DUKE & DUKE
[2009] FamCAFC 174
•21 September 2009
FAMILY COURT OF AUSTRALIA
| DUKE & DUKE | [2009] FamCAFC 174 |
| FAMILY LAW - APPEAL AND CROSS-APPEAL – PROPERTY – where the Federal Magistrate ordered the parties’ superannuation and non-superannuation assets be divided in the proportion of 57.5 per cent to the wife and 42.5 per cent to the husband – where the husband and the wife challenged his Honour’s calculation of the value of the non-superannuation assets – where the husband challenged the award of 57.5 per cent of his superannuation to the wife – found that the appeals of both the husband and the wife in relation to property have substance – appeal allowed – orders set aside – Full Court unable to re-determine the property matter because of inadequate reasons about certain matters and the husband’s application to adduce controversial fresh evidence regarding his changed financial position – matter remitted for re-hearing. FAMILY LAW - APPEAL AND CROSS-APPEAL – SPOUSAL MAINTENANCE – where the husband challenged his Honour’s finding that he had the capacity to pay spousal maintenance – where the wife argued that there was an inconsistency between his Honour’s reasons and orders as to when the spousal maintenance order would commence – found that the appeals of both the husband and the wife in relation to spousal maintenance have substance – appeal allowed – order set aside – matter remitted for re-hearing. FAMILY LAW - COSTS – Costs certificates granted under the Federal Proceedings (Costs) Act 1981 (Cth) to both parties in respect of the appeal and the new trial. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Bennett & Bennett (1991) FLC 92-191 |
| APPELLANT: | Mr Duke |
| RESPONDENT: | Ms Duke |
| FILE NUMBER: | CAM | 1440 | of | 2006 |
| APPEAL NUMBER: | EA | 107 | of | 2008 |
DATE DELIVERED: | 21 September 2009 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn, Coleman and Cronin JJ |
| HEARING DATE: | 27 January 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 August 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 848 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Brzostowski SC |
| SOLICITOR FOR THE APPELLANT: | Dobinson Davey Clifford Simpson |
| COUNSEL FOR THE RESPONDENT: | Ms Tonkin |
| SOLICITOR FOR THE RESPONDENT: | Phelps Reid Lawyers |
Orders
That the appeal and the cross-appeal against the orders of 14 August 2008 be allowed.
That the orders be set aside.
That the parties’ cross-applications for property settlement and the wife’s application for spousal maintenance be remitted for hearing by a Federal Magistrate other than Federal Magistrate Brewster.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment under the pseudonym Duke & Duke 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 CANBERRA |
Appeal Number: EA 107 of 2008
File Number: CAM 1440 of 2006
| Mr Duke |
Appellant
And
| Ms Duke |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the husband and a cross-appeal by the wife against orders for property settlement and an order in favour of the wife for spousal maintenance made by Brewster FM on 14 August 2008.
In his reasons for judgment also delivered on 14 August 2008, his Honour determined for purposes of his decision that the net value of the parties’ “non-superannuation assets” was $1,437,887; that those “non-superannuation assets” should be divided equally between the parties on the basis of their contributions; but that there should be a 7.5 per cent adjustment in favour of the wife on account of the matters contained in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
In order to give effect to this division of the “non-superannuation assets”, his Honour provided in his orders for the husband to transfer to the wife his interest in properties in the towns of Q and R in New South Wales and for the wife to transfer to the husband her interests in properties in the towns (or suburbs) of J and P in New South Wales. The husband was also to retain the proceeds of sale of a caravan, with the parties otherwise retaining any other property in their possession or name.
His Honour also determined in his reasons that the husband’s superannuation interest should be valued in accordance with the relevant regulations at $425,643. Again his Honour considered that an equal division of the superannuation interest was appropriate on the basis of the parties’ contributions and the length of their relationship, but that there should also be a 7.5 per cent adjustment in favour of the wife on account of certain of the s 75(2) matters. Accordingly, his Honour made a splitting order in respect of the husband’s superannuation interest in favour of the wife (together with other necessary consequential orders).
Further, his Honour determined that there should be a spousal maintenance order in favour of the wife. That order provided that the husband would pay spousal maintenance to the wife:
“(a) For fourteen weeks from the date of [his] orders in the sum of $500 a week.
