ATKINS & HUNT
[2016] FamCAFC 230
•12 November 2016
FAMILY COURT OF AUSTRALIA
| ATKINS & HUNT | [2016] FamCAFC 230 |
| FAMILY LAW – APPEAL – SPOUSE MAINTENANCE – leave granted to the appellant wife to file a further Amended Notice of Appeal – leave to appeal – where the wife sought orders for interim and final spouse maintenance pursuant to s 83 of the Act – where the wife made an oral application for leave to amend her Initiating Application so as to permit her to seek an order for maintenance pursuant to s 74 of the Act – where the trial judge dismissed the wife’s Initiating Application finding that the court was without jurisdiction to make an order under s 83 – where the trial judge correctly made a finding that there was no order “in force” within the meaning of s 83 – where the trial judge dismissed the wife’s oral application for leave to amend on the basis that allowing the amendment would effectively circumvent s 44(3) of the Act – where the wife was not required to seek leave pursuant s 44(3) so as to permit any amended application for spousal maintenance to proceed – where the trial judge erred in law in considering the application of s 44(3) as a matter relevant to the exercise of the discretion in refusing leave – where the trial judge erred in taking into account “the finality principle”, “natural justice” and “prejudice” to the husband, as each was not relevant to the exercise of his Honour’s discretion – error established – leave to appeal granted – appeal allowed. |
| Family Law Act 1975 (Cth) ss 4, 31, 44, 72, 74, 80, 81, 82, 83, 94AA Acts Interpretation Act 1901 (Cth) s 15C Family Law Regulations 1984 (Cth) reg 15A |
Allesch v Maunz (2000) 203 CLR 172
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Caska and Caska (2002) FLC 93-092
Clauson & Clauson (1995) FLC 92-595
Fencott v Muller (1983) 152 CLR 570
Harris v Caladine (1991) 172 CLR 84
Hodgson & Hodgson (unreported, Family Court of Australia, Dawe J, 13 November 1998)
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1
IW v City of Perth (1997) 191 CLR 1
Lacey v Attorney-General (Queensland) (2011) 242 CLR 573
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Re Nolan; Ex parte Young (1991) 172 CLR 460
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261
Taylor v Taylor (1979) 143 CLR 1
The owners of the ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404
| APPELLANT: | Ms Atkins |
| RESPONDENT: | Mr Hunt |
| FILE NUMBER: | SYC | 425 | of | 2012 |
| APPEAL NUMBER: | EA | 158 | of | 2015 |
| DATE DELIVERED: | 12 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, May & Murphy JJ |
| HEARING DATE: | 23 & 24 August 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 August 2015 |
| LOWER COURT MNC: | [2015] FamCA 707 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC with Mr Stenhouse |
| SOLICITOR FOR THE APPELLANT: | Paltos Milevski Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC with Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Sexton Family Law |
Orders
That leave be granted to the appellant wife to file a Further Amended Notice of Appeal dated 24 August 2016.
That the appellant wife be granted leave to appeal.
That Appeal EA 158 of 2015 be allowed.
That Orders 1, 2 and 3 of the Orders made on 21 August 2015 be set aside.
That the appellant wife have leave to amend her Initiating Application filed on 14 July 2015 as sought by her before McClelland J.
The appellant wife file and serve any such Amended Initiating Application within 21 days of the date of these Orders.
The question of costs of this appeal be reserved with directions to be made in relation to the filing of written submissions together with any other costs submissions upon the delivery of Orders and Reasons in relation to Appeal EA 171 of 2014.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkins & Hunt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 158 of 2015
File Number: SYC 425 of 2012
| Ms Atkins |
Appellant
And
| Mr Hunt |
Respondent
REASONS FOR JUDGMENT
Bryant CJ
I have had the advantage of reading in draft the judgment of Murphy J and I agree with his Reasons and the Orders proposed by his Honour.
May J
I have had the considerable benefit of reading the Reasons of Murphy J in draft, and I agree with both the Reasons and the Orders proposed by his Honour.
Murphy J
On 14 July 2015, the wife filed an Initiating Application by which she sought orders for final and interim spousal maintenance, which would vary a spousal maintenance order made by Aldridge J on 4 December 2014 after a trial of property and spousal maintenance issues.
