Willans & Enmore - [2021] FedCFamC1F 77

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Willans & Enmore [2021] FedCFamC1F 77

File number(s): SYC 4725 of 2017

Judgment of: WILSON J

Date of judgment: 27 September 2021

Catchwords: FAMILY LAW – PROPERTY – complications encountered by parties in formulating orders that gave effect to main reasons for judgment in the case.

Cases cited:
Calvin & McTier (2017) 57 Fam LR 1

Willans & Enmore [2021] FamCA 340

Division: Division 1 First Instance

Number of paragraphs: 29

Date of hearing: 24 August 2021, 6 September 2021

Place: Melbourne

Counsel for the Applicant: Ms S. Christie SC

Solicitor for the Applicant: Greg Alfonzetti Solicitor

Counsel for the Respondent: Mr I. Coleman SC

Solicitor for the Respondent: Andrew Cohen Solicitor
ORDERS

SYC 4725 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WILLANS
Applicant

AND:
MR ENMORE
Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

27 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.On or before 4:00pm on 11 October 2021 the parties must bring in a minute that gives effect to these reasons as representing the form of final orders, aside from costs, to dispose of this litigation.

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 Willans & Enmore are approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT ON FORM OF ORDERS
WILSON J

Following a seven day trial, on 28 May 2021 I handed down reasons for judgment requiring the parties to bring in a minute that gave effect to those reasons by 11 June 2021. Each party provided different proposed orders and each party sought orders in respect of costs. These reasons address the proposed orders. In separate reasons I will address costs.
THE PRECISE FORM OF ORDERS SOUGHT
Previously[1] I recorded my conclusion that the applicant was entitled to a 50% division of the net assets of the parties and that the dollar amount corresponding to a 50% division was $4,371,832. In order to generate that sum, in my earlier reasons I hypothesised that the net value of the parcels of land at W Town and Suburb G was a starting point,[2] to which could be added cash-at-bank totalling $3,797,845. However, that did not generate a 50% division of assets. I invited the parties to more precisely formulate a form…

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 Willans & Enmore

Details

AGLC: Willans & Enmore [2021] FedCFamC1F 77
Case: [2021] FedCFamC1F 77
Decision Date

CaseChat Overview and Summary

The case of Willans & Enmore involved a dispute between the applicant, Ms Willans, and the respondent, Mr Enmore, regarding the division of their property following their separation. The matter was heard by Justice Wilson in the Federal Circuit and Family Court of Australia, Division 1. The primary legal issue for the court was to determine the precise form of orders that would effect a 50% division of the parties' net assets, as directed in an earlier judgment. The court had to consider the submissions and proposals from both parties concerning the division of real estate, bank accounts, shares, and superannuation interests.

The court examined the submissions from both counsel, Ms Christie SC for the applicant and Mr Coleman SC for the respondent. The respondent argued that superannuation interests should not be taken into account until the self-managed superannuation fund was audited, while the applicant maintained that the case was run as a one-pool case and that the value of the superannuation interest should be based on the joint balance sheet. After considering the submissions and additional evidence, the court concluded that the total pool to be divided was $8,743,664, with half to be awarded to each party, i.e., $4,371,832. The court then analysed the proposals from both parties and determined the appropriate division of assets to achieve the 50% division as directed in the earlier judgment.

In its judgment, the court directed the parties to bring in a form of agreed order within 14 days, which would finally dispose of the litigation. The court emphasised the need to finalise the case post-judgment and set a deadline of 4:00pm on 11 October 2021 for the parties to submit their agreed form of final orders. The court's decision provided clarity on the division of the parties' property and facilitated the resolution of the dispute.

Orders