EVERETT & EVERETT - [2014] FamCAFC 152

FAMILY COURT OF AUSTRALIA

EVERETT & EVERETT

[2014] FamCAFC 152

FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Where the Federal Magistrate made an order for adult child maintenance until the completion of tertiary education – Where the appellant father submits that the Federal Magistrate erred in placing no temporal limitation on the order for adult child maintenance and that the reasons for making the order were inadequate – Where the Federal Magistrate erred in both respects – Where the orders were otherwise unjust and unreasonable – Where the Federal Magistrate found that it was necessary that an order for adult child maintenance included an allowance for the adult child to purchase a motor vehicle and an amount for house cleaning and pool servicing – Where the “necessity” for the provision of a motor vehicle and house cleaning and pool servicing was not established by the Federal Magistrate – Appeal allowed in part – All orders set aside and the matter remitted for re-hearing.

FAMILY LAW – APPEAL – CROSS-APPEAL – Where it is submitted that the Federal Magistrate erred in not backdating the order for adult child maintenance – Where the time of the commencement of the order was a matter of discretion – Where the Federal Magistrate’s discretion did not miscarry – Cross-appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant father seeks to adduce further evidence on the appeal – Where some of the evidence sought to be adduced is not controversial, was not available to the applicant father at trial, and is potentially relevant to a matter agitated on the appeal – Where the balance of the evidence is not relevant to the appeal – Application allowed in part.

FAMILY LAW – APPEAL – COSTS – Where no order for costs made – Where the appeal has succeeded on a point of law – Costs certificates granted to the parties for the appeal and re-hearing.

Family Law Act 1975 (Cth) ss 66L, 66J, 66B, 66K, s 69ZT, 76
Federal Proceedings (Costs) Act 1981 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Cosgrove & Cosgrove (1996) FLC 92-700
Cosgrove & Cosgrove (No 2) (1996) FLC 92-701
Gamble & Gamble (1978) FLC 90-452
Henderson & Henderson (1989) FLC 92-011
In the Marriage of Tuck (1981) FLC 91-021
Myrtle & Myrtle [2012] FamCA 460
Norbis & Norbis (1986) 161 CLR 513
Oliver & Oliver (1977) FLC 90-227
Re: AM Adult Child Maintenance (2006) FLC 93-262

APPELLANT:

Mr Everett

RESPONDENT:

Ms Everett

FILE NUMBER:

BRC

2627

2009

APPEAL NUMBER:

2013

DATE DELIVERED:

26 August 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland & Tree JJ

HEARING DATE:

19 September 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

25 January 2013

LOWER COURT MNC:

[2013] FMCAfam 45

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Matthews QC

SOLICITORS FOR THE APPELLANT:

HopgoodGanim

COUNSEL FOR THE RESPONDENT:

Ms Carew QC

SOLICITORS FOR THE RESPONDENT:

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.

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Details

AGLC: EVERETT & EVERETT [2014] FamCAFC 152
Case: [2014] FamCAFC 152
Decision Date: 26 August 2014

CaseChat Overview and Summary

Everett & Everett involved an appeal against orders made by a Federal Magistrate regarding adult child maintenance. The appellant father challenged the decision of the Federal Magistrate to grant an order for adult child maintenance until the completion of tertiary education, arguing that the Magistrate erred in not imposing a temporal limitation on the order and that the reasons for making the order were inadequate. The respondent mother cross-appealed, arguing that the Magistrate erred in not backdating the order for adult child maintenance. The appellant also sought to adduce further evidence on the appeal, which the court considered in part.

The court identified that the Federal Magistrate erred in not placing a temporal limitation on the maintenance order and that the reasons provided were inadequate. The Magistrate had included an allowance for the adult child to purchase a motor vehicle and an amount for house cleaning and pool servicing, but had not adequately established the necessity for these provisions. The court found that the Magistrate's discretion did not miscarry regarding the timing of the commencement of the maintenance order. Consequently, the appeal was allowed in part, the cross-appeal was dismissed, and the orders were set aside. The matter was remitted to the Federal Circuit Court for rehearing by a different judge. The court also granted costs certificates to both parties for the appeal and the rehearing.

In allowing the application in an appeal in part, the court admitted specific evidence that was not available at the original trial and potentially relevant to the appeal. The court dismissed the application to the extent it sought to adduce evidence that was not relevant to the appeal. The court concluded that the appeal had succeeded on a point of law, but made no order as to costs, reserving the costs of the further evidence application.

Orders

Orders of the court

The application in an appeal filed by the appellant on 5 September 2013 for leave to adduce further evidence be granted, but only to the extent of admitting the evidence contained in paragraphs 14-17 inclusive of the affidavit of the appellant filed on 5 September 2013, and otherwise the application be dismissed.

The appeal be allowed.

The cross-appeal be dismissed.

The orders made by Federal Magistrate Demack (as her Honour then was) be set aside.

The proceedings be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Demack.

There be no order as to costs including no order as to the costs of the further evidence application reserved on 11 September 2013.

The Court grants to the appellant father 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 father in respect of the costs incurred by him in relation to the appeal.

The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 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 respondent mother in respect of the costs incurred by her in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the rehearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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