W A Harris QC with P Kari and S Gory for the appellant (instructed by Barnes Brinsley Shaw Lawyers)
D F Jackson QC with D R Sulan for the respondent (instructed by Jordan & Fowler)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hall v Hall
Family law – Family Law Act1975 (Cth) – Spousal maintenance – Conditions for making or discharge of interim spousal maintenance orders – Interim spousal maintenance order in favour of wife – Application to discharge by husband – Where wife's father's will expressed wish that wife receive voluntary annual payment from family business controlled by wife's brothers – Meaning of "financial resources" under s 75(2)(b) – Whether confined to present legal entitlements – Whether finding open on evidence that wife able to support herself adequately – Whether just cause for discharge of spousal maintenance order.
Courts and judges – Procedural fairness – Whether party on notice of possibility of factual finding being made – Whether party denied opportunity to lead further evidence.
Words and phrases – "financial resources", "source of financial support", "support himself or herself adequately".
FRENCH CJ, GAGELER, KEANE AND NETTLE JJ. This is an appeal from a judgment of the Full Court of the Family Court[1] which set aside an order of a judge of that Court[2] and in its place ordered the discharge of an interim maintenance order.
It is an objective of the Family Law Act1975 (Cth) reflected in the obligation it imposes on the Family Court that proceedings under the Act are "not protracted"[3]. It is an objective of the Family Law Rules 2004 (Cth) that "each case is resolved in a just and timely manner"[4]. For reasons that are not apparent from the record, the objective of timeliness was not met in this case.
[3]Section 97(3).
[4]Rule 1.04.
The spousal maintenance provisions
Part VIII of the Family Law Act governs, amongst other things, spousal maintenance. The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section 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)".
The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making…
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
Hall v Hall [2016] HCA 23
Case
[2016] HCA 23
Decision Date
CaseChat Overview and Summary
The case involved an application by the husband to discharge an interim spousal maintenance order made in favour of the wife. The dispute centred on whether the wife was able to support herself adequately, a key consideration for spousal maintenance under the *Family Law Act 1975* (Cth). The Full Court of the Family Court of Australia had previously discharged the interim spousal maintenance order, finding that there was "just cause" to do so. The husband appealed this decision to the High Court of Australia.
The High Court was required to determine whether the Full Court erred in discharging the interim spousal maintenance order. Specifically, the Court considered whether the Full Court was correct in inferring from the evidence that the wife would receive an annual voluntary payment from a family business, as expressed in her late father's will, and whether this constituted a "financial resource" under s 75(2)(b) of the Act, thereby demonstrating the wife's ability to support herself adequately. The Court also considered whether the wife had been denied procedural fairness.
The High Court reasoned that the Full Court's finding that the wife would have received the annual payment from the family business if she had asked her brothers for it was a correct inference from the evidence. The Court held that the term "financial resources" under s 75(2)(b) is not confined to present legal entitlements but includes sources of financial support that a party can reasonably expect to be available. The Court noted that while the wife had no legal right to the payment, the evidence, including her good relationship with her brothers and their existing provision of luxury vehicles, supported an inference that her father's wish would be honoured. The Court found that the wife's failure to provide evidence explaining why she had not received payments, despite being aware of her father's will, allowed for the inference that any explanation would not have assisted her case. The Court also found that the wife had not been denied procedural fairness, as the possibility of such a finding was apparent from the evidence presented.
