Byrne & Fisher - [2022] FedCFamC1A 188

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Byrne & Fisher [2022] FedCFamC1A 188

Appeal from: Fisher & Byrne [2022] FCWAM 107

Appeal number: NAA 197 of 2022

File number: PTW 4662 of 2021

Judgment of: AUSTIN J

Date of judgment: 18 November 2022

Catchwords: FAMILY LAW – APPEAL – Appeal from the Magistrate’s Court of Western Australia – Interim spousal maintenance – Leave to appeal – Where the magistrate made an order requiring the applicant to pay the respondent spousal maintenance of $1,000 per week – Where the respondent conceded error – Where the magistrate made material factual mistakes concerning the respondent’s need and the applicant’s capacity – Leave to appeal granted – Appeal allowed – Where the matter has since been transferred to the Family Court of Western Australia – Where the parties requested that their respective first instance applications be dismissed – Applications dismissed – Respondent’s application for a costs certificate refused.

Legislation:
Family Law Act 1975 (Cth) Pt VIII

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

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02

Cases cited:
Cramer v Davies (1997) 72 ALJR 146

DL v The Queen (2018) 265 CLR 1; [2018] HCA 26

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Pettitt v Dunkley (1971) 1 NSWLR 376

Number of paragraphs: 22

Date of hearing: 11 November 2022

Place: Newcastle (via video link)

Counsel for the Appellant: Ms Farmer

Solicitor for the Appellant: Loukas Law

Counsel for the Respondent: Mr Bannerman

Solicitor for the Respondent: Bannerman Solicitors
ORDERS

NAA 197 of 2022
PTW 4662 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR BYRNE

Appellant

AND:
MS FISHER

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

18 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 1 made by the Magistrates Court of Western Australia on 12 August 2022 is set aside.
3.The parties’ respective applications concerning interim spousal maintenance, as were determined by Order 1 made on 12 August 2022, are dismissed.
4.The respondent’s application for a costs certificate in respect of the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Byrne & Fisher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:

On 12 August 2022, a magistrate of the Magistrates…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrne & Fisher

Details

AGLC: Byrne & Fisher [2022] FedCFamC1A 188
Case: [2022] FedCFamC1A 188
Decision Date

CaseChat Overview and Summary

In the case of Byrne & Fisher, the appellant, Mr. Byrne, appealed against an interim spousal maintenance order made by a magistrate of the Magistrates Court of Western Australia. The respondent, Ms. Fisher, conceded error in the magistrate's order, and both parties agreed that the order should be set aside and their respective applications concerning interim spousal maintenance should be dismissed. The appeal was heard by Justice Austin, who granted leave to appeal, allowed the appeal, and dismissed the respondent's application for a costs certificate.

The court had to decide whether leave to appeal should be granted, if the appeal should be allowed, and if the respondent was entitled to a costs certificate. The court found that the magistrate made material factual errors concerning the respondent's need and the appellant's capacity to pay spousal maintenance, and that the magistrate failed to give adequate reasons for the appealed order. The court also found that the proceedings had been transferred to the Family Court of Western Australia, and the parties had requested that their respective first-instance applications be dismissed.

The court allowed the appeal and set aside the interim spousal maintenance order made by the magistrate. The court dismissed the parties' respective applications concerning interim spousal maintenance, as were determined by the appealed order, and refused the respondent's application for a costs certificate. The court found that the appeal was substantially premised on several material errors of fact, and that only very modest costs could have been reasonably incurred given the infancy of the appeal. The court exercised its discretion and refused the respondent a costs certificate.

Orders