ATKINS & HUNT

Case [2016] FamCAFC 230


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…

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ATKINS & HUNT [2016] FamCAFC 230
Case
[2016] FamCAFC 230
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by the wife against the trial judge’s decision to dismiss her application for spousal maintenance. The trial judge had found that the court was without jurisdiction to make an order under s 83 of the Act, and dismissed the wife’s oral application for leave to amend her Initiating Application on the basis that allowing the amendment would effectively circumvent s 44(3) of the Act. The wife sought leave to file a further Amended Notice of Appeal to challenge the trial judge’s decision. The court granted leave to the wife to file a further Amended Notice of Appeal and allowed the appeal.

The legal issues before the court were whether the trial judge erred in law in considering the application of s 44(3) of the Act as a matter relevant to the exercise of his Honour’s discretion in refusing leave to the wife to amend her Initiating Application, and whether 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. The court found that the trial judge had erred in law by considering the application of s 44(3) of the Act as a matter relevant to the exercise of his Honour’s discretion in refusing leave to the wife to amend her Initiating Application. The court also found that the trial judge had 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.

The court held that the trial judge had erred in law in considering the application of s 44(3) of the Act as a matter relevant to the exercise of his Honour’s discretion in refusing leave to the wife to amend her Initiating Application. The court held that s 44(3) of the Act did not require the wife to seek leave to amend her Initiating Application to seek an order for spousal maintenance. The court held that the trial judge had also 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. The court held that these factors were not relevant to the exercise of the trial judge’s discretion in considering the wife’s application for leave to amend her Initiating Application. The court found that the trial judge had erred in law and set aside the orders made on 21 August 2015. The court granted leave to the wife to file a further Amended Notice of Appeal and allowed the appeal.

The court made several orders in relation to the appeal. The court granted leave to the wife to file a further Amended Notice of Appeal dated 24 August 2016. The court also granted leave to the wife to appeal and allowed the appeal. The court set aside the orders made on 21 August 2015 and granted leave to the wife to amend her Initiating Application as sought by her before McClelland J. The court directed the wife to file and serve any such Amended Initiating Application within 21 days of the date of the orders. The court reserved the question of costs of the appeal 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.

Orders

Orders of the court

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.

3.

That Appeal EA 158 of 2015 be allowed.

4.

That Orders 1, 2 and 3 of the Orders made on 21 August 2015 be set aside.

5.

That the appellant wife have leave to amend her Initiating Application filed on 14 July 2015 as sought by her before McClelland J.

6.

The appellant wife file and serve any such Amended Initiating Application within 21 days of the date of these Orders.

7.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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