Caska & Caska

[2004] FamCA 873

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA 4L of 2003
File No. SYF 6343 of 1991
BETWEEN:

CASKA

Appellant Husband

-and -

CASKA

Respondent Wife

REASONS FOR JUDGMENT

BEFORE:  Finn, Kay and Dawe JJ
HEARD:  31 March 2004
DATES OF FURTHER WRITTEN SUBMISSIONS:
  2 April 2004 and 14 April 2004
JUDGMENT:  22 September 2004

APPEARANCES: Ms Winfield of Counsel (instructed by Peninsula Law, DX 8806 Woy Woy) appeared on behalf of the appellant.

Mr Twigg of Counsel (instructed by Adrian Twigg & Co DX 267 SYDNEY) appeared on behalf of the respondent.

APPEAL SUMMARY

MATTER:CASKA
APPEAL NUMBER:  EA 4L of 2003 (SYF 6343 of 1991)
CORAM:Finn, Kay and Dawe JJ
DATE OF HEARING:  31 March 2004
DATE OF FURTHER WRITTEN SUBMISSIONS:
2 April 2004 and 14 April 2004

DATE OF JUDGMENT: 22 September 2004

CATCHWORDS: FAMILY LAW – APPEALS – Whether trial Judge able to grant leave nunc pro tunc in relation to the wife’s spousal maintenance application given the dismissal of that application by a prior Full Court.
FAMILY LAW – PRACTICE AND PROCEDURE – Whether the trial Judge had before her, in addition to the application for leave nunc pro tunc, an application for leave to commence spousal maintenance proceedings pursuant to s 44(3) – Whether orders sought in an outline of case document and in oral submissions can constitute an application notwithstanding that those orders were not sought in the application document as filed.
FAMILY LAW – APPEALS – PRACTICE AND PROCEDURE – Whether a respondent to an appeal can seek an order other than the dismissal of the appeal in the absence of a cross-appeal – Whether a Full Court can make orders granting the respondent a more favourable outcome in the appeal than the mere dismissal of the appeal in the absence of a cross-appeal by the respondent.

Caselaw cited:

Emanuele v Australian Securities Commission (1996-7) 188 CLR 114

Donne v Lewis (1805) 11 Ves Jun 601

Wall v Wall [2002] FLC 93-110

Allesch v Maunz [2000] FLC 93-003

Pierce v Pierce [1999] FLC 92-844

Thompson v Easterbrook (1951) 83 CLR 467

Appeal allowed and orders of trial Judge set aside.

Respondent’s application for leave to commence proceedings pursuant to s 44(3) remitted for hearing.

Directions made for the filing of costs submissions.

REPORTABLE

This is an appeal by the husband from the following order made by Lawrie J on 25 February 2003:
That leave be granted pursuant to section 44(3) in relation to the wife’s application for maintenance originally filed by the wife on 16 June 1997 nunc pro tunc.
On 7 October 2003 another Full Court (Coleman, Warnick and Collier JJ) granted the husband leave to appeal the order of 25 February 2003 having determined the application for leave on the basis of written submissions.

