Badir & Badir

Case [2022] FedCFamC1A 109

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Badir & Badir [2022] FedCFamC1A 109

Appeal from: Badir & Badir (No 2) [2021] FedCFamC2F 335
Appeal number(s): NAA 60 of 2021
File number(s): SYC 7739 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 19 July 2022
Catchwords: FAMILY LAW – APPEAL – Leave to appeal – Whether the appellant should be granted leave to appeal against an interim spousal maintenance order – Whether the primary judge erred in their assessment of the respondent’s income – No error established – Where the appeal is without merit – Leave not granted – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act ss 72, 74, 75(2), 79A, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Bilson & Geer (Costs) [2017] FamCAFC 7

Brown & Brown (2007) FLC 93-316; [2007] FamCA 151

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Crawford and Crawford (1979) FLC 90-647; [1979] FamCA 38

Drysdale & Drysdale [2011] FamCAFC 85

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236

Gilligan and Addison [2018] FamCAFC 211

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

Greedy and Greedy (1982) FLC 91-250; [1982] FamCA 41

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Luadaka v Luadaka (1998) FLC 92-830; [1998] FamCA 1520

Manesh & Manesh (No 2) [2021] FamCAFC 47

Maroney & Maroney [2009] FamCAFC 45

McCrossen & McCrossen (2006) FLC 93-283; [2006] FamCA 868

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Phoenix Institute of Australia Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 155

Redman & Redman (1987) FLC 91-805; [1987] FamCA 2

Rigby & Olsen [2021] FedCFamC1A 46

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Saxena and Saxena (2006) FLC 93-268; [2006] FamCA 588

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
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AGLC
Badir & Badir [2022] FedCFamC1A 109
Case
[2022] FedCFamC1A 109
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Mr Badir, appealed an interim spousal maintenance order made in favour of the respondent, Ms Badir. The court was required to decide whether the appellant should be granted leave to appeal the interim order and whether the primary judge erred in their assessment of the respondent’s income. The court found that the appellant had failed to establish any error in the primary judge’s assessment of the respondent’s income. The court held that the appellant had not discharged the onus of proving that the primary judge’s findings were incorrect. The court also held that the appellant had not demonstrated that the primary judge’s findings were “glaringly improbable” or “contrary to compelling inferences”. As a result, the court dismissed the appeal and ordered the appellant to pay the respondent’s costs in the sum of $17,416.65 within 28 days. The court’s decision highlights the difficulty of challenging findings of fact made by a trial judge, particularly when those findings are based on inferences from primary facts. The court also emphasised the importance of the appellant establishing error on the part of the primary judge in order to succeed in their appeal.
This case serves as a reminder to appellants that they must establish error on the part of the primary judge in order to succeed in their appeal. The court’s decision also highlights the difficulty of challenging findings of fact made by a trial judge, particularly when those findings are based on inferences from primary facts. In this case, the appellant failed to demonstrate any error in the primary judge’s assessment of the respondent’s income, and as a result, the appeal was dismissed with costs.

Orders

Orders of the court

NAA 60 of 2021

SYC 7739 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BADIR

Appellant

AND:

MS BADIR

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 JULY 2022

THE COURT ORDERS THAT:

1. The appellant’s application for leave to appeal is refused.

2. The Notice of Appeal filed 8 November 2021 is dismissed.

3. The appellant pay the respondent’s costs in the sum of $17,416.65 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

