Berger and Tallis
[2018] FamCA 1112
•21 December 2018
FAMILY COURT OF AUSTRALIA
| BERGER & TALLIS | [2018] FamCA 1112 |
| FAMILY LAW – PROPERTY – Interim spousal maintenance application – Where the de facto husband seeks orders that the de facto wife pay him periodic spousal maintenance – Where the husband asserts that he is unable to support himself by reason of mental incapacity for appropriate gainful employment – Where the Court finds that the evidence is not of sufficient weight to support that proposition – Application dismissed. |
| Evidence Act 1995 (Cth), ss. 79(1), 140, 177(1) Family Law Rules 2004 (Cth), r. 15.41 |
| Edgar & Strofield [2016] FamCAFC 93 Hall v Hall [2016] 257 CLR 490 Makita (Australia) Pty Ltd v Sprowles 52 NSWLR 705 Paric v John Holland (Construction) Pty Limited (1985) 62 ALR 85 Ramsay v Watson (1961) 108 CLR 642 |
| APPLICANT: | Ms Berger |
| RESPONDENT: | Ms Tallis |
| FILE NUMBER: | SYC | 3335 | of | 2018 |
| DATE DELIVERED: | 21 December 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 12 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kaylinger |
| SOLICITOR FOR THE APPLICANT: | Helen Cook Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Santone Lawyers |
Orders
Order 5 of the interim orders sought in the husband’s Amended Initiating Application filed on 17 July 2018 be dismissed.
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 Berger & Tallis 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).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3335 of 2018
| Ms Berger |
Applicant
And
| Ms Tallis |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application by the de facto husband, Mr Berger (“the husband”) for interim spousal maintenance. The de facto wife, Ms Tallis (“the wife”) opposes that application.
Background
The husband is 63 years of age and is currently unemployed. He contends that he suffers from depression and anxiety, which prevents him from engaging in appropriate gainful employment that would enable him to support himself adequately. The husband lives with his daughter in B Town, Queensland which, he contends, is a short term arrangement and involves him sleeping on a couch.
The wife is 67 years of age and is currently employed as a health professional at the C Town Hospital. In addition, she continues to own and operate two businesses. The businesses are “D Pty Ltd”, which provides tourist accommodation, and a farm located at E Street, C Town (“the E Street property”).
In August or September 2006, the parties commenced a de facto relationship, at which time the husband moved into the wife’s residence at the D Pty Ltd.
In November 2007, the parties relocated to live at the wife’s property at F Street, C Town (“the F Street property”).
On 15 July 2016, the husband sustained a hernia while tending to fences and moving large bags of grain at the E Street property. The circumstances in which that injury was sustained are not relevant to these proceedings. On 19 July 2016, the husband travelled to Sydney for surgery to address that injury.
On 27 July 2016, the wife advised the husband that their relationship had ended. The duration of the parties’ relationship was, accordingly, almost 10 years.
On 24 October 2016, the husband commenced family law proceedings in the Federal Circuit Court at Brisbane. Those proceedings were dismissed by consent on 9 May 2017.
Application
By way of Amended Initiating Application filed on 17 July 2018, the husband seeks the following interim orders:
1. That leave be granted to the Applicant to file the Initiating Application out of time.
2. A declaration under section 90UJ of the Family Law Act that the Cohabitation Agreement allegedly entered into on 19 August 2006 does not constitute a binding Part VIIIAB financial agreement.
3. An order under section 117(2) of the Family Law Act 1975 that the Respondent pay a sum of 100,000 to the Applicant, to include $40,000 re-establishment costs and to include $60,000 legal fees incurred and ongoing:
a. That such payment will be brought into account by the Court as a partial property settlement upon the final resolution of these proceedings.
4. An order to [sic] s114(2A)(a) of the Family Law Act 1975, until further order that the Applicant be provided with exclusive occupancy of the [house] located at the property the located at [F Street C Town].
5. An Order pursuant to s90SE(1) of the Family Law Act 1975, until further order the Respondent pay periodic maintenance to the Applicant in the sum of $700 pursuant [sic] per week, commencing seven days after the date of this order.
6. An Order pursuant to s90SG(1) of the Family Law Act 1975, the Respondent pay a lump sum maintenance to the Applicant in the sum of $5000, within seven days after the date of this order.
7. That until final order, the Respondent be and is hereby restrained from selling, encumbering or disposing of the interest in any property of the parties or either of them.
8. That the Respondent pay the Applicant's costs of and incidental to this application.
At the hearing, Counsel the husband advised the Court that his client was only seeking to press interim order 5, being for periodic spousal maintenance.
Apart from proposed order 2, that application is opposed by the wife, who sought the following interim orders in her Response filed on 31 July 2018:
1. That a declaration be made pursuant to Section 90UJ of the Act that the Cohabitation Agreement signed by the parties on 16 November 2006 does not constitute and binding financial agreement pursuant to Part VIIIAB of the Act.