Background to this appeal

This matter has had a long history. As it emerges from the material before us, it can be summarised as follows.
The husband (who was born in 1944) and the wife (who was born in 1947) separated in July 1990 after a cohabitation period of approximately 9 years during which they had three children. A decree nisi dissolving their marriage was granted on 14 January 1993; it became absolute on 15 February 1993.
Prior to the decree absolute, the wife filed proceedings for property settlement and spouse maintenance and on 12 August 1996 orders were made by consent which provided amongst other things that:
The Husband . . . pay to the wife the sum of sixty thousand dollars ($60,000.00) by way of spouse maintenance such payment to be made within twenty eight (28) days from the date of these orders.
The Husband complied with that order.
On 16 June 1997 the wife filed an application in which she sought an order in the following terms:
That the husband pay her by way of maintenance the sum of $2,000 per week.
On 15 September 1997 a Registrar made an order to the effect that the order for spousal maintenance made on 12 August 1996 be varied to provide that the husband pay to the wife the sum of $1,000 per week by way of spousal maintenance for four years.
The husband then applied to review the Registrar’s decision. The review was heard by Chisholm J, who on 4 December 1997 dismissed the wife’s application for spousal maintenance.
The wife then appealed Chisholm J’s dismissal of her application. On 18 September 1998 the Full Court upheld the wife’s appeal and remitted the matter for re-hearing.
On a re-hearing of the wife’s application, Cohen J ordered on 7 June 2000 that the husband pay the wife the sum of $800 per week backdated to the date of the filing of the wife’s application on 16 June 1997.
The husband then appealed Cohen J’s order. At the hearing of the appeal on 1 February 2001 the Full Court granted the husband leave to amend his Notice of Appeal to include as a preliminary point a further ground of appeal in the following terms:
That there was no jurisdiction in the Court to enable his Honour to make any order varying the lump sum maintenance order made on 12 August 1996 and thereafter fully executed.
It appears that this was the first occasion that the issue of jursidiction in the Court to vary the original order made by consent and/or question of the need for leave under s 44(3) of the Family Law Act 1975 (“the Act”) was raised. The provisions of that sub-section and of s 44(4), which is also relevant for present purposes are as follows:
(3)Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a)a decree nisi of dissolution of marriage has become absolute; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c) or (ca) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c)in a case referred to in paragraph (a)—the date on which the decree nisi became absolute; or
(d)in a case referred to in paragraph (b)—the date of the making of the decree.
The court may grant such leave at any time, even if the proceedings have already been instituted.
(4)The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a)that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b)in the case of proceedings in relation to the maintenance of a party to a marriage—that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
On 23 March 2001 the wife filed an application seeking:
That leave be granted pursuant to Section 44(3) in relation to the application for maintenance originally filed by the Wife on the 16^th June 1997 nunc pro tunc.
The hearing of that application was apparently adjourned pending the delivery of the Full Court’s judgment in the appeal against Cohen J’s order.
On 23 November 2001 the Full Court upheld that appeal on the basis, it seems clear, of the preliminary point raised by the husband’s additional ground of appeal. The Full Court set aside Cohen J’s order and dismissed the wife’s application for maintenance filed on 16 June 1997. The precise terms of the relevant orders of the Full Court are as follows:
1. That the appeal be allowed.
2. That the orders of Cohen J of 7 June, 2000 be set aside.
3.That in lieu thereof, the wife’s application for maintenance filed on 16 June, 1997, be dismissed.
The wife’s application (filed 23 March 2001) seeking leave nunc pro tunc in relation to her spousal maintenance application filed on 16 June 1997 was heard by Lawrie J on 30 August and 11 October 2002.
Her Honour delivered judgment on 25 February 2003 and made the orders in the terms earlier set out but for convenience here repeated:
That leave be granted pursuant to section 44(3) in relation to the wife’s application for maintenance originally filed by the wife on 16 June 1997 nunc pro tunc.

The husband’s grounds of appeal

The grounds of appeal contained in the husband’s notice of appeal filed on 4 November 2003 (pursuant to the leave granted on 7 October 2003) are as follows:
1. That her Honour erred in law in that she failed to consider;
(a)the hardship caused to the Husband when granting leave nunc pro tunc
(b)or if hardship was caused to the Husband by granting leave nunc pro tunc.
2.That her Honour erred in concluding that the Wife’s Application seeking leave nunc pro tunc was remitted to her Honour for her Honour’s consideration by the Full Court.
3.That her Honour erred in concluding that the determination of the balance of the appeal before the Full court was suspended pending determination of the Wife’s Application seeking leave nunc pro tunc.
4.That her Honour erred as a matter of law in that she failed to properly apply the law in relation to applications for relief nunc pro tunc.
5.That her Honour erred in law in that she failed to appreciate that applications nunc pro tunc and applications pursuant to section 44 involved different principles of law.
6.That her Honour erred in that she relied upon the finding of fact by Mr Justice Cohen in the matter in the circumstances,
(a)that the matter was before Mr Justice Cohen in March and April 1999,
(b)that the finding was that the wife had a need for $800 per week spousal maintenance from 1997,
(c)that the orders of the Mr Justice Cohen were subject of the an appeal and such orders had been set aside.
7.That her Honour erred in granting leave nunc pro tunc in respect of the Application for Spousal Maintenance when the Application had been dismissed by the Full Court on 23 November 2001.