The wife’s Initiating Application seeking orders for interim and final spouse maintenance was filed when an appeal against Aldridge J’s orders was pending, and after his Honour had refused the wife’s application for a stay of his orders.
At the hearing of the wife’s application McClelland J indicated that the court’s “jurisdiction” to make the order sought by her was “a big issue”.[1] The issue of “jurisdiction” was not raised by the husband in his filed Response to the wife’s application, nor in his affidavit of evidence in chief. However, the issue was raised in the husband’s outline of argument filed ahead of the hearing. That gave rise to the wife arguing in her outline of argument, dated the day before the hearing, that if her erstwhile contentions for relief pursuant to s 83 of the Family Law Act 1975 (Cth) (“the Act”) were rejected, leave should be granted to amend so as to permit her to seek an order for maintenance pursuant to s 74 of the Act. An application for that leave was made orally before his Honour.
[1] Transcript of proceedings, 21 August 2015, p 3, 1.1.
His Honour ordered that the wife's Initiating Application be dismissed, holding (at [4]) that the court “[was] without jurisdiction to make an order under section 83”. His Honour also ordered that the wife’s oral application for leave be dismissed and in doing so found (at [6]) that permitting the amendment “would effectively circumvent section 44(3) of the Act”. The wife appeals both orders.
The questions which arise for determination by this Court are these:
a)Did the wife’s application seek, in any event, an order pursuant to s 74 of the Act as an alternative to her claim pursuant to s 83 of the Act? If so, the appellant argues that the court plainly had jurisdiction under s 74 and there was no need for amendment, or requirement to amend, and that the appeal must necessarily succeed on that basis.
b)If that question is answered in the negative, was there “in force an order” within the meaning of s 83 of the Act as at the date of the hearing of the wife’s application so as to permit the court to, relevantly, “vary the order so as to increase or decrease any amount ordered to be paid”? The appellant argues that if there was an order for maintenance “in force” within the meaning of s 83 of the Act at the time the application was filed, the question of whether there was an order in force at the time of the hearing is irrelevant.
c)Is there a distinction between a maintenance order which is “in force” as s 83 requires and an order that has “ceased to have effect”? The appellant contends as an alternative to the proposition in (b), that Aldridge J’s order of 4 December 2014 may have ceased to have effect at the date of hearing, but it remained “in force”.
d)Was his Honour’s refusal to grant leave to the wife to amend her application attended by an error of law or did irrelevant considerations attend the exercise of that discretion? The appellant argues that his Honour’s order derives from both such appealable errors.
In order to understand how those questions arise from his Honour’s decision, it is necessary to provide the context for them. Before doing so it is important to note that on the day of hearing, counsel for the wife handed up a Further Amended Notice of Appeal where leave to appeal was sought.
Leave to Appeal
His Honour’s order is an “interlocutory decree” and thus a “prescribed decree”[2] and leave to appeal is required. It is convenient to postpone a consideration of the question of leave to a consideration of the merits of the appeal if leave were to be granted.
[2] Respectively, reg 15A of the Family Law Regulations 1984 (Cth) and s 94AA of the Act.
The Context For The Primary Judge’s Orders
As will be appreciated, the form of the orders sought by the wife in her Initiating Application is important to arguments made on this appeal. The relevant parts of the orders sought by the wife are as follows:
2. That Order 6 of the Orders delivered on 4 December 2014 be varied.
3. The husband … do all acts and things necessary so as to pay or cause to be paid the sum of $3,306 per week to the wife … the first such payment to made on the first Tuesday immediately following the date of these orders and on the same day each week thereafter.
4. As at from the date that the wife provides to the husband notice in writing of her intention to enter into a lease for accommodation, then the husband is to pay forthwith [specified sums in relation thereto].[3]
[3] Initiating Application filed by the wife, 14 July 2015, p 2.
Prior to the orders made by Aldridge J on 4 December 2014, earlier orders had provided that the husband pay specified amounts to the wife by way of spousal maintenance. Those orders were made in the shadow of the then outstanding trial relating to spousal maintenance and settlement of property.
On 4 December 2014, among other orders made by Aldridge J, his Honour ordered that “all existing orders” for spousal maintenance be “discharged upon completion of the sale” of the former matrimonial home.
