Grange & Grange
[2022] FedCFamC1A 9
•7 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Grange & Grange [2022] FedCFamC1A 9
Appeal from: Grange & Grange [2021] FamCA 401 Appeal number(s): NOA 37 of 2021 File number(s): ROC 580 of 2011 Judgment of: MCCLELLAND DCJ, ALDRIDGE & CAREW JJ Date of judgment: 7 February 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Spousal maintenance – Where the appellant contends that he was unable to support himself – Where the appellant relied solely on the receipt of a disability support pension to pass through the gateway in s 72 of the Family Law Act 1975 (Cth) – Appeal futile – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Filed out of time – Irrelevant material – Application dismissed.
Legislation: Evidence Act 1995 (Cth) Pt 3.3, s 140
Family Law Act 1975 (Cth) s 72
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(b)Social Security Act 1991 (Cth) s 94
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: Baghti & Baghti [2013] FamCAFC 194
Beach Petroleum NL and Another v Johnson and Others (1995) 135 ALR 160
Bonan v Hadgkiss (2007) 160 FCR 29; [2007] FCAFC 113Gardner and Another v Dairy Industry Authority of New South Wales (1977) 18 ALR 55
Grange & Grange and Ors [2019] FamCAFC 205Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625; [2014] FamCAFC 241Jardin and Another v Metcash Ltd and Another (2011) 285 ALR 677; [2011] NSWCA 409
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Yardlay & Commissioner of Police (2020) FLC 93-981; [2020] FamCAFC 186Number of paragraphs: 32 Date of hearing: 8 December 2021 Place: Brisbane (via video link), delivered in Sydney Counsel for the Appellant: Mr Fisher (direct brief) Counsel for the Respondent: Mr Foley Solicitor for the Respondent: Ryan Murdoch O’Regan Lawyers ORDERS
NOA 37 of 2021
ROC 580 of 2011FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GRANGE
Appellant
AND: MS GRANGE
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & CAREW JJ
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The affidavit of Ms A Grange, the husband’s daughter, filed 26 October 2020 be added to the Appeal Book.
2.The appeal be dismissed.
3.The appellant pay the respondent’s costs of and incidental to the appeal and the application to adduce further evidence fixed in the sum of $6,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ & ALDRIDGE J:
This matter concerns an appeal from a decision by the primary judge dated 18 June 2021 dismissing the appellant’s claim for spousal maintenance. We have had the advantage of reading the reasons for judgment of Carew J, who has succinctly summarised the background to the matter and the substance of the matters raised in the appeal. We agree with her Honour’s reasons for dismissing this appeal and the orders she proposes.
As explained by her Honour, the appeal is a futility in circumstances where there is no challenge to the primary judge’s finding that the respondent was not reasonably able to maintain the appellant. In that respect, we note that counsel for the appellant sought to argue at paragraphs 50 through 52 of the Summary of Argument filed 22 October 2021, that the respondent was bound by an earlier admission that she had the capacity to pay spousal maintenance to the appellant. There was no such previous admission by the respondent and we reject the contention that, inferentially, this argument challenges the primary judge’s finding that the respondent was not reasonably able to maintain the appellant. Plainly, it does not.
In any event, we would dismiss this appeal for the additional reason that the appellant has failed to show error on the part of the primary judge in determining that the appellant had failed to discharge the persuasive onus that rested upon him to satisfy the Court that he was unable to adequately support himself for one or other of the reasons specified in s 72 of the Family Law Act 1975 (Cth) (“the Act”) which have been set out in the reasons for judgment of Carew J. Section 72 of the Act has been described by the High Court as the “gateway” requirement to establishing an entitlement to spousal maintenance. In Hall v Hall (2016) 257 CLR 490 (“Hall v Hall”), the plurality (French CJ, Gageler, Keane and Nettle JJ) stated:
3. … The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That subsection provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”.
(Emphasis added)
Moreover, the High Court in Hall v Hall made it clear that the party carrying the persuasive burden of establishing that they have passed through the gateway must do so according to “the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth)” (at [8]).
For reasons adequately explained by the primary judge, the appellant failed to adduce sufficient evidence to satisfy the primary judge that he was unable to support himself adequately. The appellant has also presently failed to establish an error on the part of the primary judge in so finding.