(b)From that date until 30 June 2011 in the sum of $400 a week.”
Perhaps somewhat unusually, both the husband in his notice of appeal (Ground Two) and the wife in her notice of cross-appeal (Ground One) state that “the percentage of 57.5%” in favour of the wife is not appealed. However, both challenge his Honour’s calculation of the value of the pool of non-superannuation assets, and the husband also challenges the award of 57.5 per cent of his superannuation interest to the wife. Both parties also challenge the spousal maintenance order. It should also be noted that, notwithstanding the statement in the wife’s first ground of appeal that she does “not appeal against the percentage of 57.5%”, it was clear from her counsel’s submissions that that position would not be maintained by her should the percentage be applied to a smaller amount of property than that determined by Brewster FM.
By way of factual background it need only be said at this stage that the parties commenced cohabitation in 1981; married in 1987; separated under the one roof in March 2006; and physically separated in November 2006. Their three children were born in 1984, 1987 and 1989.
The challenges in the appeal and the cross-appeal to the calculation of the value of the non-superannuation assets
It will be convenient to deal first with the complaints of both parties in relation to his Honour’s calculation of the net value of the parties’ non-superannuation assets.
In paragraph 10 of his reasons for judgment, his Honour provided a table in which he summarised his earlier findings regarding, and/or conclusions as to how he proposed to deal with, the non-superannuation assets of the parties. We now set out the contents of that table, but with some necessary additions to take account of his Honour’s earlier findings and conclusions, and thus to explain his calculation of the value of those assets:
| a) [Property at B Street, Q] | $485,000 | [Unencumbered] | |
| b) [Property at E Avenue, J] | 393,103 | [Equity after deducting existing mortgage of $3,766 and new borrowing of $33,131 for Capital Gains Tax on the sale of property at H Drive, Q] | |
| c) [Property at O Street, P] | 130,394 | [Equity after deducting mortgage of $194,606] | |
| d) [Property at R] | 275,000 | [Unencumbered] | |
| e) Husband’s share of [property at H Drive, J] | 59,615 | [Each party received $52,615 from proceeds of sale of this property but it was agreed that $7,000 should be added to the husband’s share on account of other parts of the proceeds used by him] | |
| f) Wife’s share of [property at H Drive, J] | 52,615 | ||
| g) Wife’s [car] | 16,100 | [Purchased by wife for $27,360 from proceeds of $40,000 received from sale of property at D Place, Q] | |
| h) Husband’s motorcycle | 10,850 | ||
| i) Wife’s [boats] and other chattels | 6,080 | ||
| j) Husband’s tools | 5,130 | ||
| k) Caravan | 4,000 | ||
| Total | 1,437,887 | ||
Earlier in paragraphs 6, 7 and 8 his Honour had determined that in calculating the value of the non-superannuation assets he would not take into account all of the sum of $40,000 received by the wife from the sale of a property at D Place, Q, the sum of $10,800 received earlier by the wife from a bonus received by the husband from his employment, or the proceeds of shares sold by the wife for $1,593. We will return shortly to these matters.
His Honour then explained in paragraphs 9 and 11, respectively, of his reasons why he did not propose to take into account the husband’s savings of $500 and a personal loan of the husband’s taken out after separation on which $8,000 was owing. There is no issue before us regarding these matters.
CGT liabilities for properties at H Drive and R
The first complaint raised on behalf of the husband in relation to his Honour’s calculation of the value of the non-superannuation assets, is that even though both parties in their lists of assets and liabilities provided to his Honour showed a liability of $40,134.70 for capital gains tax in respect of the property at H Drive, J, and an estimated liability of $17,000 for such tax in respect of the R property, his Honour did not deduct such liabilities when calculating the net value of the non-superannuation assets. Nor did he explain why he did not do so.
This asserted error, which would reduce the value of the assets in question to $1,380,753 ($1,437,887 - $57,134), was conceded before us by counsel for the wife. However, while this was an error which from the husband’s perspective we could rectify, it was submitted on behalf of the wife that an adjustment of 57.5 per cent in favour of the wife of such a reduced pool would be outside the range of the discretion because it would require the wife (who is unemployed) to pay the husband $40,863. Thus, it was submitted on behalf of the wife, a new trial would be necessary. We will return in due course to the question of what should be the result of his Honour’s oversight of these CGT liabilities.