At the time of the filing of the wife’s application, “completion of the sale” had not occurred. When McClelland J heard the wife’s application on 21 August 2015, “completion of the sale” had occurred.
That circumstance led to his Honour concluding (at [4]):
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.
The wife contends on this appeal that this conclusion by his Honour is an error of law.
His Honour then addressed the alternative submission made before him that, if the court was without “jurisdiction” to make an order pursuant to s 83 of the Act, leave should be granted to the wife to amend her application to seek the proposed orders pursuant to s 74 of the Act. His Honour records (at [5]) 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 … [as] … reflect[ed] [in] the Minutes of Order as sought in the wife’s case outline document...
In opposing that course, the husband submitted that, if an application pursuant to s 74 was to be made, it would confront s 44(3) and that, as a consequence, it should be made on proper notice and in the proper form and that a failure to do so would not accord him procedural fairness.
Noting at [6] that s 44(3) “requires an application for spousal maintenance to be brought within 12 months of a divorce, unless the leave of the Court is given”, his Honour said (at [9]) in respect of the wife’s application for leave to amend:
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.
That finding informed his Honour’s refusal to grant leave to amend and his order dismissing the wife’s oral application for that leave. In addition, at [11], his Honour referenced the refusal of leave to what his Honour referred to as “the principle of finality as discussed by the High Court of Australia in Taylor v Taylor”.[4] That “principle” is, it seems, linked by his Honour to Aldridge J having determined the wife’s application for property settlement and maintenance; the refusal of the wife’s subsequent application for stay and the fact that “the issue of spousal maintenance is presently being agitated in the Court by way of appeal” (at [12]).
[4](1979) 143 CLR 1; (1979) FLC 90-674: his Honour referred specifically to 78,590 and 78,595.
The wife asserts that his Honour erred in refusing the amendment, contending that his Honour “was plainly wrong in the exercise of discretion” and that the finding of “circumvention of s 44(3)” was not open to his Honour. It is also contended that the reference to, and finding in respect of, what his Honour called “the principle of finality” was an irrelevant consideration. A later amended ground for which we gave leave asserts that it was “open to [his Honour] and he ought to have granted leave pursuant to s 44(3) … nunc pro tunc”.
Against that background I turn to consider each of the questions posed by the appellant’s argument earlier set out.
Was s 74 Pleaded in the Alternative?
Senior Counsel for the appellant wife contended that, properly construed, the application by the wife consists of an application – contained at paragraph 2 and quoted at [10] in these Reasons above – to modify an existing order pursuant to s 83 and an alternative application for an order pursuant to s 74 of the Act in the terms of paragraphs 3 and 4 of the application. Thus, it is argued that, his Honour had before him both an application to modify an existing maintenance order pursuant to s 83 and an application for a maintenance order (in respect of which the provisions of s 80(2) may well have pertained).[5]
[5]Section 80(2) of the Act: “The making of an order [for transfer or settlement of property by way of maintenance] or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.”
In terms, paragraph 2 of the orders sought is in my view uncertain and incapable of enforcement. Reference to earlier orders for spousal maintenance, to which Order 6 of the 4 December 2014 orders was in turn directed, can be seen to provide for orders of the type referred to in paragraphs 3 and 4 of the application. Properly construed, paragraphs 3 and 4 should, in my view, be seen as, in effect, particulars of the order for modification sought in paragraph 2.
That interpretation is, in my view, supported by the wife’s proposed amended order which sought to plead a claim pursuant to s 74 in the alternative. In those orders, the terms of paragraph 2 of the Initiating Application which sought merely that the earlier order “be varied” is amended by the addition of the words “in accordance with orders 2 & 3” which set out the particulars of the variation sought. Equally, that interpretation is supported by the wife’s affidavit in support of her Initiating Application filed contemporaneously with it. There, the wife makes it clear, in terms, that she is seeking a variation of the earlier order.[6]
[6] Affidavit of the wife, filed 14 July 2014, paragraphs 2 and 3.
The appellant’s argument that s 74 is pleaded in the alternative should be rejected.