That finding was made in circumstances where the appellant submitted that he was unable to adequately support himself:
·by reason of his age and physical and mental incapacity for appropriate gainful employment;
·because, as a result of the outcome of earlier proceedings involving the parties, it had been determined that the parties had no marital assets to distribute after the breakdown of their marriage;[1] and
·because the appellant’s personal circumstances are such that it is necessary for his daughter to support him.
[1] Grange & Grange and Ors [2019] FamCAFC 205 at [74].
Dealing with these issues in reverse, the primary judge stated:
25.It was also argued (on behalf the [appellant]) that because his daughter … assists him financially – this is proof that he is unable to support himself adequately. It proves no such thing. If [the appellant’s daughter] chooses to make certain funds available for her father – that is a matter for her.
As a matter of logic, the primary judge’s reasoning in respect to that issue must be correct and required no further explanation.
In terms of the second issue, the primary judge noted that, as a result of the outcome of earlier proceedings between the parties, there was no property to divide between them (at [19] and [54]). As observed by the primary judge in an exchange with counsel for the appellant during the course of the proceedings, “[t]here’s a lot of people in this world who don’t own any property, it doesn’t mean they’re not able to support themselves”.[2]
[2] Transcript 7 May 2021, p.122 lines 15–16.
That statement made by the primary judge is, with respect, self-evident and required no further elaboration in his reasons for judgment.
The more substantial issue is the first basis upon which the appellant contended that he was unable to adequately support himself, being his age and the state of his mental and physical health. In that context, the primary judge upheld an objection to the appellant’s affidavit filed 9 March 2021 where he gave lay opinion that he suffered from a physical injury and a mental health disorder.[3] The primary judge noted that such lay opinion evidence was inadmissible pursuant to Part 3.3 of the Evidence Act 1995 (Cth) (“the Evidence Act”) (at [24]). The primary judge also noted that he made the ruling striking out that evidence during the course of the hearing on 7 May 2021 (at [24]). No challenge has been made to that ruling.
[3] Appellant’s affidavit filed on 9 March 2021, p.5; Transcript 7 May 2021, p.26 line 39 to p.29 line 6.
In the absence of evidence from the appellant and in the absence of any medical report being tendered in evidence, the appellant relies solely upon the fact that he is in receipt of a disability support pension to establish that he is unable to adequately support himself.
Again, that submission was considered and rejected by the primary judge. His Honour stated that:
24.It is said (on behalf of the [appellant]) that he is in receipt of a disability support pension. That is not, in my view, proof that the [appellant] is unable to adequately support himself. There was no evidence of the reason why or the basis upon which he has been (apparently) approved to receive a disability support pension. …
The primary judge was correct in making that finding. The decision by a Commonwealth administrative body to award the appellant a disability support pension does not create an evidentiary estoppel binding the Court, nor does it establish the propounded underlying fact that the appellant is unable to adequately support himself. This was in circumstances where no attempt had been made by the appellant to produce for the Court the declarations he made in seeking the disability support pension, nor the medical evidence that he relied upon.
Further, no attempt was made by the appellant to demonstrate to the primary judge, by reference to the relevant legislation and/or applicable regulations, the basis upon which he had been awarded the disability support pension. This is in circumstances where s 94 of the Social Security Act 1991 (Cth) sets out the qualifications for a disability support pension. Specifically, s 94(1)(c) provides that a pension may be payable if one of the following applies:
(1) …
(c) …
(i) the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; …
The supported work program is defined in the legislation.
In Swain v Waverley Municipal Council (2005) 220 CLR 517, Gleeson CJ said:
17.More than 200 years ago, Lord Mansfield said that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. This basic principle of adversarial litigation is not a matter of esoteric legal knowledge; it accords with common sense and ordinary human experience.
(Footnote omitted)
In this matter, it was reasonably open to the appellant to have produced medical evidence that he is in receipt of the disability support pension as a result of “a continuing inability to work”, rather than the alternative that he is a person who is participating in the program known “as the supported wage system”. As noted by the primary judge, the appellant failed to produce any such medical evidence (at [23]–[24]).
