Garvey and Metcalfe

[2017] FamCAFC 109

FAMILY COURT OF AUSTRALIA

GARVEY & METCALFE [2017] FamCAFC 109

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Appeal allowed by consent – Discretion of the primary judge re-exercised.

Family Law Act 1975 (Cth) s 79

APPELLANT: Mr Garvey

RESPONDENT: Ms Metcalfe

FILE NUMBER: SYC 6993 of 2013

APPEAL NUMBER: EA 119 of 2016

DATE DELIVERED: 23 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Thackray, Kent & Loughnan JJ

HEARING DATE: 23 June 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 12 July 2016

LOWER COURT MNC: [2016] FCCA 1733

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Paterson

SOLICITOR FOR THE APPELLANT: Jack Rigg Solicitors

COUNSEL FOR THE RESPONDENT: Ms Beck

SOLICITOR FOR THE RESPONDENT: James & Associates

Orders

IT IS ORDERED BY CONSENT

1. The appeal be allowed.

2. Paragraph 8(c) of the orders made by Judge Scarlett on 12 July 2016 in proceeding SYC 6993 of 2013 be varied so that it reads:

   “as to the balance of the proceeds of sale:

   (i)An amount equivalent to 55% to the Applicant Wife; and

   (ii)The remainder to the husband.”

3. There be no order as to costs, to the intent that each party will pay their own costs of the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garvey & Metcalfe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 119 of 2016
File Number: SYC 6993 of 2013

Mr Garvey

Appellant

And

Ms Metcalfe

Respondent

REASONS FOR JUDGMENT

1. On 12 July 2016 Judge Scarlett in the Federal Circuit Court made property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) adjusting the property interests of Mr Garvey (“the husband”) and Ms Metcalfe (“the wife”).

2. By Amended Notice of Appeal filed on 14 December 2016 the husband appeals from those orders and seeks orders on appeal upon a re-exercise of the discretion by the Full Court. The appeal was listed for hearing by the Full Court today. For reasons which will become apparent, that hearing did not proceed.

3. For present purposes it is unnecessary for us to specifically traverse in these reasons for judgment each of the husband’s challenges on appeal. That is so because the wife now withdraws her opposition to the appeal and joins with the husband in contending that the trial judge made errors of law and that the Full Court ought re-exercise the discretion.

4. The parties join in providing to the Full Court a written statement, signed on their behalf by their respective lawyers, identifying that which both parties contend to be errors of law made by the trial judge.

5. It is unnecessary that we discuss or endorse each of the asserted errors so identified. It suffices, to enliven the appellate jurisdiction to allow the appeal and re-exercise the discretion, that we are satisfied of an error of law on the part of the trial judge infecting the proper exercise of his discretion.

6. The husband contends on appeal, and the wife now concedes, that the trial judge erred in his assessment of s 75(2) factors,  in particular with respect to the significance of the wife’s interest in a property known as B, relative to other relevant factors.

7. We are comfortably satisfied, from our review of the uncontroversial evidence within the appeal record relevant to this topic, that this is so and that this constitutes an error of law with the consequence that the trial judge’s discretion miscarried in the orders made.

8. The parties are agreed as to the orders to be made on appeal, by way of variation, to redress the miscarriage. We are satisfied, likewise from our review of the appeal record, together with the feature that each party was represented by solicitors and counsel, that the proposed orders effect an overall just and equitable property adjustment and are appropriate orders pursuant to s 79 of the Act.

9. We therefore make the orders in the form both parties now join in seeking that we make, save for the order sought with respect to costs of the proceedings at first instance. That is an issue within the province of the Federal Circuit Court and we will cause that aspect to be referred to the Registrar of the Federal Circuit Court to be dealt with as necessary by that Court.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Kent and Loughnan JJ) delivered on 23 June 2017.

Associate:                 

Date:  23 June 2017