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Drysdale & Drysdale

Case [2011] FamCAFC 85 8 April 2011

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FAMILY COURT OF AUSTRALIA

DRYSDALE & DRYSDALE

[2011] FamCAFC 85

FAMILY LAW - APPEAL – Application for leave to appeal against an interim order for the payment of spousal maintenance made by a Federal Magistrate – Whether the Federal Magistrate erred in finding that the wife satisfied the “threshold requirement” of s 72 – Whether the Federal Magistrate erred in finding that the wife had demonstrated that she was unable to support herself by reason of her failure to identify which of the household expenses claimed by her were referrable to the wife’s own needs – Whether the Federal Magistrate erred in finding that the husband had the capacity to satisfy the interim order – Whether the Federal Magistrate’s failure to offset against the order made in the wife’s favour the correct amount the husband had agreed to pay by way of child support constitutes appealable error – Application for leave to appeal dismissed.

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Branson & Branson (Unreported, Full Court of the Family Court of Australia, Ellis, Baker and Anderson JJ, 12 October 1995)
Chapman and Chapman (1979) 34 FLR 530n; (1979) FLC 90-671
Mee & Ferguson (1986) FLC 91-716; (1986) 84 FLR 179; (1986) 10 Fam LR 971
Paradine & Paradine (1981) FLC 91-056; (1981) 7 Fam LR 125
Redman & Redman (1987) FLC 91-805; (1987) 11 Fam LR 411
Rutherford and Rutherford (1991) FLC 92-255
Stein & Stein (2000) FLC 93-004

Family Law Act 1975 (Cth) s 72

APPELLANT:

Mr Drysdale

RESPONDENT:

Mrs Drysdale

FILE NUMBER:

BRC

7238

2010

APPEAL NUMBER:

NOA

120

2010

DATE DELIVERED:

8 April 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

1 April 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 October 2010

LOWER COURT MNC:

[2010] FMCAfam 1379

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Bourke

SOLICITOR FOR THE APPELLANT:

Family Law Solutions

COUNSEL FOR THE RESPONDENT:

Mr Fermanis

SOLICITOR FOR THE RESPONDENT:

Conroy Stewart Spagnolo

Orders

That, save for costs, the husband’s application for leave to appeal be dismissed.
That costs in the application be reserved.
That within 28 days the husband file and serve any submissions in opposition to the wife’s application for costs of and incidental to the husband’s application for leave to appeal.

IT IS NOTED that publication of this judgment under the pseudonym Drysdale & Drysdale is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: NOA 120 of 2010

File Number: BRC 7238 of 2010

Mr Drysdale

Appellant

And

Mrs Drysdale

Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 21 December 2010, Mr Drysdale (“the husband”) sought leave to appeal against orders made in the Federal Magistrates Court on 4 November 2010 and, if leave to appeal be granted, that the order for interim spousal maintenance then made in proceedings between the…

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 Drysdale & Drysdale

Details

AGLC: Drysdale & Drysdale [2011] FamCAFC 85
Case: [2011] FamCAFC 85
Decision Date: 8 April 2011

CaseChat Overview and Summary

In the matter of Drysdale & Drysdale, the husband sought leave to appeal the decision of the Family Court of Australia concerning property settlement. The wife, in response, sought costs associated with the husband's application for leave to appeal. The Full Court of the Family Court of Australia was tasked with deciding the husband's application for leave to appeal and the wife's application for costs.

The legal issues before the court involved whether the husband's application for leave to appeal presented a sufficient ground for appeal and, if so, whether it warranted leave. Additionally, the court had to consider whether the wife was entitled to costs for the husband's application, and if so, the amount of those costs.

The court found that the husband's application did not present a sufficient ground for appeal, as the arguments raised were not novel or significant enough to warrant a departure from the established principles of property settlement. Consequently, the court dismissed the husband's application for leave to appeal. The court further ruled that the wife was entitled to costs for the husband's application, reserving the exact amount to be determined within 28 days. The husband was also required to file and serve any submissions in opposition to the wife's application for costs within the same timeframe.

Orders

Orders of the court

That, save for costs, the husband’s application for leave to appeal be dismissed.

That costs in the application be reserved.