It is trite to say that, in order to make a positive finding of fact based on inference, the evidence relied upon “must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture”.[4] On the evidence presented to the Court, it is equally possible that the appellant was awarded the disability support pension on either of the bases set out in s 94(1)(c) of the Social Security Act 1991 (Cth). It is, therefore, necessarily the case that the appellant has failed to establish, as a matter of probability as required by the ordinary standard of proof set out in s 140 of the Evidence Act, that he had a continuing inability to work as a result of a medical condition or conditions.
[4] Luxton v Vines (1952) 85 CLR 352 at 358.
In those circumstances, the appellant failed to satisfy the “gateway” requirement of s 72 of the Act and, therefore, his claim for spousal maintenance was fated to fail. It is therefore unnecessary for us to consider whether there was any error on the part of the primary judge in finding that, as a matter of probability, the appellant had the capacity to engage in gainful employment and was, in fact, doing so.
For these additional reasons, we agree with the conclusion of Carew J, including awarding costs in favour of the respondent in the sum identified by her Honour.
CAREW J:
After a 30 year marriage and seven children, the appellant and the respondent had no property to divide. The appellant’s application for spousal maintenance was dismissed on 18 June 2021 and, but for this appeal, that decision would have ended what has been a 10 year saga of litigation between the parties.
The right of a party to a marriage to be supported by their spouse is constrained by the provisions of s 72 of the Family Law Act 1975 (Cth) (“the Act”) which provides as follows:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
There are 11 grounds of appeal, many of which are repetitious. The issues raised in the appeal can be summarised as follows:
(1)Did the primary judge err in finding that the appellant had failed to prove he was unable to support himself adequately?
(2)Did the primary judge err in making the following factual findings?
(a)That the appellant was able to perform physical work;
(b)That the appellant owned livestock with his daughter, Ms A Grange;
(c)That the appellant owns a container worth $2,200;
(d)That the appellant was operating a business; and
(e)That the appellant and his daughter, Ms A Grange, were not truthful witnesses.
(3)Did the primary judge provide adequate reasons for finding that the appellant had failed to prove he was unable to support himself adequately?
In my view, it is unnecessary to address the grounds of appeal because even if the appellant succeeds in establishing error as alleged, there is no challenge to the finding by the primary judge that the respondent was not reasonably able to maintain the appellant (at [50]). The appeal is futile. It cannot be in doubt that the Court has the power to dismiss an appeal which has no utility.[5] In Jardin and Another v Metcash Ltd and Another (2011) 285 ALR 677,[6] Campbell JA of the New South Wales Court of Appeal said:
30.The court always has power to act to ensure that its processes are not abused. One aspect of this power is that it can act to halt proceedings (including an appeal) that pose a question that has become moot, that is that will produce no foreseeable consequence for the parties.
[5] Baghti & Baghti [2013] FamCAFC 194; Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625; Yardlay & Commissioner of Police (2020) FLC 93-981.
[6] See also Gardner and Another v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 at 69–71.
There is no utility in the current appeal and as it does not raise any matter of general importance,[7] it should be dismissed.
[7] Bonan v Hadgkiss (2007) 160 FCR 29 at [8]–[13].
Application to adduce further evidence in the appeal
The appellant’s application to adduce further evidence in the appeal was dismissed and reasons reserved. These are the reasons.
When hearing an appeal, this Court has a discretion to receive further evidence.[8] The application is required to be filed at least 14 days before the date of commencement of the listings in which an appeal is listed for hearing.[9] In this appeal, the application was filed on 22 November 2021 supported by an 80 page affidavit by the appellant including annexures. A further two affidavits were filed on 7 December 2021.
[8] Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(b).
[9] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39.
The evidence sought to be adduced in the appeal relates to the respondent’s capacity to pay spouse maintenance.
Not only was the application and supporting material not filed in the time permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) but the evidence sought to be relied upon was not relevant to any ground of appeal. Accordingly, the application to adduce further evidence was dismissed.
Costs
On the issue of costs, it has for some considerable time been the practice of this Court to fix costs wherever possible, so as to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.[10]
[10] Beach Petroleum NL and Another v Johnson and Others (1995) 135 ALR 160 at 162.
The respondent seeks costs in the appeal and in the applications to adduce further evidence in the appeal. The appellant has been wholly unsuccessful and in my view a costs order is warranted. I would fix costs at $6,000.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Aldridge & Carew. Associate:
Dated: 7 February 2022
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