Connell v Connell

The parties to these proceedings are family members.

The plaintiff, Mr Robert Connell, is married to the first defendant, Ms Rosario Connell. The second and third defendants, Ms Rosemarie Connell and Mr Ryan Connell, are adult children of Robert and Rosemarie.

I refer to the parties by their first names without intending any disrespect.

Robert commenced these proceedings by Initiating Application filed on 31 July 2024 in the Federal Circuit and Family Court of Australia. On 16 January 2025, that Court transferred the proceedings to this Court pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) in circumstances where Robert had commenced other proceedings in this Court on 19 December 2024 against Rosario, Rosemarie and Ryan in relation to a property at Kareela which was formerly owned by Robert and Rosario and the net sale proceeds of which were part of the subject of the transferred proceedings (the Kareela property).

I will refer to the present proceedings – both before and after their transfer to this Court – as the family law proceedings. I will refer to the proceedings commenced in this Court on 19 December 2024 (2024/472865) as the property proceedings.

These are my reasons for the orders that were made at the conclusion of a hearing on 6 March 2026 of an amended notice of motion filed by Robert in the family law proceedings on 13 February 2026.

The course of the family law proceedings prior to their transfer to this Court, and the matters in issue in the property proceedings, are contextually relevant to Robert’s claims for relief in his amended notice of motion with which these reasons are concerned.

In the family law proceedings, Robert sought the following final relief in his Initiating Application filed on 31 July 2024:

By way of interim relief, Robert claimed:

It is not clear to me how Robert’s claims for interim relief in the same terms as prayers 2, 3 and 4 of his claims for final relief could be regarded as interim in nature. Nevertheless, the whole of Robert’s claims described as interim relief were listed for hearing before Austin J in the Federal Circuit and Family Court of Australia on 19 August 2024.

His Honour’s reasons for judgment delivered ex tempore at the conclusion of that hearing [1] record that Rosario, Rosemarie and Ryan consented to the disclosure orders sought against them and that Rosemarie had consented to the orders restraining her from dealing with the sale proceeds of the Kareela property and requiring her to pay those sale proceeds in the trust account of Robert’s solicitor.

It remained for the Court to determine Robert’s claims for a declaration that the Financial Agreement was not binding, or an order setting it aside, and his claim for an order setting aside the transfer of the Kareela property from Robert and Rosario to Rosemarie dated 15 August 2022. Austin J’s reasons for judgment record that Rosario, Rosemarie and Ryan adduced no evidence in relation to those issues that remained in contest, and did not appear at the hearing. I note that Rosario, Rosemarie and Ryan were represented by a solicitor in the family law proceedings at this time.

On the basis of Robert’s evidence, which was not challenged at the hearing of his interim application, Austin J made an order setting aside the Financial Agreement pursuant to s 90K of the Family Law Act. His Honour referred to Robert’s evidence alleging that a power of attorney registered in December 2020 which purportedly authorised Ryan to act on Robert’s behalf had been forged and that Robert had revoked it in May 2024 after learning of its existence. His Honour also referred to Robert’s evidence that the Financial Agreement dated 2 August 2022 was not signed by him but by Ryan purporting to exercise that power of attorney, that he did not receive any legal advice about the Financial Agreement, and that he did not even know about the existence of the Financial Agreement until April 2024. Referring to s 90G(1)(a) and (b) of the Family Law Act, his Honour concluded that the Financial Agreement was not binding on Robert and Rosario because, according to Robert’s unchallenged evidence, he did not sign it (the power of attorney pursuant to which Ryan purported to sign it on Robert’s behalf having been forged), and he did not receive legal advice about it.

Austin J’s reasons for judgment also record that the Financial Agreement provided for Robert to pay Rosario the sum of $1.00, for Robert and Rosario to transfer the Kareela property to Rosemarie, and for Robert and Rosario to otherwise retain their personal property and individual liability for their personal debts. The Kareela property was in fact transferred to Rosemarie for no consideration shortly after the Financial Agreement was signed, and Rosemarie subsequently sold the Kareela property in April 2024 for $1,568,000.

Austin J dismissed Robert’s application to set aside the transfer of the Kareela property to Rosemarie on the basis that the purchaser to whom Rosemarie had sold the property in April 2024 was “an innocent third party at arm’s length”.

His Honour made no finding about whether or not Rosemarie had knowledge (including constructive knowledge) at any time of the forgery of the power of attorney purportedly exercised by Ryan in signing on behalf of Robert the Financial Agreement pursuant to which the Kareela property was transferred to her.

