Tesar & Szep [2025] FedCFamC1F 526 (7 August 2025)

1. That the Court noting the Application for costs filed by the Third Respondent on 5 October 2023:

(a) The Third Respondent shall file and serve any written submissions as to costs by no later than 4.00pm on 22 August 2025; and

(b) The Applicant shall file and serve any written submissions as to costs by no later than 4.00pm on 5 September 2025.

1. That unless otherwise ordered the issue of costs be dealt with in chambers on the papers.
2. That should either party have any objection to the Court determining the issue of costs in chambers on the papers, they shall advise the Court in writing by email to the chambers of Justice Baumann (...@...) by no later than 4.00pm on 13 August 2025.
3. That these proceedings be adjourned for Case Management Hearing at 9.30am on 14 August 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
4. That the parties and the parties' legal representatives have leave to appear by telephone on 14 August 2025 by using the Webex conferencing system as follows:

(a) They shall click the below link (if accessing this Order electronically) to join the Webex conferencing system, by 9.25am AEST on 14 August 2025; or

(b) They shall each telephone ... by 9.25am AEST on 14 August 2025;

(c) They shall each then enter the access code ... and

Note: The form of the order is subject to the entry in the Court's records.

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. In the midst of a contested dispute between the Applicant Mr Tesar ("the Applicant") and the First Respondent Ms Szep ("The Respondent") in respect of the existence (or otherwise) of a de facto relationship commenced on 9 August 2023, on 5 October 2023 an Application in a Proceeding was filed by the First, Second and Third Respondents in the Federal Circuit and Family Court of Australia (Division 2) seeking the following Orders:
   1. That the Third Respondent [Ms Anuki] be removed as a party to this proceeding BRC10413
   2. That all orders presently made against the Third Respondent [Ms Anuki] for filing of material be discharged

3. An order for the costs of [Ms Anuki]

4. Such further or other orders as the court deems just

And upon the [C] TRUST PTY LTD Application;

1. That Mr [Tesar] produce full copies of the building file for the property at [D Street Suburb E], including all contracts and invoices issued by him and by third parties for work, and showing the full costs of work performed, and all plans and drawings, approval and certificates and supporting documentation relating to the assessable building work carried out at the trust property.

2. That Mr [Tesar] as a [property professional] provide to the Applicants a copy of all bank statements held by him belonging to accounts of the Family Trust, and B Pty Ltd, and a reconciled trust statement operated by him outlining all rent received and all payments made out of and including to himself by reimbursement or otherwise from the trust account operated by him.

3. That all orders presently made against the [C] Trust Pty Ltd and [Ms Szep] for filing of an undertaking as to disclosure, and of financial statements be adjourned to a date after the Applicant provides the disclosure documentation required above.

4. Such further or other orders as the court deems just.

(As per the original)

1. These Reasons relate only the Orders sought at paragraphs 1 to 4 inclusive.
2. Subsequently, the proceedings were, on 17 October 2023 transferred to Division One. It was ordered on 17 November 2023 that the Application in a Proceeding be dealt with in chambers on the papers.

1. The Applicant contends that he was in a genuine domestic relationship with the Respondent and that the parties cohabitated from 2015. The Applicant further contends that the relationship ended in December 2022 - after a duration of seven years.
2. The Respondent contends that during the period of the "relationship" asserted by the Applicant, she lived in Country J and their long-distance friendship resulted in them spending only 253 days together, that they lived in separate rooms and did not have an intimate relationship. For all these reasons, succinctly expressed, the Respondent says that the parties were not in a genuine domestic relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) ("the Act").
3. This factual dispute of course must be resolved before the Court is vested with jurisdiction - although additionally the Applicant says that he made substantial contributions in relation to the asserted de facto relationship - particularly to a property situated at D Street, Suburb E ("the D Street property").
4. The D Street property is owned by the Second Respondent B Pty Ltd as Trustee for the C Trust. The Trust Deed reveals a standard discretionary trust was established in early 2018. Although the Applicant asserts the Trust owns another property at F Street, Suburb E, the legal owner is actually the Respondent.
5. The Trust Deed provides inter alia that: -

(a) The principal is Ms Anuki, who has been joined in these proceedings as the Third Respondent. Ms Anuki is the daughter of the Respondent;

(b) The primary beneficiaries are Ms Anuki and the Applicant with the secondary beneficiaries (by item 11 of the Deed) being any person who is a spouse or child of a primary beneficiary;

(c) The Deed provides for the Corporate Trustee and the Principal to have various powers to amend the terms of the Trust and, importantly, under Clause 21.1, the principal may remove any trustee, and under Clause 21.3, may appoint a replacement trustee or an additional trustee;

(d) The Applicant is a director of the trustee company, with the Respondent deposing at paragraph 22 of her affidavit filed 17 October 2023, as to why she appointed the Applicant as a Director of the Trustee Company. The Applicant asserts, as I understand his case, this version of the reason for this appointment, to be incorrect.

