Jones v Dunkel

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The parties were in a de facto relationship, which lasted about six years based on the Initiating Application filed 27 November 2023 ("the application") and at least two years based on the Response filed on 9 January 2024.[1]
2. The Initiating Application was filed a very short period after the two year limitation period referred to in s 44(5) of the Family Law Act 1975 ("the Act"). Sensibly, the Respondent did not seek to press for an interlocutory order that leave should not be given to the Applicant to make his application.
3. However, the Respondent now seeks an order for interlocutory dismissal of the application on alternate grounds, being non-disclosure of documents, default of compliance with Court orders, and failure to prosecute the application with due diligence.
4. By Order 10 of the Orders made on 16 May 2024, the Applicant was required to provide to the Respondent within 21 days, copies of documents described at subparagraphs (a) to (n) below, such that they were in his power possession or control, being:

a) The Applicant's tax returns for the financial years ending 2021, 2022, and 2023; > > b) The Applicant's notices of assessments for the financial years ending 2021, 2022 and 2023; > > c) The Financial Statements for the Applicant's business trading under the name [C Business] (ABN [...]) ("the Applicant's business") (including balance sheets, profit and loss accounts, depreciation schedules, taxation returns and taxation assessments) for the financial years ending 2021, 2022, and 2023; > > d) Business Activity Statements for the Applicant's business for the past 12 months; > > e) Statements evidencing the current value of the Applicant's superannuation entitlement(s); > > f) If the Applicant operates a self-managed superannuation fund, the trust deed and the financial statements for the financial years ending 2021, 2022 and 2023 for the Applicant's self-managed superannuation fund; > > g) A current MyGov screenshot showing all superannuation accounts held in the Applicant's name; > > h) Registration papers for any and all motor vehicles, motorcycles, caravans, trailers, boats which are held in the Applicant's name either solely or with any other person;

1. Redbook Valuation Certificates of the value of all motor vehicles, motorcycles, caravans, trailers, boats which are held in the Applicant's name either solely or with any other person;

j) Statements for the period of 1 February 2023 to 16 May 2024 for the following: > > 1. All savings or investment accounts held in the Applicant's sole name or with any other person; > 2. All credit cards held in the Applicant's sole name or with any other person; > 3. All loans held in the Applicant's sole name or with any other person; > > k) The Applicant's three most recent payslip;

1. A current Centrelink Payment Summary if the Applicant is in receipt of Centrelink benefits;

m) Any documents confirming the amount, asset and date of receipt of inheritance from the Applicant's late mother's estate; > > n) Any document evidencing the Applicant's purchase/ownership/financial contribution towards the chattels located on the Respondent's property at [D Street, Suburb E].

5. On 12 July 2024, I made an order requiring compliance with Order 10 by 4:00pm on 26 July 2024 and, in the event of a failure to comply, a show cause hearing would be listed in relation to the alleged non-compliance.
6. On 22 August 2024, I conducted a show cause hearing as to allegations that the Applicant had failed to make disclosure as previously ordered. The Applicant was cross-examined about his claim that he had complied with the court orders made on 12 July 2024.
7. Having heard the evidence, I was not satisfied that the Applicant had fully complied with the court orders. I made specific orders about the disclosure and discovery required by the Applicant and stayed the proceedings until he complied or 24 February 2025, whichever date came first.[2]
8. I was also persuaded to make a costs order in the fixed sum of $5,000, given the necessity to conduct the hearing due to the Applicant not complying with previous orders and the length of time of his default.
9. Order 2 of the orders made 22 August 2024 required the Applicant to provide the Respondent with copies of the following:

