in Natalie’s bank account and the … loan, for which Natalie was solely legally responsible …

( … )

[31] … John’s version of the conversation, which included a claim that he told Natalie that he [and her mother] … had found a holiday home, which they would put in her name and he would cover all the payments, did not establish any true intention concerning the purchase price and mortgage repayments…

( … )

[35] … [A]s to John’s claims that his advance of $75,000 to Natalie to assist with the purchase and the regular payments of $1,400 into her bank account demonstrated that he intended to be the true or beneficial owner of the property, her Honour found that, without more, these actions were equally consistent with Natalie’s claim that John loaned her $75,000 and then provided further financial assistance with the property as he had promised …

( … )

[39] … [H]er Honour found that there was no substantial difference between John and Natalie’s recollection of the pre-purchase conversation but it was necessary to look beyond that evidence to determine whether John had discharged his onus of establishing the existence of a trust that rebutted the presumption of advancement and the fact that Natalie was the registered proprietor …

( … )

[54] In the … banking records relating to the … $75,000, John had described each of those payments … as ‘Natalie Deposit’, ‘Loan to Natalie’ and ‘Natalie Loan’ respectively. Her Honour … found that this was inconsistent with John’s evidence…

( … )

[61] Her Honour added … that the conclusion that there was no trust was most obviously demonstrated by contemporaneous documents created by John, namely the mortgage and John’s choice in describing as a ‘loan’ his advance of the $75,000.

( … )

[95] … [H]aving regard to the relevant contemporaneous documentation, her Honour’s preference for Natalie’s evidence rather than John’s where there was an inconsistency and John’s own evidence that ‘every father would help their children out’ … no appellable error has been established with respect to the primary judge’s reasoning that John had not rebutted the presumption of advancement in respect of his payments towards the mortgage obligations and improvements to the property (apart from the $75,000 loan which was secured by the mortgage).”

Leeming and Mitchelmore JJA agreed. The appeal was dismissed. Costs were ordered, subject to written submissions.  

Property – Order set aside by consent pursuant to s 79A(1A) – Consent between wife, executor of husband’s estate and trustee in bankruptcy sufficient to set aside order, but third parties were interested persons entitled to be heard pursuant to s 79A(2)

In Jess (No 3) [2023] FedCFamC1A 2 (10 January 2023), the Full Court (Alstergren CJ, Aldridge & Austin JJ) heard an appeal from property orders made by consent in 2009. The orders were based on a deed of trust, to the effect that the husband’s interest in a unit trust was held on trust for the husband’s adult son.

In 2019 proceedings, a judge declared that the deed “was not executed on the date that it bears”, its having been “made to look as though it had been executed before the marital separation … but it was executed afterwards” ([13]).

In s 79A proceedings filed by the wife, the executor of the (deceased) husband’s estate, the estate’s trustee in bankruptcy and the wife agreed to the Court setting the 2009 order aside via s 79A(1A).

The adult son appealed, arguing that he was denied the right to be heard on the question of whether the order should be set aside; and that the Court erred in its finding that he was not an “other person interested” such that his interests should have been considered pursuant to s 79A(2).

Considering the son’s argument that the Court erred by finding that “all parties” consented pursuant s 79A(1A), the Full Court said (from [52]):

“We consider that the determination of what constitutes a proceeding… is governed by identification of the separate causes of action on which one or more of the parties move and not by the administrative allocation of a file number to such causes of action. This gives recognition to the reality that many varying applications can be made in relation to a marriage. For example, matters come before the court involving both parenting and property. … In such a case … there are two proceedings before the court – one property, one parenting. Resolution of the property matter would be between the parties to the marriage or other parties necessary to it and not, on the above example, a grandparent or other interested person. It could not sensibly be suggested that their consent would be required on any application of s 79A(1A).

( … )

[55] … [I]n this matter there are at least two proceedings … The first is the proceedings between the deceased husband and wife for orders under s 79 which were resolved by the 24 September 2009 property orders. The second is the proceedings under s 79A and s 106B taken by the wife against the present respondents. These are too significantly different in nature and substance to be the same proceedings.

( … )

[57] … [T]he primary judge correctly found that the discretion under s 79A(1A) was enlivened by the consent of the parties to the proceedings at the time the order was made (which his Honour described as being ‘parties to the orders’ … ).”

