Andreas & Gabris
[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 Rayhill and 2 ors [2006] NSWSC 578
Redman and Redman (1987) FLC 91-805; [1987] FamCA 2
Seden & Kehoe [2020] FamCAFC 294
Strahan & StrahanInterim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Zschokke & Zschokke (1996) FLC 92-693; [1996] FamCA 79
Number of paragraphs: 67 Date of hearing: 10 June 2021 Place: Perth Counsel for the Appellant: Mr Strum of Queen’s Counsel with Mr Moser of Counsel Solicitor for the Appellant: Crossing Family Lawyers Counsel for the Respondent: Mr Hedges of Senior Counsel Solicitor for the Respondent: O’Sullivan Davies ORDERS
WEA 9 of 2021
PTW 9394 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ANDREAS
Appellant
AND: MS GABRIS
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
29 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal against paragraph 2 of the Order made by the primary Magistrate on 22 March 2021 be dismissed.
2.The application for leave to appeal against paragraph 1 of the said Order be granted, the appeal against that Order be allowed, and that Order be set aside.
3.The proceedings in relation to the lump sum amount of $298,230 sought by the respondent wife for renovations be remitted for rehearing to the Magistrates Court of Western Australia to be heard by a Family Law Magistrate other than the primary Magistrate.
4.The Court grants to the appellant husband a costs certificate pursuant to the provisions of 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 husband in respect of the costs incurred by him in relation to the application for leave to appeal and the appeal against paragraph 1 of the Order made on 22 March 2021.
5.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 wife in respect of the costs incurred by her in relation to the application for leave to appeal and the appeal against paragraph 1 of the Order made on 22 March 2021.
6.The Court grants to each party 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 party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of the proceedings seeking an order for a payment of a lump sum for renovations.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andreas & Gabris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Notice of Appeal filed on 24 May 2021, Mr Andreas (“the husband”) seeks leave to appeal, and if leave is granted to appeal against two of the orders made by a Family Law Magistrate of the Magistrates Court of Western Australia on 22 March 2021. Ms Gabris (“the wife”) opposes the granting of leave, and the appeal if leave is granted.
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
There are two grounds of appeal in relation to the lump sum payment order, and two grounds of appeal in relation to the interim spousal maintenance order.
The lump sum payment order
Ground 1 – The Learned Magistrate erred:
(a) in law in the exercise of his discretion in taking into account as an irrelevant consideration the then lapsed open offer made by the [husband];
(b) in fact by:
(i) ignoring the [husband’s] evidence that the [wife] had asked him to pay amounts totalling about $248,000 for renovations that she had commissioned, and that he had already paid that sum ($230,000 to the [wife] and about $18,000 to a designer);
(ii) conflating the [husband’s] agreement to pay for some renovations to the Former Matrimonial Home, with an agreement to pay for all the renovations sought to be performed by the [wife];
(iii) failing to address the question of whether, as denied by the [husband], the further renovations were required to be performed at this point in time; and
(iv) failing to take into account his own finding that the [wife] had sufficient funds to pay for her legal fees and could liquidate certain assets.
As to (a), on 13 April 2020, an open offer was made to the wife to settle the entire proceedings. However, the offer was not accepted, and it lapsed on 17 April 2020. Thus, as at the date of the hearing before his Honour, the husband’s position in relation to the orders that he sought was as set out in his Final Orders Application filed on 24 March 2020.
It is plain that his Honour not only referred to the lapsed open offer in his reasons for judgment, but that he relied on it in making the order for the lump sum payment. For example, his Honour said this:
5One of the principles that applies is that the court must consider the amount sought, the amount potentially to be received at the end of the day by way of a property settlement entitlement and whether there is prospect of recovering any amount paid in the event a trial judge orders less than is paid on an interim basis.
6Here:
…
(c)[The husband] made an open offer to settle (part of his tender bundle “A”). That offer included a payment of $1 million to [the wife]. On top of that payment, [the wife] was to retain all property in her own name. The payment sought, therefore, is less than [the husband] concedes that she should receive on an overall basis.
(d)if the payments were made as partial property settlement orders, there could be no prejudice to [the husband].
