Enns & Enns
[2025] FedCFamC1A 21
•18 February 2025
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 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 JUDGMENTAUSTIN 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 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.
First it is necessary to deal with the ground as pleaded, which is no more than an assertion of the husband’s subjective belief the adjustment in the wife’s favour was too large. Unless there is an objective premise for his belief, the ground must fail.
In determining the adjustment in the wife’s favour at 7.5 per cent, the primary judge took in account the husband’s annual gross salary of $80,000, compared to the wife’s unemployment and receipt of welfare benefits at [21]–[22]). The parties are of similar age (at [14] and [23]), with 15 to 20 years of employability ahead of them. Neither gave evidence of income-earning capacity being hindered by ailments (at [23]).
The 7.5 per cent adjustment meant an overall disparity of 15 per cent in the parties’ entitlements, meaning the wife received an extra $66,552 overall from the property pool, which sum equates to less than a year’s salary for the husband over his long working future. The submission that such a finding fell beyond “discretionary scope” is rejected.
However, the husband’s written submissions revealed an error of law not encapsulated by the grounds in the Notice of Appeal. The wife was served with the Summary of Argument over two months ago, so she was on notice of the additional error asserted by the husband. Her solicitor accepted that was so, in which event she is not prejudiced by the point now being entertained.
The husband complains of his denial of procedural fairness by reason of her Honour’s reliance upon extraneous material filed by the wife, but not read in evidence at the trial, about which he was unaware and taken by surprise. The complaint tends to over-state the facts, but an error of law is exposed all the same.
The wife failed to comply with trial directions made many months in advance of the hearing. She also failed to appear at the trial and at earlier procedural hearings (at [4]–[7]). The primary judge therefore determined to proceed with the trial on an “undefended basis” (at [8]–[10]). At the outset, the husband’s counsel identified the evidence upon which he relied. No evidence was read by the wife, as she was absent. The husband was not cross-examined. Following his final submissions, judgment was delivered.
The wife had filed an affidavit and a financial statement some 20 months before in December 2022. Yet, though not read in evidence at the trial, her Honour resorted to use of that extraneous material. Her Honour expressly referred to the wife’s financial statement in the reasons for judgment (at [22]). Although her affidavit was not expressly mentioned in the reasons, the implication of the primary judge’s reliance upon it is difficult to resist because her Honour found the wife lacked work experience and was unlikely to improve her economic position, which findings could not easily spring from the wife’s financial statement but did quite easily from her affidavit in which she deposed to being unable to work. Such findings based on extraneous material underpinned the 7.5 per cent adjustment in the wife’s favour and were therefore material to the outcome.
Since no evidence was read by the wife at trial and the husband did not rely upon any document filed by her as an admission against her interest, the primary judge’s reliance upon the wife’s financial statement and, inferentially, her affidavit when those documents were not in evidence was an error of law (Shell & Armel [2022] FedCFamC1A 83 at [42]; Berry & Andrews (2022) 65 Fam LR 183 at [55]). The wife’s solicitor did not want to be heard in the appeal in opposition to that conclusion.
It was unnecessary for the husband to additionally engage the principles of procedural fairness, but his attempt to do so verged on an over-reach in any event. Her Honour stated in the reasons for judgment that the contents of the wife’s financial statement were raised with the husband’s counsel during the hearing who submitted only that the evidence was historical (at [22]), not that it was inadmissible. With the issue raised, neither the reasons nor the transcript reveals any complaint made by the husband’s counsel at that point in time about her Honour’s reliance upon the wife’s unread financial statement or affidavit being a deprivation of his procedural fairness.
Ground 2
This ground alleges the primary judge “failed to consider” the effect of the final orders, but her Honour plainly did consider the effect of the orders upon the parties, so the ground is without merit. Realising the wife would receive property and superannuation worth $66,552 more than the husband (at [26]), her Honour expressly determined to equalise the parties’ superannuation interests due to the modest size of the property pool (at [27]).
The husband’s superannuation entitlements comprised more than one-half of the property pool, while the wife had no superannuation entitlements at all. Had the primary judge not equalised the superannuation interests then, for the wife to acquire 57.5 per cent of the overall property, she would have had to receive the entirety of the residue proceeds realised on the sale of the former matrimonial home, which were held in trust, together with a lesser superannuation split of the husband’s superannuation interests.
The husband’s point seemed to be that the wife should have received an even larger split from his superannuation to ensure that he received an equal distribution of the former matrimonial home sale proceeds held in trust. First, that is not an outcome he proposed to the primary judge at trial. Secondly, the wife is unemployed and slightly younger than him, so she would have been disadvantaged by locking up in superannuation the bulk of her share of the property.
Disposition
The appeal succeeds for the error of law revealed in the discussion of Ground 1.
Until the appeal hearing, the husband sought remitter of the proceedings for re-hearing, which proposal was not opposed by the wife.
During the appeal hearing, the husband raised the prospect of discretion under Pt VIII of the Act being re-exercised, but he acknowledged the wife’s right to adduce updating evidence on the re-hearing (Allesch v Maunz (2000) 203 CLR 172 at 183 and 191–192), which her solicitor stated was her desire.
The husband did not seek costs and abandoned his application for the grant of costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 February 2025
3
3
2