Smythe & Smythe

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.