Smythe & Smythe - [2007] FamCA 1212

FAMILY COURT OF AUSTRALIA

SMYTHE & SMYTHE

[2007] FamCA 1212

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATE’S COURT – PROPERTY – FINDING OF FACT – Established that Federal Magistrate’s finding of fact as to the quantum of savings of party to the marriage was not reasonably open to him.

FAMILY LAW - DISCRETION – Assertion that Federal Magistrate erred in determination of s 75(2) adjustment not made out. Federal Magistrate’s consideration of death of a spouse did not render his s 75(2) adjustment erroneous. F v M [2001] FamCA 1585 and Fisher & Fisher (1986) 161 CLR 438 cited. Such determination found to be within the ambit of discretion. House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513 cited.

Family Law Act 1975 (Cth) Section 75(2), Section 79(8)

House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
AMS v AIF (1999) 199 CLR 160
F v M [2001] FamCA 1585

Fisher & Fisher (1986) 161 CLR 438

APPELLANT:

MR SMYTHE

RESPONDENT:

MRS SMYTHE

FILE NUMBER:

PAM

2143

2005

APPEAL NUMBER:

EAA

2007

DATE DELIVERED:

10 October 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

20 September 2007

LOWER COURT JURISDICTION:

Federal Magistrate’s Court

LOWER COURT JUDGMENT DATE:

19/03/2007

LOWER COURT MNC:

[2007] FMCAfam 143

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr R G Lethbridge SC

SOLICITOR FOR THE APPELLANT:

C/- Leonid Titow
K W Fegebank & Associates

COUNSEL FOR THE RESPONDENT:

Mr. John Shaw

SOLICITOR FOR THE RESPONDENT:

Marina Voncina Solicitor

Orders

That the appeal be allowed.
That within 30 days of this date, the respondent pay to the appellant the further sum of $3200.00.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 respondent in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Smythe & Smythe.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA55 OF 2007
File Number: PAM 2143 of 2005

MR SMYTHE

Appellant

And

MRS SMYTHE

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed 14 June 2007 Mr Smythe (“the appellant”) appealed against orders made by…

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 Smythe & Smythe

Details

AGLC: Smythe & Smythe [2007] FamCA 1212
Case: [2007] FamCA 1212
Decision Date: 10 October 2007

CaseChat Overview and Summary

This case concerned an appeal from a decision of the Federal Magistrate's Court regarding property settlement. The appellant, the deceased husband's estate, challenged the Federal Magistrate's findings on two main grounds. The first ground related to the quantification of the asset pool, specifically the amount of savings attributed to the deceased. The second ground, encompassing several sub-grounds, challenged the adjustment made under section 75(2) of the Family Law Act 1975 (Cth).

The court was required to determine whether the Federal Magistrate erred in his findings of fact regarding the deceased's savings and whether his determination of the section 75(2) adjustment was within his discretion. The appellant argued that the Federal Magistrate incorrectly included $51,000 in the asset pool as the husband's funds, contending that the evidence established the sum to be $30,834. The appellant also challenged the section 75(2) adjustment, asserting it was erroneous, although the court noted that the consideration of the death of a spouse within this adjustment was not itself a basis for error.

The court found that the Federal Magistrate's finding of fact regarding the quantum of the deceased's savings was not reasonably open to him, given the evidence presented. While the respondent argued that the onus was on the appellant to explain the discrepancy between the deceased's sworn figure and the bank account balance, the court was persuaded that the evidence did not reasonably support the higher figure. However, the court found no error in the Federal Magistrate's determination of the section 75(2) adjustment, holding that such a determination fell within the ambit of his discretion, referencing established principles from cases such as *House v The King* and *Norbis v Norbis*.

The appeal was allowed. The respondent was ordered to pay the appellant a further sum of $3,200 within 30 days. Both parties were granted costs certificates pursuant to the *Federal Proceedings (Costs) Act 1981*, indicating that it would be appropriate for the Attorney-General to authorise payments in respect of their costs incurred on appeal.

Orders

Orders of the court

That the appeal be allowed.

That within 30 days of this date, the respondent pay to the appellant the further sum of $3200.00.

That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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.

That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 respondent in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The learned Federal Magistrate reiterated that the respondent was only able to borrow $20 000 and included this his reasoning by saying:She could thus retain this home and meet a $20,000 payment to the husband’s estate. Such a payment would leave the wife with 86.4% of the pool of divisible assets, and the husband’s estate with 13.6%. This requires an adjustment to the contribution-based entitlements of 31.4% in the wife’s favour. I am satisfied on the facts of this case and for the reasons given that such an adjustment is appropriate. [Reasons for Judgment, Appeal Book, page 25, par 67] As Senior Counsel for the appellant sensibly conceded, the appeal raises two major challenges. The first of such challenges, Ground 2, relates to the quantification of the asset pool. The second of such challenges, which incorporates Grounds 3, 4 and 5 of the Notice of Appeal, raise variously articulated challenges to the s 75(2) adjustment determined by the learned Federal Magistrate. It is convenient, and more meaningful, to consider the latter three grounds of appeal in conjunction with each other. Sensibly in this Court’s view, the remaining grounds were not pursued. Ground 2 provided: The Applicant for Leave complains as to [the] following matters arising from the learned Federal Magistrates [sic] judgment:-…2. Incorrectly included the sum of $51,000.00 in the pool as the husband’s funds at hearing when the evidence was that the sum was $30,834.00 and not the sum asserted by the husband in a Financial Statement filed in September 2005. [Notice of Appeal, Appeal Book, page 3] The Court has had the benefit of cogently and closely reasoned written submissions by Senior Counsel and Counsel for the parties to the appeal in relation to this, and the other grounds of appeal. The Court can do little better than refer to those submissions in the terms in which they have been presented. The crux of the complaint raised by this ground is that the conduct of the proceedings, and the observations of the learned Federal Magistrate during the course of final submissions, rendered a finding that the deceased had the higher figure of $51 000 by way of savings to have not been reasonably open to him. The evidence was submitted to have established that a figure of $31 000 was the only reliable evidence upon which his Honour could proceed, as his comments during final submissions to Counsel then appearing for the appellant were asserted to have confirmed. On behalf of the respondent, learned Counsel submitted that the Federal Magistrate’s conclusions with respect to the deceased’s savings had been reasonably open to him, and that the approach which he adopted with respect to those savings was that which emerged from his Honour’s Reasons for Judgment. It was submitted on behalf of the respondent that whilst the appellant had not been challenged with respect to the figure of $31 000 emerging from his enquiries with respect to the deceased’s bank accounts, the onus had at all material times been upon the appellant to explain the difference between the figure sworn by the deceased twelve days prior to his death ($51 000) and the amount revealed to have been in the deceased’s bank account at trial in February 2007 ($31 000).

Ratio Decidendi

Legal Principle Established

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