Overlapping De Facto Relationships and a Windfall Constructive Trust: How the Family Law Act 1975 (Cth) Allocates Property When One Partner Uses Another’s Funds to Discharge a Mortgage

Based on the authentic Australian judicial case Cisek & Farrah (No 2) [2023] FedCFamC1F 804 (PAC 1160 of 2021), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Introduction

This case is not simply about “who gets the house”. It is about how the Court resolves a rare, legally messy reality: one person maintaining overlapping de facto relationships, acquiring and holding key assets in their sole name, and then drawing very large sums from one partner’s funds while another partner claims long-term contributions and family violence impacts.

At the centre was a single property registered solely to the First Respondent. Two competing claims converged on that property:

• the Applicant’s claim arising from a long de facto relationship with children and allegations of serious family violence; and
• the Second Respondent’s claim arising from a shorter de facto relationship and an enormous financial contribution, including the discharge of a large mortgage from the Second Respondent’s funds.

The Court had to decide how law and evidence should “cut through” concealment, non-disclosure, credibility failures, and overlapping relational histories, while still applying the structured requirements of the Family Law Act 1975 (Cth) in a way that was just and equitable.

Chapter 1: Case Overview and Core Disputes

Basic Information

• Court of Hearing: Federal Circuit and Family Court of Australia (Division 1)
• Presiding Judge: Hartnett J
• Cause of Action: De facto property adjustment under Family Law Act 1975 (Cth) s 90SM; declaration of de facto relationship under s 90RD; leave under s 44(6); constructive trust principles considered within the property framework; costs enforcement
• Judgment Date: 22 September 2023
• Core Keywords:
  • Keyword 1: Authentic Judgment Case
  • Keyword 2: De facto relationship
  • Keyword 3: Overlapping relationships
  • Keyword 4: Windfall constructive trust
  • Keyword 5: Non-disclosure and adverse inferences
  • Keyword 6: Kennon adjustment for family violence contributions

Background (No Result Revealed Yet)

The Applicant and the First Respondent shared a long de facto relationship spanning about sixteen years and raising two children. During that relationship, property was acquired and a family life was built, but the relationship deteriorated in the shadow of serious allegations of family violence and financial control.

Meanwhile, during the Applicant’s relationship, the First Respondent also became involved with the Second Respondent. The Second Respondent later suffered dementia and was represented by the New South Wales Trustee and Guardian as litigation guardian and financial manager. The Second Respondent’s claim originated outside the family law system: it began as Supreme Court proceedings in New South Wales seeking an accounting for monies transferred and equitable remedies, before being transferred into the federal family law proceedings and consolidated.

A key practical feature shaped everything: the only major asset effectively available was a single real property, registered solely in the First Respondent’s name, where the First Respondent lived. Both the Applicant and Second Respondent asserted competing equitable and statutory claims over that property.

Core Disputes and Claims

The “point of disagreement” was not abstract. The Court was required to determine:

1. Whether, and for what period, a de facto relationship existed between the First Respondent and the Second Respondent for the purpose of Part VIIIAB of the Family Law Act 1975 (Cth), and whether jurisdictional thresholds and leave requirements were met.
2. Whether it was just and equitable to alter property interests under s 90SM as between:
   • the Applicant and First Respondent; and
   • the Second Respondent and First Respondent,
     while also managing the practical collision between those two sets of interests.
3. Whether the Second Respondent’s substantial financial contributions, including mortgage discharge funding, should be recognised as creating a windfall constructive trust (or trust-like equitable entitlement) affecting how the Suburb E property should be divided.
4. How the Court should respond to extensive non-disclosure, unreliable evidence, and the absence of documents that should have been produced, including whether adverse inferences should be drawn.
5. Whether the Applicant’s contributions should be adjusted due to family violence in accordance with Kennon & Kennon, and how that adjustment should interact with the Second Respondent’s reimbursement-style claim.

Relief sought broadly included: sale of the property, distribution of proceeds between the Applicant and Second Respondent, superannuation splitting, return of chattels, and costs enforcement against the First Respondent.

Chapter 2: Origin of the Case

This litigation began in a pattern that many readers will recognise in real life: one person holding the legal title, while others contribute money, labour, and life-years on the assumption of a shared future.

The Applicant’s relationship with the First Respondent began many years earlier, evolving into a long, domestic partnership with two children. Property was acquired in the First Respondent’s sole name, but with substantial indirect and direct support connected to the Applicant’s side of the relationship, including financial assistance from the Applicant’s parent that was treated as repayable support rather than a pure gift.