The High Court dismissed the husband's appeal with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Full Court allowed the husband's appeal in relation to the primary judge's refusal to discharge the ISM Order and discharged the ISM Order on and from the date it had been made, 10 December 2013. The basis for discharging the ISM Order was that there was "just cause for so doing"[24]. The Full Court determined that there was evidence that demonstrated that the wife was able to support herself adequately[25]. The Full Court reached its conclusion and discharged the ISM Order based on an inference "from the evidence", said to support the finding that "if requested, the wife would receive that benefit"[26] (emphasis added). [24]s 83(1)(c) of the Act. See also s 83(7) of the Act, which requires ss 72 and 75 of the Act to be taken into account.[25]See s 72(1) of the Act.[26]Hall [2015] FamCAFC 154 at [152].Finding, inference and the evidence The matter was rightly conducted on the premise that the wife had no right to any payment[27]. The wife's father had expressed a wish that his sons cause the V Group to make the annual payments but the expression of that wish created no right in the wife whether against the estate, the brothers or the V Group. The husband's case, that "if she asks she will get", depended critically on what one or more of her brothers and the V Group would do. It did not ultimately depend upon what the wife would do. There was no suggestion at any point in the proceeding that the wife and the brothers were or are working together to enhance the wife's claims against her husband.[27]Subject to one matter discussed below at [83]. There was no direct evidence that those who control the V Group (or, for that matter, those who control the estate) would, if asked, make a payment. The evidence relied upon by the Full Court was addressed in two places by that Court. First, in considering whether to grant the husband leave to appeal against the primary judge's refusal to discharge the ISM Order, the Full Court stated[28]:"[W]e are concerned about [the primary judge's] failure to take into account one particular aspect of the information provided in the affidavit of [the solicitor], namely, that part of the wife's late father's will that specified that she should receive from the V Group an annual payment of $150,000, net of income tax, from the date of his death until she receives payment from the V Group of an amount of $16.5 million (also referred to in the will). Plainly, this is an expression of a wish by the father for the wife to have this benefit and it does not bind the executor, but there are clear indications or inferences to be made from the evidence before [the primary judge] that the wife's brothers (including the executor of the will), who now control the V Group, would carry out their father's wish in this regard.These indications or inferences are that the wife has a good relationship with her brothers, it is a wish of their father directed to the brothers and, significantly, the brothers do already provide for the wife, presumably via the V Group (but that is unclear on the evidence), by supplying her with late model luxury motor vehicles. At the time of the hearing before [the primary judge], the wife was the registered owner of a late model luxury convertible motor vehicle and a late model luxury four wheel drive, valued by the wife at a total of $265,000. These vehicles replaced other brand new vehicles purchased previously for her on the same basis. There was no evidence before [the primary judge] that the wife had requested her brothers to comply with their father's wish, once she became aware of the relevant terms of the will, nor that any such request had been denied. Thus, [the primary judge] erred in not taking into account the 'new evidence' that the wife was able to seek payment from V Group of $150,000 per year, net of income tax, in addressing the application to discharge the interim order for spousal maintenance.We note of course that the payment of the $16.5 million was only payable on the happening of certain events and none of these events had yet taken place. Thus that amount could not be taken into account by [the primary judge]." (emphasis added)[28]Hall [2015] FamCAFC 154 at [132]-[135].
Decision
Reasons for decision
FRENCH CJ, GAGELER, KEANE AND NETTLE JJ
GORDON J
True it is that the wife had not received any payment from the time of their father's death. The reasons for that were wholly unexplored in the evidence. That evidentiary gap was within the power of the wife to fill. It was within the power of the wife to lead evidence to provide some explanation. Again, her failure to do so allows the inference to be drawn that such explanation as she was able to provide would not have assisted her case. The conclusion was correct The Full Court's finding that the wife would have received the annual payment of $150,000 from the Group if she had asked her brothers for that payment led directly to the Full Court's conclusion that just cause had been shown for the discharge of the interim spousal maintenance order, on the basis that the evidence demonstrated that the wife was able to support herself adequately and that the threshold requirement of s 72(1) therefore was not met. To the extent that the wife's challenge to that conclusion is that the Full Court's finding of fact did not demonstrate that the wife was able to support herself adequately, the challenge has an air of unreality. Having found that the wife would have received the annual payment from the Group if she had asked her brothers for that payment, it was unnecessary, and would have been wholly inappropriate given the paucity of the evidence before it, for the Full Court to attempt to form any subsidiary conclusion as to the detail of the timing and mechanics of any such payment. The burden of the wife's challenge is to the conclusion that the Full Court's finding that the wife would have received the annual payment from the Group if she had asked her brothers for it was not of a fact which fell within any of the matters referred to in s 75(2), relevantly in either s 75(2)(b) or s 75(2)(o), with the consequence that the fact found was incapable of being factored into the s 72(1) analysis. That aspect of the challenge must also be rejected. The finding was of a matter within both s 75(2)(b) and s 75(2)(o). The wording of s 72(1), it has been noted[18], seems to imply that each party should attempt to support himself or herself where that is reasonable having regard to the matters referred to in s 75(2). [18]Astbury v Astbury (1978) 4 Fam LR 395 at 398. The matters referred to in s 75(2)(b) are matters which bear on the practical ability of one party to support the other, and of the other party to support himself or herself. Hence the concluding reference is to the matter of "the physical and mental capacity of each of them for appropriate gainful employment". Hence also the opening reference to the matter of "the income, property and financial resources of each of the parties" cannot be confined to the present legal entitlements of the parties. The reference to "financial resources" in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency"[19]. The requirement that the financial resource be that "of" a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation[20]. [19]In the marriage of Kelly and Kelly (No 2) (1981) FLC ¶91-108 at 76,803.[20]In the marriage of Kelly and Kelly (No 2) (1981) FLC ¶91-108 at 76,803.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GAGELER, KEANE AND NETTLE JJ,
GORDON J