Holman & Bates
[2022] FedCFamC1A 141
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Holman & Bates [2022] FedCFamC1A 141
Appeal from: Orders dated 11 March 2022 Appeal number(s): NAA 75 of 2022 File number(s): PTW 5930 of 2021 Judgment of: TREE J Date of judgment: 8 September 2022 Catchwords: FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Appeal from orders discharging an order for urgent spousal maintenance – Whether the magistrate failed to dispose of the wife’s interim application for spousal maintenance – Whether the magistrate conflated the requirements of the provisions for spousal maintenance – Whether the decision was plainly unjust – Where there was considerable uncertainty as to the husband’s capacity to meet an order for spousal maintenance – Where the magistrate’s findings were open on the evidence – No appealable error established – Where there is not sufficient doubt attending the decision of the magistrate – Leave to appeal dismissed – Appeal dismissed – Notice of Contention dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75 Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Maviglia v Maviglia [1999] NSWCA 188
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147
Number of paragraphs: 50 Date of hearing: 4 August 2022 Place: Cairns (via video link) Counsel for the Appellant: Mr Kerr Solicitor for the Appellant: Kerr Fels Divorce & Family Lawyers Counsel for the Respondent: Mr Beckerling Solicitor for the Respondent: CMS Legal ORDERS
NAA 75 of 2022
PTW 5930 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HOLMAN
Appellant
AND: MR BATES
Respondent
order made by:
TREE J
DATE OF ORDER:
8 september 2022
THE COURT ORDERS THAT:
1.The wife’s application for leave to appeal be dismissed.
2.The Notice of Appeal filed 8 April 2022 (as amended on 4 August 2022) be dismissed.
3.The Notice of Contention filed 17 May 2022 be dismissed.
4.Within 28 days of the finalisation of proceedings between the parties in File No. PTW 5930 of 2021, the wife pay the husband’s costs in the sum of $5,000.
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 Holman & Bates has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
By her Notice of Appeal filed 8 April 2022, Ms Holman (“the wife”) seeks leave to appeal, and if granted, appeals against orders made by the Magistrates Court of Western Australia on 11 March 2022. Those orders discharged an earlier order requiring Mr Bates (“the husband”) to pay the wife urgent interim spousal maintenance in the sum of $800 per week.
The husband opposes the application for leave and the appeal.
For the reasons which follow, the application for leave to appeal and the appeal will be dismissed.
background
The wife is currently 52 years old and the husband is 48. They commenced a relationship in 2013, married in 2015 and separated in December 2018, thereby concluding a relationship of something less than six years duration. There were no children born to the relationship, although the wife has a now 17 year old daughter from a previous relationship who lives with her, and the husband lives with his new partner and her child.
As found by the primary judge, at the commencement of their relationship the parties were in “a far superior financial position than exists now”. Particularly the wife held significant equity (about $400,000) in a property she owned at Suburb A. She also partly owned (and still does) a business where she worked and received a weekly wage. During the relationship, the husband was employed as a tradesperson. It appears the parties’ financial circumstances deteriorated during the relationship as a consequence of a decline in the property market, an increase in joint debts and mortgage drawdowns, and the Covid-19 pandemic.
After separation, the wife continued to work in the business. In 2019, the husband established his own business, which he continues to operate.
In November 2021, the wife was diagnosed with a terminal illness. She has been undergoing palliative care which impacts on her ability to work. In January 2022, she filed an Initiating Application for property settlement which sought, inter alia, an urgent spousal maintenance order and interim orders for ongoing spousal maintenance.
On 27 January 2022, the primary magistrate made a raft of interim orders which included an order for urgent spousal maintenance of $800 per week to the wife pending the interim hearing of the matter.
The matter then came before the primary magistrate for interim hearing on 8 March 2022, and on 11 March 2022 his Honour, for ex tempore reasons then delivered, made two orders, namely discharging the earlier order for urgent spousal maintenance, and transferring the proceedings to the Family Court of Western Australia. These are the orders which the wife appeals, although no ground nor argument addressed the transfer order.
leave to appeal
The wife requires leave to appeal due to the orders being interlocutory in nature. Ordinarily the test adopted in this Court is that leave to appeal will only be granted where the decision of the primary judge was attended by sufficient doubt to warrant its reconsideration and a substantial injustice would ensue if leave were refused (Medlow & Medlow (2016) FLC 93-692). The merits of any proposed appeal are thus relevant to the success of the application for leave to appeal. It is therefore convenient to address the proposed grounds before returning to the question of leave to appeal.