The family life was not stable. The Court later had to consider evidence of serious family violence and controlling behaviour, including physical and sexual violence, threats, and criminal justice consequences. The Applicant eventually separated and moved into housing supported by domestic violence services, while the First Respondent remained in occupation of the property.

In parallel, the Second Respondent became involved with the First Respondent later in time. The Court accepted that the Second Respondent’s life circumstances included significant vulnerability and later dementia. The relationship with the First Respondent led to enormous financial transfers. The evidence included bank transfers, movements through joint accounts, and the discharge of a major mortgage from funds that originated with the Second Respondent. The Second Respondent’s later incapacity meant she could not give evidence, placing intense weight on documentary records and third-party evidence.

The decisive moment that transformed this from “a private relationship problem” into litigation was the collision of claims over the same property:

• the Applicant pursued family law property proceedings without knowledge of the Second Respondent’s separate Supreme Court proceedings for a long period; and
• the First Respondent failed to disclose the existence and seriousness of the Second Respondent’s proceedings until shortly before trial, forcing a late procedural realignment: joinder, transfer, and consolidation.

This meant the Court was required to do something difficult but unavoidable: decide competing interests in one asset, where the legal title did not reflect the economic reality, and where the evidence suggested intentional concealment.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Affidavit evidence detailing:
   • the relationship history and shared domestic life;
   • acquisition and use of property;
   • her unpaid work, homemaker and parenting contributions;
   • episodes of family violence, including specific incidents described with time context;
   • the consequences of violence, including trauma and reduced capacity post-separation.
2. Corroborative affidavits from supporting witnesses:
   • the Applicant’s parent describing financial assistance used for property acquisition and the repayment expectation; and
   • a close friend describing observed injuries and contextual details consistent with violence.
3. Financial documents and circumstances:
   • Centrelink dependence and limited income;
   • housing obtained via domestic violence accommodation services.
4. Litigation position:
   • the Applicant sought sale of the Suburb E property via an independent trustee (NSWTAG), with proceeds applied to costs, and then distributed with recognition of the Second Respondent’s claim while prioritising the Applicant’s adjustment within the overall structure.

At a practical level, the Applicant’s case was framed as: “I built the life and the home over many years, and violence made my contributions more arduous; he cannot keep the property simply because he holds legal title.”

Respondent’s Main Evidence and Arguments

The First Respondent’s evidence was central not because it was persuasive, but because it was scrutinised and largely rejected.

Key features included:

1. Claims about the timing and nature of the Second Respondent relationship, including assertions of a much earlier commencement date than the Second Respondent alleged.
2. Explanations for the movement and use of large sums received from the Second Respondent, including claims that:
   • funds were voluntarily given; and
   • substantial sums were spent on renovations.
3. Assertions attempting to neutralise or defeat the Applicant’s property claim and shift liability:
   • seeking dismissal of the Applicant’s property settlement application; and
   • denying responsibility in relation to the Second Respondent’s claim.

The case record repeatedly showed the Court confronting the absence of documents that would normally be expected: bank statements, invoices, receipts, building contracts, tax documents, and business records.

Second Respondent’s Main Evidence and Arguments

Because the Second Respondent was medically incapable of giving evidence, the case relied heavily on:

1. NSWTAG evidence and procedural guardianship material:
   • financial management orders and the need to protect the Second Respondent’s interests.
2. Bank transfer evidence:
   • specific transfers and sequences showing movement of large sums from the Second Respondent to accounts controlled by or shared with the First Respondent.
3. The mortgage discharge:
   • evidence that the First Respondent’s mortgage was discharged using the Second Respondent’s funds, producing a mortgage-free property in the First Respondent’s name.
4. Third-party witness evidence, especially from the Second Respondent’s sister, describing:
   • the Second Respondent’s infatuation, isolation, and loss of communication;
   • the First Respondent’s control over the Second Respondent’s phone access; and
   • the practical aftermath: the Second Respondent left with no accessible funds for care.

The Second Respondent’s claim, in substance, was: “The First Respondent received the benefit of my funds on the basis of a relationship or joint endeavour; it is unconscionable for him to retain that benefit without recognising my equitable and statutory entitlement.”