a) Bank statements for his ANZ Access Advantage Account ending in #[...]32 for the period 1 November 2020 to date; > > b) Bank statements for his NAB Account ending in #[...]66 for the period 1 November 2020 to date; > > c) Bank statements for his CBA Account ending in #[...]32 for the period 1 November 2020 to date; > > d) The Financial Statements for the Applicant's business trading under the name [C Business] (ABN [...]) ("the Applicant's business") (including balance sheets, profit and loss accounts, depreciation schedules, taxation returns and taxation assessments) for the financial years ending 2021, 2022, and 2023 AND IF SUCH ACCOUNTS OR FINANCIAL STATEMENTS DO NOT EXIST, the Applicant is to cause them to be created and a copy provided; > > e) Statements evidencing the current value of the Applicant's superannuation entitlements including those referred to in his financial statement as a [Super Fund 1] OR if this fund has merged or become another superannuation fund, a document explaining what has become of the superannuation; > > f) A current MyGov screenshot showing all superannuation accounts held in the Applicant's name and if the Applicant maintains he has difficulties accessing MyGov, he must contact the administrator of his MyGov account and obtain access; > > g) Redbook Valuation Certificates of the value of all motor vehicles, motorcycles, caravans, trailers, boats which are held in the Applicant's name either solely or with any other person, including for the [Motor Vehicle 1] registration [...] and [Motor Vehicle 2] registration [...]; and > > h) Documents evidencing or corroborating claims by the Applicant of work done or contributions to the Respondent's property at [D Street, Suburb E].

1. Because the Applicant stated in evidence that he had not lodged tax returns for several years, I also ordered that he lodge tax returns for himself and/or the business he conducted as required by law for the last three financial years, and to produce a copy of those tax returns to the Respondent's solicitor.
2. On 24 February 2025, I conducted a case management hearing to determine if the proceedings should be further stayed or other orders made. The Applicant appeared and initially said he had not complied with the orders made by me on 22 August 2024 and then stated he had.
3. Being dissatisfied with the Applicant's inconsistent statements, I reminded him that the proceedings could not be indefinitely stayed. As Counsel for the Respondent had submitted that the initiating application be dismissed, I explained to the Applicant that the Court has power to dismiss an application in part or in its entirety in the event of default or non-disclosure under the Rules.[3] I was not prepared to make the order sought by the Respondent at that stage, indicating that I would need to hear evidence about whether there had been adequate disclosure and/or compliance with the earlier orders. I listed a further show cause hearing on 11 March 2025 at 9:00am to determine if the order sought by the Respondent should be made.
4. The Applicant stated that he understood my explanation.
5. On 24 February 2025, I also made an order for the parties to file affidavits about compliance or non-compliance with the orders relating to disclosure if there was dispute about compliance.[4] I gave leave to the parties to cross-examine at the show cause hearing and explained to the Applicant the Court's power to dismiss.

1. The Respondent was represented by counsel at the hearing on 11 March 2025. The Applicant appeared self-represented, as he had previously.
2. As there was apparent ongoing dispute about whether there had been compliance with the disclosure orders of the Court, I invited Counsel for the Respondent to adduce the evidence relied upon to establish the alleged non-disclosure contrary to court orders.
3. Without objection, the court received and into evidence:
   • Affidavit of Ms B filed 4 March 2025, tendered into evidence as Exhibit R1; and
   • Correspondence from Respondent's solicitor to the Applicant dated 6 March 2025 with annexures, tendered into evidence as Exhibit R2.
4. The Applicant had not filed an affidavit about compliance with the court orders about disclosure. Instead, from the bar table he asserted in effect that:

(a) He had done his best to comply with the orders for disclosure;

(b) He had spent most or all of his saved money on legal costs and no longer had a lawyer to advise him;

(c) He could not afford legal advice;

(d) He had recently provided disclosure of the Redbook value reports for his two vehicles and tendered those, which I marked as Exhibit A1;

(e) He had provided copies of all his bank statements as required by the orders;

(f) He could not produce the financials for his business or his tax returns because they had not been completed for a number of years; and

(g) He had consulted an accountant, who said it would take time but did not say how long.