The wife’s receipt of the proceeds of D Place, the husband’s employment bonus and the share proceeds
The next complaint raised on behalf of the husband in relation to his Honour’s calculation of the value of the non-superannuation assets arises out of his Honour’s refusal to add back or include in that calculation all of the wife’s share of the proceeds of the property at D Place, Q, and the funds received by her from the husband’s employment bonus and from the sale of some shares.
These three items were discussed by his Honour in paragraphs 6, 7 and 8 of his reasons which are as follows (emphasis added):
6.The wife received an amount of $40,000 from the sale of a property at [D Place, Q]. With this she purchased her … motor vehicle for $27,360. This vehicle is now valued at $16,100. She has spent the balance. The husband would have me add back into the pool as notional property the whole of the $40,000 or at least to include the [car] at its purchase price. This is not consented to by the wife. I do not propose to add the $40,000 to the pool or to value the [car] at $25,000. I will however … take account of the fact the wife has received these monies post separation.
7.Pursuant to an order made by the Court the wife received a total of $10,800 from a bonus received by the husband with respect to his employment. The husband would seek to have this added to the pool as notional property. I do not propose to do so. I will however take this into account in dividing the existing property.
8.The wife has sold some … shares for $1,593. The husband maintains that these should be added to the pool as notional property. Again I do not propose to do so but will take this into account.
Later in his reasons when assessing the parties’ respective contributions, his Honour made an express reference to “the matters referred to in paragraphs 6, 7 and 8” when he said (emphasis added):
17.I will deal first with non superannuation property. As I have indicated I propose to take into account the wife’s initial contribution. Notwithstanding the husband’s contention that his contributions put the spring into the springboard provided by that initial contribution I believe that even now it should not be ignored. But when I consider the length of the relationship, the contributions made by each party during that relationship, the husband’s post separation contributions and the matters referred to in paragraphs 6, 7 and 8 I have concluded that there is insufficient reason to make a contribution based adjustment in favour of either party. In other words I propose an equal contribution based division.
It therefore appears from this paragraph that his Honour decided that the monies received by the wife from the sale of the property at D Place, the husband’s employment bonus and the shares, should be regarded as, in effect, contributions by the husband, or at least as some form of set-off for the wife’s initial contribution of the sum of $40,000 from a property settlement in relation to her first marriage (which his Honour discussed at paragraph 13 of his reasons).
Thus, while it cannot be said that his Honour did not ever, or in any way, take into account the monies received by the wife which were referred to in paragraphs 6, 7 and 8 of his reasons, we agree with the submissions of senior counsel for the husband that it was necessary for his Honour to have explained much more fully his reasoning in relation to how he proposed to treat those monies (which totalled a little over $50,000).
Some further explanation was particularly necessary, first because of the husband’s allegations that out of the D Place proceeds of $40,000, the sum of $25,000 was paid by way of an advance on property settlement, and the sum of $15,000 on the basis that it would be categorised by the trial Judge as either spousal maintenance or property (see affidavit of the husband sworn 28 June 2007, paragraphs 120-121). Secondly, because of the fact that the sums received by the wife from the husband’s employment bonus had been the subject of a specific order by his Honour made on 19 October 2006, which required categorisation of such payments “at the final hearing”.
It cannot simply be assumed, as we understood to be submitted by counsel for the wife, that his Honour did not “add back” into the pool the monies in question because of the wife’s need for funds to support herself after separation. If this was in fact his Honour’s intention, it needed, with respect, to be explained.
Having regard to the well known authorities concerning the need for the giving of adequate reasons by a trial Judge (or Federal Magistrate), we must conclude that the husband’s appeal has to be allowed on the basis not only of the conceded error in relation to the capital gains tax liability, but also of his challenge to the adequacy of his Honour’s reasons in relation to his treatment of the wife’s receipt of the D Place proceeds, the husband’s employment bonus monies, and the share proceeds (see for example Bennett & Bennett (1991) FLC 92-191, and the authorities from other jurisdictions there mentioned).