Core Dispute Points

1. Existence and timing of the First Respondent–Second Respondent de facto relationship under Family Law Act 1975 (Cth) s 4AA and s 90RD.
2. Whether leave under s 44(6) should be granted given the short duration of that relationship and the absence of children, and whether s 90SB exceptions applied due to substantial contributions and serious injustice.
3. Whether and how a windfall constructive trust should be recognised and factored into s 90SM adjustments.
4. Credibility and non-disclosure:
   • whether the First Respondent’s account of renovations, debts, and transfers should be accepted;
   • whether the Court should make findings in favour of the “innocent party” where deliberate non-disclosure was established.
5. Whether a Kennon-style adjustment was required due to family violence making the Applicant’s contributions significantly more arduous, and how that should translate into percentages.

Chapter 4: Statements in Affidavits

Affidavits in property proceedings do more than narrate events. They are structured persuasion tools: they select facts, attach documents, and shape credibility.

In this case, the Applicant’s affidavit strategy was consistent with a party building a “life story” that matches legal categories:

• a coherent relationship timeline;
• a contributions narrative (financial, non-financial, homemaker and parenting);
• an impact narrative connecting violence to the practical burden of contributions; and
• corroboration from independent witnesses.

The First Respondent’s affidavit material functioned differently. It attempted to supply explanations without the documentary backbone that would ordinarily make those explanations verifiable. Where a party claims to have spent very large sums on renovations, the Court expects the natural paper trail: council approvals, builder invoices, receipts, bank withdrawals, and contracts. The absence of those documents was not neutral. It was a credibility issue and a disclosure breach.

The Second Respondent’s affidavit material, largely through NSWTAG officers and family witnesses, reflected a different challenge: telling the story of someone who could not testify. That made the evidence chain critical. Bank transfers, account histories, and objective external records were the “voice” of the Second Respondent.

Strategic Intent Behind Procedural Directions Regarding Affidavits

The Court’s procedural directions about affidavits and disclosure served three strategic purposes:

1. To confine disputed factual issues and prevent the hearing from becoming an uncontrolled narrative contest.
2. To force production of financial records necessary for just and equitable decision-making under s 90SM and s 90SF factors, especially given the competing claims.
3. To protect a vulnerable party’s interests by ensuring the litigation guardian could enforce evidence discipline against a party suspected of withholding documents.

In plain terms: where one party controls the documents, the Court’s directions aim to prevent that party from winning through silence.

Chapter 5: Court Orders

Before final orders, the case required significant procedural management, including:

1. Consolidation of proceedings after transfer of the New South Wales Supreme Court matter into the federal jurisdiction.
2. Joinder of the Applicant into proceedings affecting the same property and interests to prevent inconsistent outcomes.
3. Appointment and recognition of NSWTAG as litigation guardian and financial manager for the Second Respondent under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), including rr 3.12 and 3.16.
4. Disclosure orders requiring production of bank statements, business records, taxation documents, and renovation documentation by a set deadline, by consent orders made prior to trial.
5. Management of caveats and title encumbrances, including the practical reality that multiple interests were asserted over the same registered title.

These procedural steps show the Court doing something important: building a single forum where all competing interests in one property could be resolved coherently.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Process Reconstruction: Live Restoration

The hearing was shaped by a stark credibility contrast.

The Applicant was treated as generally reliable: her evidence was straightforward and, where disputed, preferred over the First Respondent’s account.

The First Respondent, by contrast, was treated as an unreliable witness. The hearing record revealed patterns that often doom a party in property litigation:

• inconsistency in answers;
• non-responsive and argumentative testimony;
• implausible explanations;
• shifting narratives depending on what seemed advantageous in the moment.

This mattered because property cases often turn on “what actually happened” to money and who controlled it. When documentary proof is missing and testimony is unreliable, the Court is driven toward adverse inferences and protective findings for the innocent party.

Core Evidence Confrontation

The decisive confrontations were financial:

1. The transfer sequences showing very large sums moving from the Second Respondent’s funds into joint accounts and then into accounts controlled by the First Respondent.
2. The discharge of the mortgage on the Suburb E property using funds originating from the Second Respondent, leaving the property mortgage-free while still registered solely to the First Respondent.
3. The renovation narrative:
   • the First Respondent claimed extremely high renovation expenditure;
   • objective evidence from council development approval tracking indicated an estimated renovation cost far lower than claimed, undermining the “money went into the house” explanation.
4. The business transaction narrative:
   • the Second Respondent’s funds were used to acquire business interests that benefited the First Respondent, with limited reliable disclosure as to where sale proceeds ultimately went.