The s 83 Questions
Section 83 of the Act provides relevantly:
83 Modification of spousal maintenance orders
(1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b)made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is any just cause for so doing;
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f)subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court’s jurisdiction under subsection (1) may be exercised:
(a)in any case—in proceedings with respect to the maintenance of a party to the marriage; or
…
It is uncontroversial that there was “in force an order” with respect to maintenance of the wife when the application was filed – that is at the time the jurisdiction granted by s 83 of the Act was invoked. The appellant’s argument contends that, this being so, the court’s jurisdiction, in effect, continued. It is said that the court retained jurisdiction despite the order being, by its terms, discharged as a result of the completion of the sale of the former matrimonial home. Consequently, the argument continues, that his Honour was in error in finding that there was no jurisdiction by reason of an order not being “in force” at the time of the hearing.
The argument proceeds by reference to principles of statutory interpretation; s 15C of the Acts Interpretation Act 1901 (Cth) and the decision of the High Court in The owners of the ship “Shin Kobe Maru” v Empire Shipping Company Inc.[7] It is contended centrally that s 83 is an entirely remedial section and, in accordance with ordinary principles of statutory construction, it is said to provide to the Court “an ability … to modify the terms of that order to meet the needs or justice of the situation, to modify it both as to increases and decreases, to modify as to form, to modify as to periods as to which maintenance is being paid”.[8]
[7] (1994) 181 CLR 404, 421.
[8] Transcript of Appeal, 24 August 2016, p 19, 1.1–5.
In my view, s 83 is to be interpreted in the same manner as the statutory provision considered by the High Court (albeit in a different context) in Lacey v Attorney-General (Queensland),[9] that is as “a provision which confers jurisdiction … together with powers to be used by [the] Court in the exercise of its jurisdiction.”[10]
[9] (2011) 242 CLR 573.
[10] Ibid, at 593.
The conferral of jurisdiction in s 83 is additional to the jurisdiction conferred in respect of matters arising under the Act in which the matrimonial cause “with respect to the maintenance of one of the parties to the marriage” is instituted by proceedings relating to same.[11] The jurisdiction conferred by s 83 is “the authority which [the] court has to decide” variation of a spousal maintenance order and “in the exercise of that jurisdiction [the] court has powers expressly or impliedly conferred by”[12] s 83. “The claims for relief illuminate the scope of a controversy which constitutes a matter and once the [court] has jurisdiction to determine a controversy it has power in the exercise of that jurisdiction to give the remedies sought”.[13] In that way, “[c]haracteristically an exercise of jurisdiction is attended by an exercise of power”.[14]
[11] The Act, s 31(1)(a) and s 4 – definition of “matrimonial cause”.
[12] Harris v Caladine (1991) 172 CLR 84, at 136 per Toohey J.
[13] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590 per Gleeson CJ, Gaudron and Gummow JJ, citing Fencott v Muller (1983) 152 CLR 570, 608 and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261, 279–280.
[14]ASIC v Edensor (above), at 590, citing Brennan and Toohey JJ in Re Nolan; Ex parte Young (1991) 172 CLR 460, 487.
The grant of jurisdiction given to the court in s 31 of the Act is referenced to matters in respect of which matrimonial causes are “instituted” under the Act. “Matrimonial cause” is defined variously in respect of “proceedings for” or “proceedings between” relevant parties. “Proceedings” means, relevantly, “proceedings in a court”.[15] Proceedings are “instituted by application”.[16] So, too, limitations on the institution of particular proceedings are calculated by reference to the “institution” (as opposed to the hearing) of proceedings and by reference to when the application is made.[17]
[15] Respectively, s 31 and s 4 of the Act.
[16] The Act, s 44.
[17] Respectively, s 44(3) and (5) of the Act.
The jurisdiction conferred by s 83 is validly invoked by the filing of an application seeking relief pursuant to that section when “there is in force an order … with respect to the maintenance of a party to a marriage”. There is no doubt jurisdiction was validly invoked in this case. The jurisdiction properly so invoked is “collapsed into the power[s]”[18] specifically provided for within the section. Power is exercised by the court when it turns to make orders in pursuit of the power, or powers, given, relevantly, by s 83(1)(c) to (f).
[18] The words used in Lacey (above), at 594.
Thus, in my view, the court’s power to make an order within the jurisdiction properly invoked by the filing of the wife’s application pursuant to s 83 depends entirely on whether there was “in force an order” at the date of hearing of that application.