2. That the Interim Application filed by the Applicant on 27 July 2018 otherwise be dismissed.
3. That the Applicant pay the Respondent's costs of and incidental to the Interim Application.
Evidence
At the hearing, the husband relied upon the following documents:
a)His Affidavit filed on 17 July 2018; and
b)Financial Statement filed on 17 July 2018.
The wife relied upon the following documents:
a)Her Affidavit filed on 31 July 2018; and
b)Financial Statement filed on 31 July 2018.
The law
In Hall v Hall [2016] 257 CLR 490 at 496, the High Court described the “gateway” requirement for the consideration of a spousal maintenance application, as follows:
… The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that "[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)".
In this matter, the above extracted paragraph should be read by substituting the reference to s 72(1) of the Act for the reference to s 90SF(1). Section 90SF(1) of the Act provides:
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The difficulties associated with making findings of fact in interim proceedings have been acknowledged. As the Full Court said in Edgar & Strofield [2016] FamCAFC 93 at [15]:
…the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing...
Despite those limitations, in Hall v Hall (supra) at 497, the High Court confirmed that:
No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). [References omitted].
Consideration
As noted above, the husband contends that he is unable to support himself adequately as a result of mental incapacity for appropriate gainful employment, in terms of s 90SF(1)(b) of the Act. His evidence, in that respect, is set out in paragraph 45 of his Affidavit, as follows:
I have attended a number of doctors in relation to my mental health as result of the instances that have occurred. I also take a number of prescribed medications to help me maintain a stable mental health.
Annexure “B” to that Affidavit is a medical certificate of Dr G dated 27 June 2018, which states:
This is to advise that [the husband], aged 63 yrs is patient of this practice. He is being evaluated for stress, depression and anxiety. Awaiting to see his psychiatrist at present.
That certificate makes no reference to the extent to which the husband may be incapacitated for gainful employment as a result of those mental health issues.
For reasons given at the hearing, I dismissed an application by the husband to rely on an Affidavit of his solicitor filed on 11 December 2018, being the day before the hearing. However, during the course of the proceedings, I accepted the tender of a medical certificate completed by a psychiatrist Dr H in the form of a pro forma Centrelink document dated 22 November 2018 (Exhibit “D”). That certificate describes the husband as suffering from depressed mood, poor attention and concentration, anxiety and a lack of motivation and energy. In the section of the form in which the medical practitioner is requested to “estimate how long the symptom(s) will affect the patient’s capacity to work or study”, Dr H has ticked the box stating “3-12 months”. At a subsequent section of the form, Dr H has clarified that the husband will be unfit for work from 20 November 2018 to 20 February 2019, being a period of three months.
Part 15.5 of the Family Law Rules 2004 (Cth) (“the Rules”) is a detailed code relating to “Expert Evidence” in family law proceedings. Rule 15.41 provides that the code does not apply to:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis; …
However, the fact that evidence of a medical practitioner which falls within that category is exempted from the provisions of Part 15.5 of the Rules does not oust or limit the requirements of the Evidence Act 1995 (Cth) (“the Evidence Act”), which, as noted by the High Court in Hall v Hall (supra), applies to proceedings involving a claim for interim spousal maintenance.
Section 177(1) of the Evidence Act relevantly provides:
Evidence of a person's opinion may be adduced by tendering a certificate ("expert certificate") signed by the person that:
(a) states the person's name and address, and
(b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate, and
(c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.
The medical certificate of Dr H includes a section headed “Certification by Medical Practitioner”. Beside the notation “Professional qualifications”, the entry is “MD FRANZCP – … (1994)”. No evidence was presented as to the meaning of that acronym, however, even if it can be assumed that the acronym is a reference to “The Royal Australian and New Zealand College of Psychiatrists”, there is no statement to the effect that the opinion of Dr H is wholly or substantially based on specialised knowledge based on that training, study or experience.
Certification to that effect is important because s 79(1) of the Evidence Act sets out an exemption to the exclusion of opinion evidence, as follows:
If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
More relevantly, however, the medical certificate of Dr H does not state the factual basis for her opinion and, hence, no weight can be given to that opinion: Paric v John Holland (Construction) Pty Limited (1985) 62 ALR 85 at 88; Ramsay v Watson (1961) 108 CLR 642 at 648-649.
Further, in Makita (Australia) Pty Ltd v Sprowles 52 NSWLR 705 at [66], the New South Wales Court of Appeal found that:
… the ultimate opinion of the doctor will usually be based in part on his personal observation of the patient and in part on what the patient tells the doctor.
In this matter, the medical certificate of Dr H does not include any reference to a medical history provided by the husband, nor does it record Dr H’s observations of the husband. In those circumstances, I can give no weight to that document.
In the absence of evidence upon which the Court can rely, I am not satisfied, to the standard set out in s 140 of the Evidence Act, that the husband is unable to support himself adequately by reason of mental incapacity for appropriate gainful employment. Accordingly, the husband has not crossed the “gateway” referred to by High Court in Hall v Hall (supra) and his application for interim spousal maintenance must, therefore, be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 21 December 2018.
Associate:
Date: 21 December 2018
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