And further:
9[The husband], in his submissions, disputes that the renovation costs are necessary in the interim. He points out that his Form 1 application seeks to have that property sold. In his open offer, however, he concedes that the property should remain with [the wife]. He does not dispute the fact that he commissioned the renovations. I find, therefore that the amount should be paid by [the husband] to allow the work to be finalised.
In most cases it would not be open to his Honour to refer to and rely on a lapsed open offer in that way, but here his Honour was in effect invited by the husband to take that open offer into account. First, the open offer was included in the husband’s tender bundle, and secondly, in outlining what the husband sought by way of orders, his senior counsel said this:
The husband for his part seeks that the wife retain the property that she brought into the relationship, and that the property that they purchased together be sold and the proceeds of sale paid to him. The court, however, will know from the first document in the tender bundle that the husband has available to the wife an open offer of settlement significantly better than that. …
(Transcript 1 December 2020, p.10 line 49 – p.11 line 4)
(My emphasis)
Thus, in this instance, I find that it was open to his Honour to refer to and rely on the open offer, albeit it had lapsed, for the purposes of gauging whether the lump sum payment sought by the wife was less or more than the wife might receive on a final basis.
Accordingly, there is no merit in this ground of appeal.
Ground 2 – The Learned Magistrate erred in law in making an order for the [husband] to make payment of $298,000 to the [wife] without characterising the nature of such payment and also without also requiring the [wife] to only use the funds towards the renovations of the Former Matrimonial Home
It is convenient to address Ground 2 before Ground 1(b) because the issues raised in the former provide context to the issues raised in the latter.
It is plain that in the order his Honour made that he did not “characterise the nature of the payment”, but it is equally plain from his Honour’s reasons for judgment the nature of the order he was making, namely an interim property settlement order.
The wife’s case before his Honour was that the order could be made by way of interim property settlement or lump sum maintenance (paragraph 32 of the wife’s submissions dated 27 November 2020), and his Honour determined to make an interim property settlement order.
In [3] his Honour said this, bearing in mind that the reference to the costs power would usually only apply to the litigation costs sought by the wife:
[The wife] seeks two payments which together total $598,230. She asked for these payments [sic] be characterised by the trial judge. She relies upon a combination of the property settlement power, the maintenance power or the costs power in justifying those payments.
Then his Honour said this:
7I must be satisfied that there is a proper reason to exercise the property settlement power on an interim basis.
And that was immediately followed by his Honour making his findings and arriving at his decision as follows:
8Of the amount claimed, $298,230 is required to complete renovations to the Y property. This is a property in which [the wife] resides. She says that [the husband] commissioned the work prior to separation and that the work is required to “preserve and maintain the state” of the property, as it is in disrepair.
9[The husband], in his submissions, disputes that the renovation costs are necessary in the interim. He points out that his Form 1 application seeks to have that property sold, in his open offer, however, he concedes that the property should remain with [the wife]. He does not dispute the fact that he commissioned the renovations. I find, therefore that the amount should be paid by [the husband] to allow the work to be finalised.
Thus, there is no merit in the first part of this ground.
The husband submits though, that because in the order his Honour left the characterisation of the payment to the trial judge, his Honour did not in fact make the order pursuant to the power in s 79 of the Family Law Act 1975 (Cth) (“the Act”). Prima facie that argument has some attraction, because if it was an interim property settlement order, it was not open to his Honour to leave its characterisation to the trial judge; its characterisation simply could not change. However, in light of my finding that this was an interim property settlement order, the addition of the words “with such amount to be characterised by the trial judge” can be viewed as infelicitous and disregarded.
However, there is a far more significant point made by the husband in his oral submissions, namely that if the head of power is s 79 of the Act, it was necessary for the Magistrate to observe the requirements of s 79(2) and s 79(4). In other words, to find that the order is just and equitable, that the respective contributions of the parties and their future needs provide the basis for the order being made. The Full Court said this in Zschokke & Zschokke (1996) FLC 92-693 at 83,216:
…If the order is to be made under s 80(1)(h), it would seem that regard should be had to the requirement in s 79 that the orders be just and equitable and this would require the Court to undertake at least some brief consideration of the matters in s 79(4) including those referred to in s 75(2). If on a brief consideration of those matters, it seems likely to the Court that the party who is the applicant for the interim order for an advance of funds from the other party will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made … .
