Enns & Enns - [2025] FedCFamC1A 21

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Enns & Enns [2025] FedCFamC1A 21

Appeal from: Enns & Enns [2024] FedCFamC2F 1379

Appeal number: NAA 241 of 2024

File number: BRC 15342 of 2022

Judgment of: AUSTIN J

Date of judgment: 18 February 2025

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals against final property orders – Where the husband complains of his denial of procedural fairness – Where the primary judge made an error in law by relying upon documents not in evidence – Appeal allowed – Orders of the primary judge set aside – Matter remitted.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 75, 79

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Berry & Andrews (2022) 65 Fam LR 183; [2022] FedCFamC1A 120

Shell & Armel [2022] FedCFamC1A 83

Number of paragraphs: 29

Date of hearing: 18 February 2025

Place: Brisbane

Counsel for the Appellant: Mr Casey

Solicitor for the Appellant: Life Law Solutions

Solicitor Advocate for the Respondent: Ms Mannering

Solicitor for the Respondent: Northside Family Law Centre
ORDERS

NAA 241 of 2024
BRC 15342 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR ENNS

Appellant

AND:
MS ENNS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

18 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The financial proceedings are remitted for re-hearing by another judge of the Federal Circuit and Family Court of Australia (Division 2).

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Enns & Enns has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

These reasons explain the allowance of an appeal brought by the husband from property adjustment orders made between him and the respondent wife under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 23 August 2024.
Background
The parties commenced cohabitation in 1998, married in 2000, and separated in 2020.
Financial proceedings under Pt VIII of the Act were commenced by the wife in 2022.
The trial ensued before the primary judge in August 2024, following which judgment was pronounced and reasons delivered ex tempore.
The wife defaulted in compliance with procedural orders and did not appear at the trial, which was conducted in her absence (at [4]–[10]). The husband…

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 Enns & Enns

Details

AGLC: Enns & Enns [2025] FedCFamC1A 21
Case: [2025] FedCFamC1A 21
Decision Date: 18 February 2025

CaseChat Overview and Summary

Enns & Enns involved an appeal by the husband against property orders made by the primary judge under Part VIII of the Family Law Act 1975 (Cth). The husband contested the final property adjustment orders made by the Federal Circuit and Family Court of Australia (Division 2) on 23 August 2024. He argued that the primary judge made errors in law and failed to ensure procedural fairness in the determination of the property settlement. The wife defaulted in complying with procedural orders and did not appear at the trial, which was conducted in her absence.

The appeal raised two grounds concerning the primary judge's discretionary decision-making. The first ground argued that the 7.5 per cent adjustment in favour of the wife was outside the discretionary scope under sections 79(4)(d) and 79(4)(e) of the Act. The second ground contended that the primary judge failed to consider the effect of the final orders in ensuring just and equitable property adjustment. The husband claimed that the wife received a larger percentage of available funds in trust, rather than his superannuation, which the primary judge did not consider.

The court found that the primary judge made an error in law by relying on documents that were not in evidence, which affected the procedural fairness of the proceedings. The court held that the primary judge's reliance on such documents constituted a breach of natural justice. Additionally, the court found that the primary judge's decision to make a 7.5 per cent adjustment in favour of the wife was not supported by the evidence and amounted to a discretionary error. The court concluded that the appeal was well-founded and remitted the matter for re-hearing by another judge of the Federal Circuit and Family Court of Australia (Division 2). The appeal was allowed, and the financial proceedings were remitted for re-hearing.

Orders

Orders of the court

NAA 241 of 2024

BRC 15342 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ENNS

Appellant

AND:

MS ENNS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

18 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The financial proceedings are remitted for re-hearing by another judge of the Federal Circuit and Family Court of Australia (Division 2).

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).

Background

Background to the litigation

These reasons explain the allowance of an appeal brought by the husband from property adjustment orders made between him and the respondent wife under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 23 August 2024.Background The parties commenced cohabitation in 1998, married in 2000, and separated in 2020. Financial proceedings under Pt VIII of the Act were commenced by the wife in 2022. The trial ensued before the primary judge in August 2024, following which judgment was pronounced and reasons delivered ex tempore. The wife defaulted in compliance with procedural orders and did not appear at the trial, which was conducted in her absence (at [4]–[10]). The husband was represented by counsel. The primary judge found the parties’ assets and liabilities to be as the husband’s counsel contended, with a net value of $443,681 (at [15]). Her Honour found the parties’ contributions were equal (at [20]), but an adjustment of 7.5 per cent to the wife was appropriate on account of the parties’ disparate earning capacities (at [21]–[25]). The overall outcome was therefore a division of assets giving the wife 57.5 per cent thereof (at [26]), when the husband had contended for an overall equal division (at [1]). To implement that division, the primary judge found it just and equitable to equalise the parties’ superannuation interests due to the “modest size of the property pool” (at [27]). Accordingly, the parties received equal superannuation interests, they each kept their own car, but the wife received a greater share of the net proceeds realised on the sale of the former matrimonial home (at [28]). The wife received about $50,000 more in liquid cash.The appeal The two grounds of appeal are as set out in the Notice of Appeal filed on 19 September 2024 in these terms:1.On the evidence available, the adjustment for future needs found in favour of [the wife] was outside the discretionary scope.2.The learned primary judge failed to consider the effect of the final orders by affording the [wife] a larger percentage of available funds in trust, rather than the [husband’s] superannuation. Both grounds complain of discretionary error. Ground 1 attacks the validity of the 7.5 per cent adjustment made in the wife’s favour in accordance with ss 79(4)(d), 79(4)(e) and 75(2) of the Act. Ground 2 effectively asserts the failure of the primary judge to ensure the property adjustment orders are just and equitable. The wife failed to file any Summary of Argument as directed and was notified by the appeal registrar in December 2024 that the appeal would proceed despite her default. The wife did not appear at the hearing, but was represented by her solicitor, who simply submitted to the decision of the Court.Ground 1 By contending the percentage adjustment in the wife’s favour was “outside the discretionary scope”, the husband was contending for a miscarriage of discretion. Yet the submissions made in his Summary of Argument bear little correlation to the terms in which the ground is pleaded.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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NAA 241 of 2024 BRC 15342 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR ENNS Appellant
AND:	MS ENNS Respondent

Appeal from:	Enns & Enns [2024] FedCFamC2F 1379
Appeal number:	NAA 241 of 2024
File number:	BRC 15342 of 2022
Judgment of:	AUSTIN J
Date of judgment:	18 February 2025
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals against final property orders – Where the husband complains of his denial of procedural fairness – Where the primary judge made an error in law by relying upon documents not in evidence – Appeal allowed – Orders of the primary judge set aside – Matter remitted.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 75, 79 Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:	Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Berry & Andrews (2022) 65 Fam LR 183; [2022] FedCFamC1A 120 Shell & Armel [2022] FedCFamC1A 83
Number of paragraphs:	29
Date of hearing:	18 February 2025
Place:	Brisbane
Counsel for the Appellant:	Mr Casey
Solicitor for the Appellant:	Life Law Solutions
Solicitor Advocate for the Respondent:	Ms Mannering
Solicitor for the Respondent:	Northside Family Law Centre

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	18 FEBRUARY 2025