Issues

It has to be said at the outset that ground 7 has substance. In our view it was impossible for her Honour to have granted leave nunc pro tunc in respect of the wife’s application for maintenance filed on 16 June 1997 when that application had been dismissed by the Full Court by its orders of 23 November 2001. Indeed as will be seen from passages of the transcript of the hearing before her Honour which we will later quote, she appears to have herself recognised this early in the hearing before her.
The real, and more difficult, question that arises in this appeal, and as was recognised in our discussion with the legal representatives of the parties during the hearing of the appeal, is what should be the future course, if any, of this matter.
This question arises because it is the contention of the respondent wife that Lawrie J had before her for determination not only an application for leave nunc pro tunc in relation to the application for spousal maintenance filed on 16 June 1997, but also an alternative application for leave pursuant to s 44(3) to commence spousal maintenance proceedings. To the extent that that alternative application has not been determined, it should, according to the wife, now be remitted for re-hearing.
However, on behalf of the appellant husband it was contended that in the absence of a cross appeal, the respondent to an appeal (such as the present) can seek no order other than the dismissal of the appeal. This was an issue on which we received further written submissions from both parties subsequent to the hearing of the appeal.
Before considering those subsequent written submission, we must first address the question of whether there was in fact an alternative application before Lawrie J as the wife contends.