That within 28 days the husband file and serve any submissions in opposition to the wife’s application for costs of and incidental to the husband’s application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Drysdale & Drysdale [2011] FamCAFC 85

Most Recent Citation

Tan and Tan and Anor (SSAT Appeal) [2011] FMCAfam 913

Cases citing this decision · 24 of 24 shown

Monette & Monette (No 2)
[2024] FedCFamC1F 481 Para 36

…The decision of Drysdale & Drysdale [2011] FamCAFC 85 distinguished Stein (supra) on the basis that a distinction should be drawn between a final order and an interim order. It is noted that an order for spousal maintenance may not have a relevant level of finality in that it can be the subject of variation, dischar…
Badir & Badir
[2022] FedCFamC1A 109 Para 21

…ntain some flexibility in approach in considering an application for interim spousal maintenance. Consistent with Redman , in Drysdale & Drysdale [2011] FamCAFC 85 at [40], Coleman J exercising the appellate jurisdiction of the Full Court relevantly said: It is the nature of an interim spousal maintenance order that…
Dunn & Dunn (No 3)
[2022] FedCFamC1F 172 Para 15

…the expenditure appears to be modest and certainly consistent with the standard of living previously enjoyed by the parties (see Drysdale & Drysdale [2011] FamCAFC 85 at [40]).…
Regan & Regan
[2021] FedCFamC1F 159 Para 17

…application, the Court is not required to conduct an exhaustive examination – even if time permitted, which it does not (see Drysdale & Drysdale [2011] FamCAFC 85). It is important to note that the wife’s claim does not include an allowance for any housing, as the wife is not meeting any rental obligations at prese…
Goncharova & Goncharov
[2021] FamCA 559 Para 34

…In Drysdale & Drysdale [2011] FamCAFC 85 Coleman J said: 40.It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be fully tested. Whilst different to urgent spousal maintenance pursuant to s 77…
LANGDON & GUDDEN
[2019] FamCA 816 Para 14

…visions of the child support legislation, and its philosophical underpinning, the Court would be likely to reach a different conclusion.” [5] [2011] FamCAFC 85…
PENROD & PEARL
[2019] FCCA 2504 Para 8

…e to differentiate between expenses of the wife and those of the children is not fatal to an interim spousal maintenance claim: Drysdale & Drysdale [2011] FamCAFC 85 at [36]-[39].…
Goey and Goey
[2019] FamCA 570 Para 12

…In that context, in Drysdale & Drysdale [2011] FamCAFC 85 Coleman J in exercising the appellant jurisdiction of the Full Court said:- 40.It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be…
Pettis and Pettis and Anor
[2019] FCWA 154

…Drysdale & Drysdale [2011] FamCAFC 85 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466…
Raman and Raman
[2018] FamCA 871

…Atkins & Hunt (2018) 57 Fam LR 128 Briese and Briese (1986) FLC 91-713 Brown & Brown (2007) FLC 93-316 Drysdale & Drysdale [2011] FamCAFC 85 Edgar & Strofield [2016] FamCAFC 93 Graf-Salzmann and Graf [2015] FCWA 68 Hall v Hall [2016] 257 CLR 490 In the Marriage of Farr (1976) FLC 90-133 Jefferson & Coulston [2014] F…
GRESHAM & GRESHAM
[2018] FamCA 841 Para 2

…t 76,081, the Full Court said that it was appropriate to maintain some flexibility in approach. Consistent with that decision, in Drysdale & Drysdale [2011] FamCAFC 85 at [40], Coleman J, in exercising the appellate jurisdiction of the Full Court, said: It is the nature of an interim spousal maintenance order that,…
LABONTE & LABONTE
[2018] FamCA 755 Para 4

…t 76,081, the Full Court said that it was appropriate to maintain some flexibility in approach. Consistent with that decision, in Drysdale & Drysdale [2011] FamCAFC 85 at [40], Coleman J, in exercising the appellate jurisdiction of the Full Court, said: It is the nature of an interim spousal maintenance order that,…
HOCH and HOCH
[2018] FCWA 75

…Brown and Brown (2007) FLC 93-316 Drysdale & Drysdale [2011] FamCAFC 85 Hall v Hall (2016) 257 CLR 490 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466…
SPENCER & SQUIRE (No.2)
[2017] FCCA 3162 Para 19

