Martoulis & Valas

Case [2022] FedCFamC2F 1781


Federal Circuit and Family Court of Australia

(DIVISION 2)

Martoulis & Valas [2022] FedCFamC2F 1781

File number: MLC 11009 of 2020
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 23 December 2022
Catchwords: FAMILY LAW – property application – whether the matter is a de facto or matrimonial cause – allegation of reconciliation of matrimonial relationship after final orders – counter allegation of husband living in wife’s home as a boarder – common ground parties lived in same house during part of time of alleged reconciliation – where applicant asserts implied consent to setting aside of final orders – section 79A(1A) – alternatively husband seeks declaration of a de facto relationship – whether part VIIIAB (de facto) relief available – burden of proof – inconsistencies in both parties’ cases – applicant does not discharge burden of proof.
Legislation:

Evidence Act 1995 (Cth), s 140

Family Law (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

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

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 139

Cases cited:

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334

Blass & Blass (2022) FLC ¶94-085

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67

Colburn& Cleese (2020) FLC 93-995

Colburn & Cleese (2022) FLC 94-105

Dadic & Dadic (1987) FLC 91-825

Dahl & Hamblin (2011) FLC 93-480

Emerald & Emerald (2018) FLC 93-870

Fox v Percy (2003) 214 CLR 118

Halinan & Witynski [1999] FamCA 1127

Harrington & Harrington (2007) FLC 93-317

Johnson v Page (2007) FLC 93-344

Jones v Dunkel (1959) 101 CLR 298

Kessey and Kessey (1994) FLC 92-495

Kowalski and Kowalski (1993) FLC 92-342

Kuligowski v Metrobus (2004) 220 CLR 363

Mabb & Mabb (2020) FLC 93-947

McCabe & McCabe (1995) FLC 92-634

MNJ and MEB [2004] FMCAfam 259

O’Hurley & O’Hurley [2008] FamCAFC 57

Oxley & Oxley [2021] FedCFamC1A 98

Parshen & Parshen (1996) FLC 92-720

Sommerville & Sommerville (2000) FLC 93-042

Waterman & Waterman (2017) FLC 93-762

Division: Division 2 Family Law
Number of paragraphs: 304
Date of last submission: 13 July 2021
Date of hearing: 6-7 May 2021 and 12-13 July 2021
Place: Melbourne
Counsel for the Applicant: Mr P Testart
Solicitor for the Applicant: JosephDavid Lawyers
Counsel for the Respondent: Dr R Smith
Solicitor for the Respondent: Sterling Walters Lawyers

ORDERS

MLC 11009 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MARTOULIS

Applicant

AND:

MS VALAS

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

23 Decmber 2022

THE COURT ORDERS THAT:

1.The Husband’s amended application filed 24 February 2021 be and is dismissed.

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…

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AGLC
Martoulis & Valas [2022] FedCFamC2F 1781
Case
[2022] FedCFamC2F 1781
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the parties Martoulis and Valas contested the husband's application to alter property orders made in 2006. The husband sought to set aside the final orders on the basis of implied consent arising from their long cohabitation after the final orders. The wife opposed the application and asserted that the court could not find that the parties impliedly consented to setting aside the final orders. The husband also sought a declaration that a de facto relationship existed between the parties from 2007 to 2020, which would allow him to proceed with a de facto property settlement application. The wife argued that the principles of the authorities in Kowalski and Emerald applied and that the husband's application should be dismissed. The court found that neither party had discharged the burden of proof on the balance of probabilities. The court found that the parties lived in the same house from 2012 and possibly earlier but did not live together as husband and wife or as a couple living together on a genuine domestic basis. The court also found that the parties did not implyly consent to setting aside the final orders. The court dismissed the husband's amended application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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