The proceedings and applications before Lawrie J

The only presently relevant order sought in the application filed by the wife on 23 March 2001 was:
That leave be granted pursuant to Section 44(3) in relation to the application for maintenance originally filed by the wife on 16 June 1997 nunc pro tunc.
However, in the amended outline of case document dated 28 August 2002 and filed on behalf of the wife for the purpose of the hearing before Lawrie J on 30 August 2002, the following orders were shown as being sought:
1.That the wife be granted leave, nunc pro tunc, pursuant to s44(3) of the Act, in relation to the application for maintenance filed by her.
2.In the alternative, that pursuant to s 44(3) the wife now be granted leave pursuant to s 44(3) to commence proceedings for spousal maintenance (it being noted the wife’s application would be for the sum of $2,000 per week, otherwise usual order).
3.Costs.
At the commencement of the hearing before her Honour on 30 August 2002, the following exchange occurred:
MR HARDING (for the husband): Your Honour, I’d need to have clarified also, for the purposes of our position, I understand the matter before you today is that where (sic) leave be granted nunc pro tunc in regard to maintenance.
HER HONOUR: That’s as I’ve understood it. Is it?
MR TWIGG (for the wife): Yes, leave a (sic) nunc pro tunc or in the alternative, if you’re against us on that, ordinary 44(3) leave.
MR HARDING: The second part is not what I understand then. The second leg, the alternative, is not within my understanding. We were served with an outline document last night, which I saw this morning, which, for the first time, raises as an alternative, leave, pursuant to section 44(3), which then creates a number of different considerations. We certainly oppose the Court dealing with leave pursuant to 44(3) today.
HER HONOUR: I’m sorry, you’d oppose?
MR HARDING: Dealing with that.
HER HONOUR: Simpliciter?
MR HARDING: Yes, simpliciter.
MR TWIGG: Can I point my friend to the case outline document which was prepared for the March version of the hearing which didn’t proceed, dated 1 March, filed 4 March in which the orders sought state clearly, and I’ll show this to my friend:
In the alternative that, pursuant to section 44(3), the wife now be granted leave, pursuant to section 44(3), to commence proceedings for spousal maintenance.
With the same notation, essentially the same orders as is set out in the current document. I’ll show to my friend that document.
MR HARDING: I accept what my friend says. I haven’t seen the document previously but, nevertheless, as I understand it, the only matter before you and, indeed, the only matter that has ever been set down for hearing is the question of leave nunc pro tunc as a result for the Court’s decision.
Then a little later Counsel for the husband, Mr Harding, put forward the following proposition (which we have earlier indicated must lead to the success of this appeal):
One of the problems, which we raise before you today, is this, that there are no longer any proceedings on foot. Accordingly, there is, in my submissions, no power for the Court to grant leave, nunc pro tunc, because the essence of it is the relief is, that there’s a proceeding which has been brought but which was, in fact, a proceeding which would require leave as a condition of it being brought and that was just not done; but here, as a result of the Full Court’s orders, we say there is simply no maintenance proceeding on foot.
Shortly thereafter her Honour said:
So you say the nunc pro tunc has been overtaken by events and if it’s to be anything, it would have to be a 44(3) leave simpliciter.
Then a little later her Honour said:
I must say, I think there’s a pretty good argument to say, “If everything’s been dismissed by the Full Court, I’ve got no jurisdiction to do other than move on a fresh application”.
Mr Twigg responded to these concerns on the part of her Honour saying:
…Even if your Honour were troubled by the nunc pro tunc question, in our submission, your Honour could deal, quite simply, we believe, with the 44(3) simpliciter argument…
The remainder of the first day of the hearing (30 August 2002) was occupied with submissions from Mr Twigg. Those submissions appear to have been directed to the question of whether a grant of leave nunc pro tunc by her Honour could have the effect of reviving the wife’s application for maintenance which the Full Court had dismissed and also to the principles governing an application under s 44(3), particularly the question of hardship to the wife.
When the hearing resumed on 11 October 2002, Mr Twigg continued to appear for the wife, but a new Counsel, Mr Thomas appeared for the husband. The following exchange between her Honour and Mr Twigg indicates that at least Mr Twigg believed that the alternative application to the nunc pro tunc matter was before her Honour:
HER HONOUR: It’s only the nunc pro tunc that’s outstanding, isn’t it?
MR TWIGG: No, there’s the ordinary leave question. That was something that my friend said, “Well, it’s not in the application that was filed in February 2001”, and I suggest that it was in our case outline document we filed some months ago. It was left on the basis that that today would give them opportunity of doing anything they wanted to do about that part of the application, which was pleaded as an alternative- put as an alternative proposition…
Subsequently, Mr Thomas submitted that it was “the husband’s view that (the) Court shouldn’t hear a leave issue as distinct from the nunc pro tunc application”. A little later Mr Thomas further submitted that “the s 44(3) application” was “not properly before (the) Court.”
In response to that further submission, her Honour queried why the s 44(3) application was not “properly before the Court.” Mr Thomas’ response was that there had “never been an application filed.”
Thereafter Mr Thomas’ submissions appear to have been directed to the nunc pro tunc issue. Included in those submissions was the submission that the application of the wife filed 16 June 1997 could not be “resurrected” by means of a nunc pro tunc application because the original application had been dismissed by the Full Court.
Further submissions were then made by Mr Twigg on behalf of the wife directed, it seems, to the question of hardship to the wife if her application for maintenance was not heard.
When her Honour gave Mr Thomas the opportunity to respond to Mr Twigg, the following exchange occurred:
MR THOMAS: Firstly, there’s no concession made on the part of the husband that the leave, per se, question is properly before the Court today. If you’re against me on that, your Honour---
HER HONOUR: All right, now why is that?
MR THOMAS: For this reason. There’s never been an application filed in respect of that matter. The wife can’t come by simply filing now a practice direction document which sets out that is an order that seeks, or if for example ---
HER HONOUR: So you say it’s got to be a nunc pro tunc or nothing?
MR THOMAS: Or she can file a ---
HER HONOUR: Or start again?
MR THOMAS: Start again is what she should do if she wants to file a leave application. You see, in 1997, she put, on advice, all her eggs ---
HER HONOUR: Why shouldn’t I just say, I give you leave to make an oral application?
MR TWIGG: (Indistinct) make that application if your Honour grants the leave.
MR THOMAS: I guess it’s now two days into the hearing ---
…
HER HONOUR: I would have thought the order would have been that – would have done that, then it would be for me to say I give leave to make an oral application for leave and in view of the principles of natural justice expressed in Taylor v Taylor that parties are entitled to have their matter adjudicated on the merits in a Court, and in view of the fact that there’s been no real fault on behalf of the parties, the matter should be permitted to proceed so that it can be determined on the merits.

