GODARD & DORSETT - [2017] FamCAFC 220

FAMILY COURT OF AUSTRALIA

GODARD & DORSETT

[2017] FamCAFC 220

FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Interim orders – Where leave to appeal is required – Reasons for requiring leave to appeal in certain categories of case discussed – Despite arguable deficiencies in the primary judge’s reasons, no substantial injustice would result if leave to appeal were refused supposing the decision to be wrong – Application for leave to appeal dismissed – Although the appellant’s application was unsuccessful, there was some merit in the arguments advanced – Respondent’s application for costs dismissed.

Family Law Act 1975 (Cth)

Medlow & Medlow (2016) FLC 93-692

APPELLANT:

Mr Godard

RESPONDENT:

Ms Dorsett

FILE NUMBER:

SYC

4107

2014

APPEAL NUMBER:

2017

DATE DELIVERED:

18 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ainslie-Wallace & Murphy JJ

HEARING DATE:

18 October 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 February 2017

LOWER COURT MNC:

[2017] FamCA 51

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Gould

SOLICITOR FOR THE APPELLANT:

Harris Freidman Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Fowler

SOLICITOR FOR THE RESPONDENT:

Byrnes Lawyers

Orders

The appellant be granted leave to amend the Notice of Appeal to seek leave to appeal.
The application for leave to appeal be dismissed.
The application for costs made by the respondent be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Godard & Dorsett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 23 of 2017
File Number: SYC 4107 of 2014