(Paragraph citations omitted)
Plainly his Honour did not do that, and that was conceded by the wife. In defence of his Honour though, the wife’s senior counsel attempted to argue that, where there was a concession by the husband in the form of an open offer that the payment sought is less than what the wife is likely to receive on an overall basis, then it was unnecessary to address s 79. However, that argument was not put with any force, and the wife’s senior counsel was unable to cite any authority for that proposition. Indeed, all authority points the other way, and the importance of requiring specification of the head of power that is being relied on is to identify the necessary pre- conditions and relevant considerations for making the order (Zschokke; Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 and Paris King Investments Pty Ltd & 1 ors v Michael Norman Rayhill and 2 ors [2006] NSWSC 578 at [33]). A concession in the form of an open offer that the amount sought is less than the amount that the wife might receive on an overall basis, is not a substitute for this requirement; it can only affect the extent to which s 79 needs to be considered, depending on its terms and noting that there can be many reasons why an open offer is made.
In any event, his Honour has erred in failing to address s 79, even briefly, and that must lead to leave to appeal against this order being granted and the appeal being allowed.
For completeness though, turning to the second part of the ground, namely the failure by his Honour to require the wife to only use the funds towards the renovations, there is no error here given the head of power utilised by his Honour.
If a lump sum amount is ordered to be paid by way of interim or partial property settlement, then it is open to the recipient to utilise that money as they see fit (e.g. see Strahan).
Thus the fact that the amount sought is calculated on the basis of the cost of finishing off the renovations, provides the “appropriate circumstances” or “the proper case” for the order to be made (Harris & Harris (1993) FLC 92-378 at 79,928 and 79,929; Strahan at [158] and [231]), but cannot restrict or limit the use of the funds that are ordered to be paid.
To also address Ground 1(b), the first point to make is that it is not necessary for a judge in his or her reasons for judgment to refer to every fact or argument that is raised in the proceeding (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). It is strictly only necessary to address and deal with what is relevant to the issues before the court, and the decision that has to be made.
Thus, it was not necessary for his Honour to refer to the evidence that the husband had paid the total amount of $248,000 up front for renovations agreed upon by the parties prior to separation. That had no relevance to the issue before his Honour.
Similarly, it was not necessary for his Honour to address “the question of whether … the further renovations were required to be performed at this point in time”.
There was a quote for $298,230 to complete the renovations, and the use made of that was to provide the calculation of the amount of the order sought by the wife. To repeat though, because the amount sought and ordered was by way of interim property settlement, the wife was not constrained to actually use the funds to pay for the renovations.
The wife was not required to demonstrate compelling circumstances as to why the order should be made, only that it was appropriate or proper in the context of s 79 of the Act (Strahan). Thus, she did not have to demonstrate that the renovations needed to be made precisely at the time of the hearing. And significantly, it was unnecessary for his Honour to delve into the history of the renovations, and consider who did what, and who paid what. For example, it was irrelevant whether the husband had commissioned only some of the renovations or all of them, and thus, although it appears that his Honour may have erred in saying in [9] that the husband does not dispute the fact that he commissioned the renovations, that is an error without consequence.
Finally, there is the allegation that his Honour failed to take into account “his own finding that the [wife] had sufficient funds to pay for her legal fees and could liquidate certain assets”.
Plainly, his Honour was aware of how he dealt with the lump sum claim for litigation costs given the positioning of [9], vis a vis [10], but it can legitimately be contended that he provided no obvious reason for not addressing the claim for an interim property settlement in the same way. It must be said though that having provided for the husband to pay the wife the amount of $298,320 by way of interim property settlement, it was well within his discretion to find that he was not convinced that he should exercise the power to order a further payment, given that he was satisfied that the wife could meet her legal costs by liquidating assets.
I am not persuaded that that demonstrates error by his Honour such that on this basis the interim property settlement order should be set aside.