Judicial Reasoning With Original Quotation

The Court’s credibility assessment was not subtle. It was determinative.

“The first respondent was an unreliable witness. He was often inconsistent in the giving of his evidence, much of it which was garbled, he often giving contradictory evidence, and he appeared to answer questions on the basis of what he perceived would be the most favourable answer to promote his case, regardless of its lack of truthfulness.”

This statement mattered because it functioned like a lever across the entire factual matrix. Once the Court found the First Respondent unreliable, and once non-disclosure was established, the Court was entitled to prefer the Applicant’s evidence where disputed and to accept objective documentary evidence over self-serving explanation.

The Court then used that credibility foundation to move into legal structure: s 90RD declarations, s 44(6) leave, s 90SB threshold analysis, and ultimately s 90SM just and equitable orders.

Chapter 7: Final Judgment of the Court

The Court made declarations and orders resolving the competing claims in a structured sequence.

Declarations

1. A de facto relationship existed between the First Respondent and the Second Respondent from October 2016, concluding on or about September 2017, pursuant to Family Law Act 1975 (Cth) s 90RD(1).
2. The Second Respondent made substantial contributions of a kind mentioned in s 90SM(4)(a)–(b), pursuant to s 90RD(2)(c).

Key Orders

1. Leave was granted to the Second Respondent under s 44(6) to initiate proceedings for property adjustment under s 90SM as between all parties.
2. NSWTAG was appointed as trustee for sale of the Suburb E property on behalf of the parties, with detailed sale mechanics:
   • listing, auction process, reserve price consultation, and fallback private treaty process if auction did not produce an acceptable sale outcome.
3. Net proceeds of sale were applied in a set order:
   • payment of agent and auction fees and advertising;
   • payment of NSWTAG costs;
   • discharge of the mortgage (noting loans secured had been fully repaid);
   • payment of AUD $625,711 less 50 per cent of costs of sale to the Second Respondent;
   • balance to the Applicant.
4. The First Respondent was ordered to vacate, clean, preserve the property, and refrain from interfering with sale; injunctions restrained entry and interference post-vacating.
5. Chattels belonging to the Second Respondent were ordered to be delivered in undamaged condition to an address nominated by NSWTAG, including Motor Vehicle 1 and specified furniture and valuables, subject to the First Respondent’s ability to locate the watch.
6. A superannuation splitting order allocated a base amount of AUD $118,219.41 to the Applicant from the First Respondent’s superannuation interest, with operative time and trustee obligations set out consistently with the statutory regime.
7. The First Respondent was ordered to pay outstanding costs orders totalling AUD $16,200 within 30 days.
8. Extant applications were otherwise dismissed and the matter removed from the list, with liberty to apply on implementation matters.

In practical terms: the property was to be sold under independent control, the Second Respondent’s mortgage-discharge contribution was returned (subject to shared selling costs), and the Applicant received the remaining property benefit and superannuation adjustment, reflecting the Court’s contributions assessment and the First Respondent’s non-disclosure.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case is jurisprudentially significant because it demonstrates how the Court integrates equitable concepts, including a windfall constructive trust, within a statutory de facto property adjustment framework when multiple relationships overlap and a vulnerable party’s funds have been used to create or preserve value in an asset registered solely to the other party.

It also shows the Court’s readiness to treat non-disclosure as more than a procedural breach: it becomes a substantive justice issue that shapes findings, percentages, and outcomes. The Court did not allow the First Respondent to use documentary silence as a shield.

Most unusually, the case required the Court to coordinate two property adjustment exercises involving the same person and the same asset, while also applying s 90SF(3)(o) to account for the interaction between de facto relationships.

Judgment Points

1. The Court treated the Applicant’s claim as effectively “first in time” for practical sequencing, but it did not ignore the Second Respondent’s mortgage discharge contribution. Instead, it treated that contribution as an embedded entitlement that had to be factored into the overall justice of the property division.
2. The Court found a de facto relationship between the First Respondent and Second Respondent within a short window (October 2016 to September 2017) based on the evidence, rejecting broader claims of a much earlier relationship commencement advanced by the First Respondent.
3. The Court recognised that the Second Respondent’s contribution to discharging the mortgage created an unconscionability problem: it would be wrong for the First Respondent to keep a mortgage-free property in his name while the Second Respondent was left without funds for care.
4. The Court made a Kennon-style adjustment favouring the Applicant, recognising that family violence made contributions more arduous, and then further adjusted for non-disclosure under s 90SF(3)(r).
5. The Court did not accept inflated renovation expenditure claims where objective evidence (council DA tracking and cost estimates) contradicted them.
6. The Court drew adverse inferences where witnesses were not called and documents were not produced, reinforcing that a party cannot expect the Court to accept self-serving financial explanations without corroboration.