Mr Godard

Appellant

And

Ms Dorsett

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

Before the Full Court today is the Notice of Appeal filed on 3 March 2017 by Mr Godard (“the husband”). The respondent to the appeal is Ms Dorsett (“the wife”). The appeal is against an order made by Stevenson J on 8 February 2017, following a brief hearing in a duty list on 25 January 2017.
The order the subject of the appeal provides that
(1) The husband will pay to the wife a sum of $450 per week by way of adult child maintenance for [Ms D] [the daughter of the husband and wife] …, born [in] December 1997 until she completes her current university degree or ceases that course.
That order was made on an application filed by the wife on 19 December 2016, which therefore came on for hearing on a relatively expeditious basis. It was also made in the context of the parties having a wider dispute about the distribution of their property and matters of adult child maintenance.
The first issue today is the characterisation of the order as either final or interlocutory, as that has a significant impact upon the appeal process.
On its face the order is a final order. It has no preface, as was sought, to indicate that it was made “pending further order”, and on its terms purports to operate for an extended period of time, given that Ms D is only at the early stage of her university education.
It is, however, properly conceded that in reality this is an interim order. It was made on an Application in a Case, and was sought and argued on an interim basis. During the hearing below there were also indications of the matter coming back before the Court, perhaps within as short a period of time as a few months. Indeed, when one reads the reasons it is clear her Honour was not purporting to make a permanent order. Accordingly, when the order was issued in its present, seemingly final, form, a request could have been made to seek to rectify it by operation of the slip rule.
When the Notice of Appeal was prepared, proceeding on the basis that the order was phrased as a final order, leave to appeal was not sought. However, this issue was properly alluded to in the appellant’s written submissions. It was also alluded to in the respondent’s written submissions, and has been further considered today. In my view, given that the order was clearly intended to be interim, leave to appeal is required, and I would proceed on that basis.
There is no argument that the law concerning leave to appeal is as stated by the Full Court at [57] in Medlow & Medlow (2016) FLC 93-692:
The test to be applied in applications for leave to appeal under s 94AA of the [Family Law] Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Emphasis in original)
Of course, this is not a statutorily prescribed test. It is, however, a convenient yardstick by which such applications can be considered.
There are good reasons why restrictions are placed on litigants aggrieved by a decision seeking to engage the appellate processes of a superior court. Fundamentally, such barriers are erected to prevent the business of courts being brought to a standstill as a result of people having an untrammelled right to appeal every decision.
In the context of this Court dealing with matrimonial disputes, a clear line is drawn between those cases involving the best interests of children and all other cases. In cases involving the best interests of children there is a right of appeal against all decisions, but in all other matters and, principally, in financial matters, there is the barrier of leave being required. Such a barrier protects the institution from being overrun with work, but it also protects parties from being put to the expense of arguing a variety of matters unnecessarily in circumstances such as this where the major and final dispute is yet to be had.
The other matter of context in determining whether leave to appeal ought be granted is to record that, during argument today, both counsel have very properly recognised the lack of financial utility in sending this matter back for rehearing in the event we are persuaded that leave to appeal should be granted and that there was appealable error. If both those circumstances existed, counsel would want us to re-exercise the discretion of the primary judge.
Her Honour was dealing with two issues in the hearing below. One concerned allocation of responsibility for payment of substantial school fees for the parties’ other child; an issue which her Honour determined unfavourably to the husband and which has not been the subject of an appeal. The second issue, and the one that concerns us today, is the obligation, if any, on the parents to support Ms D, who is a young adult and who wished to continue attending a residential college in 2017 at the husband’s expense, as she had done in 2016.
On the day of the hearing, the matter took a different course when counsel for the wife handed up a minute indicating that in the event her Honour was not persuaded to grant the primary relief sought in the interim application, (the payment by the husband of the costs of Ms D’s attendance at the college), then it was sought instead that the husband pay a periodic amount of $450 per week to the wife in order to meet Ms D’s costs of living. It seems that that proposition was put on the assumption that in the event that an order was not made for the husband to meet the costs of Ms D’s college fees then she would cease attending the college and would instead, as others in her family have done, move into private rental accommodation in Sydney.
It is surprising that this matter was presented to her Honour without the degree of specificity that is ordinarily required and certainly always useful in dealing with maintenance issues. Adult child maintenance disputes involve consideration of three questions: the threshold question of whether there is an obligation to pay; the capacity of each parent to assist in meeting the costs of maintenance; and the precise extent of the need of the child to be maintained.
Her Honour, as I say, was not greatly assisted by the evidence provided, with somewhat vague statements being made in the affidavits about how much it might cost in order to maintain Ms D adequately.
The primary judge’s reasons were understandably brief (the case having been heard in in a very busy list and the judgment having been delivered with commendable expedition). Her Honour relevantly stated:
23.I am satisfied that [Ms D] requires accommodation in Sydney in order to complete her … degree. I am not satisfied that it is "necessary" for her to live at … College. It is clear that continued residence at … College is a preference of both [Ms D] and the wife. I accept that cheaper alternatives are available for [M D]'s accommodation during the remainder of her university course.
…
25.I accept that the evidence of [Ms D]'s projected expenses was scant and imprecise but, in my view, the reality is that she requires financial support in order to complete her degree. In his affidavit of 24 January 2017 the husband estimated [Ms D]'s expenses at no more than $450 per week. The husband gave no breakdown of this figure.
26.As noted, I am satisfied that maintenance for [Ms D] is necessary to enable her to complete her education for the purposes of section 66L(1). As further noted, the husband did not contend that he lacks capacity to make a contribution to [Ms D]'s financial support.
27.I accept the husband's argument that private rental accommodation for [Ms D] would be a cheaper alternative to ongoing residence at … College. I do not accept that the husband should make no contribution whatsoever to [Ms D]'s financial support.
28.It seems to me that the husband should pay maintenance for [Ms D] but the state of the evidence makes the fixing of an amount a somewhat arbitrary exercise. I am inclined to the view that [Ms D] could reasonably be expected to undertake more than eight hours of paid employment per week. I will order that the husband pay adult child maintenance for [Ms D] in the sum of $450 per week.
In assessing whether or not the decision is attended by sufficient doubt it is proper to have regard to the grounds of appeal upon which the husband would seek to rely in the event that he was successful in obtaining leave to appeal.
We were presented, originally, with nine grounds of appeal, two of which were numbered eight. In the course of argument, appropriately, ground 7 fell away as not being a ground. Ground 8, which appeared to have been the primary basis of the appeal at one stage, was abandoned, and the second ground 8 was also, effectively, abandoned. What remained were the three matters at the core of all maintenance disputes that I described earlier.
The first matter to be addressed, which was raised by ground 1, is the threshold issue of whether the wife had met the statutory requirement that maintenance was necessary in order to permit Ms D to complete her education. In my view, that was not in issue between the parties, having been properly conceded.
Dealing next with the question of the parents’ capacity to pay maintenance for Ms D, the husband proposes to argue on appeal that it was not established that he had the capacity to pay $450 per week. However, I am persuaded by the submissions of counsel for the wife that this was not an issue agitated before her Honour. Counsel for the wife specifically drew attention in the record to what he argued was evidence that the husband had the capacity and the lack of any indication that the husband had put capacity in issue. Challenged on that point on at least two occasions during the course of the argument below, counsel for the husband did not, in my view, properly put capacity in issue.
The remaining question was the extent of the child’s needs. On Ms D’s own rather vague evidence, if she did not attend college, her need was in the range of $600 per week – being a combination of the costs of her room and day-to-day support. In my view, the husband had presented sufficient evidence in his own affidavit material for her Honour to be satisfied that the costs would be in the region at least of $450 per week. That is a concession that her Honour effectively took into account in arriving at her decision.
However in determining Ms D’s needs, another vital matter to consider was her capacity to support herself. In this regard, her Honour observed that Ms D deposed to working on a part-time basis, earning $20 per hour when she does work. The evidence indicated that, spread over the year, it might be safe to say that Ms D had worked eight hours a week, hence having an average weekly income of $160 per week. But her Honour’s finding was that Ms D had the capacity to earn more than $160 per week. Recognising, of course, all the difficulties her Honour faced, this is arguably one deficiency in her Honour’s reasons, as she did not go on to make any finding about the extent to which Ms D’s income earning capacity exceeded $160 per week.
The other criticism of her Honour’s approach is that there is no discussion in the reasons of the wife’s capacity to contribute to Ms D’s costs. Here, it cannot be said that this was not an issue raised before her Honour, as the transcript reveals that this matter was firmly agitated. This is therefore, with respect to her Honour, in my view, a deficiency in the reasons. I note, of course, that her Honour may have had some difficulty in dealing with that question, given that it appears the wife’s financial statement was not read before her Honour and instead was merely alluded to in affidavit material and in the submissions.
The first question when deciding whether leave to appeal should be granted is whether the decision is attended by sufficient doubt to warrant it being reconsidered. In my view, there are difficulties with her Honour’s reasons as I have identified: the question of the wife’s capacity to contribute to Ms D’s costs is not dealt with at all, and the quantum of Ms D’s needs is not dealt with to the extent that I respectfully consider was warranted in determining an adult child maintenance claim.
The difficulty from the husband’s perspective, however, is that for the reasons I indicated at the outset, there is a bar set to bringing such matters before this Court. This involves consideration of the second matter, namely whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
In determining the extent of any injustice that might be occasioned to the husband as a result of any error, the matter needs to be put into context. Here, as I explained at the beginning, the issue arises in the course of proceedings that have been before the Court for a number of years. It is not apparent from the record, or from what counsel have said today, just when the matter will come on for hearing, but given that it has been in the Court for a couple of years, it is, I think, reasonable to anticipate that the matter might be heard relatively soon. That puts a limit on the extent of the injustice to the husband if, indeed, the errors asserted were made out on the hearing of the appeal.
If we were to be persuaded that leave should be given, and if we were persuaded that there were indeed errors of the sort that I have alluded to, and we then proceeded to re-exercise the discretion, in my view, without wishing to be specific as to the amount, it would inevitably be the case that the husband would be required to make a significant contribution to Ms D’s expenses, albeit not necessarily to the level her Honour ordered.
In re-exercising the primary judge’s discretion, one might try to take into account an obligation on the part of the wife to contribute to Ms D’s expense. However, in doing so, one might be left to look at the evidence such as it was, arising out of the decision of the Administrative Appeals Tribunal, which the parties have been prepared to have taken into account in these proceedings. This evidence would have revealed that whilst the wife has an adequate income, the husband has a far superior income. One would also take into account the fact that Ms D is not at university all year round and that, for approximately a quarter of the year, she lives with her mother who is entirely responsible for her maintenance during that period, dependent upon whatever Ms D herself might be earning.
All of those factors would point, in my view, to there being a quite significant award of adult child maintenance to be paid by the husband pending the resolution of the ultimate proceedings. In dollar terms, in my view, the difference between what the husband has been ordered to pay and what he would be likely to pay in the event that we were to embark on a full consideration of the merits of this appeal would not be such as to amount to “substantial injustice”.
For those reasons, I would not grant leave to appeal.

