By Craig Nicol and Keleigh Robinson -
Key decisions
- Cosola & Moretto [2023] FedCFamC1A 61
- King (No 2) [2023] FedCFamC1A 100
- Gadhavi [2023] FedCFamC1A 117
- Birdwood & Gravino [2023] FedCFamC1A 114
PROPERTY
No property order made after 15 year childless de facto relationship – unstated assumption by parties not to intermingle their financial affairs
In Cosola & Moretto [2023] FedCFamC1A 61 (8 May 2023), the Full Court (McClelland DCJ, Austin & Campton JJ) dismissed a de facto wife’s appeal from Schonell J’s dismissal of her application for a property adjustment.
At cohabitation, the de facto wife moved into the de facto husband’s property and leased her property. The de facto husband set up a company. He was the sole director and both parties were shareholders. The de facto wife accessed the company’s bank account and performed banking and administrative roles for the company (at [9]-[10]). There were no joint bank accounts or loans (at [15]).
The Full Court cited Stanford [2012] HCA 52 and said (from [29]):
‘ … [The] “three fundamental propositions” outlined by the High Court were, … that there is a need to identify the existing legal and equitable interests of the parties … that any alteration of those interests must involve a principled application of judicial discretion, and:
- … To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. …
[39] It was … argued by the appellant … that if the Full Court’s decision in Chapman [[2014] FamCAFC 91] is correct such that the Court is not obliged to consider the s 90SM(4) factors as part of a s 90SM(3) enquiry, the fact that s 90SM(4) is cast in mandatory language necessitates that those factors be considered separately …
