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.
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…
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.
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Details
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.