Legal Basis

The Court’s legal pathway can be expressed as a five-link structure that repeatedly appears in the reasoning:

1. Statutory Provisions:
   • Family Law Act 1975 (Cth) ss 4AA, 44(6), 90RD, 90SB, 90SM, 90SF, 90XT, 106A
   • Evidence Act 1995 (Cth) s 140 (civil standard of proof)
2. Evidence Chain:
   • bank transfer sequences; mortgage discharge evidence; council DA cost evidence; witness testimony and credibility.
3. Judicial Original Quotation:
   • credibility and non-disclosure findings; adoption of principles from authoritative cases.
4. Losing Party’s Reasons for Failure:
   • unreliability, implausibility, non-disclosure, lack of corroboration.
5. Orders:
   • sale and distribution mechanism; superannuation split; costs enforcement.

The Court’s most legally “load-bearing” steps included:

• establishing jurisdiction and leave for the Second Respondent despite the short relationship, by reliance on s 90SB(c)(i) and (ii) and the hardship rationale in s 44(6);
• applying the Stanford v Stanford just and equitable requirement as a permeating constraint, reinforced by Bevan & Bevan; and
• recognising a windfall constructive trust style entitlement grounded in unconscionability principles informed by Muschinski v Dodds and applied through contemporary family law authority.

Evidence Chain

The evidence chain was stronger for the Applicant and Second Respondent because it relied on objective anchors:

• transfers with dates and amounts;
• mortgage discharge figures;
• council development application estimates of renovation costs;
• third-party witness accounts of observable conduct and circumstances.

The First Respondent’s narrative was weaker because it required the Court to accept high-stakes claims without the records that should naturally exist.

Judicial Original Quotation

The Court adopted and applied the established framework for windfall constructive trust reasoning through a clear quotation of elements, drawn from family law authority discussing equitable principles:

“A windfall constructive trust may be imposed where one party has made contributions to a property, and it would be unconscionable for the registered proprietor to retain the benefit of those contributions.”

This statement was determinative because it provided the ethical and legal bridge between raw financial transfers and a court-ordered alteration of property interests. It justified treating the Second Respondent’s mortgage discharge as more than a “gift” and more than an unsecured loan that could vanish through evidentiary fog. It became a contribution that equity and statute could not ignore.

The Court also took a firm stance on non-disclosure:

“Once it has been established that there has been a deliberate non-disclosure… the Court should not be unduly cautious about making findings in favour of the innocent party.”

This mattered because it authorised the Court to move decisively even where full tracing of funds was impossible due to the First Respondent’s failure to produce records.

Analysis of the Losing Party’s Failure

The First Respondent’s litigation position failed for cumulative reasons that interacted:

1. Credibility collapse:
   • inconsistent evidence and implausible claims meant the Court could not safely accept explanations for the movement and use of funds.
2. Deliberate non-disclosure:
   • failure to provide bank statements, tax records, business records, and renovation documents breached disclosure obligations and prevented verification.
3. Objective contradiction:
   • council DA evidence undermined the claimed scale of renovation expenditure, defeating the core “money went into the asset” justification.
4. Adverse inference exposure:
   • failure to call an obvious witness on key issues supported the drawing of adverse inferences under Jones v Dunkel.
5. Unmeritorious stance:
   • seeking dismissal of the Applicant’s and Second Respondent’s claims while retaining a mortgage-free house and controlling funds was inconsistent with just and equitable outcomes under s 90SM.
6. Practical injustice:
   • the Second Respondent’s vulnerability, care needs, and impecuniosity made it legally and morally untenable to treat the transfers as “voluntary generosity” without consequence.