Thus, in summary, there is no merit in any of Ground 1 or the two aspects of Ground 2 as pleaded, but his Honour erred in failing to address s 79 in making the interim property settlement order, and that is fatal to being able to uphold that order.
Interim periodic spousal maintenance order
Ground 3 – The Learned Magistrate erred:
(a) in law by:
(i) failing to address what, if any, spousal maintenance is payable “in all the circumstances” by referring to a number of decisions all of which were made against the background of relationships lasting at least 20 years and where the parties had children;
This is a complaint that cannot succeed.
The decisions referred to by his Honour in the context of considering the standard of living which is reasonable in all the circumstances were cited for the principle involved, and not to provide a factual comparison with this case.
Further, I reject the assertion that his Honour failed to engage with the question required to be addressed in applying s 72, s 75(2) and s 74 of the Act (see [11]–[17] followed by the balance of his Honour’s reasons for judgment).
Ground 3(a)(ii) – failing to give adequate reasons for his finding that the [wife] was entitled to a similar standard of living as the [husband], despite the finding that the [wife] made no contribution to the [husband’s] earning capacity and that the parties were married and cohabited for approximately 2½ years;
This ground also has no merit. His Honour did not find that the wife was “entitled to a similar standard of living” as the husband. His Honour appropriately addressed this issue by examining the claimed expenses of the wife in order to determine if they could be “reasonably characterised as necessary commitments in the context of an interim dispute” ([34]).
Ground 3(a)(iii) – having determined to make an order for the [husband] to pay for renovations to the Former Matrimonial Home, failing to adjust the claims for same expenses made by the [wife] and thereby double-counting these expenses;
First, and to repeat, his Honour’s interim property settlement order was calculated by reference to the quote for the cost of the renovations, and necessarily did not require the money to be used for that purpose. Secondly, and in any event, the husband does not identify the expenses that allegedly should have been adjusted as a result of the interim property settlement order, save and except to refer to the expense of “home repairs”. However, the lump sum was calculated on the costs of renovations and not repairs per se, and in any event, his Honour did substantially adjust the amount claimed for home repairs downwards.
This ground is without merit.
Ground 3(a)(iv) – having made an order for an uncharacterised payment by the [husband] to the [wife] of a very significant sum, failing to take that sum into account when determining her resources;
Again, this claim cannot be maintained.
His Honour said this:
The terms of any order made or proposed to be made under section 79:
41The court must consider any relevant property orders before determining the spousal maintenance issue, as it may be that [the wife] will have the capacity to support herself adequately from her own resources, once an order for adjustment of property is made. It is, however, the case that a party is not required to utilise assets to support themselves before making a valid claim against the other party’s income.
And see [55] and [56].
Ground 3 – The Learned Magistrate erred:
(b) – in fact in finding that:
(i) although the [wife’s] taxable income was less than $15,000 per year for the 3 years preceding the marriage, after a marriage of some 2½ years an interim spousal maintenance amount of $7,500 per week was appropriate and reasonable;
The circumstance that the taxable income of the wife was less than $15,000 for three years preceding the marriage cannot govern what amount of interim spousal maintenance is now appropriate or reasonable.
There is no merit in this ground of appeal.
Ground 3(b)(ii) – attributing a figure to a variety of expenses of the expenses claimed by the [wife] on an entirely arbitrary basis, in some instances with “little evidence”, no substantiation or “little to substantiate”;
This was a claim for interim spousal maintenance, and as such, his Honour’s approach of examining “the claimed expenses in a truncated fashion to determine if any do not meet the test as to whether they can be reasonably characterised as necessary commitments in the context of an interim dispute”, was entirely appropriate.
It must be remembered that when dealing with interim spousal maintenance it is accepted that it is generally dealt with in a summary way, and the judicial officer can adopt a broad brush approach in making findings and expressing reasons (Meadows& Meadows (2019) FLC 93-883, Seden & Kehoe [2020] FamCAFC 294, Keymer & Keymer [2020] FamCAFC 70) for example the Full Court said this in Redman and Redman (1987) FLC 91-805 at 76,081:
[O]n an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson (1978) FLC 90-505; (1978) 4 Fam LR 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. “The evidence need not be so extensive and the finding not so precise.” Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.
