Syme & Wroe

Case [2009] FamCAFC 89


FAMILY COURT OF AUSTRALIA

SYME & WROE [2009] FamCAFC 89

FAMILY LAW – APPEAL – PROPERTY – SECTION 79 – CONTRIBUTION – Where Appellant husband made significantly greater initial contribution – Where Federal Magistrate found parties’ non-financial contributions during the course of the marriage were equal – Where post-separation contributions favoured the Respondent wife – Where Federal Magistrate’s findings as to contributions were carefully identified – Where discretionary judgment – No merit in challenge to contribution assessment

FAMILY LAW – APPEAL – PROPERTY – SECTION 75(2) – Where Appellant husband asserted an adjustment under s 75(2) was manifestly outside the ambit of discretion – Where Appellant husband asserted a 28 per cent differential in entitlements was not warranted – Where majority of assets received by husband not immediately realisable – Whether the adjustment made in the Respondent wife’s favour falls outside the reasonable ambit of discretion – Where both parties professionally qualified and employed – Where Federal Magistrate failed to consider the monetary impact of the adjustment – Where Federal Magistrate failed to explain factors warranting such a significant adjustment – Whether effect of ‘mix’ of assets retained by Appellant husband not given appropriate weight – Appeal allowed – Matter remitted for rehearing

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where Appellant husband ordered under s 124 to pay non-periodic child support – Where Federal Magistrate ordered that non-periodic payments not be credited against the administrative assessment – Whether the Federal Magistrate failed to identify any ‘special circumstances’ of the case which would warrant the order under s 125(2) – Lightfoot & Hampson (1996) FLC 92-663 and Ivanovic & Ivanovic (1996) FLC 92-689 followed – Circumstances considered by Federal Magistrate not ‘special’ such as to fall within the narrow ‘special circumstances’ outlined in Lightfoot – Proposed grounds have merit – Leave to appeal granted – Appeal allowed

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where further evidence controversial – Application dismissed

FAMILY LAW – COSTS – Appeal succeeded on the basis of an error of law – Costs certificates under the Federal Proceedings (Costs) Act 1981 sought and granted in respect of the appeal and the re-hearing

Family Law Act 1975 (Cth) ss 75(2), 79, 93A(2)
Child Support (Assessment) Act 1989 (Cth) ss 102, 177, 123, 124, 125, 126

Adam P Brown Male Fashions Pty Ltd v Phillip Morris & Anor (1981) 148 CLR 170
Aleksovski & Aleksovski (1996) FLC 92-705
Bellenden (formerly Satterthwaite)  v Satterthwaite [1948] 1 All ER 343
Brodie & Brodie [2009] FamCAFC 6
CDJ v VAJ (No 1) (1998) 197 CLR 172
Clauson & Clauson (1995) FLC 92-595
Gyselman & Gyselman (1992) FLC 92-279
Hendy & Deputy Child Support Registrar & Webb (2001) 27 Fam LR 641
Ivanovic & Ivanovic (1996) FLC 92-689
Kowaliw & Kowaliw (1981) FLC 91-092
Lightfoot & Hampson (1996) FLC 92-663
Norbis & Norbis (1985-1986) 161 CLR 513
Rutherford & Rutherford (1991) FLC 92-255
Steinbrenner & Steinbrenner [2008] FamCAFC 193

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AGLC
Syme & Wroe [2009] FamCAFC 89
Case
[2009] FamCAFC 89
Decision Date

CaseChat Overview and Summary

In the appeal, the husband contested the property settlement orders made by the Federal Magistrate. The husband argued that the Federal Magistrate had not adequately explained her reasoning for assessing the parties' contributions to the marriage and that the resulting property settlement was unfair. The wife, on the other hand, contended that the Federal Magistrate's assessment of contributions was correct and that the property settlement was fair. The court was required to determine whether the Federal Magistrate had erred in her assessment of the parties' contributions and whether the resulting property settlement was within the reasonable ambit of discretion.

The court found that the Federal Magistrate had not adequately explained her reasoning for assessing the parties' contributions. The court noted that the Federal Magistrate had found that the husband had made a significantly greater initial contribution to the marriage but that the parties' non-financial contributions during the course of the marriage were equal. The court also noted that the Federal Magistrate had found that post-separation contributions favoured the wife. However, the court found that the Federal Magistrate had not adequately explained how she had weighed these factors to arrive at her assessment of the parties' contributions. The court found that the Federal Magistrate had failed to consider the monetary impact of the adjustment and had failed to explain the factors warranting such a significant adjustment. The court found that the effect of the mix of assets retained by the husband had not been given appropriate weight.

