Full Court of Family Court upheld decision of Federal Circuit Court of Australia to make no adjustment to property between de facto partners

05/04/2017

In a recent case decided in 2016 the Full Court has reviewed the basis for an adjustment between a de facto relationship, and in this particular case a same sex relationship.

The Court considered the case of Stanford decided by the High Court in 2012 and confirmed that the Family Court could only make an order altering existing property interests if the Judge was persuaded that it was “just and equitable” to do so.

Our experienced family lawyers at Watson & Watson can advise and assist in considering your particular case and advise you in relation to your rights and the likely outcome in Court proceedings brought by you or brought against you by your ex-partner.

The Family Court confirmed that in deciding whether it is just and equitable to make an adjustment of property as between de facto partners or married persons (which is the requirement of the law), will depend particularly on the facts of the case.  The Court at first instance will consider the evidence properly presented to the Court and make findings of fact.  Based on those findings of fact the Court then applies the law and if it is just and equitable will make an adjustment of property.

Where there is a de facto relationship the Court will consider those matters as set out in section 90SM(4) of the Family Law Act.  The Court must take into account including such matters as:

(a)       Financial contributions made directly or indirectly by each party to the de facto relationship or child of the de facto relationship.

(b)       Financial contributions to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship.

(c)       The financial or non-financial contributions made directly or indirectly by either of the parties.

(d)       The contributions by either party made to the welfare of the family.

(e)       The effect of the order or proposed order upon the earning capacity of either party to the de facto relationship.

There are many factors (namely all factors other than why the relationship has broken down) to determine whether it is just and equitable to make an adjustment.

In a recent case decided in December 2012 by the Family Court here were many findings of fact based on the evidence.  The Court found as a fact that there was no intermingling of the respective finances of each of the parties, in particular in relation to bank accounts, acquisition, ownership of property, responsibility for separate debts and the control and use of the funds earned by each of the parties.

Even though the parties had been together for a considerable time that fact alone is not one that leads to an automatic right by a party to the relationship to an alteration of the property in that the property held by one of the parties would be transferred to the other.

In this particular case the findings of fact by the Court included that the parties did not have any future plans or goals and in each of the parties’ respective Wills there was no accommodation made for the benefit of the other party.

The Trial Judge found that based on the facts that it was not just and equitable to make an adjustment.  The Full Family Court upheld that decision.

The Full Family Court considered the 5 grounds of appeal and dismissed each of those grounds of appeal.  This case is informative in relation to those grounds of appeal as to what matters are relevant.

It is also important that evidence be adduced to relevant factors some of which are not considered by some parties or advisors to be relevant.

Our experienced lawyers can assist in relation to what evidence is critical to prove appropriate facts, what is important and what is irrelevant so as to present your case to achieve the optimum outcome for you.

Our Senior Lawyers practicing in family law will assist in advising you of what is the critical issues and provide to you the possible range of likely outcomes.

Please contact Richard Watson or his Personal Assistant Shereen DaGloria so that we can assist you in relation to all aspects concerning property, children and related matters pertaining to a married person or a de facto partner including de facto partners in a same sex relationship.

Related Cases & Articles

Personal Experienced Professional Affordable

Phone 02 9221 6011

Send us your enquiry
Book an appointment Request a quote Send your question
Online enquiry form

Watson & Watson are always available to provide expert legal advice and answer any questions you may have.

All enquiries received will be responded to within 24 hours.

Call: 02 9221 6011