1. The Applicant did not adduce any admissible evidence about there being a proper reason for the delays in providing disclosure, but his submissions amounted to a concession that he had not fully complied with the disclosure required by the court orders.[5] Overall his submissions lacked detail and veracity about what attempts he made and when to ensure he complied with the orders.
2. I reminded the Applicant that he was to have filed an affidavit if he stated that he had complied with the court orders for disclosure or had good reason for not having done so. I also drew the Applicant's attention to the notation to the Court's order of 22 August 2024, namely that he had stated then that he had taken some legal advice.
3. I invited the Applicant to tell me what he had done since 22 August 2024 to comply with required disclosure, and I observed that if I accepted his claim that he could not afford legal advice or find a lawyer to represent him, the proceedings could not be delayed indefinitely. He agreed they could not be indefinitely delayed indefinitely but made no useful or persuasive submission otherwise. He did not explain why he required legal advice to make the necessary disclosure.

1. Counsel for the Respondent submitted that the Court should accept Ms B's evidence about the Applicant's failure to disclose information and documents as required by the court orders. He submitted that the Court can be satisfied that the Applicant has failed to disclose the following:[6]

(a) The Applicant's tax returns for the financial years ending 2021, 2022, and 2023;

(b) The Applicant's notices of assessments for the financial years ending 2021, 2022 and 2023;

(c) Financial Statements for the Applicant's business trading under the name C Business (ABN ...) ("the Applicant's business") (including balance sheets, profit and loss accounts, depreciation schedules, taxation returns and taxation assessments) for the financial years ending 2021, 2022, and 2023;

(d) Business Activity Statements for the Applicant's business for the past 12 months;

(e) Statements evidencing the current value of the Applicant's superannuation entitlement;

(f) The trust deed and the financial statements for the financial years ending 2021, 2022 and 2023 for the any self-managed superannuation fund operated for the Applicant's benefit;

(g) A current MyGov screenshot showing all superannuation accounts held in the Applicant's name;

(h) Redbook Valuation Certificates of the value of all motor vehicles, motorcycles, caravans, trailers, boats which are held in the Applicant's name either solely or with any other person, noting that the Applicant tendered two Redbook valuations at the show cause hearing on 11 March 2025;[7]

(i) Statements for the period of 1 February 2023 to 16 May 2024 for the following:

(i) All savings or investment accounts held in the Applicant's sole name or with any other person, noting that incomplete documents were provided;

(ii) All credit cards held in the Applicant's sole name or with any other person;

(iii) All loans held in the Applicant's sole name or with any other person;

(j) The Applicant's three most recent payslips;

(k) A current Centrelink Payment Summary if the Applicant is in receipt of Centrelink benefits;

(l) Any documents confirming the amount, asset and date of receipt of inheritance from the Applicant's late mother's estate; and

(m) Any document evidencing the Applicant's purchase/ownership/financial contribution towards the chattels located on the Respondent's property at D Street, Suburb E.

