Scrymegeour and Scrymegeour - [2012] FamCA 1080

FAMILY COURT OF AUSTRALIA

SCRYMEGEOUR & SCRYMEGEOUR

[2012] FamCA 1080

FAMILY LAW – PROPERTY – Contributions and adjustments – where the parties’ entitlements to the matrimonial pool of assets was assessed at 35 per cent to the husband and 65 per cent to the wife following adjustments – where the contributions of the parties are assessed as equal throughout the relationship – where the wife undertook the majority of the care of the parties’ four children – where the husband’s exclusive enjoyment of the former matrimonial home and use of joint monies for personal expenses following separation warranted an adjustment in favour of the wife of five per cent – where the husband and wife’s immense disparity in earning capacity warranted an adjustment to the wife – where the wife’s ongoing care of the parties’ children post-separation warranted an adjustment in favour of the wife – where the husband’s intermingling of joint funds to pay both personal and joint expenses made it difficult to assess the extent of his post-separation contributions – where the husband had the ongoing benefit of a secure and significant salary

FAMILY LAW – SPOUSAL MAINTENANCE – where orders were made for periodic spousal maintenance to the wife for a period of five years – where the mother’s role as homemaker had significantly diminished her earning capacity – where maintenance would allow the wife to undertake a course of study – where the maintenance would allow the wife to spend more time caring for the youngest child of the marriage

Family Law Act 1975 (Cth) ss 75, 79 and 90MT
Family Law (Superannuation) Regulations 2001
Superannuation Industry (Supervision) Act and Regulations 1994

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Mayne and Mayne [2011] FamCAFC 192

APPLICANT:

Mr Scrymegeour

RESPONDENT:

Ms Scrymegeour

FILE NUMBER:

SYC

6038

2010

DATE DELIVERED:

20 December 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney and Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

25 May, 3 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shoebridge

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Stephens & Tozer

Orders

That within 30 days of the date hereof the husband pay to the wife the sum of $403,353.
That pursuant to s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) a base amount of $710,029 be allocated to the wife out of the husband’s interest in Company S Superannuation (“the Fund”).
That in accordance with par 90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the interest of the husband in the Fund the wife is entitled to be paid the amount (if any) calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using a base amount, as at the operative time, an amount of $710,029 and there shall be a corresponding reduction in the entitlement of the husband and/or such other person or persons (other than the wife) to whom the splittable payment would…

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.

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Details

Case: [2012] FamCA 1080
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered a property settlement and spousal maintenance dispute between Mr Scrymegeour (husband) and Ms Scrymegeour (wife). The parties had been married for 23 years and separated in March 2010, with four children, the youngest of whom lived with the wife. The husband sought a superannuation split, a cash payment, and a lump sum spousal maintenance payment, while the wife sought a similar superannuation split, a larger cash payment, and periodic spousal maintenance over five years with annual CPI adjustments.

The court was required to determine the division of the matrimonial asset pool, considering the parties' contributions and making adjustments under section 75(2) of the *Family Law Act 1975* (Cth). Additionally, the court had to assess the wife's claim for spousal maintenance, considering her diminished earning capacity due to her role as homemaker and her need to care for the youngest child and undertake further study.

In relation to property, the court found the parties' contributions to be equal throughout the relationship. However, adjustments were made in favour of the wife due to the husband's exclusive enjoyment of the former matrimonial home and use of joint monies for personal expenses post-separation, the significant disparity in their earning capacities, and the wife's ongoing care of the youngest child. The court also noted difficulties in assessing the husband's post-separation contributions due to his commingling of joint funds. Ultimately, the court ordered a property adjustment resulting in a 35 per cent entitlement for the husband and 65 per cent for the wife. For spousal maintenance, the court ordered periodic payments to the wife for five years, recognising that this would allow her to improve her earning capacity and spend more time with the youngest child.

The final orders included the husband paying the wife a sum of $403,353, allocating a base amount of $710,029 from the husband's superannuation interest to the wife, and ordering the husband to pay the wife $366 per week for spousal maintenance for five years, with annual CPI adjustments. The wife was also directed to sell certain items and account to the husband for 35 per cent of the net proceeds. Each party was to bear their own legal costs.

Orders