As this is an appeal against an interim order, the appellant requires leave pursuant to s 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Both the application and the appeal cover common factual and legal issues and the perceived strength of the appeal will influence the determination of whether leave to appeal should be granted.[1] In those circumstances and with no objection from the parties, I considered the issue of leave together with the substance of the appeal. As I have found the appeal to be without merit, I have dismissed the appeal with costs.[1] Phoenix Institute of Australia Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 155 at [42]BACKGROUND The appellant was born in 1972 and the respondent was born in 1973. The parties initially commenced cohabitation in 1993 and separated for the first time in July 2013. During that period they had a son, X, born in 2002. The parties had a reconciliation in June or July 2014, however they subsequently separated on a final basis in July 2020. The parties nevertheless continued to reside under the one roof and continued to do so up until the matter was heard by the primary judge. During the period between the parties’ initial separation in 2013 and final separation, the respondent had, in April 2013, served the appellant with an Initiating Application seeking final parenting and property orders. Those proceedings were resolved during the period of the parties’ second reconciliation by way of consent orders made on 20 August 2014 by Judge Walker, now retired, of the then Federal Circuit Court of Australia. The consent orders contained a notation that “the [appellant] advised the court today that the parties have reconciled.” It did not appear to be disputed that the effect of the consent orders was as follows:BY CONSENT IT IS ORDERED:1.That within fourteen (14) days from the date of these orders, the [appellant] shall do all things and sign all documents necessary to transfer to the [respondent] his right, title and interest in the hotel timeshare membership. 2.That the [respondent] be entitled to her 49 shares held in A Bank Group free from any interest of the [appellant] and shall indemnify the [appellant] in relation to any and all debts attaching thereto.3.That the parties shall do all things and sign all documents necessary to transfer the sum of $122,491.05 being the net proceeds of sale of the former matrimonial home held in B Lawyers trust account as follows:a.60% to the [respondent] in the sum of $73,494.63; andb.40% to the [appellant] in the sum of $48,996.42.4.That the [respondent] be entitled to her business known as C Company free from any interest of the [appellant] and shall indemnify the [appellant] in relation to any and all debts attaching thereto. 5.That the [appellant] be entitled to his business known as D Company free from any interest of the [respondent] and shall indemnify the [respondent] in relation to any and all debts attaching thereto. 6.That the [appellant] be responsible for the following credit cards:a.Commonwealth Bank Mastercardb.A Bank – Cardc.E Bankd.F Banke.G Bank MastercardFree from any interest of the [respondent] and shall indemnify the [appellant] in relation to any and all debts attached thereto.7.That the [appellant] be responsible for H Bank Credit Card free from any interest of the [respondent] and shall indemnify the [appellant] in relation to any and all debts attaching thereto.8.Pursuant to section 79 Family Law Act 1975, the [respondent] is entitled to be the sole legal and beneficial owner of all other property including superannuation currently in her possession and/or control free from any interest of the Husband and shall indemnify the [appellant] in relation to any and all debts attaching thereto.9.That pursuant to section 79 Family Law Act 1975, the [appellant] is entitled to be the sole legal and beneficial owner of all other property including superannuation currently in his possession and/or control free from any interest of the [respondent] and shall indemnify the [respondent] in relation to any and all debts attaching thereto.10.Pursuant to Sec 106A of the Family Law Act, the Court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument in the event that either party fails, refuses or neglects to execute any deed or instrument necessary to give effect to these Orders.(As per the original)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant faces challenges in establishing errors in respect to factual findings made by a trial judge. This is because:·The onus is held by the appellant to show that there is some error in the decision under appeal: Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39]; ·Appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]; and·The difficulty in challenging findings of fact extends to “findings of secondary facts”, which are based on “inferences from primary facts”: FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203] referring to Lee v Lee (2019) 266 CLR 129 at [55].CONSIDERATIONGround 1 – the respondent’s ability to support herself In respect to this ground, the appellant contended that:·the respondent’s identification of a gross salary of $750 per week did not accurately represent her earning capacity that the Court was required to consider pursuant to s 75(2)(b) of the Act; and further·the respondent had access to an “unlimited availability of monies” contained in the J Pty Ltd business account. The respondent acknowledged that there have been occasions where she has received a higher salary from the business, depending upon the profitability of the business in a particular period. The respondent provided evidence that, on average, her income is approximately $750 per week (at [57]). Having regard to that evidence, the appellant has failed to demonstrate error on the part of the primary judge in determining that the respondent has, on average, received the amount of $750 per week (at [103]). In that respect, a tender bundle provided by the appellant referred to the respondent’s payslips in the period between May 2021 to May 2020 as showing a weekly gross income of $750 per week, with taxation deducted at $90 per week, leaving weekly take-home pay at $660 per week (see also tender bundle pages 534, 535). The net amount of $660 received by the respondent is also reflected in the respondent’s H Bank account (tender bundle pages 642, 644–646). It is also consistent with the respondent’s taxation return for the year ended 30 June 2021, being the most recent finalised financial year produced. It was conceded by the respondent that she had access to funds held in the J Pty Ltd business account. The primary judge accepted that, in the period from October 2018 until September 2021, the respondent had access to a total amount of $72,893.12 from the business account (at [70]). In that respect, the respondent attested at paragraph 47.2 of her affidavit filed 12 October 2021 (“the October affidavit”) that the personal expenses that she claims through the J Pty Ltd business account are “$522 per week”, as set out at item 18 of her Financial Statement filed 12 October 2021. In that Financial Statement, the respondent attested to applying those funds to the following: MOTOR VEHICLE FINANCE REPAYMENTS ($254), PETROL ($85), CAR MAINTENANCE ($15), INSURANCE POLICY 79 ($46), MOBILE PHONE BILL ($35), CAR REGO and CTP ($41) and TOLLS/PARKING FEES ($23)(As per the original)