Eight In-depth Victory Points (Conclusion = Evidence + Statutory Provisions)

1. Victory Point 1: The “Just and Equitable” Gate Was Clearly Opened
   • Evidence: relationship breakdown, separate living arrangements, and no ongoing common use of property.
   • Statute: s 90SM(3) requires the Court not to make an order unless just and equitable.
   • Logic: Following Stanford v Stanford, the Court identified principled reasons to interfere with existing title because the relationship had ended and the Applicant would otherwise receive nothing despite long contributions.
2. Victory Point 2: Kennon Adjustment Translated Violence Into Property Consequence
   • Evidence: the Applicant’s account of controlling behaviour and violence, corroboration, and criminal justice outcomes.
   • Statute: contributions assessment under s 90SM(4) includes homemaker and parenting contributions, which can be weighed as more arduous where violence is proven.
   • Logic: The Court applied Kennon & Kennon principles to recognise that violence can distort the “cost” of contributions. It was not compensation for violence; it was an adjustment reflecting a more burdensome contribution environment.
3. Victory Point 3: The Second Respondent Cleared Jurisdictional Barriers Despite a Short Relationship
   • Evidence: substantial contributions, including mortgage discharge and extensive transfers.
   • Statute: s 90SB(c)(i) and (ii) allows an exception where substantial contributions exist and serious injustice would result if the Court did not make an order; leave under s 44(6) was engaged due to hardship.
   • Logic: The Court prevented a technical defeat that would have produced serious injustice to a vulnerable party.
4. Victory Point 4: Windfall Constructive Trust Prevented Title From Defeating Substance
   • Evidence: mortgage discharge from the Second Respondent’s funds.
   • Authorities: Muschinski v Dodds; applied through family law reasoning on windfall constructive trusts.
   • Logic: The Court treated unconscionability as the benchmark and refused to let the First Respondent retain an unencumbered property benefit created by another’s funds.
5. Victory Point 5: Objective Evidence Beat Narrative Claims About Renovations
   • Evidence: council DA cost estimation and lack of post-2017 construction approvals undermining claimed expenditures.
   • Principle: where a party controls records and fails to produce them, the Court can prefer objective evidence and draw inferences against that party.
   • Logic: The First Respondent could not “explain away” missing money by asserting a renovation figure that the objective record did not support.
6. Victory Point 6: Non-disclosure Became a Substantive Justice Factor
   • Evidence: failure to produce bank statements, payslips, tax assessments, business sale application records, renovation invoices, and receipts.
   • Statute: s 90SF(3)(r) allows consideration of any fact or circumstance justice requires.
   • Logic: The Court moved from “you breached a rule” to “your breach distorts fairness, so the Court will protect the other parties by adjusting outcomes accordingly”.
7. Victory Point 7: Treatment of Debts Prevented Unfair Burden-Shifting
   • Evidence: post-separation debts accrued despite access to very large sums; lack of evidence for alleged personal loans.
   • Authorities: Biltoft and Biltoft; Rodgers & Rodgers (No 2) emphasising liability treatment depends on nature and justice.
   • Logic: The Court refused to load the Applicant or Second Respondent with liabilities created and controlled by the First Respondent, particularly where he could not explain where funds went.
8. Victory Point 8: Practical Orders Ensured Enforceability
   • Evidence: history of non-compliance and unpaid costs orders.
   • Statute: s 106A empowers execution of documents by a registrar if a party does not comply.
   • Logic: The Court designed orders that could be implemented even if the First Respondent resisted, including independent trustee sale control and enforcement scaffolding.

Key to Victory

• For the Applicant: a coherent contributions narrative, credible evidence, and a legally anchored Kennon argument connecting violence to contributions assessment.
• For the Second Respondent: objective financial records demonstrating substantial contributions and the mortgage discharge, combined with the s 90SB exception pathway to overcome the short relationship duration.

Reference to Comparable Authorities

• Stanford v Stanford (2012) 247 CLR 108: the Court must identify a principled basis for altering existing property interests; “just and equitable” is a distinct threshold inquiry.
• Bevan & Bevan (2013) FLC 93-545: the just and equitable requirement permeates the entire process, not only the initial gate.
• Kennon & Kennon (1997) 22 Fam LR 1: where violence makes contributions significantly more arduous, the Court can adjust contributions-based entitlement.
• Muschinski v Dodds (1985) 160 CLR 583: unconscionability is central to constructive trust reasoning.
• Jones v Dunkel (1959) 101 CLR 298: failure to call an expected witness can support an adverse inference.
• Weir & Weir (1992) 16 Fam LR 154: deliberate non-disclosure supports the Court making findings in favour of the innocent party.
• Biltoft and Biltoft (1995) 19 Fam LR 82 and Rodgers & Rodgers (No 2) (2016) 55 Fam LR 167: treatment of liabilities is not automatic; it depends on nature and justice in the circumstances.

