Bryson & Bryson - [2024] FedCFamC1A 32

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bryson & Bryson [2024] FedCFamC1A 32

Appeal from: Bryson & Bryson [2023] FedCFamC2F 997

Appeal number(s): NAA 261 of 2023

File number(s): CAC 1439 of 2021

Judgment of: RIETHMULLER J

Date of judgment: 20 March 2024

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the primary judge took into account evidence that was struck out or not read – Where irrelevant considerations material to outcome – Where the primary judge did not accept that there was family violence despite evidence to the contrary – Appeal allowed – Costs certificates issued.

Legislation:
Family Law Act 1975 (Cth) ss 79, 102NA

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Reserve Bank Act 1959 (Cth) s 85A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15

Cases cited:
British South Africa Co v Companhia de Moçambique [1893] AC 602

Cassell & Kolar (No 5) [2023] FedCFamC1F 478

Galloway & Midden (No 2) (2014) FLC 93-586; [2014] FamCAFC 60

Manderville & Borah [2021] FedCFamC1A 59

Saltern & Mink [2020] FamCAFC 320

Number of paragraphs: 43

Date of hearing: 29 February 2024

Place: Parramatta, via Microsoft Teams

Counsel for the Appellant: Mr Gardiner

Solicitor for the Appellant: Mazengarb Family Lawyers

Counsel for the Respondent: Mr Stagg

Solicitor for the Respondent: Hijazi Curran Cameron Lawyers
ORDERS

NAA 261 of 2023
CAC 1439 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BRYSON

Appellant

AND:
MR BRYSON

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

20 MARCH 2024

THE COURT ORDERS THAT:
1.The Application in Appeal NAA 261 of 2023 filed on 9 January 2024 be dismissed.
2.Appeal NAA 261 of 2023 be allowed.
3.Orders 7 to 11 made on 18 August 2023 be set aside and the matter be remitted for re-hearing.
4.The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.The respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.The respondent be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the new trial ordered.

Note: The form of…

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 Bryson & Bryson

Details

AGLC: Bryson & Bryson [2024] FedCFamC1A 32
Case: [2024] FedCFamC1A 32
Decision Date: 20 March 2024

CaseChat Overview and Summary

The appeal in Bryson & Bryson was heard by Riethmuller J in the Federal Circuit and Family Court of Australia. The appellant, Ms. Bryson, appealed against the primary judge's decision, arguing that it contained errors that warranted a rehearing. The dispute primarily concerned the division of property and the consideration of evidence, particularly regarding family violence and the allocation of costs. The court had to determine whether the primary judge erred in considering certain evidence, failed to recognise family violence, and whether the errors were significant enough to warrant a rehearing.

The court examined several grounds of appeal, including whether the primary judge erred in considering evidence that had been struck out or not read, and whether the judge should have recognised family violence despite contrary findings. The court found that while there were errors in the primary judge's consideration of evidence, these did not amount to a miscarriage of justice given the overall context of the case. However, the court identified that the primary judge's failure to accept evidence of family violence was a material error that affected the outcome of the case.

Consequently, the court allowed the appeal and set aside certain orders, remitting the matter for a rehearing. The court also addressed the issue of costs, agreeing with the parties that costs certificates should be issued to both parties for the appeal and to the respondent for the new trial. This decision ensures that the rehearing will be conducted with a proper consideration of all relevant evidence, including the recognition of family violence.

The court issued orders dismissing the application in appeal, allowing the substantive appeal, setting aside certain orders, and granting costs certificates to both parties. These orders reflect the court's determination that the errors in the primary judge's decision necessitated a rehearing and that appropriate costs should be allocated to both parties for the appeal and the new trial.

Orders

Orders of the court

NAA 261 of 2023

CAC 1439 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BRYSON

Appellant

AND:

MR BRYSON

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

20 MARCH 2024

THE COURT ORDERS THAT:

1. The Application in Appeal NAA 261 of 2023 filed on 9 January 2024 be dismissed.

2. Appeal NAA 261 of 2023 be allowed.

3. Orders 7 to 11 made on 18 August 2023 be set aside and the matter be remitted for re-hearing.

4. The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5. The respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

6. The respondent be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the new trial ordered.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the wife failed to establish that part of the $39,906.53 was actually expended to purchase furniture, the appellant has not shown error on the part of the primary judge with respect to this ground of appeal. Even if there had been an error, it represented less than $5,000 in a case involving net assets and superannuation of over $2 million. An error of such a small amount is not sufficient to demonstrate a miscarriage of justice: see Saltern & Mink [2020] FamCAFC 320. This ground has not been made out.CONCLUSION The appellant has succeeded in establishing Ground 3. The parties agreed that the matter must be remitted for a rehearing in these circumstances. As Orders 1-6 that were made by the primary judge have now been carried out there is no purpose to be served in setting them aside. The parties agreed that Orders 7 to 11 should be set aside if the appeal were allowed.COSTS The parties agreed that in the event that the appeal was allowed, then it would be appropriate for costs certificates to be awarded. Since the appeal is successful due to an error on the part of the primary judge that does not appear to have been caused by either of the parties, I am persuaded it would be suitable for costs certificates to be issued to both parties under the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal. I am satisfied that the respondent should have a certificate under s 8 with respect to the costs of the new trial. As the appellant did not incur costs in the first trial (her counsel being funded by a s 102NA grant) I am not persuaded to issue a certificate with respect to her costs in the new trial.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 261 of 2023 CAC 1439 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BRYSON Appellant
AND:	MR BRYSON Respondent

Appeal from:	Bryson & Bryson [2023] FedCFamC2F 997
Appeal number(s):	NAA 261 of 2023
File number(s):	CAC 1439 of 2021
Judgment of:	RIETHMULLER J
Date of judgment:	20 March 2024
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where the primary judge took into account evidence that was struck out or not read – Where irrelevant considerations material to outcome – Where the primary judge did not accept that there was family violence despite evidence to the contrary – Appeal allowed – Costs certificates issued.
Legislation:	Family Law Act 1975 (Cth) ss 79, 102NA Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 Reserve Bank Act 1959 (Cth) s 85A Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited:	British South Africa Co v Companhia de Moçambique [1893] AC 602 Cassell & Kolar (No 5) [2023] FedCFamC1F 478 Galloway & Midden (No 2) (2014) FLC 93-586; [2014] FamCAFC 60 Manderville & Borah [2021] FedCFamC1A 59 Saltern & Mink [2020] FamCAFC 320
Number of paragraphs:	43
Date of hearing:	29 February 2024
Place:	Parramatta, via Microsoft Teams
Counsel for the Appellant:	Mr Gardiner
Solicitor for the Appellant:	Mazengarb Family Lawyers
Counsel for the Respondent:	Mr Stagg
Solicitor for the Respondent:	Hijazi Curran Cameron Lawyers

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	20 MARCH 2024