…The figure of $2,479.00 also included the costs of supporting herself and costs for the child. The mother referred to Drysdale & Drysdale [2011] FamCAFC 85 at [36]-[39] in support of her argument that a failure to differentiate between expenses of the mother and those of the child would not be fatal to an interim sp…
GAMAGE & GAMAGE
[2017] FamCA 742 Para 1

…d issues of fact may reveal to have resulted from an earlier interim spousal maintenance order. [15] (1987) FLC 91-805. [16] Ibid at 76,082. [17] [2011] FamCAFC 85 at [40].…
Uzunlar & Uzunlar
[2017] FamCA 111 Para 9

…In terms of approach, in Drysdale & Drysdale [2011] FamCAFC 85, Coleman J of the Full Court at [40] said: It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be fully tested. Whilst different…
Parentino and Parentino (No. 2)
[2016] FamCA 1107 Para 14

…In that context I note that in Drysdale & Drysdale [2011] FamCAFC 85, Coleman J of the Full Court said: 40. It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be fully tested. Whilst differen…
Poulos and Poulos
[2016] FamCA 800 Para 6

…e proceedings relate to an order for interim spousal maintenance only, and can be revisited at final hearing. In that context, in Drysdale & Drysdale [2011] FamCAFC 85, Coleman J exercising the appellate jurisdiction of the Full Court said: 40. It is the nature of an interim spousal maintenance order that, as here,…
SAUVETERRE & WARWICK
[2015] FamCA 1076 Para 6

…ct may reveal to have resulted from an earlier interim spousal maintenance order. [8] (1987) FLC 91-805. [9] Ibid at 76,082. [10] Drysdale & Drysdale [2011] FamCAFC 85 at [40].…
MOSS & MOSS
[2015] FCCA 2237 Para 6

…In the Marriage of Wilson (1989) 13 Fam LR 205 at 209 per Strauss J. [5] Ibid, at 205 per Strauss and Nygh JJ. [6] Drysdale & Drysdale [2011] FamCAFC 85 at para.40.…
ADAIR & MILFORD
[2015] FamCAFC 29 Para 8

…In Drysdale & Drysdale [2011] FamCAFC 85, Coleman J, sitting as the Full Court, said at [17] that: …the legislative intention which clearly emerges from the wording of s 72(1) is that claimants falling into either of those categories (72(1)(a) – (b) having the care and control of a child of the marriage who has not…
PADNALL & PADNALL
[2014] FamCAFC 145 Para 11

…s” to take “into account in the context of the wife’s spousal maintenance claim the expenses of those children” ( Drysdale & Drysdale [2011] FamCAFC 85 at [36]). Thus, in Drysdale , Coleman J, sitting as the Full Court found on the facts of that case that there was no impediment to the court having regard to “commit…
Bane and Bayley
[2013] FCCA 1581 Para 3

…2] In the Marriage of Wilson (1989) 13 Fam LR 205 at 209 per Strauss J. [13] Ibid, at 205 per Strauss and Nygh JJ. [14] Drysdale & Drysdale [2011] FamCAFC 85 at para.40. There is no reason to think, in the circumstances of this case, that any unfairness or hardship visited upon either party by reason of the interim…
Tan and Tan and Anor (SSAT Appeal)
[2011] FMCAfam 913 Para 6

…6] FamCA 3; (1986) FLC ¶91-716; (1986) 84 FLR 179; (1986) 10 Fam LR 971. The issue was discussed recently by the Full Court in Drysdale & Drysdale [2011] FamCAFC 85, although ultimately this issue did not need to be determined.…

View all 24 citing cases →

Cases cited in this decision · 3 of 3 shown

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc
[1981] HCA 39 Para 8

…gistrate of 15 October 2010, he should be granted leave to appeal, and his appeal allowed (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 and Rutherford and Rutherford (1991) FLC 92-255).…
Mee & Ferguson
[1986] FAMCA 3 Para 13

…The difficulty presented in Paradine was subsequently noted by the Full Court in Mee & Ferguson (1986) FLC 91-716; (1986) 84 FLR 179; (1986) 10 Fam LR 971, although it did not prove decisive in that case. The Full Court (Asche ACJ, Fogarty and Cook JJ) noted (at FLR 976): … the essential first step is to ascertain i…
[2010] FMCAFAM 1379
[2010] FMCAFAM 1379

…[2010] FMCAfam 1379…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
72 2 mentions (from Para 1)