Family law: March 2017

Property – 27 year same sex relationship – Full Court upholds decision not to make a property order

In Chancellor & McCoy [2016] FamCAFC 256 (2 December 2016) the Full Court (Bryant CJ, Thackray & Strickland JJ) dismissed with costs Ms Chancellor’s appeal against Judge Turner’s decision that it would not be just and equitable to grant her application for a property order. The trial judge found that there had been no intermingling of finances or joint bank account; each acquired property in their own name; each was responsible for their own debts and could use their earnings as they chose without explanation (at [27]).

The Full Court said (at [35]-[36]):

‘It was … submitted that the absence of “future plans or goals” was not a relevant consideration … Although her Honour did not say so … we understand her reference to the absence of “future plans or goals” to be part … of her findings about how the parties kept their affairs separate and conducted their financial lives without being accountable … to the other party…

There was … “common use” of the homes owned by the respondent, but there was also a modest periodic payment by the appellant referable to her occupation of those homes. Furthermore, her Honour made no findings that would point to any “express and implicit assumptions” [per Stanford [2012] HCA 52 at [42]] that the parties would ultimately share in theother’s property. On the contrary, her Honour properly placed significance on the fact that neither had taken any steps to ensure that the other would receive their property or superannuation in the event of death, and indeed the respondent had executed a will giving her entire estate to her parents. In the absence of evidence of any assumption by the parties that one would benefit on the death of the other, it would not have been open to her Honour to conclude, without evidence, that there was any assumption that there would be some redistribution of wealth upon termination of the relationship by means other than death.’