Federal Circuit and Family Court of Australia
(DIVISION 1)
Moretto & Cosola (No 2) [2022] FedCFamC1F 924
File number(s): PAC 3192 of 2019 Judgment of: SCHONELL J Date of judgment: 25 November 2022 Catchwords: FAMILY LAW – PROPERTY – Where the applicant contended that it was not just and equitable to make an order for financial adjustment, whilst the responded contended that it was – Where the respondent was not found to be a credible witness – Where there were inconsistencies in the respondent’s evidence – Where the respondent borrowed monies on several occasions for her son without the input of the applicant – Where the evidence demonstrated that the parties kept their financial affairs separate – Where the Court found that it is not just and equitable to make an order for adjustment of property interests – Respondent’s Response dismissed – Where it was found that the respondent holds the recreational vehicle on trust for the applicant – Orders made for the respondent to transfer interest to the applicant’s sole name. Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Bosanac v Commissioner of Taxation [2022] HCA 34
Stanfordv Stanford (2012) 247 CLR 108; [2012] HCA 52
Watson and Ling (2013) FLC 93-527; [2013] FamCA 57
Division: Division 1 First Instance Number of paragraphs: 87 Date of hearing: 12 – 13 October 2022 Place: Sydney Counsel for the Applicant: Mr Kenny Solicitor for the Applicant: York Law Family Law Specialists Solicitor for the Respondent: Michael Vassili Barristers & Solicitors ORDERS
PAC 3192 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORETTO
Applicant
AND: MS COSOLA
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
25 NOVEMBER 2022
THE COURT ORDERS THAT:
1.It be declared that the respondent holds Recreational Vehicle 1 on trust for the applicant.
2.For the purposes of giving effect to the declaration above, the respondent shall within 14 days do all acts and things and sign all documents presented to her by the applicant to transfer Recreational Vehicle 1 into the applicant’s sole name.
3.The Amended Response to Application for Final Orders filed 6 December 2019 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 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 the pseudonym Moretto & Cosola has been approved pursuant to s…
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- AGLC
- Moretto & Cosola (No 2) [2022] FedCFamC1F 924
- Case
- [2022] FedCFamC1F 924
- Decision Date
CaseChat Overview and Summary
In the case of Moretto & Cosola (No 2), the applicant, Mr Moretto, sought a declaration that there should be no adjustment to the parties’ respective legal and equitable interests in their property. The respondent, Ms Cosola, contested this and sought an adjustment of the parties’ property interests. The trial judge was tasked with determining the appropriate division of property between the parties following the breakdown of their de facto relationship. The central legal issue was whether the trial judge should adjust the parties' legal and equitable interests in their property, given the nature of their relationship and the conduct of the parties during that time.
The trial judge considered the evidence provided by both parties and their witnesses, finding that the parties did not intermingle their financial affairs and held their real property independently. The judge noted that there was no joint personal bank account and that the parties dealt with their assets individually. The judge accepted that the underlying assumption of the relationship was that each party was free to deal with their assets as they chose. Given this, the judge determined that there was no principled basis for adjusting the parties' property interests, as the relationship did not exhibit the characteristics that would warrant such an order. The judge concluded that the relationship did not warrant an adjustment of property interests based on the conduct and understanding of the parties during the relationship.
The court ultimately dismissed Ms Cosola's claim for an adjustment of property interests and granted the declaration sought by Mr Moretto. The trial judge found that the unstated assumptions of the relationship, as evidenced by the parties' conduct, did not support an adjustment of property interests following the relationship's breakdown. The final orders of the court reflected this decision, declaring that there should be no adjustment to the parties’ respective legal and equitable interests in their property.
The trial judge considered the evidence provided by both parties and their witnesses, finding that the parties did not intermingle their financial affairs and held their real property independently. The judge noted that there was no joint personal bank account and that the parties dealt with their assets individually. The judge accepted that the underlying assumption of the relationship was that each party was free to deal with their assets as they chose. Given this, the judge determined that there was no principled basis for adjusting the parties' property interests, as the relationship did not exhibit the characteristics that would warrant such an order. The judge concluded that the relationship did not warrant an adjustment of property interests based on the conduct and understanding of the parties during the relationship.