The failure to order a cash payment by the wife to the husband
A further complaint raised by the husband which can be conveniently referred to in the present context concerns his Honour’s decision that the wife should not have to make a payment to the husband of $8,010 in order to achieve an exact 42.5 per cent to 57.5 per cent division of the non-superannuation assets which he had valued at $1,437,887. It was submitted on behalf of the husband that such an approach was not just and equitable. His Honour’s reasoning in relation to this matter was as follows:
28.The end result is that the property including superannuation will be divided into proportions 42.5% to the husband and 57.5% to the wife. Insofar as non superannuation assets are concerned this gives the wife an amount of $834,795. It was agreed that she should receive the [B] Street and [R] properties which have a total value of $760,000. She also has her [car] valued at $16,100. As I have indicated included in the pool is $52,615 that she received from the proceeds of sale of her property and she has the [boats] and other chattels valued at $6,080. In this respect the husband sought that he receive [one of the boats] but as both are in possession of the wife and as she utilises both I do not propose to make such an order. The husband will have sufficient money from this property settlement to buy another [boat]. The total property she has on this basis is therefore $826,785. This would mean that she would have to pay the husband $8,010. However I do not propose to order this. The exercise upon which I have embarked is a very rough one. For example the values are not precise and they do not take into account selling costs. An amount of $8,010 is about .5% of the pool. I will order that the wife receive the property I have listed above and the husband the balance. No money will change hands.
Given the conclusions which we have already reached in relation to the success of the husband’s appeal, it is probably unnecessary for us to address this complaint. Nevertheless, we consider that we should record that, in our opinion, his Honour’s approach to this matter was, having regard to the reasons which he gave, certainly within his discretion.
The husband’s shares and tax refund
In the grounds of her cross-appeal which are directed to his Honour’s calculation of the value of the non-superannuation assets, the wife asserts that his Honour failed to include the husband’s shares valued at $2,049 and his 2007 tax refund of $13,462. (A further ground concerning the husband’s 2007 bonus payment of $13,676 was not pressed.)
In support of the grounds concerning the husband’s shares and 2007 tax refund, it was submitted for the wife that both parties had included these two items in their lists of assets provided to his Honour, but that his Honour had failed to include them without explanation.
We agree that both parties included these items in their lists of assets but that these items were not then included in his Honour’s schedule of non-superannuation assets. We also agree that his Honour provided no explanation in his reasons as to why he did not take these items into account either in calculating the value of the non-superannuation items or in some other way in his overall determination.
Accordingly, on the basis of these matters, the wife’s cross-appeal must also succeed.
The challenge in the appeal to the 57.5 per cent superannuation award to the wife
The only ground of appeal directed to his Honour’s award to the wife of a 57.5 per cent interest in the husband’s superannuation entitlement, which was ultimately pursued on behalf of the husband, asserted that that award was “excessive, manifestly wrong and beyond the reasonable range of discretionary power”. This was for the reasons, in summary, that the award overlooked the age differences between the parties which would cause the wife to be entitled to receive her benefits four years earlier than the husband (the wife having been born in October 1955 and the husband in April 1960) and the fact that while the husband will have to continue to work for some years before becoming entitled to his superannuation, the superannuation income which he will ultimately receive will be smaller than that which the wife will receive.
In support of this ground, it was submitted that the matters just mentioned had not been considered by his Honour. It was also submitted for the husband that the superannuation split or division should have been equal.
In order to assess whether there is substance in this ground, and indeed also to appreciate the submissions of counsel for the wife made in support of his Honour’s superannuation award, it is necessary to consider his Honour’s application of the s 75(2) matters both in relation to the non-superannuation assets and to the superannuation interest.
After determining in paragraphs 17 and 18 of his reasons that there should be an equal division of the non-superannuation assets and of the superannuation on the basis of the parties’ respective contributions to such assets (or groups of assets), his Honour turned to the s 75(2) matters. Under the heading “Section 75(2) Factors” he continued relevantly for present purposes:
19.The critical factor to be considered when addressing these factors is the parties’ earning capacities.
20.The husband is a qualified [tradesman] although at present he works as a … manager with [company A]… I accept his evidence that it is likely that within the next two years his position will be abolished. In his present position he earns in the order of $98,000 per annum and may be entitled to bonuses. He says that if he continued to work for [company A] in another position his salary would likely be in the order of $70,000 to $80,000 per annum. I accept that evidence. If he were unable to continue with [company A] I think it likely that he would be able to secure other employment.
