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 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 Court of Western Australia made an interim order requiring the applicant to pay to the respondent spousal maintenance of $1,000 per week.
Subject to the grant of leave, the applicant appealed from the judgment by way of an Amended Notice of Appeal filed on 11 October 2022.
Shortly thereafter, the appeal registrar was notified that the appeal was conceded and so, on 14 October 2022, ordered the parties to file a joint submission outlining the appealable error for which they contended.
Regrettably, the joint submission filed by the parties on 28 October 2022 did not achieve the objective envisaged by the appeal registrar and so the appeal was listed before the Court on 11 November 2022 to elucidate the nature of the alleged appealable error and the form of the remedial orders proposed.
The parties’ oral submissions resulted in confirmation that:
(a)the respondent conceded the appeal on only a limited sub-set of the grounds contained within the Amended Notice of Appeal;
(b)the applicant did not press the appeal beyond the ambit conceded by the respondent;
(c)both parties agreed that only Order 1 made by the magistrate should be set aside, there being no challenge to the validity of Order 3;
(d)the parties’ respective underlying applications in respect of spousal maintenance, as were determined by Order 1 made by the magistrate, could be consensually dismissed instead of remitted for re-hearing or determined by the re-exercise of discretion; and
(e)the respondent pressed her application for the grant of a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal, but the applicant did not.
These reasons briefly explain why leave to appeal is granted, the appeal is allowed, and the costs certificate is refused.
Leave to appeal
The proposed appeal lies from an interlocutory financial order, in which event leave to appeal is required (s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”); reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)).
The grant of leave ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, in addition, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
The respondent conceded the decision at first instance was wrong. Although the parties’ submissions did not go further, the substantial injustice of the applicant having to pay the respondent $1,000 per week on an indefinite basis is obvious enough.
The appeal
The grounds of appeal conceded by the respondent concerned factual errors in respect of:
(a)the computation of the respondent’s weekly expenses (Grounds 1(a) and 1(e));
(b)the quantification of the respondent’s weekly need (Grounds 1(b), 1(f) and 2); and
(c)the computation of the applicant’s weekly expenses (Grounds 3(a) and 3(b)).
In addition, the respondent conceded an appealable error of law by the magistrate failing to give adequate reasons for the appealed order (Grounds 4(d) and 4(e)).
The magistrate found the respondent’s reasonable expenses exceeded her income by $1,021.18 per week (at [25]), but it was conceded the differential should have been half that amount. The parties contended that, when the proceedings were last mentioned before the Magistrates Court in October 2022, the magistrate conceded an “arithmetic error” in the calculation of the respondent’s expenses.
The magistrate found the applicant enjoyed a surplus of income over expenses, quantified at $728 per week (at [43]), but it was conceded her Honour wrongly disallowed an expense of $195 and wrongly failed to include in the calculations an extra expense of $100 found to be reasonable. Those errors resulted in the over-statement of surplus income by $295.
Appealable error is therefore demonstrated in the form of material factual mistakes.
The concessions mean that, on the evidence adduced before the magistrate, the respondent’s need was properly calculable at $514 (rounded to the nearest dollar), but the applicant’s capacity to pay spousal maintenance was only $433. Nonetheless, subject to such correction, the undisturbed findings of the magistrate would still enable an interim spousal maintenance order to be made.
The mathematical errors and the inadequacy of reasons could be cured by the discretion under Pt VIII of the Family Law Act1975 (Cth) being re-exercised, but both parties were against that course for two reasons.
First, they both contended for material changes in financial circumstances since the appealed orders were made and so update evidence would need to be filed before their competing applications could be re-heard.
Second, the proceedings have since been transferred from the Magistrates Court of Western Australia to the Family Court of Western Australia and are next listed before a judge for case management directions on 22 November 2022, at which time the parties can revise what new interim relief, if any, they now need. They considered it would be unhelpful to remit the competing applications concerning interim spousal maintenance to the Magistrates Court, from whence the appeal originated, when the proceedings are now litigated in a different court. The parties requested that their respective first-instance applications be dismissed, which order will not block fresh interim applications (as may be needed) being filed in due course.
Disposition
The appeal is allowed and Order 1 made by the Magistrates Court of Western Australia on 12 August 2022 will be set aside.
The parties’ respective applications concerning interim spousal maintenance, as were determined by Order 1 made on 12 August 2022, will be dismissed.
The appellant abandoned her application for a costs certificate in respect of the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), but the respondent did not.
The inadequacy of reasons, as was conceded by the respondent, amounted to an error of law (Pettitt v Dunkley (1971) 1 NSWLR 376 at 382; DL v The Queen (2018) 265 CLR 1 at [131]) and the allowance of an appeal for an error of law is integral to the grant of a costs certificate (Cramer v Davies (1997) 72 ALJR 146). However, the appeal was substantially premised on several material errors of fact and, given the infancy of the appeal, only very modest costs could so far have been reasonable incurred. In the exercise of discretion, the respondent is refused a costs certificate.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 November 2022
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