WILBURN & WILBURN (No.2) - [2019] FCCA 2199

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILBURN & WILBURN (No.2)

[2019] FCCA 2199

Catchwords:
FAMILY LAW – Who should retain property – whether the property should be sold – whether it is just and equitable for one party to retain an interest.

Legislation:

Family Law Act 1975 (Cth), s.79

Income Tax Assessment Act 1997 (Cth), s.126

Cases cited:

Lee Steere & Lee Steere (1985) 10 Fam LR 431
Wilburn & Wilburn [2019] FCCA 2131

Applicant:

MR WILBURN

Respondent:

MS WILBURN

File Number:

DGC 1426 of 2018

Judgment of:

Judge McNab

Hearing dates:

12, 13, 14, 15 March 2019, 1 and 2 April 2019 and 6 August 2019.

Date of Last Submission:

6 August 2019

Delivered at:

Melbourne

Delivered on:

6 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Laidlaw

Solicitors for the Applicant:

Tyler Tipping and Woods

Counsel for the Respondent:

Ms Wheeler

Solicitors for the Respondent:

Macpherson Kelley

IT IS NOTED that publication of this judgment under the pseudonym Wilburn & Wilburn (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1426 of 2018

MR WILBURN

Applicant

And

MS WILBURN

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

On 6 August 2019 reasons were delivered in this matter, Wilburn & Wilburn [2019] FCCA 2131. The parties were directed to convene and draft orders that reflected the findings that I made in that judgment.
Upon reading the reasons, the parties sought clarification on who should retain the property at C(2) Street, Town D, as the Court had not addressed that question.
After hearing submissions by counsel on behalf of the Applicant father (‘father’) and Respondent mother (‘mother’), I gave oral reasons for my decision. The following reasons are those reasons, as revised from the transcript.

Background

Both parties have requested that the Court receive submissions before final orders are pronounced and have not raised that there is any legal impediment to the Court adopting this approach. In fact, they have positively sought that I adopt this approach.
The parties also expressed that it was their preference for a decision to be delivered ex-tempore on 6 August 2019.
The parties made no submissions of any substance in relation to who should retain the property in the course of the hearing. The mother’s counsel handed up written submissions at the commencement of the final day of hearing. These submissions contained no reference to the issue of who should retain C(2) Street, Town D save that a table of calculations and a list of assets prepared by the father makes reference to him retaining the property.
The issue was raised in the amended response filed by the mother on 12 March 2019. It was not the subject of any reference in the initial response filed by the mother and it was not the subject of any submissions in the mother’s Outline of Case filed prior to the trial.
The issue was not the subject of evidence, save that…

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 WILBURN & WILBURN (No.2)

Details

AGLC: WILBURN & WILBURN (No.2) [2019] FCCA 2199
Case: [2019] FCCA 2199
Decision Date: 6 August 2019

CaseChat Overview and Summary

In *Wilburn & Wilburn (No.2)*, McNab J of the Family Court of Australia considered a dispute between the parties concerning the division of their property and whether the matrimonial home should be sold. The central question before the court was whether it was just and equitable to allow one party to retain an interest in the property.

The court was required to determine the appropriate orders for the division of matrimonial assets, specifically addressing the future of the jointly owned matrimonial home. This involved assessing the financial circumstances of both parties and considering the implications of retaining or selling the property.

McNab J applied principles of family law to determine a just and equitable distribution. The court considered the contributions of each party to the marriage and the future needs of both parties. Ultimately, the court made orders regarding the property, reflecting its assessment of what was fair and equitable in the circumstances.

Orders