The Full Court continued (from [30]):

“ … [I]n considering whether to vary or set aside orders made under s 79, the court is to have regard to the interest of bona fide purchasers and other interested persons and take that into account when considering what order is to be made. That is separate to determining whether an order should be made for the protection of that person. This is so because of the way the section is worded – the latter obligation is in addition to the first.

[31] … [T]he subsection refers to two separate categories – the phrases ‘bona fide purchaser’ and ‘person interested’ are to be read disjunctively …

[32] If the court is to have regard to the interests of a bona fide purchaser or other person interested, it follows that they must be heard in order to put that interest before the court. They do not need to be seeking an order for their protection before they can be heard.

( … )

[60] The applicants contend that they are other persons interested for the purposes of s 79A(2) and therefore were entitled to be heard on the issue of the s 79 orders being set aside under s 79A(1A). The primary judge held that they were not.

( … )

[64] The essential question … is the extent of the meaning of ‘other person interested’ within s 79A(2). The primary judge effectively restricted such people to those seeking an order for their protection or persons interested in the order itself as opposed, for example, to being interested in subsequent proceedings that might flow from the orders being set aside.

( … )

[73] … [P]ersons interested to the degree that they are seeking an order for their protection or likely to seek such an order would be entitled to be heard on an application under s 79A(1A). However … persons interested go beyond those who are seeking orders for their protection. Included in those are categories of persons whose interests fall short of a legal right but where that person is affected to a greater degree than a member of the general public.

( … )

[81] The applicants have an interest in maintaining that overall settlement, including the consent orders. Therefore … we are of the view that the applicants have an interest in whatever orders were or are made between the wife, the executor and the trustees under s 79 of the Act.

[82] The setting aside of the consent orders invites a reconsideration of property settlement orders. Whilst the applicants are not directly involved in those proceedings, the wife has indicated that in them she will seek orders under general principles and under s 106B setting aside the settlement deed and trust deed. …

[83] … [T]he practical effect of the orders under appeal is that the applicants will now be the subject of proceedings to which they were previously immune. That … will involve them in considerable difficulty and expense. That risk of being exposed to such an action … gave the applicants a sufficient interest in the proceedings so as to entitle them to be heard.

[84] That is so even though the legal rights of the applicants have not been altered by the orders made.

[85] It follows therefore, that the primary judge erred by not regarding the applicants as interested persons entitled to be heard.

[86] That is not the end of the matter, and in order for leave to appeal to be granted, the applicants must show that a substantial injustice would flow if leave was not to be granted.

( … )

[91] At this stage, no orders have been made that have altered or affected the applicants’ rights in any way. [The husband’s adult son] … remains the holder of the units in the [unit trust] … All that has happened is that the door has been opened to challenge that position.

[92] It follows that as no orders have yet been made that affect the applicants’ rights, that such consideration is yet to come and that all the applicants’ submissions opposing that course are yet to be made and resolved. It is difficult to see how a substantial injustice arises from the error of the primary judge.”

The application for leave to appeal was dismissed. Costs were ordered against the appellant, fixed at $39,303.54.

Financial agreements – Procedure – Dispute as to whether financial agreement was binding should be heard at separate hearing, not heard together with the wife’s application for property adjustment

In Malone [2022] FedCFamC1F 784 (19 October 2022) Gill J heard an application regarding a financial agreement. The wife sought orders for spousal maintenance and property adjustment and the husband relied upon the agreement as binding and that the Court lacked power to make such orders.

The parties had each filed points of claim documents to function as pleadings in relation to the application to set aside the financial agreement.

Pursuant to r 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the husband sought that the issue of whether the financial agreement was binding be bifurcated and heard as a discrete issue.

The Court said (from [8]):

“The husband argues that the splitting of proceedings carries with it the prospect of a significant shortening of the proceedings. If he is successful in resisting the wife’s challenge to the BFA, then there will be no need to move onto the aspects of the parties’ dispute that pertain to property adjustment or spousal maintenance. He contends that not only will the hearing time be reduced, but that the steps necessary to prepare the matter will also be significantly reduced …

( … )

[10] [The wife] … contends that there is so significant an overlap in the factual issues to be dealt with in relation to the setting aside of the BFA and the property adjustment and spousal maintenance matters that she will pursue if successful in relation to the BFA, that splitting the proceedings will not result in the benefits to the extent contended by the husband. She further contends that if she is successful in respect of the BFA, that splitting will then require the revisiting of factual matters pursued on the setting aside application in the substantive proceedings.