1. It was also submitted by Counsel for the Respondent that Ms B's evidence demonstrated that a thorough and careful search of records, in hard copy and electronic form, and the processes within her firm demonstrated continuing non-disclosure and contravention of the costs orders made against the Applicant.
2. Counsel submitted that the Applicant was engaging in a course of conduct whereby he partly complies with an order for disclosure at the very last moment in a self-serving way. He has made no real effort to comply leading to the proceedings being derailed at a number of stages. For example, he did not cooperate with valuations and ineffectively participated in the Conciliation Conference held on 30 April 2024.
3. As a consequence of the Applicant's failure to comply with the disclosure orders, Counsel submitted that the Respondent could not meaningfully receive legal advice or respond to an offer the Applicant said he had made.
4. Further, Counsel submitted that the non-disclosure meant that the Respondent could not prepare for or participate fairly in a defended hearing.
5. Referring to Zao v Lee [2019] FamCAFC 169, Counsel admitted that the dismissal power in r 6.17 of the Rules was one the Court should exercise as a last resort. However, in this case where the disclosure is outstanding since at least 16 May 2024 and even earlier noting the 6 February 2024 orders, the delay is significant and the prejudice to the Respondent justifies dismissal of the entire application.
6. Counsel submitted that although the Applicant made assertions from the bar table about having consulted an accountant, that person has not provided any evidence and there is no information about the length of time required to provide the financial accounts and tax returns.
7. In summary, Counsel submitted that there was simply no evidence that the Applicant had done anything to rectify his non-compliance with the required disclosure or taken advice about this.
8. The Respondent sought dismissal of the entirety of the initiating application either pursuant to r 6.17 or r 10.27 of the Rules. This, he contends, gives effect to the object of the Rules, which Parliament enacted to ensure the parties and the Court had sufficient material available to determine what constitutes a just and equitable adjustment of married persons' and de facto couples' property and assets.
9. Conceding that the Applicant may be prejudiced by dismissal of his application, Counsel submitted that this was of the Applicant's own making.
10. The Applicant in response simply submitted that he had been trying to get the financial information and tax completed for the period 2019 to 2023, but the papers and files are difficult to locate, and some are at the residence occupied by the Respondent. This appeared to be a different explanation to that given previously and constituted a mere assertion.

1. The Respondent seeks dismissal of the initiating application for property adjustment orders, without the proceedings being determined on merits upon evidence adduced in Court at a defended hearing. She seeks an interlocutory dismissal, distinct from summary dismissal on grounds that the application has no reasonable prospects of success pursuant to s 102QAB of the Act.[8]
2. The Court's power to dismiss proceedings in this instance is founded in the Rules which provide for the circumstances when that may be appropriate.[9]
3. The approach to be taken when considering interlocutory dismissal is subject to limited authority, but is addressed in Patel & Noora [2019] FCWA 260 ("Patel") at [30] to [37]. The salient guidance is that:

(a) The Court is not confined to consideration of the evidence relied upon by the one party;[10]

(b) The Court requires evidence of the non-compliance and default to be adduced and the party seeking interlocutory dismissal carries the onus of establishing the relevant ground for dismissal;[11]

(c) Only if non-compliance, default or failure to prosecute is established,[12] may it be relevant to consider the merit of the substantive application;[13]and

(d) Whether the Court exercises its discretion to dismiss involves assessment of:

(i) The prejudice to the defaulting party should dismissal be granted, and in my view also the prejudice to the non-defaulting party if the application is not granted; and

(ii) The merits of the substantive application, in that a less meritorious application might occasion less prejudice.

1. As interlocutory dismissal is not a merits-based determination, it does not necessarily create an estoppel against the party whose claim has been dismissed. Nor does the principle of res judicata apply.[14] Accordingly, as touched upon in Patel in somewhat different terms, in my view it is also relevant to consider whether the dismissal order if made, will likely bring an end to proceedings and the controversy about the subject of the proceedings.

1. Although the Applicant had opportunity to cross-examine Ms B or adduce his own evidence about compliance with the disclosure orders, he did neither. Further, the Applicant's various statements to the Court about what he had done to comply are unreliable and inconsistent. I accept the evidence of Ms B and accordingly find as follows:

(a) Since 16 May 2024, the Applicant has continuously failed to provide his tax returns for the years ending 30 June 2021, 2022, and 2023, contrary to the court orders of 16 May 2024 and 22 August 2024;

(b) Since 16 May 2024, the applicant has continuously failed to provide his notices of assessment for the years ending 30 June 2021, 2022, and 2023, contrary to the court orders of 16 May 2024 and 22 August 2024;

(c) Since 16 May 2024, the Applicant has continuously failed to provide Financial Statements for his business trading as C Business (ABN ...) for the years ending 30 June 2021, 2022, and 2023, contrary to the court orders of 16 May 2024 and 22 August 2024;

(d) Since 16 May 2024, the Applicant has continuously failed to provide copies of documents evidencing the value of his Super Fund 1 or any other fund into which it has been rolled over, contrary to the court orders of 16 May 2024 and 22 August 2024;