Ainslie-wallace J

I have nothing to add to the reasons delivered by the presiding judge with which I agree, and I agree with the orders that he proposes.

Murphy J

I agree with what the presiding judge has said in respect of the errors attending the primary judge’s judgment, but I, too, am not persuaded of the requisite substantial injustice in granting leave. In that respect, I agree with the reasons given by the presiding judge for refusing leave, including, in particular, the potential dollar value of any re-exercise.

RECORDED: NOT TRANSCRIBED

Thackray J

The application now before the Court is that of the wife for the costs of this unsuccessful application for leave to appeal. The basis upon which costs are sought is that there are circumstances justifying such an order. These are that the husband has been wholly unsuccessful and the superior financial circumstances of the husband, in particular, his significant income.
Counsel for the husband opposes the application on the basis that ordinarily each party ought to meet their own costs and the fact that the application for leave being wholly unsuccessful is not, in itself, a sufficient basis for an order for costs being made. Counsel for the husband also refers to the husband’s financial statement, which indicates an excess of expenditure over income and no apparent strong asset base.
In determining the application, I have regard to the fact that the default position under the legislation is that each party bears their own costs, subject to the various prescribed factors, particularly the question of the lack of success. In this case I would not order costs because there was merit in the arguments that were advanced in relation to potential deficiencies in her Honour’s reasons. The extent of the merit in those arguments is such as to persuade me that each party ought to bear their own costs.
I would therefore dismiss the application.

Ainslie-wallace J

I agree.

Murphy J

I agree, too.

Thackray J

The application for costs is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Murphy JJ) delivered on 18 October 2017.

Associate:

Date: 8/12/17