Atkins and Hunt (No 2)
[2015] FamCA 707
•21 August 2015
FAMILY COURT OF AUSTRALIA
| ATKINS & HUNT (NO. 2) | [2015] FamCA 707 |
| FAMILY LAW – PROPERTY – Whether the Court has jurisdiction under section 83 to hear the wife’s application to vary a spousal maintenance order – Where the order sought to be varied was made on a final basis and is no longer in force – No jurisdiction found – Where the wife then sought leave to amend the application so that the orders are sought under section 74 – Where the matter is under appeal and the trial judge dismissed the wife’s stay application - Leave to amend dismissed. |
| Family Law Act 1975 (Cth) ss 44, 80, 83 |
| Taylor v Taylor (1979) FLC 90-674 In re VGM Holdings Limited [1941] 3 All ER 417 Cameron & Cole (1944) 68 CLR 571 |
| APPLICANT: | Ms Atkins |
| RESPONDENT: | Mr Hunt |
| FILE NUMBER: | SYC | 425 | of | 2012 |
| DATE DELIVERED: | 21 August 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 21 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Othen |
| SOLICITOR FOR THE APPLICANT: | Paltos Milevski Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | Sexton Family Law |
Orders
The Initiating Application filed on 14 July 2015 is dismissed.
The listings on 7 October 2015 and 23 November 2015 be vacated.
The wife’s oral application for leave to amend the Initiating Application filed on 14 July 2015 to include an application for orders pursuant to section 74 of the Family Law Act 1975 (Cth) is dismissed.
The husband is to file and serve any application for costs, together with supporting material and the husband’s submissions, within 14 days.
The wife is to file and serve any response to the husband’s application for costs, together with any supporting material and submissions, within 28 days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkins & Hunt (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 425 of 2012
| Ms Atkins |
Applicant
And
| Mr Hunt |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
In this matter, an Initiating Application was filed by the wife on 14 July 2015 for orders under section 83 of the Family Law Act1975 (Cth) (“the Act”) dealing with modification of spousal maintenance orders. Section 83(1)(f) of the Act provides that, “if there is in force an order (whether made before after the commencement of this Act) with respect to maintenance of a party to a marriage”, the Court has power to “… vary the order, so as to increase or decrease any amount ordered to paid or any other manner.”
The orders sought to be varied by the wife’s application under section 83 were orders made by Aldridge J on 4 December 2014. In particular, Aldridge J ordered, in Order 6, that “upon completion of the sale of the [B Street] property”, which was a property owned by the parties, “all existing orders in relation to that property, and for spousal maintenance, are discharged”.
The phrase “completion of the sale” is reasonably construed as being the time of settlement, when the monies changed hands, which I understand was on 17 July 2015. Counsel for the wife argued, therefore, that when the Application was filed on 14 July 2015, the Application was within jurisdiction under section 83 because there was, as at 14 July, still an order in place concerning the maintenance of a party to the marriage, namely the wife.
It is unnecessary to determine the question as to whether the Court had jurisdiction under section 83 as at 14 July 2015. The Court now has no jurisdiction to make an order under section 83 because, as at the date of hearing, there is no longer an order in force in respect to spousal maintenance. I therefore find that the Court is without jurisdiction to make an order under section 83.
Counsel for the wife indicated that if that was a possible finding, that is, that the Court is without jurisdiction under section 83, then the wife would seek leave to amend the Initiating Application to state that orders are sought under section 74 of the Act. In that respect, counsel for the wife indicated that the amendment would reflect the Minutes of Order as sought in the wife’s case outline document for hearing on 21 August 2015, which was filed on 20 August 2015.
Counsel for the husband opposed that application to amend the Initiating Application on the basis of several grounds including, most relevantly, that it would effectively circumvent section 44(3) of the Act, which requires an application for spousal maintenance to be brought within 12 months of a divorce, unless the leave of the Court is given.
Counsel for the husband indicated that the leave of the Court should not be given to amend the Initiating Application because the application had not been regularised and there had not been an opportunity for the husband to reply or prepare the material that he would wish to present to the Court, to answer such an Application for leave to bring proceedings under section 74.
Counsel for the wife, on the other hand, argued that the nature of the material that has been submitted as part of the wife’s application, that is the application under section 83, is such that the husband is not disadvantaged in the consideration of a leave application under section 44(3).
So, in other words, for the Court to grant an application to allow the wife to bring proceedings under section 74 it would be necessary for the Court to allow the wife to amend her Initiating Application that was filed on 14 July 2015 and then, presumably, consider an application for leave to bring proceedings under that amended Application. Counsel for the wife submitted that the Court was in a position to do so because the parties had effectively prepared material concerning that issue.
Counsel for the husband submitted that his client would want the opportunity to more fully consider that issue. There are important natural justice considerations in providing an opportunity for that to be done.
Another consideration is the principle of finality as discussed by the High Court of Australia in Taylor v Taylor[1] and a number of cases of this Court which have referred to the principle. The starting point, in that respect is the decision of Aldridge J made on 4 December 2014. An application was made for his Honour to stay that decision. That stay application was filed on 8 April 2015 and was heard on 16 April 2015 and his Honour did not grant a stay.
[1] (1979) FLC 90-674 at [78,590] and [78,595].
Accordingly, the appeal will proceed with Aldridge J’s decision remaining in force. One of the orders sought in the appeal is Order 4 of the appellant wife’s Notice of Appeal for “spouse maintenance to be remitted for rehearing by a single judge of the Family Court of Australia, other than the Honourable Justice Aldridge”. So, in other words, the issue of spousal maintenance is presently being agitated in the Court by way of appeal.
Based on the principle of finality, that is, Aldridge J has made his decision on 4 December 2014, there is no doubt whatsoever that His Honour would be functus officio and unable to reopen that decision.[2]
[2] In re VGM Holdings Limited [1941] 3 All ER at 417, referred to by the High Court of Australia in Cameron & Cole (1944) 68 CLR 571 per Rich J at 590.
Aldridge J made his decision on 4 December 2014 and, according to the finality principle, he has dealt with the property and maintenance issues in that decision. Quite appropriately, and in accordance with the applicant wife’s entitlements, an appeal has been filed against that decision. The wife has every right, of course, to proceed with that appeal. The wife also had every right to apply for a stay of Justice Aldridge’s decision and, insofar as the stay was not granted, the wife had a right to appeal from that decision refusing the stay.
The applicant wife has argued that section 80(2) empowers the Court, at any stage, to consider a maintenance application, even in the circumstances that I have outlined, where there has been a decision in respect of maintenance, and that decision is under appeal. Again, without deciding whether that is or is not the case, it would clearly be a factor that the Court would need the parties to address in respect to any application for leave under section 44(3). The husband is also entitled to explore all issues, including issues regarding the leave application.
Counsel for the husband observed that if the wife believes there is power under section 80(2) to bring a fresh application for maintenance that she is entitled to do so. In so applying, she will obviously confront the hurdle of section 44(3) in terms of getting leave.
Counsel for the husband has indicated that, in the circumstances, his client would be prejudiced in responding to that application today. Aside from natural justice considerations in avoiding that prejudice, the Court has indicated that it would also like the opportunity to be addressed by the parties on those broader public policy issues, in terms of the utilisation of the Court’s time when these matters are already before the Full Court by way of appeal.
On that basis I will dismiss the application under section 83 of the Act and also the wife’s application for leave to amend her Initiating Application to include orders under section 74.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 August 2015.
Associate:
Date: 26.08.2015