(e) The Applicant has failed to provide papers evidencing the value of his home-built motor vehicle, contrary to the orders of 22 August 2024;

(f) Since 22 August 2024, the Applicant has failed to provide copies of any documents evidencing the claims of work done or contributions to the respondent's property at D Street, Suburb E ("the Respondent's property");

(g) Since 16 May 2024, the Applicant has failed to provide documents evidencing the Applicant's receipt of inheritance from his late mother's estate; and

(h) Since 22 August 2024 and contrary to the court's orders of that day, the Applicant has failed to provide copies of all pages of his bank account statements for the period 1 November 2020 to date relating to his:

(i) ANZ Access Advantage Account believed to be account no ...32;[15]

(ii) NAB account no ...66;[16] and

(iii) CBA account no unknown, but believed to hold funds received from the inheritance referred to at (g).[17]

(i) Since 16 May 2024, the Applicant has failed to provide evidence of his three most recent payslips; and

(j) Since 16 May 2024, the Applicant has failed to provide copies of any documents evidencing his purchase, ownership or financial contribution towards chattels located at the Respondent's property, contrary to the orders of 16 May 2024.

1. The Applicant has amply demonstrated the Applicant's continuous non-compliance with disclosure obligations under the Rules and in breach of court orders.
2. Accordingly, the grounds for interlocutory dismissal of the initiating application are established, but whether the Court should exercise its discretionary power and dismiss the initiating application requires consideration of other factors discussed at [35(c)], [35(d)] and [36] of these reasons.
3. In the substantive proceedings, the Applicant seeks an adjustment of the parties' assets on the basis that he receives 37.5 per cent of the proceeds of sale of the Respondent's property and retain certain items of property, being his Motor Vehicle 1, his superannuation interest and funds in bank accounts.
4. By her Response, the Respondent seeks dismissal of the initiating application. Alternatively, she seeks a declaration that the Applicant has no interest in the real property, and orders for the Applicant transfer to her and relinquish claims in Motor Vehicle 3, Motor Vehicle 4, Motor Vehicle 5, and furniture and chattels in her possession. In her alternate case, she agrees that the Applicant retain the Motor Vehicle 1 and chattels and furniture in his possession.
5. As is demonstrated by the orders sought by the parties in the substantive proceedings, the dispute between the parties is primarily related to whether the Applicant ought to receive a payment for an alleged share in the Respondent's property. The scope of the dispute is fairly narrow and the proceedings have become unnecessarily drawn out and costly by the failure of the Applicant to make required disclosure contrary to court orders.
6. Based on the documents filed with the Court, it appears to be undisputed that the Applicant is self-employed and has not complied with tax laws since 2016.[18] He has failed to disclose anything about his income or earning capacity. These are relevant considerations when adjusting assets of de facto parties.[19]
7. The contributions, if any, made by the Applicant to the real estate are also relevant when making property adjustment orders between the parties.[20] However, to the extent that he has failed to disclose the documents relating to the alleged contributions, the Court is entitled to and would likely make an adverse inference against him.[21]
8. The non-disclosure of what the Applicant received, if anything, from his mother's estate is also relevant to the Court's function under s 90SM of the Act. However, again, his failure to produce documents about this could lead the Court to make findings against his interests.[22]
9. The value of the Applicant's superannuation interest is material to the Court's task of making orders in the substantive proceedings. Although this ought to have been produced by the Applicant, this too may be the subject of adverse inference or obtained through a subpoena issued to Super Fund 1.
10. Accordingly, the failures referred to at [37(a)] to [37(c)] and [37(h)] of these reasons are depriving the Respondent and the Court of relevant information to determine what agreement or orders are just and equitable.
11. Given that the parties' relationship was relatively short on either party's account of it, it is difficult to conceive how the Applicant may justify a claim to 37.5 per cent of the value of the real property registered in the Respondent's name, particularly because he has produced no documents about the contributions he has made to it.
12. Based on the foregoing, the substantive claim by the Applicant in the application presently seems weak.
13. Although interlocutory dismissal of the application will deprive the Applicant from having his claim adjudicated and theoretically this amounts to prejudice, because the orders sought by him at present seem contrary to justice and equity and the prejudice of dismissal is of his making, I give little weight to the theoretical prejudice he would suffer from interlocutory dismissal. Indeed, an earlier termination of the proceedings may avoid him being exposed to future costs orders.
14. However, the interlocutory dismissal of the application may prejudice the Respondent by leaving her exposed to the possibility of future proceedings being brought. Although such proceedings would face the obstacle of being well out of time, the Respondent may still need to bear the burden of paying legal costs for representation.
15. Given that the Applicant is in breach of an order for the payment of the Respondent's costs, the prospect of her recovering future costs seems little, particularly because the Applicant's only assets appear to be cars, chattels and funds in bank of unknown value. I consider this is a significant prejudice weighing in favour of interlocutory dismissal.

