Scrymegeour & Scrymegeour - [2014] FamCAFC 130

FAMILY COURT OF AUSTRALIA

SCRYMEGEOUR & SCRYMEGEOUR

[2014] FamCAFC 130

FAMILY LAW – APPEAL – PROPERTY – PROCEDURAL FAIRNESS – Where the appellant husband submitted that the trial judge adopted a different course from that discussed at trial – Where the trial judge adopted a single pool approach including the parties’ assets and superannuation interests when both parties submitted a two pool approach would be appropriate in the circumstances and despite the concurrence of the trial judge with this approach during the trial – Where the respondent wife sought at trial 50 per cent of the superannuation assets of the parties and the appellant husband proposed that the wife receive 45 per cent, the trial judge determined that the respondent wife should receive 65 per cent of all assets including superannuation – Where the parties at trial were in agreement that any periodic spouse maintenance order should be confined to two years – Where the trial judge’s orders required payment of periodic spouse maintenance for five years – Where the parties were not given any opportunity to be heard on the adoption of a single asset pool, on the percentage division of the superannuation assets or the duration of periodic spouse maintenance – Where the result was manifestly unjust to the appellant husband – Appeal allowed.

FAMILY LAW APPEAL – COSTS – Where the appeal succeeded on a relatively narrow question of law which should have been apparent to the parties – Where the appellant husband needed to articulate concise grounds of appeal – Where the success of the appeal on an obvious point warrants the payment of some costs by the respondent wife to the appellant husband – Where the appellant should not receive all costs because of the needless expense incurred by the respondent wife in addressing grounds of appeal not pursued – Respondent wife to pay one-half of the appellant husband’s costs of the appeal – Costs certificates granted to the parties for the re-hearing.

Family Law Act 1975 (Cth) ss 75, 77A, 79
Federal Proceedings (Costs) Act1981 (Cth) s 8

Family Law Rules 2004 (Cth) r 1.04

Durham v Durham (2011) 80 NSWLR 335
Kuru v NSW (2008) 236 CLR 1
Coghlan & Coghlan (2005) FLC 93-220
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
RCB v Forrest & Ors (2012) 247 CLR 304
Stead v State GIO (1986) 161 CLR 141
Tame v NSW (2002) 211 CLR 317

APPELLANT:

Mr Scrymegeour

RESPONDENT:

Ms Scrymegeour

FILE NUMBER:

SYC

6038

2010

APPEAL NUMBER:

2013

DATE DELIVERED:

23 July 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ryan & Austin JJ

HEARING DATE:

14 May 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 December 2012

LOWER COURT MNC:

[2012] FamCA 1080

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Othen

SOLICITOR FOR THE APPELLANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr Shoebridge

SOLICITOR FOR THE RESPONDENT:

Stephen & Tozer Solicitors

Orders

The appeal be allowed.

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

AGLC: Scrymegeour & Scrymegeour [2014] FamCAFC 130
Case: [2014] FamCAFC 130
Decision Date

CaseChat Overview and Summary

This appeal concerns the property settlement and spousal maintenance orders made by Cleary J on 20 December 2012 in the Family Court of Australia. The husband appeals the orders on the basis of manifest injustice and denial of procedural fairness. The Full Court allows the appeal and remits the proceedings to the Family Court for re-hearing. The wife is ordered to pay one-half of the husband's costs of the appeal, and costs certificates are granted to both parties for the re-hearing. The husband's Notice of Appeal listed 53 separate grounds, but the central issues pertain to the trial judge's adoption of a single asset pool for the division of property, contrary to the parties' agreement, and the imposition of spousal maintenance for five years, when the parties had agreed to two years. The Full Court finds the result was manifestly unjust and that the husband's denial of procedural fairness mandates remitter for re-hearing. The Full Court also determines the wife should pay one-half of the husband's costs of the appeal, as the appeal succeeded on a relatively narrow ground of law, but the husband's prolixity caused needless expense. Costs certificates are granted to both parties for the re-hearing.

Orders