Mr Thomas then made submissions concerning the position of the husband. During the course of those submissions, her Honour said (emphasis added):
Well, an oral one has been made. Why shouldn’t I grant it, and put everybody out of their misery and let it get heard on its merits? You say that there’s plenty of material there for your client to succeed on, so why not have a hearing on the merits?
Mr Thomas then made further submissions concerning the need for an application to be filed and the hardship that the husband faced. The hearing then concluded with her Honour reserving her decision.

Lawrie J’s judgment

Her Honour delivered her reserved judgment on 25 February 2003. It is important to note that she commenced by saying:
1.This is an application for leave to bring spouse maintenance proceedings.
She then outlined the history of the matter, and in so doing, made reference to the Full Court’s dismissal of the wife’s claim for maintenance “on jurisdictional grounds on the basis that no leave had been obtained under s 44(3)”.
After quoting the provisions of s 44(3) and (4), her Honour referred to the wife’s “nunc pro tunc” application filed 23 March 2001 in relation to her application filed 16 June 1997, saying:
13.The last sentence of section 44(3): “The court may grant such leave at any time, even if the proceedings have already been instituted“, makes it clear that the failure to obtain leave is not fatal to the proceedings, but that its correction is a matter of discretion. On 23 March 2001 the wife filed an application:
“1.That leave be granted pursuant to Section 44(3) in relation to the application for maintenance originally filed by the Wife on the 16th June 1997 nunc pro tunc.”
It then appears, at least as we read her Honour’s judgment, that she proceeded to determine the “nunc pro tunc” application. We take this view because after referring to the cases of Emanuele v Australian Securities Commission 188 CLR 114 and Donne v Lewis (1805) 11 Ves Jun 601, her Honour said:
21.The court can make an order nunc pro tunc if it is satisfied that if leave had been applied for at the time provided by the legislation , that it would have been possible for a judge to have granted it. In the case of an application for leave under S.44(3) that would mean that a judge would have had to have been able to find “that hardship would be caused to a party to the relevant marriage or a child if leave were not granted or”, “that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.”
22. In this case we have the benefit of knowing that a judge found that the wife had a need for $800 per week from 1997. I am therefore satisfied that an order giving leave under S.44(3) would have been made had it been applied for before the orders of Justice Cohen were made.
23.I am satisfied that this is a case where there has been an “oversight” which requires a “repair”. I should also say that each of the parties had the benefit of skilled and diligent practitioners, and it was not through any negligence that the parties find themselves in this situation, but rather through the differences of interpretation that have been referred to above. This case is a vivid demonstration of the inconvenience which the failure to cure an oversight can lead to. I am satisfied that the leave should be granted nunc pro tunc in the interests of justice so that the case can be considered on the merits with as little loss of time and costs as possible.
24.The order of the court will therefore be :
1. That leave be granted pursuant to section 44(3) in relation to the wife’s application for maintenance originally filed by the wife on 16 June 1997 nunc pro tunc.

Conclusion in relation to the applications before Lawrie J

We are satisfied that at the hearing on 30 August and 11 October 2002 her Honour had before her not only the “nunc pro tunc” application filed by the wife on 23 March 2001 in relation to her maintenance application filed on 16 June 1997, but also an alternative application for leave under s 44(3) to institute maintenance proceedings. It is true that no new formal application for leave under s 44(3) to institute maintenance proceedings had been filed prior to, or during the hearing before her Honour. But such an application was contained in the amended outline of case document (sometimes referred to as “the practice direction document”), and in our experience, it is not uncommon for an application for a particular order to be made in such a document.
Moreover it is clear from the passages of transcript quoted above, that her Honour was proceeding on the basis that an application for leave under s 44(3) had been made orally on behalf of the wife. Again it is not unusual in this Court for applications to be made orally. Ultimately, however, that application for leave under s 44(3) to institute proceedings was not determined by her Honour (notwithstanding what she said in the opening paragraph of her judgment), presumably because she had granted the nunc pro tunc application.
Before us the husband did not seek – indeed he opposed any suggestion - that the undetermined s 44(3) application should be remitted for re-hearing. However the wife sought such a remission, and thus the question arose as to whether as a respondent to the appeal she could seek any order other than the dismissal of the appeal. As mentioned earlier, this question was the subject of further written submissions to us.