Senior counsel for the wife contends that, consistent with a beneficial interpretation of an entirely remedial section,[19] it is an absurd or strained interpretation of s 83 to suggest that such a remedial provision can be invoked by the filing of an application but can be defeated through no action (or inaction) on the part of the applicant but, rather, the exigencies of the Court’s case management system and the court’s capacity to schedule the hearing of the application.
[19]Citing, for example, IW v City of Perth (1997) 191 CLR 1, 11 and, more generally, Dennis Pearce AO and Robert S Geddes, Statutory Interpretation Australia (Lexis Nexis Butterworths, 8th ed, 2014), 358–9.
However, in my opinion the question is not whether the application is defeated by any such consideration but, rather, whether the statute gives the court power to make the order sought at the time the power is sought to be exercised. That question is answered in turn by the ordinary and natural meaning of the expression “in force an order” within the context of s 83 and the context of the Act as a whole such that the provisions of the Act “give effect to harmonious goals”.[20]
[20]Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1, 20, citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381–2.
Senior counsel seeks to draw a distinction between an order which is “in force” and an order whose operative effect has ended. Section 82 deals with “Cessation of spousal maintenance orders”. The section specifies when maintenance orders “cease to have effect”. Relevant to the arguments of counsel the section provides:
82 Cessation of spousal maintenance orders
(1)An order with respect to the maintenance of a party to a marriage ceases to have effect upon the death of the party.
(2)Subject to subsection (3), an order with respect to the maintenance of a party to a marriage ceases to have effect upon the death of the person liable to make payments under the order.
…
(4)An order with respect to the maintenance of a party to a marriage ceases to have effect upon the re‑marriage of the party unless in special circumstances a court having jurisdiction under this Act otherwise orders.
…
(7) Any moneys paid in respect of a period after the event referred to in subsection (4) may be recovered in a court having jurisdiction under this Act.
(8) Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect.
It is contended that, although the order for the payment of maintenance had “ceased to have effect” by the time of the hearing before his Honour, it nevertheless was an order “in force” at that time.
The argument proceeds that the difference in language between “ceases to have effect” as used in s 82 and an “order in force” as used in s 83 should be regarded as intentional on the part of the legislature and an indication that the legislature intended different meanings attributable to each. Support is said to be lent to that interpretation by s 82(4) which provides that “[a]n order with respect to the maintenance of a party to a marriage ceases to have effect upon the remarriage of the party unless in special circumstances a Court having jurisdiction under this Act otherwise orders”.
It is said that, in that sense, an order remains in force so as to effectuate the application of the potential order foreshadowed by that section. Further, it is said that s 82(7) which provides that “any monies paid in respect of a period after such an event may be recovered in a Court having jurisdiction under this Act” also lends weight to the argument. The order, it is said, has ceased to have effect by reason of the remarriage, but it remains in force so as effect the repayment of monies paid under it pursuant to s 82(7).
In my view, neither example given by counsel relies upon the difference in language contended for.
Each of sections 82(4), 82(7) and 82(8) provide specific powers to the court in the circumstances provided for within s 82. The powers provided for in s 83 are in respect of a different grant of jurisdiction. That different grant of jurisdiction deals with a circumstance that may be different from “an order with respect to the maintenance of a party to a marriage” which is the subject of s 82. Section 83 can deal with orders made “before the commencement of [the] Act” and orders which are “made by another court and registered in [the court] in accordance with the applicable Rules of Court”. Thus, orders may be “in force” for the purposes of s 83 although they are not orders made under the Act to which s 82 applies. That in my view provides the reason for the difference in legislative language.
As senior counsel for the wife properly concedes, the decision of the Full Court in Caska and Caska[21] does not assist the interpretation which he urges albeit, as counsel points out, that decision relates to a lump sum order for maintenance and it might be argued that different considerations apply to lump sum orders.
[21] (2002) FLC 93-092.
In Caska, it was held, after an extensive review of authorities both in this country and in the United Kingdom, that an order for lump sum maintenance is, once paid, not “an order in force” for the purposes of s 83 of the Act. All of the decisions referred to by the Court in this country, save one first instance decision, dealt with lump sum maintenance orders. The exception is Hodgson & Hodgson, a decision of Dawe J.[22] Her Honour concluded that where payments required pursuant to a periodic maintenance order had been paid, “there is no maintenance order which is in force and that, therefore, there can be no application to vary that order pursuant to s 83”.[23]
[22] Hodgson & Hodgson (unreported, Family Court of Australia, Dawe J, 13 November 1998).