It also must be remembered that here there was no challenge by the husband to the individual expenses claimed by the wife, and his Honour was left to make his findings on the basis of the wife’s evidence. As such, the specific amounts fixed by his Honour were not “arbitrary”; they were within the parameters of the amount claimed, and the adjustment was explained by his Honour (see [50]).
Ground 3(b)(iii) – the [wife] has no earning capacity thereby relying solely on the report by Dr H which referred to “paid employment” and ignoring:
A. the history of the [wife] of conducting a business and employing other persons;
B. the capacity of the wife to utilise the assets in her name to derive income;
C. the surveillance evidence showing the [wife] engaging in activities entirely inconsistent with the report by Dr H; and
D. the evidence of the [wife] going on a skiing holiday in August 2020, just prior to her appointment with Dr H and the lack of reference in his report to that holiday.
Plainly, his Honour relied on the report of Dr H to find that the wife “cannot work in a paid capacity” ([20]), but his Honour was entitled to do that, coupled with the wife’s own evidence. The evidence of Dr H was uncontested expert evidence, and although the husband’s senior counsel alleged during the hearing before his Honour that the report was flawed, she indicated that “that will have to wait for a different day” (Transcript 1 December 2020, p.16 lines 16–17). Despite this, she did raise some suggested flaws, but without having cross-examined the doctor, or presenting alternative expert evidence.
Thus, it was clearly open to his Honour to proceed on the basis of accepting the report and making findings as to the wife’s ability to support herself in the context of this being an application for interim spousal maintenance.
It is asserted that his Honour ignored the “surveillance evidence”, but Dr H had that evidence, and referred to it in his report. However, it made no difference to his opinion as to the wife’s ability to undertake paid work, and thus there was no need for his Honour to refer to it. Indeed, I fail to see how a video showing the wife being able to “take lengthy walks” and “lengthy drives” demonstrates her ability to support herself.
In a similar vein, the husband sought to rely on various transactions in the wife’s bank statements that allegedly demonstrated that the wife had been at Thredbo just before seeing Dr H. The submission appeared to be that if the wife was at Thredbo, she was there to ski, and thus that casts doubt on her ability to support herself. I am afraid the link between the two escapes me.
As can be seen, the assertion is also made in this ground of appeal that his Honour ignored “the capacity of the wife to utilise the assets in her name to derive income”. However, there is very little by way of submission in support of this assertion, and thus it is somewhat difficult to address it. The most that is said is in paragraph 22 of the husband’s summary of argument filed on 24 May 2021, namely that his Honour failed to take into account the ability of the wife to “derive income from investments”. However, the wife’s assets comprised a property in which she resided, another property that she rented out as an Air BNB, and a share portfolio. The wife did previously operate her […] business from a clinic at the property she rented out, but that clinic was closed, and she explained why it could not be restored in paragraphs 129 and 130 of her affidavit filed on 1 September 2020. Thus, it is unclear to what the husband is referring in this aspect of this ground, although there seems to be a suggestion that the wife could sub-let the clinic premises, which was something she allegedly did at one stage. However, that is speculative, and does not provide any basis for his Honour to find that the wife would be able to support herself by embarking on that exercise.
That segues into the contention that his Honour ignored “the history of conducting a business and employing other persons”. It is again clutching at straws to suggest that not being able to work in the industry because of what his Honour accepted were a number of debilitating injuries, including post-traumatic stress disorder, would not prevent the wife from resuming the running of a business. His Honour clearly did not accept that in finding that the wife could not adequately support herself by reason of a lack of physical or mental capacity for work, and nor do I.
This ground of appeal also fails.
Ground 4 – His Honour’s finding that, although the wife’s taxable income was less than $15,000 per year for the 3 years preceding the marriage, after a marriage of only some 2½ years, an interim spousal maintenance amount of $7,500 per week was appropriate, was neither:
(a) reasonable in all the circumstances; nor
(b) proper,
and well outside the reasonable ambit of the discretion.
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.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 29 September 2021
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