Andrews & Andrews - [2007] FamCA 562

FAMILY COURT OF AUSTRALIA

ANDREWS & ANDREWS

[2007] FamCA 562

FAMILY LAW - APPEAL – SPOUSAL MAINTENANCE – APPLICATION FOR LEAVE – SECTION 44(3) - Whether trial Judge erred in finding appellant failed to adduce any evidence which satisfied s 44(4)(b) - No error by trial Judge in determining appellant did not place admissible evidence before Court or conduct his case on basis that he satisfied requirements of s 44(4)(b) for the granting of leave – Trial Judge correct to focus on question of hardship, that is, s 44(4)(a) - Whether trial Judge erred in exercise of discretion in refusing appellant’s application for leave on hardship grounds - No error by trial Judge in exercise of discretion in taking into account history of appellant’s conduct in s 79 proceedings – Trial Judge carefully analysed evidence relevant to issue of hardship to the appellant and matters relevant to the exercise of discretion should hardship be established - No error by trial Judge in relation to this matter - Trial Judge’s finding appellant had failed to give acceptable reason for long delay was a relevant matter to be taken into account in the exercise of discretion in refusing leave. Appeal dismissed.

FAMILY LAW - COSTS – COSTS OF APPEAL – Appellant wholly unsuccessful – Appropriate appellant pay respondent’s costs of appeal.

Family Law Act 1975 (Cth), ss 44(3) and (4), 72, 74, 75(1), (2) and (3) and 118

Cawthorn v Cawthorn (1998) FLC 92- 805
Cory v Gertcken (1816) 2 Madd 40; 56 ER 250
Gronow v Gronow(1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
Whitford v Whitford (1979) FLC 90-612

Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (Sydney: Butterworths, 4^th ed, 2002)

APPELLANT:

Mr Andrews

RESPONDENT:

Mrs Andrews

FILE NUMBER:

PAF

4046

1994

APPEAL NUMBER:

2006

DATE DELIVERED:

8 June 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Finn, Coleman & Boland JJ

HEARING DATE:

7 November 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 December 2005

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Andrews appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

Pearson Family Lawyers

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 Andrews v Andrews.

Orders

That the appeal is dismissed.
That the husband within 21 days of the date of this order pay the wife costs in the sum of $2,800.00.
That Order 3 of the orders made by the Honourable Justice Waddy on 3 April 2006 be varied by the addition of the following words “and the costs order made by the Full Court on 8 June 2007”.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 04 of 2006
File Number: PAF 4046 of 1994

Mr Andrews

Appellant

And

Mrs Andrews

Respondent

REASONS FOR JUDGMENT

Introduction

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 Andrews & Andrews

Details

AGLC: Andrews & Andrews [2007] FamCA 562
Case: [2007] FamCA 562
Decision Date: 8 June 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by the appellant, Mr Andrews, against a decision of a trial judge who had refused his application for leave to bring an application for spousal maintenance out of time. The dispute centred on whether the trial judge had erred in finding that Mr Andrews had failed to adduce evidence satisfying the requirements of section 44(4)(b) of the *Family Law Act 1975* (Cth) and in the exercise of discretion in refusing leave on hardship grounds.

The legal issues before the Full Court were whether the trial judge had erred in determining that Mr Andrews had not placed admissible evidence before the court or conducted his case on the basis that he satisfied the requirements of section 44(4)(b), and whether the trial judge had erred in the exercise of discretion in refusing leave on hardship grounds, particularly in light of the appellant's conduct and the delay in bringing the application.

The Full Court found no error on the part of the trial judge. The judge correctly focused on the question of hardship under section 44(4)(a) and carefully analysed the evidence relevant to this issue and the matters relevant to the exercise of discretion. The trial judge was also correct to take into account the history of Mr Andrews' conduct in the related section 79 proceedings and his failure to give an acceptable reason for the long delay in bringing the spousal maintenance application. These were all relevant matters in the exercise of discretion.

Consequently, the appeal was dismissed. As the appellant was wholly unsuccessful, the Full Court ordered that he pay the respondent's costs of the appeal.

Orders