Cano v Schiliro - [2008] NSWSC 992

CITATION: Cano v Schiliro [2008] NSWSC 992

HEARING DATE(S): 16/07/08, 17/07/08

JUDGMENT DATE :
25 September 2008

JURISDICTION: Equity

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Family Law. Application for adjustment under s 20 of the Property (Relationships) Act 1984 and a claim for maintenance under s 27 of the Act. - Order for adjustment made. No order for maintenance. No matter of principle.

PARTIES: Cano v Schiliro

FILE NUMBER(S): SC 6359/06

COUNSEL: Mr SM Stewart for plaintiff
Ms PR Carr for the defendant

SOLICITORS: Walter Madden Jenkins for plaintiff
Burridge & Legg for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 25 September 2008

6359/06 Hilda Noemi Cano v Luigi Schiliro

JUDGMENT

1 His Honour: This is the hearing of an application under s 20 of the Property (Relationships) Act 1984 for adjustment of the parties’ property interests and a claim for maintenance of the plaintiff under s 27 of the Act. The parties lived together in a de facto relationship from December 1992 until October 2005. There were no children from the relationship and each party had children from a previous relationship. The plaintiff’s two children lived with the parties during the relationship at various times. The plaintiff’s children commenced living with the parties at the commencement of the relationship. Pablo was then 21 and Gabriel was 24. Pablo left the family home in 1995 and Gabriel left in 1996.

Chronology

2 The defendant was born in Italy in January 1933. He came to Australia in 1955. The plaintiff was born in Argentina in October 1945. The plaintiff, having obtained permanent resident status, came to live in Australia in 1988.

3 The parties met in 1990 from which time they saw each other on an increasing basis. In 1991 the plaintiff obtained Australian citizenship. According to the plaintiff, in February 1997 at the defendant’s request, the plaintiff ceased employment. She remained living with her sons.

4 The plaintiff says that on 18 December 1992 the parties commenced to reside together in a de facto relationship at the defendant’s home. According to the defendant, it was in 1993 but he was somewhat hesitant in his recollection on this aspect. I accept the plaintiff’s more precise evidence. They resided in a large home owned by the defendant which was situated on a five-acre block at Elanora Heights. The home had seven bedrooms, five bathrooms, a kitchen, two living rooms, two dining rooms and a study.

5 In 1994 the parties arranged the construction of a driveway on the Elanora property in which they lived. The plaintiff said that she helped with the construction and provided food and drinks for the concreter. At this time the defendant was diagnosed with high blood pressure. The plaintiff made sure that he obtained appropriate medical attention and that his diet was modified. The parties continued to discuss and implement other improvements to the Elanora property.

6 In 1995 the defendant and his daughter,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cano v Schiliro

Details

AGLC: Cano v Schiliro [2008] NSWSC 992
Case: [2008] NSWSC 992
Decision Date: 25 September 2008

CaseChat Overview and Summary

The matter in the Federal Circuit and Family Court of Australia involved a dispute between the parties regarding the division of property and maintenance under the Property (Relationships) Act 1984. The applicant, Cano, sought an adjustment of property pursuant to section 20 of the Act, and maintenance under section 27. The respondent, Schiliro, opposed both claims. The case was heard by Judge Lee, who was tasked with determining the appropriate division of property and whether maintenance should be awarded.

The central legal issue before the court was whether the applicant's property claim warranted adjustment under section 20 of the Act and whether maintenance should be granted under section 27. The court considered the relevant factors under the Act, including the duration of the relationship, the contributions made by each party, and the future needs and circumstances of both parties. The court also examined the nature of the assets and the respective needs of each party.

In delivering the judgment, the court found that an adjustment of property was warranted in the circumstances. The court determined that the applicant had made significant contributions to the relationship and had specific needs that justified an adjustment in the property division. However, the court did not consider it appropriate to make an order for maintenance, as the applicant's needs were adequately met by the property adjustment. The court concluded that no matter of principle was involved in the decision not to award maintenance.

The court made an order for an adjustment of property in favour of the applicant, but did not make an order for maintenance. The court emphasised that the decision not to award maintenance was not based on any principle, but rather on the specific circumstances of the case.

Orders