1. The non-compliance and delay by the Applicant is long and extensive. He has not provided any reasonable explanation for his non-compliance with the Court's orders as found at [37] of these reasons. Further, I do not accept much of his explanations for the reasons given earlier.
2. The final orders he seeks do not appear to have merit based on materials filed and I do not accept that he will be significantly prejudiced by an interlocutory dismissal.
3. The Respondent is being prejudiced by non-disclosure of relevant information and documents. She is prejudiced by delay and incurring legal costs, which are unlikely to be easily recovered from the Applicant based on inferences open on his claims of being unable to afford legal representation and the assets shown in his Financial Statement filed on 9 January 2024.
4. The Court has already made orders for the Applicant to comply with disclosure obligations under the Rules and made orders for production of copies of relevant documents. The Applicant has not complied with those orders for approaching 10 months. The Court already made an order staying the proceedings, but that did not serve as sufficient incentive for the Applicant to comply.
5. I am concerned that the Applicant is using the court process to burden the Respondent with what seems a weak claim and cause the Respondent to incur more and more costs.
6. I am satisfied that this is one of the sparing circumstances where the power to dismiss should be exercised as sought. Other attempts to ensure the Applicant disclosed information and prepared properly for a defended hearing have been unsuccessful and reasonably exhausted. For all the foregoing reasons, the Initiating Application filed 27 November 2023 will be dismissed.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

[2] Pursuant to powers in Rule 6.17(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules").

[3] Rule 10.27 and Rule 6.17 of the Rules, respectively.

[4] Order 2 of the Orders made 24 February 2025.

[5] Specifically, he had not complied with Order 2 of the order made 24 February 2025.

[6] Exhibit R2, being a letter from the Respondent's solicitor the Applicant dated 6 March 2025.

[8] Patel & Noora [2019] FCWA 260 at [31].

[9] Rule 10.27 and Rule 6.17 of the Rules.

[12] Rules 6.17, 10.22, and 10.27 of the Rules.

[14] See Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at [35] and following.

[15] Identified in the Applicant's Financial Statement filed 27 November 2023 at [37].

[16] Identified in the Applicant's Financial Statement filed 27 November 2023 at [37].

[17] Based on statements made to the Court on 22 August 2024.

[18] Applicant's Financial Statement filed 27 November 2023 at [9] and part O.

[19] Sections 90SM(4)(e) and 90SF(3) of the Act.

[21] Jones v Dunkel (1959) 101 CLR 2983; Weir & Weir [1992] FamCA 69; (1993) FLC 92-338; Wei & Xia (No 5) [2023] FedCFamC1F 679.

[22] Weir & Weir [1992] FamCA 69; (1993) FLC 92-338, followed in Tethys & Tethys [2014] FamCAFC 125 and many other authorities, eg. Wei & Xia (No 5) [2023] FedCFamC1F 679.