( … )

[12] The wife has, in respect of her application to set aside the BFA, pleaded instances and patterns of family violence alleged to have been perpetrated by the husband upon her.

[13] These matters are asserted to vitiate the BFA. …

[14] In property proceedings that would follow a successful application to set aside, the wife points to the family violence matters as bearing upon an assessment of the wife’s contributions and whether they were rendered significantly more arduous by such conduct by the husband.

( … )

[21] While the wife accepts that the court will, on a s 79 … determination, be concerned with the pool as at the time of the trial, she contends that understanding the pool at the time of entry into the BFA will form a necessary background to consider the significance of post separation dealings with property.

( … )

[31] It may be observed that there are areas of overlap between the application to set aside the BFA and any consequential substantive proceedings for property adjustment of spousal maintenance relief …

( … )

[33] At the same time, it is important to also observe that there are distinct differences between the proceedings to set aside the BFA and proceedings relating to property adjustment and spousal maintenance more generally.

[34] Unlike the broader proceedings, the setting aside is constrained by the points of claim documents functioning as pleadings, such that the factual scope of the trial of the setting aside is closely defined. Further, the nature of the two types of proceedings is different, the principles governing the setting aside being distinct from those governing the substantive applications.

( … )

[36] It may be accepted that were the setting aside and substantive matters run together, there would be some areas of commonality, and that running them together would eliminate some duplication. However, running them together necessarily imposes upon the threshold question a significant overburden of evidence, disclosure and days of hearing that are unnecessary to its determination.

[37] … I do accept that there are significant differences between running the setting aside as a threshold hearing as opposed to taking evidence on all matters, and also in pursuing disclosure relevant to the substantive matters versus disclosure relevant to setting aside.

[38] Further, although not determinative, prima facie the husband is entitled to the benefit of the BFA, and the course proposed by the wife marks a significant erosion of that benefit prior to any determination that the BFA should be set aside.

[39] Even if the difference between the two options cannot be yet measured or estimated as a difference in terms of the days of trial, or days of preparation, the difference is significant enough to warrant the splitting of the proceedings in the pursuit of the ends supported by r 10.10 and the overarching purpose of the Rules.

[40] Such a step carries with it the potential to dispose of the whole proceedings, if the BFA holds firm, rendering a substantive trial unnecessary in respect of s 79 or s 75 relief.

[41] Such an outcome will also significantly reduce the preparation requirements.

[42] It may be taken that determining whether the BFA is binding has the potential to save significant costs, if the BFA is found to be binding.

[43] While it may also be taken that there may be an increase in costs if the BFA is found not to be binding, by virtue of the overlapping areas, that potential is outweighed by the matters set out immediately above.”

The Court scheduled a discrete hearing as to whether the financial agreement was binding or whether it should be set aside.

Property – No “de facto relationship” where applicant, respondent and third party in open, non-monogamous sexual relationship

In Jones & Michetti [2022] FedCFamC1F 771 (21 October 2022) McNab J heard an application following a 16 year relationship which commenced when the applicant and his then de facto partner, Ms B, placed a post on a “gay dating website” in the name of the applicant, to which the respondent replied ([6]).

A non-exclusive sexual relationship between the three parties (and others) ensued, the respondent paying for dinner events and both interstate and overseas holidays ([7]). Ms B and the applicant’s work included sex work, where the applicant underwent surgical procedures “transitioning to a female” in 2018. The respondent paid “over $30,000” for the procedures ([11]).

It was agreed that the applicant and Ms B were in a de facto relationship from 2002 to mid-2021. It was also agreed that the applicant and the respondent had a long-term relationship, however the respondent denied that the parties were ever in a de facto relationship and sought a declaration to this effect.

It was also agreed that they lived in separate residences save for one night per week (and occasionally an additional night); there was no stated intention that they live together at any point; there was a consistent sexual relationship that was not monogamous; there was no jointly owned or acquired property; the parties celebrated birthdays and special occasions together; and the respondent included the applicant in his will ([27]).