The further written submissions

In support of the proposition that an unsuccessful respondent who has not cross-appealed may nevertheless seek a more favourable result than the mere dismissal of the appeal (in this case the hearing of the alternative s 44(3) application which Lawrie J did not determine), the wife relied on paragraph 57 of the judgment of the Full Court in Wall v Wall 2002 FLC 93-110, where it was said:
In the result we conclude that if, in re-exercising the discretion of the Trial Judge upon an appeal in proceedings under Section 79 of the Act, this Court concludes (as we have in this case) that a proper exercise of that discretion calls for an order more favourable to the Respondent than that of the Trial Judge, this Court is at liberty (subject to the issue of natural justice, discussed below) to substitute such an order for that of the Trial Judge notwithstanding the absence of a cross-appeal by the Respondent, at least in circumstances where the proposed order is with the ambit of the orders sought by the respondent before the Trial Judge.
It was submitted on behalf of the wife that there is no reason why that principle would be limited to s 79 proceedings, or to cases in which, as in Wall, further evidence was taken following the decision in Allesch v Maunz 2000 FLC 93-003 (which was the case in Wall).
The wife also relied on Pierce v Pierce FLC 92-844, in which the Full Court recognised that the obligation of the Court in re-exercising the discretion of a trial Judge “is to make an order that the Court considers appropriate,” as well as on the provisions of s 94(2) of the Act which are:
Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and make such decree or decision as, in the opinion of the Court, ought to have been made in the first instance, or may, if it considers it appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate.
We were also referred to the discussion by the Full Court in Wall v Wall of Thompson v Easterbrook (1951) 83 CLR 467 where the High Court expressed the view that that Court on appeal (in a tenancy case) “…may give such judgment as ought to have been given in the first instance” and then went on to make an order more favourable to the respondent than the order of the Court appealed from, although the respondent had not cross-appealed. In commenting on Thompson v Easterbrook, the Full Court said in Wall (at paragraph 53):
Although not directly relevant to this case, because it did not involve a re-exercise of discretion on an appeal by way of re-hearing, it at least demonstrated that Their Honours did not see a failure to cross-appeal as necessary precluding the making of an order, on appeal, more favourable to the Respondent than that of the Trial Judge”.
Therefore, relying on these various authorities and particularly on s 94(2), it was submitted on behalf of the wife that it is quite clear that the Full Court is not fettered in any way in the order it makes, and is able to, and in appropriate cases should make, appropriate orders notwithstanding that there is not a cross-appeal. Thus it was submitted that the respondent to an appeal may seek an order other than an order that the appeal simply be dismissed.
The essential argument in the written submissions on behalf of the husband in response to those of the wife appears to be that it is not open to the respondent wife on appeal to change the position which she adopted before the trial Judge and to try to seek a re-hearing of an issue which was not previously argued.
The difficulty with this argument is that, as is clear from the passages of the transcript of the hearing before Lawrie J which we have earlier quoted, the alternative s 44(3) application, which the wife now seeks to have remitted, was before Lawrie J.
In our view, and having regard to the authorities on which the wife relied in her written submissions, it is open to the wife to seek to have that alternative application remitted for hearing. Furthermore, we are of the view that the interests of justice require that that application should be remitted for re-hearing.

Costs of the Appeal

It was agreed at the conclusion of the hearing of the appeal that the parties should make written submissions in relation to the costs of the appeal after the delivery of the judgment. We will make the necessary directions for such submissions (including submissions in relation to certificates under the Federal Proceedings (Costs) Act 1981).

Orders

That the Appeal be allowed.
That the order made by the Honourable Justice Lawrie on 25 February 2003 be set aside.
That the application by the wife for an order that pursuant to s 44(3) of the Family Law Act 1975 the wife be granted leave to commence proceedings for spousal maintenance (which was contained in the amended outline of case document dated 28 August 2002 and which was before the Honourable Justice Lawrie at the hearing commencing 30 August 2002) be remitted for hearing with all possible expedition.
(a) That each party be at liberty to file and serve any written submissions in relation to the costs of the appeal within 28 days of the date hereof.

(b)That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
(c)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

I certify that the preceding 56 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court

Associate

[2004] FamCA 873

22 September 2004

Key Legal Topics

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Negligence & Tort

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Appeal

Damages

Duty of Care

Negligence

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