21.The wife is not in employment and has no formal qualifications or experience in the workforce. She has some physical limitations... Dr [L] reported on the restrictions that her medical condition places on her…
22.The wife is currently enrolled in a course …[at university]. She commenced this in June 2006. She has thus far undertaken the course part-time. If she continues part time it will take her between 5 and 6 years to complete the course. I am not satisfied however that she could not convert to full-time study which would reduce the period required.
23.I think it unlikely that the wife would obtain employment until she completes her course. Indeed, if she pursues it full-time, paid employment would be impossible. As will be seen I propose to make an order for spousal maintenance for a closed period to enable her to complete this course. As I have indicated the wife is 52 years of age and assuming that she would obtain her qualifications in three years time she would then be aged 55. Given her physical limitations and her age there must be a questionmark as to whether she will ultimately be able to obtain employment. If she does I am satisfied that it is most unlikely to be at a salary level equivalent to the salary the husband can expect to earn.
24.In addition the wife will have continued medical expenses.
25.I take into account that until 2011 by reason of the spousal maintenance order I intend to make the difference between the parties’ financial positions will be comparatively small.
26.I deal first with non superannuation property. I am satisfied that there should be a significant adjustment in favour of the wife. I make an adjustment of 7.5% in her favour. At first glance this may appear modest. But to put it into perspective it represents a difference in the parties’ entitlements of about $215,000. This is the equivalent of giving her $215,000 at the outset and dividing the balance equally between the parties.
27.I turn now to the husband’s superannuation. I proceed on the basis that he will in all probability continue in employment to at least age 55 and will have the opportunity to acquire further superannuation. I propose to make an adjustment in favour of the wife of 7.5 % of the husband’s superannuation.
Counsel for the wife endeavoured to persuade us that his Honour’s reasons for the 7.5 per cent further adjustment in favour of the wife in the husband’s superannuation are to be found not only in paragraph 27, but also in paragraphs 21 to 25 of his reasons. However, we are not satisfied that this is so. We consider that the better view must be that the reasons for the 7.5 per cent further adjustment of the husband’s superannuation in favour of the wife can only be found in paragraph 27 of his Honour’s reasons. In our view, these reasons were not, with respect, adequate, particularly when regard is had to the matters identified in the relevant ground of appeal, being essentially the practical impact of the age differences between the parties and the amounts of superannuation which each is likely ultimately to receive. Accordingly, the husband’s appeal must also succeed on the basis of a lack of adequate reasons for the 7.5 per cent adjustment made in favour of the wife in relation to the husband’s superannuation.
Conclusion in relation to the appeal and cross-appeal against the property settlement orders and the husband’s application to adduce further evidence
For the reasons which we have given we have found both the appeal and the cross-appeal to have substance. While it would have obviously been desirable for us to re-determine the property matters ourselves, this regrettably will not be possible for the following reasons.
Even though many of the parties’ complaints which we have found to have substance can be said to relate to figures (which can often simply be adjusted by an appeal court), we have also in some instances found an absence of reasons, or adequate reasons, for the omission of particular figures, or for the treatment of particular amounts in a particular way. In such circumstances, absence of reasons on the part of the court at first instance will render a re-determination by the appeal court virtually impossible. Moreover, in the present case, it was the position of the wife before us that if the value of the non-superannuation assets was to be less than that determined by the Federal Magistrate, she would contend that the 57.5 per cent division in her favour was inadequate.
Finally, there is the important consideration that there was before us an application by the husband to adduce further evidence in the event that there was to be a re-determination of the matter (Allesch v Maunz (2000) 203 CLR 172). The further evidence which the husband seeks to adduce essentially relates to changes in his financial circumstances. We understood that such further evidence would be controversial, and thus it could not be received and relied on by us in a re-determination of the matter.
For these reasons, therefore, there will have to be a new trial of the property settlement proceedings.
The appeal and the cross-appeal against the spouse maintenance order
As we indicated during the hearing of the appeal, if either the appeal or the cross-appeal against the property orders were to succeed (as of course they both have) there would be a need for a redetermination of the spousal maintenance issue. We need, therefore, only deal fairly briefly with the appeal and cross-appeal against the spousal maintenance order.