Austin J made the orders to which Rosemarie had consented restraining her from dealing with the sale proceeds of the Kareela property and requiring her to pay those sale proceeds to the trust account of Robert’s solicitor. On 21 August 2024, Rosemarie deposited a sum of $157,402.34 in the trust account of John R Quinn & Co Lawyers. Robert has subsequently changed solicitors, but those funds remain the in the trust account of John R Quinn & Co Lawyers. Robert is not entitled to require his former solicitor to pay those funds to him without an order of the Court, and Robert does not suggest otherwise. I will refer to the funds as the Kareela sale proceeds.

Austin J also made the disclosure orders to which Rosario, Rosemarie and Ryan had consented and granted leave to Robert to issue five subpoenas.

On 8 November 2024, Robert filed an Amended Initiating Application in the family law proceedings seeking by way of final relief an order that the Kareela sale proceeds be paid to him, orders to the effect that each of Robert and Rosario be solely entitled to the exclusion of the other to all property in their ownership, possession or control, orders that each of Robert and Rosario shall remain solely liable for any liabilities incurred in their name, an order that Robert indemnifies Rosario in respect of any claims against her in relation to liabilities in his name, and an order to the same effect in favour of Robert in respect of liabilities in the name of Rosario.

As I have already mentioned, Robert commenced the property proceedings against Rosario, Rosemarie and Ryan in this Court on 19 December 2024. On Robert’s application, the Court made freezing orders on that date against each of the defendants in respect of their assets up to the value of $2,255,597.66. Those orders apply until further order of the Court.

On 16 January 2025, Schonell J of the Federal Circuit and Family Court ordered that the family law proceedings be transferred to this Court. [2] The application for the transfer order was heard and determined in the absence of Rosario, Rosemarie and Ryan in circumstances where they failed to appear and, in his Honour’s words, had “chronically failed to comply with directions”.

The property proceedings were commenced by summons, but have continued on pleadings. Robert filed a statement of claim on 5 May 2025, to which Rosario, Rosemarie and Ryan filed a defence on 9 July 2025. Robert filed an amended statement of claim on 19 December 2025, which made some amendments to his claims against the existing defendants Rosario, Rosemarie and Ryan and Castle Law Group and introduced claims against two additional law firms each of which is said to have had some involvement in the transactions concerning the Kareela property that are the subject of the proceedings.

Rosario, Rosemarie and Ryan are yet to file a defence to the amended statement of claim in the property proceedings. However, they deny the allegation pleaded against them in the statement of claim (and also in the amended statement of claim) that they agreed between themselves to obtain and register the forged power of attorney, and to use that power of attorney to borrow money against the security of the Kareela property and to transfer the Kareela property to Rosemarie for no consideration, causing Robert to lose his interest in the Kareela property. Relevantly for present purposes, the relief claimed by Robert in the property proceedings does not include a claim for a declaration that Rosemarie held the Kareela property on constructive trust for him after it was transferred to her, or a claim for a declaration that Rosemarie holds the Kareela sale proceeds on constructive trust for him.

By his amended motion filed in the family law proceedings on 13 February 2026, Robert seeks:

At the directions hearing in the Applications List on 13 February 2026 at which Robert was granted leave to file the amended notice of motion, the motion was listed for hearing today rather than on an earlier date sought by Robert in order to allow time for Rosaria, Rosemarie and Ryan to arrange legal representation. The Court was informed that they were receiving legal advice, and that their legal advisor would be able to represent them on 3 March 2026. It was made clear to Rosaria, Rosemarie and Ryan that the Court could not be able to accommodate their legal representatives’ preference for the specific date of 3 March 2026, and that the hearing would be in a Friday Applications List. Today was chosen as the first Applications List after 3 March 2026 on the basis that this would afford Rosaria, Rosemarie and Ryan the best opportunity to arrange legal representation for the hearing of the motion.

Rosaria, Rosemarie and Ryan sent an email to my Associate on 25 February 2026 seeking a further adjournment of four weeks on the basis that they were still in the process of endeavouring to arrange legal representation and had approached Legal Aid and various services offering pro bono legal assistance. I declined to entertain that application made informally by an email sent to my chambers without Robert’s consent.

