ATKINS & HUNT

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.