The Court said (from [30]):

“The respondent alleged that the relationship was casual, and there was no commitment to mutual life other than occasional dates and holidays, which he primarily paid for. He does not dispute that it was a loving relationship in which the parties cared for one another; however, he contended that it was a long term, casual relationship and not a de facto relationship.

[31] Neither party claimed that they lived together, and both agreed that they spent one night a week together, occasionally more.

[32] The respondent said that he considered Ms B to be the applicant’s de facto partner, given she and the applicant lived together, and he considered himself to be ‘the person on the side’.

( … )

[34] The applicant gave evidence that this was one of several committed relationships she had during the time she was with the respondent …

[35] … [T]he respondent gave evidence that he had three significant relationships totalling nine years during the 16 year period that he and the applicant were in a relationship …

( … )

[53] The applicant stated that their time together was restricted as her possessions were predominantly at her own property, as were her dogs who required frequent care, and her workplaces, other than the U Venue where she worked in around 2014, were much closer to her residence in Suburb D.

[54] The applicant was cross examined on numerous communications in which the applicant and respondent attempted to arrange time together, and the applicant conceded that it was often difficult, due to them both having busy work schedules. When asked, she was unable to provide any evidence of times when she and the respondent spent more than one or two nights together. The respondent’s evidence is that it was primarily one, and occasionally two nights that they spent together. He referred to these nights as ‘date nights’.

[55] The fact that their time together had to be arranged suggests that they were not living together as a couple on a genuine domestic basis.

[56] Both parties had all mail directed to their separate residences, all registrations were to their own addresses, and kept all property at their own residence, other than a few toiletries.

( … )

[60] In my view, the evidence regarding common residence points away from a de facto relationship as the parties did not appear to be living together on a genuine domestic basis. Rather, they had their own respective residences, which they spend the majority of their time, and made financial contributions to. The evidence that the applicant treated the respondent’s home as a shared residence is superficial and more indicative that she was a guest rather than a habitual resident. …

( … )

[66] There is plainly a sexual relationship between the parties, but this is not determinative given the number of sexual relationships they had with others.

( … )

[131] I proceed on the basis that the question of whether parties are in a de facto relationship involves the central consideration of whether the parties were ‘couple living together on a genuine domestic basis’: Jonah & White [2012] FamCAFC 200 (at [32]). There is no requirement that the parties reside in one residence and the authorities and the legislation that I have been referred to acknowledges that a person can be engaged in more than one relationship. Further a person can have more than one home and the concept of ‘living together’ does not import any concept of proportion of time: Moby v Schulter [2010] FamCA 748 at [140]; Jonah & White [2011] FamCA 221 at [65]; Cham & Sha [2015] FamCA 355 at [90]; Vaughan & Hoskovich [ 2010] NSWSC 706 at [53] & [58] …

( … )

[136] There is no doubt that the parties were in a long term relationship and that they both cared about each other. However, that relationship did not develop to the point that the parties were in a relationship ‘living together on a genuine domestic basis’.

( … )

[140] The matters that militate against a finding of a de facto relationship are:

(1) There was never a common residence…

(2) They had a long standing sexual relationship but it was by no means exclusive. The applicant’s principal relationship was with Ms B …

(3) The applicant had her own work and did not rely on the respondent for day to day expenses. …

(4) The parties acquired no property together …

( … )

(6) During the time that the respondent and the applicant spent in public either with the applicant’s family or with the respondent’s family and friends, they did not present as a couple living together on a genuine domestic basis. …

( … )

[141] The most compelling evidence that there was a de facto relationship arises because the respondent executed a Will in early 2018 where he bequeathed ‘free of all duties: (a) the amount of $600,000 to my partner […] (soon to be known as [Ms Jones]) on surviving me’ …

( … )

[144] [The respondent] … said that if he had considered the applicant as his partner, he would have left his entire estate to her. When asked if another reason for inclusion of the applicant was that they loved and cared about one another, the respondent agreed that this was a factor.

( … )

[146] I also accept the respondent’s evidence that he was concerned about the applicant’s mental health and the risk of her committing suicide. …

[147] I accept that it is more probable than not, that the applicant was included in the Will for the reasons given by the respondent and not because he regarded the applicant as his de facto partner. I also accept that if the respondent had considered that the applicant was his de facto partner, he would have left a greater share of his estate to her.”

The Court declared that no de facto relationship existed between the parties pursuant to s 90RD of the Act.