SCOFIELD & SHAW
[2013] FamCAFC 42
•25 March 2013
FAMILY COURT OF AUSTRALIA
| SCOFIELD & SHAW | [2013] FamCAFC 42 |
| FAMILY LAW ─ APPEAL ─ Where the Court re-exercised the discretion of the Federal Magistrate ─ Where given the basis of the appellant’s successful challenges to the Federal Magistrate’s decision, his entitlement should be regarded as greater than the Federal Magistrate considered it should be ─ Where to regard the respondent being entitled to 55 per cent of the total net assets of the parties and the appellant to 45 per cent of such assets would constitute a just and equitable division of the parties’ property ─ Where the Court concluded that such additional adjustment in favour of the appellant results in a just and equitable outcome. FAMILY LAW ─ APPEAL ─ COSTS ─ Where the Court concluded that it was not appropriate to make an order for costs against any party to the proceedings ─ Order made for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth) ss 79(2), 90SM(2) Federal Proceedings (Costs) Act 1981 (Cth) |
| Stanford v Stanford (2012) 87 ALJR 74 |
| APPELLANT: | Mr Scofield |
| RESPONDENT: | Ms Shaw |
| FILE NUMBER: | CAC | 1478 | of | 2010 |
| APPEAL NUMBER: | EA | 140 | of | 2011 |
| DATE DELIVERED: | 25 March 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn, Coleman and May JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1296 |
REPRESENTATION
| APPELLANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Gill |
| SOLICITOR FOR THE RESPONDENT: | Warren McKeon Dickson Lawyers |
Orders
The appeal be allowed.
Orders 1 and 2 of the orders of the Federal Magistrate’s Court of 30 November 2011 be discharged.
Order 3 of the orders of the Federal Magistrate’s Court of 30 November 2011 be varied by deleting the words “That if the respondent is unable or unwilling to pay these monies” and, in lieu of 41% inserting 45 per cent.
There be no order for costs.
The Court grants to the Appellant Husband a costs certificate pursuant to the provisions of 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 Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.
The Court grants to the Respondent Wife a costs certificate pursuant to the provisions of 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 Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scofield & Shaw has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 140 of 2011
File Number: CAC 1478 of 2010
| Mr Scofield |
Appellant
And
| Ms Shaw |
Respondent
REASONS FOR JUDGMENT
introduction
Pursuant to directions made by the Court when delivering preliminary judgment in the appeal on 21 November 2012, submissions in relation to the re-exercise of the Federal Magistrates Court’s discretion, and costs were received from Counsel for the respondent on 12 December 2012, and from the appellant on 19 December 2012.
On behalf of the respondent it was submitted that the decision of the learned Federal Magistrate should be varied only to the extent of substituting percentages of 56.5 per cent to the respondent and 43 per cent to the appellant in lieu of the 59 per cent and 41 per cent to the parties ordered by his Honour.
The appellant continued to seek an equal division of the property of the parties.
As is not in doubt having regard to the Court’s Reasons for Judgment of 21 November 2012, appellate intervention was enlivened on the basis that, in the respects identified by the Court, the learned Federal Magistrate had given excessive or inadequate weight to a number of facts and circumstances which he had uncontroversially found. In one respect the learned Federal Magistrate’s discretion miscarried by reason of material errors of fact. As the Court’s Reasons also confirm, save in the respect to which reference has been made, no finding of fact made by the learned Federal Magistrate was shown to have been other than reasonably open to his Honour.
The Court is thus able to re-exercise the discretion of the learned Federal Magistrate, as both parties have asked it to.
re-exercise of discretion
With respect to the detailed submissions of Counsel for the respondent, and the responding submissions of the appellant, albeit appealable error was found by the Court in its judgment of 21 November 2012, the re-exercise of the learned Federal Magistrate’s discretion proceeds substantially in reliance upon his Honour’s findings of fact, either because they have never been challenged or, to the limited extent that they have been successfully challenged, as the Court’s preliminary judgment makes clear, the areas in which erroneous findings of fact were established were of limited significance. No part of the adjustments ordered by the learned Federal Magistrate in relation to credit card payments was controversial before this Court. It is appropriate to preserve that adjustment. Our orders will thus only provide for an alteration to the parties’ percentage entitlements to the proceeds of sale of the S property which, it is now common ground, should be sold.
The learned Federal Magistrate’s consideration of the parties’ contributions and relevant s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”) factors, in the light of this Court’s conclusions with respect to the appellant’s challenges to them, leave no room for doubt that the contributions of the respondent to the acquisition, conservation and improvement of the property of the parties to the de facto relationship significantly exceeded those of the appellant.
The issue is not whether the respondent’s contributions were greater than those of the appellant, but the extent to which they were. The learned Federal Magistrate concluded that the respondent’s contributions should be regarded as exceeding the contributions of the appellant by 59 per cent to 41 per cent. For the reasons which the Court articulated in its preliminary judgment, such conclusion did not in this Court’s view constitute a just and equitable determination of the parties’ contributions in that it failed to adequately reflect the appellant’s contributions in the respects identified in the Court’s reasons.
The learned Federal Magistrate made no adjustment to the contribution based entitlements of the parties pursuant to s 90SF(3) of the Act. No ground of appeal successfully challenged the learned Federal Magistrate’s conclusion in that regard.
As is not in doubt, the respondent’s financial position has improved somewhat since the proceedings were determined in the Federal Magistrate’s Court, albeit, as her learned Counsel submitted, such improvement was both of limited significance, and well after the parties ceased to have a relationship or any financial dealings. Neither party otherwise sought to adduce further evidence for the purpose of the re-exercise of the lower court’s discretion.
Although it is unclear whether the appellant seeks to enhance his overall entitlement by reference to the respondent’s improved financial position, largely for the reasons asserted by the respondent’s learned Counsel, we do not conclude that there should be an adjustment in favour of either party pursuant to s 90SF(3) of the Act.
It is clear, given the basis of the appellant’s successful challenges to the learned Federal Magistrate’s decision that his entitlement should be regarded as greater than the learned Federal Magistrate considered it should be. We cannot provide precision in relation to the extent to which the appellant’s entitlement should be increased above that which the learned Federal Magistrate determined nor do we suggest otherwise.
As the authorities make clear, it is in the nature of the exercise of discretion in a case such as this that a “range” of outcomes is permissible. In our view, to regard the respondent being entitled to 55 per cent of the total net assets of the parties and the appellant to 45 per cent of such assets would constitute a just and equitable division of the parties’ property and we propose so ordering.
It is not without significance that both parties seek to alter their interests in the property. To decline to do so would be unjust to the appellant and unjustly enrich the respondent.
The reasons why the Court concludes that the appellant’s interest in the S property should be increased to 45 per cent, and the interest of the respondent in it reduced to 55 per cent are largely the reasons which satisfied the Court that appellate intervention was enlivened. The disparity between this Court’s conclusion and that of the learned Federal Magistrate translates, on the valuation of the real estate the subject of his Honour’s order as further adjustment in favour of the appellant of approximately $34,000. The Court concludes that such additional adjustment in favour of the appellant results in a just and equitable outcome.
It is common ground that the S property will be sold. The respondent does not seek to preserve the option to purchase which the learned Federal Magistrate’s orders provided for her.
costs
In the Court’s view it is not appropriate to make an order for costs against any party to the proceedings.
It is in our view appropriate to award each party a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) and our orders will so provide.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Coleman and May JJ) delivered on 25 March 2013.
Associate:
Date: 25.03.2013
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