Implications (Five Practical Takeaways for the General Public)

1. If your name is not on the title, your contributions can still matter, but only if you can prove them. Keep records early, not after the relationship breaks.
2. “I trusted them” is human, but courts decide with evidence. Bank transfers, messages, and agreements can be the difference between being heard and being ignored.
3. Silence can be expensive. If the other party refuses to disclose documents, that can strengthen your position because courts can draw inferences and protect the innocent party.
4. Violence can affect property outcomes, not as a punishment, but because it changes the true burden of contributions. If violence occurred, document it safely and lawfully.
5. Vulnerability is not invisibility. Where serious injustice would result, the law has pathways to allow claims even when a relationship was short.

Q&A Session

1. Why did the Court focus so heavily on credibility and disclosure?
   Because the true history of money and ownership could not be determined without documents. Where a party controls records and fails to produce them, the Court must decide whether to accept unsupported explanations or protect the integrity of justice by making findings based on objective evidence and inferences.

2. Can a person in a short de facto relationship really obtain property orders?
   Yes, but only if jurisdictional thresholds are met. Where the relationship is under two years and there is no child, the applicant commonly needs to show substantial contributions and that failure to make orders would cause serious injustice, consistent with s 90SB exceptions and leave considerations under s 44(6).

3. If someone paid off another person’s mortgage, does that automatically mean they own the house?
   Not automatically. But it can create powerful equitable consequences. If the circumstances show a joint endeavour and it would be unconscionable for the registered proprietor to keep the benefit, the Court can recognise a trust-like entitlement or factor the contribution into statutory property adjustment orders.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

• Case Subtype: De Facto Relationships – Competing Property Settlement Claims With Overlapping Relationships and Windfall Constructive Trust Issues
• Judgment Nature Definition: Final Judgment (property adjustment orders and associated enforcement directions)

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

Core Test: Existence of De Facto Relationship – Family Law Act 1975 (Cth) s 4AA

The Court determines whether two persons have a relationship as a couple living together on a genuine domestic basis. The Court may consider any circumstances of the relationship, including all of the following nine factors:

1. Duration of the relationship: how long the relationship existed in a domestic sense, noting that duration is relevant but not determinative.
2. Nature and extent of common residence: whether the parties lived together, whether that was continuous, and the character of any shared residence arrangements.
3. Whether a sexual relationship exists: whether intimacy existed, recognising that absence of sexual relations does not necessarily negate a domestic partnership.
4. Degree of financial dependence or interdependence, and any arrangements for financial support: whether money was pooled, bills were shared, or financial reliance existed.
5. Ownership, use and acquisition of property: whether property was acquired jointly, used jointly, or held in one name but treated as shared.
6. Degree of mutual commitment to a shared life: whether the parties presented as sharing a life, planning for the future, and acting as a unit rather than two independent individuals.
7. The care and support of children: whether children were cared for, supported, or integrated into the domestic arrangement.
8. Reputation and public aspects of the relationship: whether family, friends, and the community viewed them as a couple.
9. The Court may consider other matters: the statute allows consideration of any other relevant circumstances, and no single factor is necessary or decisive.

Risk guidance: In practice, the risk of failing to establish a de facto relationship tends to be relatively high where there is no shared residence, no interdependence evidence, and limited objective proof. Conversely, the risk tends to reduce where there are strong objective markers such as shared residence, pooled finances, and consistent third-party evidence.

Property Settlement – The Four-Step Process

1. Identification and Valuation: Determine the net asset pool, including assets and liabilities, and clarify legal versus equitable interests.
   Practical warning: where a party fails to disclose assets or bank accounts, valuation may be incomplete, and the Court may draw inferences. The risk of adverse findings tends to increase where documents are withheld.

2. Assessment of Contributions: Consider financial contributions, non-financial contributions, and contributions to welfare of the family including homemaker and parenting contributions under s 90SM(4).
   Practical warning: contributions are assessed holistically, and courts tend to reject a strict accounting approach where evidence is insufficient or where it would distort fairness.

3. Adjustment for Future Needs: Consider relevant future needs factors under s 90SF(3), including age, health, income earning capacity, care responsibilities, and reasonable standard of living.
   Practical warning: future needs adjustments tend to be more significant where one party has compromised health and limited earning capacity, or where the other party retains high earning capacity.

4. Just and Equitable: The final check: is the proposed division fair in all circumstances?
   Practical warning: even where contributions are strong, the Court must still be satisfied it is just and equitable to make any order altering existing interests.