[23] Ibid, cited in Caska (above), at 88,807.
As counsel contends, a distinction can be drawn between orders for lump sum maintenance and those providing for periodic maintenance (as is the case here). In particular it has been said by at least one line of authority from this Court that lump sum maintenance is “the capitali[s]ing over a period of time of what is considered to appropriate periodic maintenance for that period, usually with a discount because of immediate payment”.[24]
[24] Clauson & Clauson (1995) FLC 92-595, 81,908.
Yet, I see no material difference in the ordinary and natural meaning of the words “in force an order” when used in respect to a lump sum order when compared to an order for the payment of a periodic sum. Read in the context of the section, the expression seems to me to mean an order that is capable of being the subject of the orders contemplated by the succeeding provisions of the section. Seen in that light, there can be no basis for an order, for example, “vary[ing] the order so as to increase or decrease any amount ordered to be paid” unless there is an amount payable which can be increased or decreased. So, too, the ordinary and natural meaning of a power to “suspend [the] operation” of an order, or to “discharge the order” is referenced in each case to an order with existing obligations that need to be suspended or discharged respectively. [25]
[25] Respectively, ss 83(2)(f), (c) and (d) of the Act.
I am not persuaded that the expression has the meaning which senior counsel’s submissions on behalf of the wife would attribute to it. The expression “in force an order” means, in my view, an order pursuant to which (relevantly) obligations to make payments in accordance with its terms exist at the time that the power to make a variation order falls to be exercised. Conversely, where, as here, an order is fully executed by the time of the hearing because of the satisfaction of a condition attaching to payment, there is no order “in force” within the meaning of s 83(1) of the Act.
The effect of the conclusion just outlined is that if the wife was to properly agitate a claim for maintenance before his Honour, she could not do so in reliance upon s 83.
Equally, as there was no order for maintenance “in force”, s 80(2) of the Act (which provides that the making of a spousal maintenance order “does not prevent a court from making a subsequent order in relation to the maintenance of the party”) could not avail the wife.
The Questions As To s 44(3) And Leave to Amend
Section 44(3) of the Act
The wife’s application for leave to amend her Initiating Application was, properly construed, an application to amend so as to pursue a claim pursuant to s 74 of the Act.
Section 44(3) of the Act provides (with emphasis added):
(3)Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c)in a case referred to in paragraph (a)--the date on which the divorce order took effect; or
(d)in a case referred to in paragraph (b)--the date of the making of the decree.
The highlighted words within parenthesis relating to spousal maintenance can be seen to mirror the terminology contained in the specific sub-paragraphs of s 83(1). It might be argued that the exception provided for in s 44(3) is confined to the circumstances contemplated by s 83 of the Act. In my view, neither the ordinary and natural meaning of the expressions there contained, nor the broader provisions of the Act pertaining to spousal maintenance, admit of reading down the terms of s 44(3) in that manner.
First, and centrally, the liability for spousal maintenance does not come to an end upon the end of the marriage, nor necessarily when orders are made pursuant to Part VIII of the Act. While the court is required, as far as practicable to effect a “clean break” – to “make such orders as will finally determine the financial relationships between the parties … and avoid further proceedings between them”[26] – the liability for spouse maintenance is that of a “party to the marriage”.[27] The latter expression is defined as including a person who was a party to a marriage now ended by death, divorce or annulment.[28] That new spouse maintenance orders can be made in circumstances where the initial order is properly made within time is entirely consistent with a liability for spousal maintenance persisting despite the formal end of the marriage or other financial orders having been made.
[26] The Act, s 81.
[27] The Act, s 72.
[28] The Act, s 4(2).
Secondly, no specific reference is made within s 44(3) either to s 83 itself or to any link between the expressions used within s 44(3) and like expressions in s 83. In that regard, it is of significance in my view that the exceptions provided for in respect of settlement of property are made by reference to specific sections whereas the expressions used in respect of maintenance are not. The nature of orders for settlement of property and their “finality” should be contrasted with orders for spousal maintenance which the Act contemplates specifically might be later modified. Despite that important distinction, the words use in s 44(3) are not confined by specific reference to s 83.
