Andreas & Gabris

Case [2021] FedCFamC1A 24

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

Andreas & Gabris [2021] FedCFamC1A 24

Appeal from: Andreas & Gabris [2021] FCWAM 24
Appeal number(s): WEA 9 of 2021
File number(s): PTW 9394 of 2019
Judgment of: STRICKLAND J
Date of judgment: 29 September 2021
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – INTERIM PROPERTY – Where it was open to his Honour to rely on the appellant’s lapsed open offer – Where it was not open to his Honour to leave the characterisation of the lump sum payment to the trial judge – Where it was necessary for his Honour to observe the requirements of s 79(2) and s 79(4) to find that the order was just and equitable and the respective contributions of the parties and their future needs provided the basis for making the order – Where his Honour erred in failing to address s 79 – Leave to appeal granted – Appeal allowed – Order set aside.

APPEAL – INTERIM PERIODIC SPOUSAL MAINTENANCE – Where it is accepted that interim spousal maintenance applications are generally dealt with in a summary way and the judicial officer can adopt a broad brush approach in making findings and expressing reasons – Where there was no challenge by the appellant to the individual expenses claimed by the respondent and his Honour was left to make his findings on the basis of the respondent’s evidence – Where it was open to his Honour to proceed on the basis of the respondent’s expert evidence as to her ability to work and support herself in the absence of cross-examination of that witness and no alternative expert evidence being presented – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

COSTS – Where the appellant sought an order for costs in the event that leave to appeal was granted and the appeal against both orders was allowed – Where the respondent sought an order for costs in the event that leave to appeal was dismissed – Where there should be no order for costs in light of the outcome this Court has arrived at – Where each party should have costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates ordered for both parties in relation to the successful application for leave to appeal, the appeal against the lump sum payment order and the rehearing of those proceedings.
Legislation:

Family Law Act 1975 (Cth) s 72, s 75(2) s 74, s 79

Federal Proceedings (Costs) Act 1981 (Cth) – s 6, s 8, s 9
Cases cited:

Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67

Harris & Harris (1993) FLC 92-378; [1993] FamCA 49

Keymer & Keymer [2020] FamCAFC 70

Lindsey & Christie and Anor [2016] FamCAFC 132

Meadows& Meadows (2019) FLC 93-883; [2019] FamCAFC 1

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Paris King Investments Pty Ltd & 1 ors v Michael Norman…

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Andreas & Gabris [2021] FedCFamC1A 24
Case
[2021] FedCFamC1A 24
Decision Date

CaseChat Overview and Summary

In the case of Andreas & Gabris, the husband appealed against the orders made by the Family Court of Australia concerning the property settlement and spousal maintenance payments following his separation from his wife. The wife was awarded a lump sum of $298,000 and interim spousal maintenance of $7,500 per week. The husband contested the validity of these orders on various grounds, including the lump sum payment and the interim spousal maintenance order. The court was required to determine whether the Magistrate erred in making these orders and if there was substantial injustice that warranted the appeal.

The court assessed the grounds of appeal, particularly focusing on whether the Magistrate had erred in ordering the lump sum payment. The husband argued that the order was not justified as there was no certainty that the funds spent on renovations would be recouped if the property was sold. The court found that the Magistrate had erred in making the order for the lump sum payment, as it did not establish a clear basis for the award. However, the court found no merit in the grounds of appeal regarding the interim spousal maintenance order, as it was based on the husband's substantial income and the wife's poor health and lack of income.

The court granted leave to appeal due to the error in the lump sum payment order, and set aside the order for the lump sum payment. However, the appeal against the interim spousal maintenance order was dismissed as it lacked merit. The court decided to remit the proceedings for rehearing before a different Magistrate, as it was not feasible to re-exercise the discretion due to the potential need for controversial evidence. The court also determined that no order for costs should be made, but each party should receive a costs certificate for the successful application for leave to appeal and the appeal against the lump sum payment order, as well as for the rehearing of those proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The orders appealed provide for the husband to pay to the wife the sum of $298,000, and by way of interim spousal maintenance the sum of $7,500 per week.BACKGROUND The husband is now 73 years of age, and the wife is 58 years of age. The parties met in late 2016, and according to the husband, commenced cohabitation and married in 2017. They separated on a final basis in 2019. On 3 April 2017, the husband purchased a property at Y in New South Wales in the wife’s name, and that became the matrimonial home. Upon separation the wife remained living in that home. The husband is the non-executive chairman of a company, Z Limited, and his declared income is $46,852 per week. The declared value of his property is $270,522,153 with no liabilities. The wife is a health practitioner, but she is in poor health and is not working. Her declared income is $650 per week from dividends and rent. The declared value of her property is $4,115,217 with liabilities of $530,665, which includes the amount of $298,230 being the quoted cost of renovations at the Y property, and legal fees of $128,906.LEAVE TO APPEAL The now recognised test for leave to appeal to be granted is whether the decision of the Magistrate is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision was wrong (Medlow & Medlow (2016) FLC 93-692, but see Bass & Bass (2008) FLC 93-366, and Lindsey & Christie and Anor [2016] FamCAFC 132). As is often the case where leave to appeal and the appeal are heard at the same time, the husband relies on the success of the grounds of appeal to demonstrate a basis for reconsideration of the decision. Although that is not necessarily an ideal practice, that is how this case was run, and thus I will address the grounds of appeal first. The substantial injustice said to occur in relation to the lump sum payment order, is that if the property is sold as sought by the husband in the substantive proceedings, there is no telling if the money spent on renovations will be recouped in that sale. However, if it was found by the trial judge that the advance should not have been made, then the trial judge could simply order the wife to repay the amount, given the extent of the wife’s net assets. In any event, the husband’s senior counsel conceded that if the payment is by way of interim or partial property settlement, then there would be no difficulty in it being recovered by the husband in the context of the orders that would be made for final property settlement by the trial judge. The substantial injustice said to occur in relation to the interim order for spousal maintenance, is the prospect that the amounts the husband is obliged to pay the wife may not be recoverable if it is found that the order should not have been made. I again observe though that given the extent of the wife’s net assets, it is difficult to see how the amounts would not be recoverable. In any event, it will become unnecessary to address the issue of substantial injustice if the grounds of appeal have merit.THE APPEAL

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is nothing more than a repeat of Ground 3, and does not require any further comment, beyond saying that Ground 3 does not establish that his Honour has erred in the exercise of his discretion, and thus this ground has no merit.CONCLUSION Having found that his Honour erred in making the order for the lump sum payment, leave to appeal should be granted, the appeal against that order must be allowed, and that order set aside. However, there is no merit in the grounds of appeal in relation to the interim spousal maintenance order, and thus the application for leave to appeal that order must be dismissed. With the issue of the lump sum payment, the husband sought that the proceedings be remitted to the court below for rehearing by a Magistrate other than the primary Magistrate. The wife sought that this Court re-exercise the discretion, and in that event she indicated that she would be looking to adduce further evidence, and in particular as to her financial circumstances. However, that evidence would be controversial, and in those circumstances it would not be possible to re-exercise the discretion. This Court is not set up to hear and determine controversial evidence which would invariably require cross-examination. Thus, I propose to remit those proceedings for rehearing.COSTS The husband sought an order for costs in the event that leave to appeal was granted and the appeal against both orders was allowed. Likewise, the wife sought an order for costs in the event that leave to appeal was dismissed. Given the outcome that I have arrived at, I consider that there should be no order for costs. However, each party should have a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth), in relation to the successful application for leave to appeal and the appeal against the lump sum payment order, and in relation to the rehearing of those proceedings.

Ratio Decidendi

Legal Principle Established

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