Grange & Grange

Case [2022] FedCFamC1A 9

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 113

Gardner and Another v Dairy Industry Authority of New South Wales (1977) 18 ALR 55
Grange & Grange and Ors [2019] FamCAFC 205

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625; [2014] FamCAFC 241

Jardin 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 186

Number 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 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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AGLC
Grange & Grange [2022] FedCFamC1A 9
Case
[2022] FedCFamC1A 9
Decision Date

CaseChat Overview and Summary

The appeal was brought by Mr Grange against a decision of the Family Court regarding spousal maintenance. Ms Grange, the respondent, sought spousal maintenance from Mr Grange, the appellant. The appeal was dismissed by the Family Court of Australia's appellate division. The primary issue in the appeal was whether the appellant was unable to support himself and therefore entitled to spousal maintenance under section 72 of the Family Law Act 1975 (Cth). The court found that the appellant had not established his inability to support himself and dismissed the appeal. The appellant also sought to adduce further evidence in the appeal, but the application was filed out of time and the evidence was irrelevant to any ground of appeal. Therefore, the application was dismissed. The court also ordered that the appellant pay the respondent's costs of and incidental to the appeal and the application to adduce further evidence in a fixed sum of $6,000.

The court dismissed the appeal as it did not raise any matter of general importance. The appellant's application to adduce further evidence in the appeal was also dismissed as it was filed out of time and the evidence was not relevant to any ground of appeal. The court noted that it has a discretion to receive further evidence when hearing an appeal, but the application must be filed at least 14 days before the date of commencement of the listings in which an appeal is listed for hearing. In this case, 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. The evidence sought to be adduced in the appeal related to the respondent's capacity to pay spouse maintenance. However, 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. Therefore, the application to adduce further evidence was dismissed. The court also noted that it has been the practice of this Court to fix costs wherever possible to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation. The appellant has been wholly unsuccessful and in the court's view, a costs order is warranted. The court fixed costs at $6,000.

The court dismissed the appeal and ordered that 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. The court also ordered that the affidavit of Ms A Grange, the husband's daughter, filed 26 October 2020 be added to the Appeal Book. The form of the order is subject to the entry in the Court's records, and this copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order. It is an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings under section 121 of the Family Law Act 1975 (Cth).

Orders

Orders of the court

NOA 37 of 2021

ROC 580 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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