Thirdly, the expression “an order previously made” is not defined, confined or restricted in its operation. Fourthly, the expression “revival” is not confined in s 44(3), as it is in s 83, to the situation where an order has been suspended.[29] Finally, the word “revival” is a word of ordinary usage and meaning. It means, for example, “the state of being revived” which is “to become operative or valid again” or “restoration to use, acceptance or currency”[30] or “an instance of something becoming … active or important again”.[31] Thus, s 44(3) can be seen as having in contemplation “an order previously made” becoming “operative or valid again”.
[29] See ss 83(1)(e) and (d) of the Act.
[30] Macquarie Dictionary.
[31] Oxford Dictionary.
The order made by Aldridge J on 4 December 2014 was made in “proceedings with respect to the maintenance of [the wife]” within the meaning of s 44(3). The order is, as it seems to me, an “order previously made”.
I conclude that it was not necessary for leave to be sought pursuant to s 44(3) so as to permit any amended application for spousal maintenance to proceed.
If that conclusion is correct, the apparently primary foundation for his Honour’s refusal to grant leave to the wife to amend her Initiating Application falls away.
The Primary Judge’s Discretion and the “Finality Principle”
I am with respect not clear what his Honour meant when referring to the “finality principle as discussed by the High Court of Australia in Taylor v Taylor”.[32] In the broader context of his Honour’s findings, I take it to be a reference to a perception that, because orders for settlement of property and spousal maintenance had been made by Aldridge J and were not stayed, his Honour’s orders brought to an end the wife’s claims for settlement and property and maintenance. His Honour appears to have apprehended that, in those circumstances, a fresh application for spousal maintenance could not (or, perhaps, should not) be brought.
[32]It should be noted that Taylor (above) was a case essentially pertaining to whether this Court had inherent power to alter orders.
While s 81 of the Act applies to oblige the court to finally determine – as far as practicable – the “financial relationships” between the parties other than in, relevantly, “proceedings with respect to maintenance payable during the subsistence of the marriage” that obligation co-exists with provisions of the Act that distinguish between orders for settlement of property and orders for spousal maintenance as has earlier been discussed.
As has been seen, s 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 of the Act so as to seek the revival of “an order previously made in proceedings with respect to the maintenance of a party”. Indeed, as has earlier been seen, the Act contemplates applications for maintenance that sit squarely outside any “finality” said to be effected by earlier orders.
The wife’s Initiating Application was filed when the orders made by Aldridge J determining settlement of property and maintenance were under appeal (and were not stayed pending the appeal). That circumstance might be seen to be somewhat unusual but, in the circumstances otherwise applicable in this case, it provided no impediment to the wife filing a fresh application for interim and final spousal maintenance.
His Honour did not, of course, know the outcome of the wife’s appeal against Aldridge J’s orders or when that outcome might occur. However no possible relevant outcome of the wife’s appeal provided any impediment to his Honour hearing and determining the wife’s interim application in its proposed amended form.
In the event that Aldridge J’s orders were not set aside by the Full Court, the considerations earlier discussed applied: there was no order “in force” at the time of the hearing of the instant application. However, perforce of the reasoning earlier outlined, the wife’s application for interim spousal maintenance, if amended, could proceed pursuant to s 74 of the Act, in respect of which s 44(3) does not apply. In the event that Aldridge J’s maintenance order was set aside, the wife’s original application for maintenance would be remitted for rehearing.[33] That provides no impediment to his Honour earlier hearing and determining a fresh application for spousal maintenance. The wife’s remitted application for maintenance would fall to be considered in light of any interim order made by his Honour.
[33]This appeal and the appeal against Aldridge J’s orders were heard together. The parties submitted, and the Court agreed, that Orders and Reasons in this appeal could be made and given ahead of the Orders and Reasons in the appeal against Aldridge J’s orders. It was accepted by counsel that, by reference to the principles emerging from Allesch v Maunz (2000) 203 CLR 172, remitter was inevitable if the appeal was allowed.
In those circumstances I consider with respect that his Honour’s reference to “the finality principle” as a matter relevant to the exercise of his discretion whether to permit amendment was misconceived. In my view no such principle had any relevance to the exercise of that discretion.
