Marcos & Serina - [2023] FedCFamC2F 1474

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marcos & Serina [2023] FedCFamC2F 1474

File number: MLC 11351 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 17 November 2023

Catchwords: FAMILY LAW – final property orders – de facto relationship – not a long relationship – both parties brought in and retained separate assets and residences – no jointly owned property – respondent was wealthy – applicant self-employed-consideration of whether any orders were just and equitable – search for principled reason to alter property of parties – section 90SM(3) just and equitable consideration – section 90SM(4) and section 90SM(3) not to be conflate – whether principled reason for alteration of property – application dismissed

Legislation:
Evidence Act 1995 (Cth) s140

Family Law Act 1975 (Cth) ss 4AA, 79, 90SF, 90SM

Cases cited:
Bevan and Bevan (2013) FLC 93-545

Chapman & Chapman (2014) FLC 93-545

Fox v Percy (2003) 214 CLR 118

Keskin & Keskin and Anor (2019) FLC 93-932

Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC 93-518; [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 165

Date of hearing: 10 & 11 March 2022

Place: Melbourne

Counsel for the Applicant: Mr G. Glezakos

Solicitor for the Applicant: Nicholes Family Law

Counsel for the Respondent: Mr J. Mellas

Solicitor for the Respondent: Lander & Rogers
ORDERS

MLC 11351 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MARCOS

Applicant

AND:
MR SERINA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

17 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The amended application of Ms Marcos filed 13 January 2022 be and is dismissed.
2.That the Wife do all acts and things to cause any caveat lodged by her on or over the title of any property owned or controlled by the Husband to be removed by her at her expense within 30 days.
3.All extant applications be and are otherwise dismissed.

AND THE COURT NOTES THAT:
A.It was determined it is not just and equitable to make any property alteration orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

The Applicant, Ms Marcos (‘the Wife’), and the Respondent, Mr Serina…

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 Marcos & Serina

Details

AGLC: Marcos & Serina [2023] FedCFamC2F 1474
Case: [2023] FedCFamC2F 1474
Decision Date: 17 November 2023

CaseChat Overview and Summary

The applicant, Ms Marcos, filed an amended application for final property orders against the respondent, Mr Serina, in the Federal Circuit and Family Court of Australia. The couple was in a de facto relationship that did not result in any joint ownership of property, and both parties maintained separate assets and residences throughout. The respondent was considerably wealthier than the applicant, who was self-employed. The central issue before the court was whether any property orders would be just and equitable under section 90SM of the Family Law Act 1975. The court had to determine if there was a principled reason to alter the property of the parties, without conflating sections 90SM(3) and 90SM(4) of the Act.

The court examined the circumstances of the relationship and the assets of both parties. It noted that the relationship was not long-term and that there were no jointly owned properties. The applicant's request for property orders was considered against the backdrop of the parties' separate financial situations and the absence of jointly owned assets. The court concluded that there was no principled reason to alter the property of the parties and that it was not just and equitable to make any property alteration orders. Therefore, the amended application was dismissed, and the court ordered the applicant to remove any caveats lodged on the respondent's property within 30 days.

The court's decision was based on a careful analysis of the legal framework provided by the Family Law Act 1975 and the specific circumstances of the relationship between the parties. The court emphasised the need to consider whether there was a principled reason for any alteration of the parties' property, and it found that none existed in this case. As a result, the application was dismissed, and the court made specific orders regarding the removal of any caveats by the applicant. This decision highlights the importance of a thorough examination of the unique facts of each case when determining property orders in de facto relationships.

Orders

Orders of the court

MLC 11351 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MARCOS

Applicant

AND:

MR SERINA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

17 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The amended application of Ms Marcos filed 13 January 2022 be and is dismissed.

2. That the Wife do all acts and things to cause any caveat lodged by her on or over the title of any property owned or controlled by the Husband to be removed by her at her expense within 30 days.

3. All extant applications be and are otherwise dismissed.

AND THE COURT NOTES THAT:

A. It was determined it is not just and equitable to make any property alteration orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	MLC 11351 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	17 November 2023
Catchwords:	FAMILY LAW – final property orders – de facto relationship – not a long relationship – both parties brought in and retained separate assets and residences – no jointly owned property – respondent was wealthy – applicant self-employed-consideration of whether any orders were just and equitable – search for principled reason to alter property of parties – section 90SM(3) just and equitable consideration – section 90SM(4) and section 90SM(3) not to be conflate – whether principled reason for alteration of property – application dismissed
Legislation:	Evidence Act 1995 (Cth) s140 Family Law Act 1975 (Cth) ss 4AA, 79, 90SF, 90SM
Cases cited:	Bevan and Bevan (2013) FLC 93-545 Chapman & Chapman (2014) FLC 93-545 Fox v Percy (2003) 214 CLR 118 Keskin & Keskin and Anor (2019) FLC 93-932 Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC 93-518; [2012] HCA 52
Division:	Division 2 Family Law
Number of paragraphs:	165
Date of hearing:	10 & 11 March 2022
Place:	Melbourne
Counsel for the Applicant:	Mr G. Glezakos
Solicitor for the Applicant:	Nicholes Family Law
Counsel for the Respondent:	Mr J. Mellas
Solicitor for the Respondent:	Lander & Rogers

MLC 11351 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MARCOS Applicant
AND:	MR SERINA Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	17 NOVEMBER 2023