Emmeran & Emmeran - [2022] FedCFamC2F 1507

Federal Circuit and Family Court of Australia
(DIVISION 2)
Emmeran & Emmeran [2022] FedCFamC2F 1507

File number(s): MLC 4662 of 2021

Judgment of: JUDGE GLASS

Date of judgment: 15 November 2022

Catchwords: FAMILY LAW – PROPERTY – assessment of financial and non-financial contributions throughout the relationship – initial contributions – whether the Husband should receive an adjustment where he financially supported two children from the Wife’s previous marriage who lived with the parties for a lengthy period of time – add-back of paid legal fees– whether it is just and equitable to make an order – orders made.

Legislation:
Family Law Act 1975 (Cth) ss 79(2), 79(4), 75(2), 81, 90XT, 117(1)

Family Law (Superannuation) Regulations 2001

Family Law Regulations 1984

Superannuation Industry (Supervision) Regulations 1994

Cases cited:
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Carrron & Laniga (2019) FLC 93-909; [2019] FamCAFC 115

Crick & Bennett (2018) FLC 93-832; [2018] FamCAFC 68

Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57

Jasper & Thorp [2016] FCCA 2981

Kowaliw & Kowaliw (1981) FLC 91-092

Lane & Lane [2015] FCCA 173

Oamra & Williams (2021) FLC 94-035; [2021] FamCAFC 117

Pailing & Gilbert [2015] FCCA 2533

Robb & Robb (1995) FLC 92-555; (1994) 18 FamLR 489

Russo & Wylie (2016) FLC 93-747; [2016] FamCAFC 227

Stanford v Stanford (2012) 247 CLR 108

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

NHC v RCH (2004) FLC 93-204; [2004] FamCA 633

Zaruba & Zaruba (2017) FLC 93-776; [2017] FamCAFC 91

Division: Division 2 Family Law

Number of paragraphs: 44

Date of last submission/s: 2 November 2022

Date of hearing: 2 November 2022

Place: Melbourne

Solicitor for the Applicant: Keith A Elliot Pty Ltd

Counsel for the Applicant: Mr James

Solicitor for the Respondent: Dandenong Family Lawyers

Counsel for the Respondent: Mr Goddard
ORDERS

MLC 4662 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR EMMERAN

Applicant

AND:
MS EMMERAN

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

15 November 2022

THE COURT ORDERS THAT:
1.The Wife pay to the Husband's solicitors Keith A Elliot Pty Ltd on behalf of the Husband the sum of $294,916 ("the payment") on or before the 2^nd day of December 2022 ("the date").
2.Contemporaneously with the payment:
(a)The Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his right title and interest in the real property situate and known as B Street, Suburb C in the State of Victoria ("the real property");
(b)The Wife at her expense discharge the mortgages secured against the real property ("the mortgage") and indemnify the Husband against all payments and liability pursuant to Westpac Home Loan Account No …17 and Westpac Home Loan Account No …65 ("the home loans");
(c)The Wife at her expense repay the balance of the parties’ joint Westpac Visa card and the parties do all things necessary to close the account;…

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: Emmeran & Emmeran [2022] FedCFamC2F 1507
Case: [2022] FedCFamC2F 1507
Decision Date

CaseChat Overview and Summary

Mr Emmeran and Ms Emmeran commenced cohabitation in 2001, married in 2002 and ceased cohabitation in March 2020, although did not regard their marriage as over until later that year. Arising for determination are their competing applications for orders altering their interests in property. The court was required to decide whether it was just and equitable to make a property settlement order and, if so, the nature of the orders to be made. The court found that it was just and equitable to make a property settlement order. It considered the parties' financial and non-financial contributions to the acquisition, conservation, and improvement of property and the parties' contributions to the welfare of the family constituted by the parties and any children of the marriage. The court found that the parties' contributions were equal and that Mr Emmeran's contributions to the welfare of Ms Emmeran's children from a prior relationship warranted an adjustment in his favour of 7.5%. The court ordered that Ms Emmeran pay Mr Emmeran $294,916, that the parties' interests in property be altered such that Mr Emmeran retain 57.5% of their value, and that Ms Emmeran retain the former matrimonial home. The court also ordered that the parties' interests in superannuation be altered such that Mr Emmeran retain 57.5% of their value.

Orders