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  • Since the High Court’s seminal decision in Stanford nearly three years ago, family law jurisprudence has seen ‘just and equitable’ principles applied in various ways.
  • Although it cannot at this stage be suggested that establishing an entitlement or interest in accordance with equitable principles will result in an order reflecting that interest or entitlement pursuant to s 79 of the Family Law Act, doing so will be influential in the determination of the proceedings.

In Mallet v Mallet (1984) 156 CLR 695, the High Court held that there were no ‘presumptions’ in property settlement proceedings pursuant to the Family Law Act 1975 Cth (‘the FLA’). In Stanford v Stanford(2012) 247 CLR 107 (‘Stanford’), the High Court held that there were no ‘assumptions’ in such proceedings. Before any order may be made, the court must be satisfied that it is ‘just and equitable to make a property settlement order’. That issue is determined by reference to a ‘range of potentially competing considerations’, which are not confined to, and may even be independent of, matters finding expression in relevant provisions of the FLA.

As the legislative provisions of the FLA governing property disputes between parties to a de facto relationship are identical to those governing disputes between married parties, Stanford applies to such proceedings. Proceedings continued after the death of a party to a marriage or a de facto relationship are also impacted by Stanford (Watson v Ling (2013) FLC 93-527).

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