Rosaria, Rosemarie and Ryan appeared in court on 6 March 2026 and renewed their application for an adjournment of the hearing of Robert’s amended motion on the basis of their lack of legal representation. They informed the Court that they lack the funds to engage a solicitor. I do not doubt that they have used their best endeavours to obtain legal representation on a pro bono basis without success so far. However, I did not consider that it would be consistent with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings for the determination of the interlocutory issues raised by the amended motion to be delayed for however long it may take for Rosaria, Rosemarie and Ryan to obtain pro bono legal representation, particularly in the absence of any evidence of their prospects of securing such representation at all. [3] In arriving at that conclusion, I had regard to the history of Rosaria, Rosemarie and Ryan’s chronic failure to comply with directions of the Federal Circuit and Family Court of Australia in the family law proceedings before they were transferred to this Court, as noted by Schonell J in his Honour’s reasons for judgment to which I have already referred. I have also taken into account that this chronic failure included failure to comply with directions made by the Federal Circuit and Family Court of Australia for the hearing of Robert’s application set aside the financial agreement, and their failure to appear at that hearing before Austin J, notwithstanding that a solicitor was acting for them in the family law proceedings at that time.

For those reasons, I declined to adjourn the hearing of Robert’s motion, and the hearing proceeded on 13 February 2026.

As I have explained, Robert seeks leave to amend his Amended Initiating Application in the family law proceedings to seek orders under s 79 of the Family Law Act against Rosario.

Section 79 of the Family Law Act confers power on the court to make certain orders in property settlement proceedings, including orders in s 79(1)(a):

Section 4 of the Family Law Act defines “property” in relation to the parties to a marriage or either of them as meaning:

Robert’s application for leave to further amend his Amended Initiating Application to include a claim for an order under s 79 altering the interests of Robert and Rosario in their property, or property of either one of them, is, on the face of it, contrary to all of the orders sought in his Amended Initiating Application which seek to leave the property and liabilities of each of Robert and Rosario lying in the names in which they are held or have been incurred, as I have explained above.

If the proposed claim for an order under s 79 relates to property that is also the subject of the existing claims for relief in the Amended Initiating Application, and if the proposed claim is in addition and not in the alternative to those existing claims, it would be unfairly prejudicial to Rosario to be faced with claims that appear on the face of them to be fundamentally inconsistent.

Counsel for Robert submitted that his proposed s 79 claim was intended to expressly identify the source of power for the order sought in the Amended Initiating Application for the payment of the Kareela sale proceeds to Robert. However, reliance on s 79 as a source of power for the Court to make such an order is misplaced. The Kareela sale proceeds are the traceable proceeds of the Kareela property, the registered title to which was transferred to Rosemarie, and subsequently transferred to a third party. Those sale proceeds are not property of either Robert or Rosario, or both of them, unless and until they are found to be held by Rosemarie on trust for Robert or Rosario, or both of them. For example, a constructive trust may be declared if Robert ultimately establishes that Rosemarie took the transfer of the Kareela property pursuant to the Financial Agreement which has now been set aside as a party to or with knowledge of the fraud that Robert alleges was committed by Ryan purporting to exercise a forged power of attorney in executing the Financial Agreement on behalf of Robert. [4] As I have already mentioned, while the present pleadings in the property proceedings raise certain issues that would be relevant to such a claim, Robert makes no claim in the property proceedings for a declaration that Rosemarie holds the Kareela sale proceeds on trust for him.

Robert’s application for leave to amend his Amended Initiating Application is refused for those reasons.

Robert relies on ss 79 and 80(1)(h) of the Family Law Act as the source of the Court’s power to make an interim order for the payment to him of the whole of the Kareela sale proceeds.

I accept the submission made by counsel for Robert that ss 79 and 80(1)(h) of the Family Law Act empower the court to make interim order that distributes property of the parties to the marriage, or one of them, prior to the final hearing of an application for an order altering property interests under s 79, in appropriate circumstances and provided that there is a relevant connection or relationship between s 79 (as the “primary power”) and s 80(1)(h) (as the “enabling power”). [5]

However, no such order can be made in this case because, as a result of my refusal of Robert’s application for leave to amend, there is no extant application for an order under s 79 of the Family Law Act in the family law proceedings.

Even if there were an existing application for an order under s 79 of the Family Law Act, the Kareela sale proceeds are not “property of the parties to the marriage or either of them” – to use the words of s 79(1) – in respect of which an interim order under could be made under ss 79 and s 80(1)(h). As I have explained above, such an interim order can only be made in respect of assets that are, at the time of the order, “property of the parties to the marriage or either of them”. It would not be sufficient for Robert to demonstrate an arguable case that the Kareela sale proceeds were held on trust for him.