1. Without further enquiry or testing at this stage, the parties' financial positions are revealed to be: -

(a) The Applicant, in his Financial Statement filed 9 August 2023 says he is unemployed has a home at Suburb G he values at $1,500,000 and other sundry chattels and bank accounts totalling approximately $70,000, as well as superannuation of $263,614. The Suburb G property is unencumbered;

(b) The Respondent in her Financial Statement filed 17 October 2023 says she is currently employed and owns a property at F Street Suburb E, Queensland (with a value of $1,100,000); a property in City H (with a value of $400,000) and has cash investments around $450,000, as well as superannuation in Country J of $50,000. She claims to have loans (including the home mortgage) of $525,000.

1. Ms Anuki seeks to be removed as a party and that all orders compelling her to file material be discharged.
2. In this respect, although an Order was made by a Judicial Registrar on 13 September 2023 that Ms Anuki (as a Third Respondent) was to file a Response, supporting affidavit and Financial Statement, after the filing of this Application in a Proceeding, on 11 October 2023 the Judicial Registrar "suspended" Orders 7 and 8 made 13 September 2023. It seems apparent from the notation to this later order, that the obligation to file material was suspended because of the asserted jurisdictional issue, raised in the Response.
3. Rule 3.05 of the Federal Circuit and Family Court of Australia (Family Law) Law Rules 1975 (Cth) ("the Rules") provides a party to a proceeding may apply to be Court to be removed, as has happened in this Application.
4. There are few authorities that appear to exist interpreting the test to be applied when a party seeks to be removed as a party, however as Tree J noted in Kelly & Lomax and Anor [2013] FamCA 496, at paragraph 35, the test is, in a sense, the inverse of the test which applies to r 3.01 of the Rules about joining a party - namely that "a person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party...". I adopt the well-known comments by Warnick J in Wayne & Dillon and Anor [2008] FamCAFC 204 about a similar joiner rule, where his Honour found that "necessity" means something more than "useful" or "expeditious".
5. Pursuant to section 26(2)(b)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) certain kinds of appeals are prohibited, including a decision to (or not to) join or remove a party.

1. In the further amended Application filed 10 October 2023, the relief sought from the Third Respondent is pleaded as such:

1A. A declaration that the Second Respondent and Third Respondent hold on constructive trust for the Applicant all right, title and interest in and to the property located at [D Street, Suburb E]... in such proportions as this Honourable Court deems just and equitable.

1. The Respondent does not dispute that the Corporate Trustee is a necessary party in the proceedings. However, I accept the submissions of the Third Respondent that no coherent legal basis has been established to have joined the adult daughter of the Respondent in the substantive proceedings. To the extent that the argument hinges it seems, on the Third Respondent's role as the principal in the Trust or as a primary beneficiary of the Trust, as establishing so might have some interest, is without merit. No relief has been sought against the Third Respondent personally, for example as the principal of the Trust.
2. Certainly, a party to a proceeding can be requested to file material, but requiring the Third Respondent to file material and a personal financial statement, when her involvement in the substantive case has not been established as necessary, is both onerous and not sustainable. The Judicial Registrar was right to have suspended her order in circumstances where what seems to have been some "standard directions" were made against the Third Respondent.

1. For the Reasons given, I will Order that the Third Respondent Ms Anuki be removed as a party to these proceedings and that Order 8 made 13 September 2023 be discharged.
2. I note that Ms Anuki seeks an order for costs.
3. I will make directions for the filing of written submissions if that application is pursued.
4. Of course, if during the further hearing of the jurisdictional issue, evidence reveals a necessity for Ms Anuki to be joined as a party, then an application for joiner may be contemplated by the Applicant.
5. I will list this matter for Case Management Hearing before me at 9.30am on 14 August 2025 and consider what further directions need to be made so as to allow the jurisdictional issue, as a discrete issue, can be determined.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.