I should add that, by reason of the matters just outlined, in my opinion counsel for the wife appearing before McClelland J was correct in submitting that the material already filed by each of the parties was more than sufficient to permit his Honour to determine the exercise of his discretion as to whether to permit the wife to amend her application for interim maintenance. Once that is accepted, no question of procedural unfairness to the husband arises. There were, then, neither the “natural justice considerations” nor the potential “prejudice” to the husband that his Honour perceived and referred to at [17] of the Reasons.
Nor, with respect, am I able to see any “broader public policy issues, in terms of utilisation of the Court’s time when these matters are already before the Full Court” to which his Honour referred at [17]. When his Honour heard the matter, the wife was challenging on appeal an order made by Aldridge J the effect of which left her without maintenance after the sale of the former matrimonial home. It was not known when the appeal would be determined. The outcome of the appeal, in respect of maintenance, whatever it may have been, did not affect the right of the wife to make a fresh application for maintenance nor, of itself, affect the merits of any such application.
Leave to Amend: Conclusions
If my conclusions with respect to the application of s 44(3) are correct, his Honour has erred in law in considering the application of that section as a matter relevant to the exercise of the discretion in refusing leave. Ipso facto, it was an irrelevant consideration.
Equally, for the reasons I have sought to explain, I consider that his Honour’s reference to “the finality principle” is both erroneous and an irrelevant consideration in the exercise of that discretion.
Further I consider that his Honour’s reference to “natural justice considerations” and potential “prejudice” to the husband is based on an erroneous application of s 44(3). Again, each was not relevant to the exercise of his Honour’s discretion.
I am unable to discern from his Honour’s Reasons any other basis for concluding that leave should not have been granted for the wife to amend her application.
In my respectful view, his Honour erred in refusing leave to amend the wife’s Initiating Application so as to permit an application for spousal maintenance by her pursuant to s 74 of the Act.
Reference to the appeal record does not in my view reveal any reasonable basis for the refusal of that leave. I consider that this Court can and should determine for itself the question of leave to amend rather than remitting that question for rehearing. I would grant leave to the appellant wife to amend her Initiating Application as sought before the primary judge.
Leave to Appeal
As I have earlier said, the refusal of leave to amend the wife’s application is a “prescribed decree” of the Family Court of Australia within the meaning of s 94AA of the Act by reason of being an “interlocutory decree” within the meaning of reg 15A of the Family Law Regulations 1984 (Cth).
It will be clear that I consider that his Honour has erred. The effect of what I consider to be his Honour’s error is that the wife is precluded from amending her application so as to seek an order for maintenance. That, in terms would have the effect of precluding the wife from filing and persecuting an application which she is entitled to bring and pursue.
The effect of orders made by Aldridge J for settlement of property, which are the subject of a separate appeal heard contemporaneously with this appeal, are set out in the appellant’s written outline of argument. They leave the wife with liabilities which exceed her assets and with her receiving, currently, no spousal maintenance.
I consider that the erroneous order made by his Honour effects a substantial injustice. Her appeal has merit. In my opinion, leave should be granted.
For the reasons earlier given, consequent upon the grant of leave, I would allow the appeal.
Costs Of The Appeal
As the parties requested, orders for costs should await further submissions consequent upon the determination of the appeal in respect of other orders made by Aldridge J heard contemporaneously with this appeal.
Proposed Orders
I would make the following orders:
1.That leave be granted to the appellant wife to file a Further Amended Notice of Appeal dated 24 August 2016.
2. That the appellant wife be granted leave to appeal.
2. That Appeal EA 158 of 2015 be allowed.
3.That Orders 1, 2 and 3 of the Orders made on 21 August 2015 be set aside.
4.That the appellant wife have leave to amend her Initiating Application filed on 14 July 2015 as sought by her before McClelland J.
5.The appellant wife file and serve any such Amended Initiating Application within 21 days of the date of these Orders.
6.The question of costs of this appeal be reserved with directions to be made in relation to the filing of written submissions together with any other costs submissions upon the delivery of Orders and Reasons in relation to Appeal EA 171 of 2014.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Murphy JJ) delivered on 11 November 2016.
Associate:
Date: 11 November 2016
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