Robert’s claim for an interim order for payment of the whole of the Kareela sale proceeds must be dismissed for those reasons. It is not necessary to refer to Robert’s evidence concerning his financial position and the costs of these proceedings.

Robert and his legal representatives have a legal obligation not to use documents disclosed by Rosario, Rosemarie and Ryan in compliance with disclosure orders made in the family law proceedings, and documents produced in the family law proceedings by third parties under compulsion of subpoenas, for any purpose of than the family law proceedings, without leave of the Court. That obligation is owed to the Court for the benefit of the parties. The Court has power to release Robert and his legal representatives from the obligation, or to modify the obligation. However, that power is not freely exercised, and will only be exercised where special circumstances exist. [6]

Robert applies for an order releasing him from that obligation by granting him leave to use in the property proceedings documents disclosed by Rosario, Rosemarie and Ryan pursuant to disclosure orders made in the family law proceedings on 19 August 2024 and 2 September 2024 and documents produced by third parties in response to certain subpoenas issued in the family law proceedings.

That application is made in circumstances where Robert discloses to the Court that those documents have already been used by him and his legal representatives in preparing his affidavit that was relied on in support of his application for freezing orders against Rosario, Rosemarie and Ryan in the property proceedings that were commenced on 19 December 2024, to prepare the statement of claim and amended statement of claim that he subsequently filed in the property proceedings, and to prepare a further amended statement of claim that Robert is yet to seek leave to file in the property proceedings.

The failure of Robert and his legal representatives to seek leave to use the documents obtained under compulsion in the family law proceedings for the purpose of the property proceedings is described as an “oversight”. It is a disturbing oversight, particularly on the part of Robert’s solicitors and counsel who should have been cognisant of their legal obligation.

The defendants opposed leave being granted to Robert to use the documents in the property proceedings on the basis that they considered that the grant of leave would expand and prolong those proceedings.

The question that I must determine is whether, in all the circumstances, there is good reason why the documents obtained by Robert in the family law proceedings should be permitted to be used in the formulation and prosecution of his claims in the property proceedings. Relevant considerations include the nature of the documents, the circumstances in which the documents came into existence, the nature of the information in the document (including whether it contains any personal data or commercially sensitive information), the circumstances in which the documents came into Robert’s hands, and, most importantly, the likely contribution of the documents to achieving justice in the property proceedings. There is a public interest in the preservation of the confidentiality of documents produced in compliance with disclosure orders or pursuant to subpoena, but there is also a public interest in ensuring that all relevant material is before the Court in the property proceedings to enable it to discharge its function of doing justice between the parties. [7]

The evidence given by Robert’s solicitor in his affidavits affirmed on 13 February 2026 and 25 February 2026 establishes that the documents comprise financial records of Rosario, Rosemarie and Ryan and companies associated with them and documents evidencing the financial affairs of those persons and entities (such as bank statements), the Financial Agreement which has now been set aside and contemporaneous correspondence concerning its execution, and documents recording the transactions relating to the Kareela property that are the subject of the property proceedings and contemporaneous documents relating to those transactions. The central relevance of the documents to Robert’s claims in the property proceedings is illustrated by the inclusion of many of the transaction documents in the particulars to his statement of claim and amended statement of claim. There is no evidence suggesting that the documents contain personal data or commercially sensitive information. As counsel for Robert submitted, the documents came into Robert’s hands pursuant to disclosure orders made and subpoenas issued in the family law proceedings for the very purpose of allowing Robert to investigate the transactions and claim appropriate relief. That is what Robert has sought to do, but Robert and his legal representatives took the view that the Federal Circuit and Family Court lacked jurisdiction to grant all of the relief claimed. The property proceedings were then commenced in this Court using the documents that had been obtained in the family law proceedings. The close connection between the family law proceedings and the property proceedings is illustrated by the transfer of the family law proceedings to this Court as a result of the property proceedings having been commenced in this Court. I accept that it is important that the documents be available to be used in the property proceedings in order for the Court to do justice between the parties in those proceedings. There is every likelihood that an order will be made in due course for the two proceedings to be heard together and for evidence in one to be evidence in the other.

In my opinion, those matters considered as a whole constitute special circumstances that justify Robert being released from his obligation to the extent of being granted leave to use the documents referred to in prayers 4 and 5 of his amended notice of motion in the property proceedings.

For all of the foregoing reasons, the Court made the following orders at the conclusion of the hearing of Robert’s motion on 6 March 2026: