Catchwords: FAMILY LAW – De facto property claim – de facto relationship of 18 years – where the parties had an agreement as to finances – where the agreement was not a Cohabitation Agreement under theProperty (Relationships) Act 1984 (NSW) – where the vast majority of the assets are held by the de facto wife – where the de facto husband was declared bankrupt twice during the relationship – where the de facto wife asserts no adjustment should be made in favour of the de factor husband – role of comparable cases in assessing the just and equitable requirement - where an adjustment is determined to be just and equitable.
Legislation:
Family Law Act 1975, ss.4AA, 74, 75, 79, 90G, 90SB, 90SF, 90SM
Fenton & Marvel [2013] FamCAFC 132 Franklin & Ennis [2015] FCCA 2099 Fielding and Nichol[2014] FCWA 77 Fitzgerald-Stevens & Leslighter[2015] FCWA 25 Georgeson and Georgeson (1995) FLC 92-618 Gould and Gould[2007] FamCA 609; (2007) FLC 93-333 Hearne & Hearne [2018] FamCAFC 178 Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 In the Marriage of Aleksovski (1996) FLC 92-705 at 83,437 In the marriage of Black and Kellner (1992) 15 Fam LR 343; FLC 92-28 In the marriage of Briese (1985) 10 Fam LR 665 In the Marriage of Burke (1981) FLC 91-055 JEL & DDF (2001) FLC 93,075 Kannis & Kannis (2003) FLC 93-135 Kardos & Sarbutt[2006] NSWCA 11, (2006) 34 FamLR 550 Kowalski and Kowalski (1993) FLC 92-342 Manolis & Manolis (No 2)[2011] FamCAFC 105 Martin & Newton (2011) FLC 93-490 Marsh & Marsh (2014) FLC¶93-576
[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 Franklin and Ennis (No.2)
Sign in free to access the full text
Details
AGLC
Franklin and Ennis (No.2) [2018] FCCA 2351
Case
[2018] FCCA 2351
Decision Date
CaseChat Overview and Summary
In *Franklin and Ennis (No.2)*, Judge Harper of the Federal Court of Australia considered the dispute between the applicant and the respondent concerning the final orders to be made in the proceeding.
The primary legal issue before the Court was how to resolve the outstanding matters of proposed orders and costs, particularly in circumstances where the parties might not reach an agreement.
Judge Harper directed the parties to submit an agreed minute of proposed orders within 14 days, with the possibility of these orders being made in chambers. The Court also stipulated that these orders must address the question of costs. If the parties could not agree on the proposed orders, the applicant was to arrange for the matter to be relisted for further consideration by the Court, with notice to the respondent. Any applications regarding costs would be determined by written submissions, unless an oral hearing was requested.
Orders
Orders of the court
1.
By no later than 4.00 pm on the date 14 days from the date of these orders the parties are to submit to chambers an agreed minute of proposed orders in accordance with these reasons, and if appropriate such orders may be made in chambers.
2.
Such orders are to deal with the question of costs.
3.
In the event the parties are unable to agree on a minute of orders, the applicant is to contact chambers to seek to have the matter relisted, with notice to the respondent.
THE COURT NOTES THAT:
4.
Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.