The court allowed the appeal and set aside the orders of the Federal Magistrate. The court found that the Federal Magistrate's failure to adequately explain her reasoning for assessing the parties' contributions meant that the resulting property settlement was outside the reasonable ambit of discretion. The court remitted the application for settlement of property for rehearing before a different Federal Magistrate. The court also granted the husband leave to appeal and allowed the appeal on the ground that the Federal Magistrate had failed to identify any special circumstances warranting the order that non-periodic child support payments not be credited against the administrative assessment. The court granted costs certificates to both parties.

The court's decision in Syme & Wroe highlights the importance of providing adequate reasons for discretionary judgments in family law matters. The court found that the Federal Magistrate's failure to adequately explain her reasoning for assessing the parties' contributions meant that the resulting property settlement was outside the reasonable ambit of discretion. The court also found that the Federal Magistrate had failed to identify any special circumstances warranting the order that non-periodic child support payments not be credited against the administrative assessment. The decision serves as a reminder to practitioners that it is essential to provide clear and detailed reasons for discretionary judgments in family law matters.

Orders

Orders of the court

1.

The husband’s application for leave to appeal Orders 9, 10 and 11 made 3 June 2008 is allowed.

2.

The appeal against Orders 2, 9, 10 and 11 of Federal Magistrate Sexton made 3 June 2008 is allowed.

3.

Orders 2, 9, 10 and 11 of the orders of Federal Magistrate Sexton made 3 June 2008 be set aside.

4.

The application for settlement of property be remitted for rehearing before a Federal Magistrate other than Federal Magistrate Sexton.

5.

That the Court grants to the appellant husband a costs certificate pursuant to 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 in respect of the costs incurred by him in relation to the appeal.

6.

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 in respect of the costs incurred by her in relation to the appeal.

7.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Later, at paragraph 65, her Honour set out her conclusions about post separation financial contributions and said:On a weighing of these factors, particularly the fact that the husband withdrew substantial funds from the parties’ joint accounts and did not meet the mortgage payments after July 2005, I am satisfied the parties’ financial contributions after separation favour the wife. [emphasis added] Thereafter, her Honour turned to consider “Non-financial contributions and contributions to the welfare of the family after separation”. Having noted the care arrangements for the children her Honour accepted submissions made on the wife’s behalf that for the period after separation the wife had made the “greater overall contributions” (to the welfare of the family). Her Honour then proceeded, under the heading “Conclusion on overall contributions”, to record each party’s submissions on contribution and to set out her conclusions as follows:On a weighing of each party’s contributions during cohabitation and after separation, I assess the husband’s contributions at 52% and the wife’s contributions at 48% of the net pool available for distribution. (paragraph 70) Grounds 1 and 2 were directed to an asserted of lack of adequate reasons by the Federal Magistrate, and an asserted “double counting” error. The husband’s counsel submitted her Honour had failed “to articulate the degree to which she took the husband’s initial contribution (relative to other contributions found) into account in determining ultimate contributions overall” (husband’s submission page 1). Counsel for the husband further submitted that the Federal Magistrate had, at paragraph 54, made a finding that the husband made “a greater overall contribution because of his substantially greater initial contribution” but he submitted she failed to give any reason as to how her findings translated into her assessment of contributions of 52 per cent by the husband and 48 per cent by the wife. It was asserted the learned Magistrate had fallen into error by “double counting the income earned by the wife when concluding that the divergence or difference of contributions was significantly lessened by that fact.” It was submitted:… At that point of the judgment it is respectfully submitted that a reader of the judgment would not have any idea as to where contributions fell at that time so as to understand the next phase of the judgment dealing with contributions post-separation, as it is submitted that the learned Trial Magistrate gives no adequate or any reasoning as to her conclusion as to contributions found at paragraphs 69 and 70. (Husband’s submissions, unnumbered p 3) This was an appeal against a discretionary judgment. The limits on appellate interference with such a judgment are well known. In Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 Asquith LJ said:… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.