The court ultimately dismissed Ms Cosola's claim for an adjustment of property interests and granted the declaration sought by Mr Moretto. The trial judge found that the unstated assumptions of the relationship, as evidenced by the parties' conduct, did not support an adjustment of property interests following the relationship's breakdown. The final orders of the court reflected this decision, declaring that there should be no adjustment to the parties’ respective legal and equitable interests in their property.
Orders
Orders of the court
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Background
Background to the litigation
I found the respondent’s sister Ms N and her daughters Ms Q and Ms P to be truthful witnesses. Their cross-examination was cursory and little was achieved in relation to impeachment of the evidence that they gave. The respondent’s son Mr S was also cross-examined. I found him to be a truthful witness. The applicant’s counsel contended that I should find otherwise in relation to his evidence. I do not accept the submissions advanced in any way by the applicant’s counsel that he was an unsatisfactory witness. In my view, he gave his evidence truthfully and directly. He had no specific recollection of any particular events and was at pains to make it clear that the loans that he received from his mother, which were secured over her Suburb G property, were a private matter between him and his mother and did not involve the applicant in any way. I accept his evidence where he said that he had made some payments when he could to his mother by way of rent and/or board, and that on occasions he was in arrears in relation to the payments under the various loans.Background The applicant was born in 1960 and is currently aged 62 years. The respondent was born in 1959 and is currently aged 63 years. The parties commenced cohabitation in January 2004 and separated on a final basis in December 2018. The respondent contends that the parties became engaged in mid-2002, which the applicant denies. In any case, the parties never married. There are no children of the relationship. The applicant has two children from a previous relationship and the respondent has four children from a previous relationship. In or around June 2001, the applicant established a sole trader business by the name of U Company. The applicant contends that the respondent started doing the invoices and banking for the business. He says that given his illiteracy, he gave her access to the bank account. Shortly prior to commencing cohabitation, in December 2003, the parties established the company H Pty Ltd. The applicant contends that since commencing cohabitation, the respondent managed the paperwork and financial aspects of the business. He denies that the respondent attended building sites or liaised with customers. The applicant contends that he is unaware of whether the respondent was paid a wage or what income she declared and/or paid herself. At the commencement of cohabitation, the applicant owned the Suburb D property, superannuation entitlements, a truck, household contents and 50 per cent shareholdings in H Pty Ltd The applicant contends that he had a loan of $600,000 owing to his parents and a loan of $50,000 for his truck. For her part, at the commencement of cohabitation, the respondent owned the Suburb G property, some superannuation entitlements, a car, savings, household contents and 50 per cent shareholdings in H Pty Ltd. Since commencing cohabitation and until separation, the parties lived in the Suburb D property. The respondent’s four children also moved into the Suburb D property for various periods. The applicant contends that he did not receive rent from the respondent’s children when they were living in the Suburb D property. The applicant contends that after early 2007, his children seldom came to his house and only stayed overnight on limited occasions, which amounted to no more than a handful of times per year. I accept his evidence.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
I accept each party has a liability for legal fees.CONCLUSION I am satisfied that the unstated assumptions underpinning the parties' relationships were that during the relationship they were each free to deal with their assets as they chose to do so. They gave effect to that assumption during the relationship. The parties did not intermingle their financial affairs and did not conduct a joint personal bank account. They held and dealt with their real property, being their single biggest asset, free of consultation or consideration of what the other party may have thought was appropriate to do. The respondent had the benefit of occupation of the applicant’s home rent free whilst making her home available for use to her son. Her children lived in the applicant’s home for periods of time. There is no presumption that following the breakdown of a relationship lasting 15 years that an order should be made adjusting the parties’ legal and equitable interests in their property. There must be a principled basis for doing so, arising out of how the parties conducted their relationship. I am not satisfied that one has been established. I am not satisfied that it is just and equitable to make an order. I otherwise will make the declaration sought by the applicant and dismiss the Amended Response.
Ratio Decidendi
Legal Principle Established
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