Cardos & Rafter

Case [2024] FedCFamC1A 157

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Cardos & Rafter [2024] FedCFamC1A 157  

Appeal from: Cardos & Rafter [2024] FCWAM 77
Appeal number: NAA 147 of 2024
File number: PTW 6657 of 2022
Judgment of: CHRISTIE J
Date of judgment: 12 September 2024
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Interim spouse maintenance – Where appellant seeks leave to appeal from interim spouse maintenance orders – Where appellant failed to demonstrate substantial injustice –– Leave to appeal refused – Appeal dismissed – Appellant to pay the respondent’s costs in fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 83

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r.13.1
Cases cited:

Adcock & Sealy [2024] FedCFamC1A 137

Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Bennett and Bennett (1991) FLC 92-191

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Godard and Dorsett [2017] FamCAFC 220

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Keymer & Keymer [2020] FamCAFC 70

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

Qin & Donato [2023] FedCFamC1A 223

Raymond & Raymond (2024) FLC 94-180; [2024] FedCFamC1A 45

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

Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Seden & Kehoe [2020] FamCAFC 294

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48
Number of paragraphs: 71
Date of hearing: 29 August 2024
Place: Heard in Perth, delivered in Sydney
Counsel for the Appellant: Dr Ashdown
Solicitor for the Appellant: Milevski Family Lawyers
Counsel for the Respondent: Mr Sloan
Solicitor for the Respondent: Kim Wilson & Co Family Lawyers

ORDERS

PTW 6657 of 2022
NAA 147 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR CARDOS

Appellant
AND:

MS RAFTER

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

12 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The appellant pay the respondent’s costs in the sum of $13,500.

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).

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

IT IS NOTED that publication of this judgment by…

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Cardos & Rafter [2024] FedCFamC1A 157
Case
[2024] FedCFamC1A 157
Decision Date

CaseChat Overview and Summary

The case of Mr Cardos versus Ms Rafter was an appeal concerning interim spouse maintenance orders made by the Family Court of Australia. The appellant, Mr Cardos, sought leave to appeal from the interim maintenance orders, arguing that they caused substantial injustice. The respondent, Ms Rafter, did not cross-appeal or file a notice of contention but did provide additional context for the court's consideration of the appropriateness of the orders. Issues such as the use of gross income as a measure of income available to Ms Rafter for meeting her weekly commitments were highlighted.

The court examined whether the Magistrate made a decision without adequate reasons or miscarried in the exercise of her discretion. Regarding the adequacy of reasons, the court noted that the Magistrate clearly delineated the pathway to the decision and appropriately explained the basis of the orders. The court found that the failure to mention each fact did not amount to error. The court also concluded that the contention of a miscarriage in the exercise of discretion was without merit, as it was an error only implied by the incongruence between the result and the underlying evidence. The court held that such errors seldom succeed due to the generous discretion afforded by the statute.

The court ruled that the application for leave to appeal was refused. The appellant was ordered to pay the respondent's costs in the sum of $13,500. The form of the order was subject to review for minor errors or variations. The court reminded all parties of the legal restrictions on publishing details that identify individuals involved in family law proceedings.

Orders

Orders of the court

PTW 6657 of 2022

NAA 147 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CARDOS

Appellant

AND:

MS RAFTER

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

12 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused.

2. The appellant pay the respondent’s costs in the sum of $13,500.

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).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent neither cross-appealed nor filed a notice of contention but did submit that there were other contextual matters which were relevant to the determination of whether the orders were in fact attended by sufficient doubt and/or would work a substantial injustice. An example was the use of the gross income received by the respondent as a measure of the income available to her to meet her weekly commitments. I accept that the gross income figure did not take into account the cost of earning income (for example book-keeping). I accept the submission that consideration of these factors is relevant to my assessment of the appropriateness (or otherwise) of granting leave.Ground 2 – The Magistrate either made a decision without adequate reasons, or miscarried in the exercise of her discretion so far outside of reasonable bounds as to constitute legal error With respect to counsel for the appellant, the ground articulates two specific and distinct complaints. The first relates to adequacy of reasons. The second asserts a miscarriage in the exercise of the primary judge’s broad discretion. The law in respect of adequacy of reasons is well-settled. Reasons will be inadequate where it is not apparent how the decision was reached, upon what evidence the decision was reached or the pathway that led to a stated conclusion (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (“Sun Alliance Insurance Ltd”) (cited with approval in Bennett and Bennett (1991) FLC 92-191 (“Bennett”)). See, also: CDJ v VAJ (1998) 197 CLR 172 at [108] – [113]). In Bennett at 78,266, the Full Court adopted the test for adequacy of reasons set out by Gray J in Sun Alliance Insurance Ltd, who said at 18:The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:a) the appeal court is unable to ascertain the reasoning upon which the decision is based; orb) justice is not seen to have been done. Here, the pathway by which the Magistrate reached the decision is clearly delineated and the basis upon which the resulting orders were made is appropriately explained having regard to the interlocutory nature of the hearing. A failure to mention each fact will not, without more, amount to error: Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386. This asserted ground is without merit. Turning to the contention that the decision was “so far outside of reasonable bounds as to constitute legal error”, as this court observed in Adcock & Sealy [2024] FedCFamC1A 137, where an appellant, such as the appellant in this case, alleges that the primary judge’s orders were plainly wrong, this is the type of error which can be characterised as:[29] … only capable of being implied by reason of an appellant being unable to identify any other form of frank legal, factual or discretionary error which vitiates the discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505). Such an error is commonly contended as a last resort and it seldom succeeds because of the generous ambit of discretion afforded by the statute (Gronow v Gronow (1979) 144 CLR 513 at 519–520; Norbis v Norbis (1986) 161 CLR 513 (“Norbis”). Relevantly, such an error may be inferred from the incongruence between the result and the underlying evidence, as synthesised with applicable legal principles. In the upshot, it can be contended the decision really amounts to a failure to properly exercise the discretion entrusted to the Court (Lovell & Lovell (1950) 81 CLR 513 at 519).

Ratio Decidendi

Legal Principle Established

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