Family law: October 2021

PROPERTY

Mutual assumptions and consensual agreements may inform whether it is just and equitable to make a property order

In Oamra & Williams [2021] FamCAFC 117 (13 July 2021) the Full Court (Strickland, Watts & Sutherland JJ) dismissed with costs an appeal from a decision of O’Brien J in the Family Court of Western Australia.

The wife argued that the parties ‘had voluntarily arranged their financial circumstances on the basis that they neither owned property in their joint names, nor operated a joint bank account, and that they contributed to household expenses in a very structured way based upon an agreed, predetermined budget’ (at [2]).

Relying on Stanford [2012] HCA 52, she argued that the Court could not find that it was just and equitable to make a property order.

The Full Court said (from [29]):

‘ … [T]he wife’s … position was both parties operated on … assumptions that each would keep their own property separate …, that the assumptions were both expressed and implied, but primarily implied because any knowledge either party had about what the other one was doing was incidental and not the subject of any discussion …

[31] … [T]he wife … argue[d] that despite the finding … that there were no mutual expressed or implied assumptions to keep the parties’ finances … separate, the wife could rely upon her own unilateral assumptions …

[34] The wife asserts that the primary judge … erroneously required that the assumptions be “mutual” and that error contaminated his Honour’s conclusion as to whether it was “just and equitable” to make an order. The wife argues that there is no warrant to read into the obiter dicta of the High Court in Stanford any requirement for mutuality in any stated or unstated assumptions that the parties would keep their finances entirely separate …

[36] We do not accept the wife’s submission … [I]t [is] clear that the High Court was talking about mutual assumptions and mutual agreements. Axiomatically any agreement must be mutual. …’