Parenting Matters – Family Law Act 1975 (Cth) s 60CC

Although parenting orders were not central in this case because the children were adults, the statutory framework remains relevant in family law practice:

• Primary Considerations: the benefit to the child of having a meaningful relationship with both parents versus the need to protect the child from physical or psychological harm, with protection from harm given greater weight.
• Additional Considerations: the views of the child depending on maturity; the capacity of each parent to provide for needs; and the practicality and expense of spending time arrangements.

Risk guidance: Where family violence is established, the risk that protective considerations will dominate tends to be relatively high.

3. Equitable Remedies and Alternative Claims

Even when a statutory pathway is uncertain or contested, equity and common law doctrines can provide alternative routes, especially where one party holds legal title but another party contributed substantially.

Promissory / Proprietary Estoppel

• Clear and unequivocal promise or representation: was there a promise such as “this property will be yours” or conduct that conveyed that promise?
• Detrimental reliance: did you act to your detriment, such as paying mortgage instalments, funding renovations, or sacrificing opportunities?
• Unconscionability: would it be against good conscience for the other party to resile from the promise?

Result reference: Equity may estop a party from denying the promised interest where reliance and detriment are established. Risk warning: the risk of failure tends to be higher if the promise is vague or evidence is limited to uncorroborated oral assertions.

Unjust Enrichment / Constructive Trust

• Benefit at your expense: did the other party receive money or labour that increased their asset position?
• Against conscience: is it unjust for them to keep the benefit without repayment or recognition of your interest?
• Remedy selection: restitution, equitable compensation, or a constructive trust interest.

Result reference: Courts may impose trust-based outcomes where unconscionability is established, particularly where contributions are large and retention would offend equity. Risk warning: outcomes depend heavily on documentary tracing and credibility.

Procedural Fairness (Where Relevant to Decision-making)

Although primarily a family law property case, procedural fairness principles remain important in litigation conduct:

• Opportunity to be heard: were parties given meaningful opportunity to present evidence and respond?
• Apprehension of bias: were processes fair and transparent?
• Disclosure obligations: non-disclosure can undermine fairness and trigger protective judicial responses.

Result reference: persistent non-compliance may lead to adverse inferences, costs consequences, and enforcement mechanisms to implement orders.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

• De facto duration threshold: generally 2 years, but not absolute.
• Filing and jurisdiction: timing and leave requirements may apply depending on relationship status and circumstances.
• Disclosure and compliance: practical threshold for credibility in property cases is often whether a party provides the natural documentary trail.

Exceptional Channels

• Less than 2 years of cohabitation?
  Exemption may be available pursuant to Family Law Act 1975 (Cth) s 90SB(c) if:
  • substantial contributions of a kind mentioned in s 90SM(4)(a), (b), or (c) are established; and
  • failure to make an order would result in serious injustice.

Risk guidance: the exemption pathway tends to be stronger where contributions are large, objectively proven, and directly linked to acquisition or preservation of major assets, such as mortgage discharge funds.

Suggestion: Do not abandon a potential claim simply because the relationship was short. Carefully compare your evidence against the statutory exceptions, because exceptions are often the key that allows the Court to intervene where strict duration thresholds are not met.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in submissions involving:

• competing de facto property claims involving the same asset;
• short de facto relationships relying on s 90SB(c) exceptions;
• significant non-disclosure and the Court’s approach to drawing protective findings;
• integration of windfall constructive trust reasoning into statutory property adjustments; and
• Kennon-style contribution adjustments due to family violence.

Citation Method

• As Positive Support: where your matter involves significant documented financial contributions to a property held in the other party’s name, citing this authority can strengthen the argument that unconscionability and just and equitable considerations can justify substantive adjustment.
• As a Distinguishing Reference: if the opposing party cites this case, you can distinguish by pointing to differences such as:
  • absence of objective transfer evidence;
  • credible documentary explanation for funds use;
  • absence of deliberate non-disclosure; or
  • materially different relationship factors under s 4AA.

Anonymisation Rule

When discussing parties, strictly use procedural titles such as Applicant, First Respondent, and Second Respondent.

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Conclusion

This case shows the law’s practical moral clarity: legal title is important, but it does not authorise a person to keep a mortgage-free windfall created by another’s funds, especially where non-disclosure and credibility failures prevent transparent accounting, and where long-term contributions and violence impacts demand recognition in justice.

Golden Sentence: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Cisek & Farrah (No 2) [2023] FedCFamC1F 804), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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