It is fair to say that the husband’s principal challenge to the order that he pay spousal maintenance to the wife was based on his capacity to pay, in particular to his Honour’s conclusion that he would have a surplus of income over expenditure of $560 per week. His Honour’s reasons for reaching this conclusion were as follows:
34.I will use the husband’s base salary for the purposes of this exercise and ignore any possible bonuses that may be paid. I calculate that after tax and Medicare levy the husband will receive in the order of $72,500 per annum from his employment. Under the orders he will receive the [P] property. He could sell this and invest the proceeds. On the same basis as I have treated the wife’s [R] property he would receive about $115,000. I have not factored in any possible CGT as there is no evidence of what that might be. This does not matter because, as will be seen, there is some “slack” in my calculations. As can be seen below I will assume he will pay off the mortgage on the [J] property which leaves about $78,000. If this were to be invested at 7% it would return an income of about $5,500 per annum. He will pay 41.5 cents in the dollar in tax and Medicare levy on this which reduces it to about $3,200 per annum. If this is added to his salary his net income will be in the order of $75,700 per annum or about $1,460 a week.
35.If the husband sells the [P] property he will be able to pay off the mortgage on the [J] property which means he will have an unencumbered property so will not have to pay mortgage instalments. He will, of course, have to pay rates and insurance. In his financial statement filed in July 2007 he isolates the insurance for the [J] home at $16 a week but aggregates the rates for the five properties the parties owned at that date. Doing the best I can I will allow a figure of $30 a week for this. The other fixed expenses listed in his financial statement which will continue total $81 which results in fixed expenses of $127 a week. I allow his other expenses as set out in Part N of the statement which total about $650 a week. Real life is not accurately reflected in a financial statement and there are often unexpected expenses that crop up from time to time. I usually allow a “buffer” to take account of this. If I were to allow $125 a week for this the husband’s total expenses would be $900 a week. This would leave a surplus of $560.
It will be seen from these paragraphs that his Honour attempted his own reconstruction of what the husband’s financial position would be following the implementation of his property settlement orders. However, as was submitted by senior counsel for the husband, his Honour apparently failed to take into account that in the husband’s financial statement (dated 3 July 2007) which was before him, there was already a weekly shortfall of approximately $300, and also that the husband would be incurring further liabilities in order to pay the capital gains tax on the D Place and H Drive properties. Further, his Honour appears to have miscalculated the net salary which the husband would receive after tax and his medicare levy.
We are thus satisfied that his Honour was in error in concluding that the husband had the capacity to meet the maintenance order which was made.
Accordingly, the husband’s appeal against the maintenance order should be allowed, and that order should be set aside.
We note that in the “orders sought” section of the husband’s notice of appeal an order was sought that the wife should re-pay the husband amounts paid under the maintenance order (in the event that the order was set aside). However, no application for such an order was pursued before us. But, in any event, that would be an unusual order, which we would not be prepared to make. The husband will be able to rely on the maintenance paid as a contribution by him in the re-hearing of the property settlement proceedings.
We also consider that there is some substance in the complaint raised by the wife in her cross-appeal in relation to the maintenance order. Her complaint was based on his Honour’s indication in paragraph 31 of his reasons that the four year period of his proposed maintenance order would start from the date of the commencement of the hearing before him (which was 5 July 2007). However, as will have been seen from the terms of his order which is set out in paragraph 5 of these reasons, the order was only to operate from the date on which it was made (being 14 August 2008).
While we have considerable reservations as to whether it would have been proper for his Honour to have backdated the maintenance order from 14 August 2008 to 5 July 2007, we nevertheless agree that this inconsistency between his Honour’s reasons and his order gives substance to the wife’s cross-appeal against the order. In any event, however, and leaving to one side the fact that the property proceedings have to be re-determined, the order would have to be set aside given the success of the husband’s appeal against it.
Costs of the appeal and cross-appeal
Having regard to the submissions made in relation to costs at the conclusion of the hearing of the appeal and the cross-appeal, and to the grounds on which the appeal and cross-appeal succeeded, we consider it appropriate to grant certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to both parties in respect of the appeal and the new trial.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 21 September 2009
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