Grounds of appeal
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Ground 1
This ground asserts:
1. In finding that:-
a)the Wife had demonstrated a need for spousal maintenance and the threshold test pursuant to Section 72(1)(b) of the Family Law Act ('the Act') was met (namely that the Wife had a 'right to maintenance'); and
b)the Husband had a net income of $2,165 per week (Reasons for Decision page 4 paragraph 5) and on his evidence, an available surplus of $261 per week (Reasons for Decision page 4 paragraph 40),
the decision of the Learned Magistrate to not deal with the Wife's application for periodic spousal maintenance, in any way (noting the Learned Magistrate neither dismissed or ordered any sum to be paid by the Husband), was against the evidence, and the weight of the evidence, and was wrong in law.
(As per the original)
Before me, this ground was only faintly pressed, and rightly so.
Although the primary magistrate did not make a stand alone order dismissing the wife’s interim application for periodic spousal maintenance, when the ex tempore reasons are read as a whole, it is evident his Honour intended to determine the wife’s application for interim spousal maintenance, especially in light of his Honour’s concluding remarks as follows:
HIS HONOUR: … Balancing the precarious financial position of the husband and, in particular, the circumstances of the relatively short relationship that ended some years ago, I am not satisfied, in the exercise of the court’s discretion, that a periodic spousal maintenance order should be made…
(Transcript 11 March 2022, p.6 lines 32–37)
That determination and the order which followed effectively disposed of the wife’s interim application.
This ground fails.
Ground 2
This ground provides:
2.By determining that it was necessary for the Learned Magistrate to have regard to Section 75(2)(o) in relation to the question of whether he exercise discretion to make a maintenance order, his Honour erred in law.
(As per the original)
The contention under this ground was that the primary magistrate conflated the requirements of ss 72 and 74 with those of s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”), and in so doing, erred at law.
It is important to recall that the decision of the primary magistrate was delivered three days after the conclusion of the hearing, with reasons being given ex tempore. It is well established that “[a]n ex tempore judgment should not be picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]) and that “[a]ppellate courts make assumptions in favour of an ex tempore judgment” (Perdicari & Perdicari (2019) FLC 93-914 at [25]).
At the commencement of his reasons, the primary magistrate said:
The issue for determination is whether the applicant wife – and I will use the terms “wife” and “husband” in these reasons. The issue for determination is whether the applicant has demonstrated a need for spousal maintenance and, if so, whether the respondent has capacity to meet spousal maintenance order. The proceeding first came before the court by way of an urgent application for spousal maintenance, pursuant to section 77 of the Act.
(Transcript 11 March 2022, p.2 lines 1–8)
There can hence be no doubt that his Honour correctly understood the task before him, and at least initially conformed to the steps he had identified. Thus at page 5 of the reasons, his Honour said:
… I am more than satisfied on the available untested evidence that the wife has demonstrated a need for spousal maintenance. And I make that finding pursuant to section 72 of the Act.
As a consequence of the threshold finding, I must consider the husband’s capacity to meet a spousal maintenance claim and the other factors pursuant to section 75(2) of the Act…
(Transcript 11 March 2022, p.5 lines 41–49)
A little later however, the primary magistrate said:
… While I am unable to make definitive findings as to what surplus, if any, the husband has over income and expenditure, I am satisfied, however, that this is a case where, pursuant to section 75, subsection (o) of the Act, there are facts or circumstances that justice of the case requires me to take into account.
(Transcript 11 March 2022, p.6 lines 12–18)
His Honour ultimately concluded that discussion with the sentence I have earlier quoted in [14] above.
It seems clear that the primary magistrate was not persuaded that the husband had capacity to pay spousal maintenance, but nonetheless went on to say that s 75(2) considerations would persuade him not to have made an order for spousal maintenance in any event. So construed, there was no conflation of ss 72, 74 and 75(2)(o) of the Act.
There is no merit to this ground.
Ground 3
Ground 3 provides:
3.In determining that a dismissal of the Wife's spousal maintenance application was an appropriate exercise of discretion (having regard to Section 75(2)(o)), and due to:-
a)the parties marriage had been short, namely one of nearly six years;
b)the parties had been separated for over three years; and
c)the Husband had established a new business and had formed a new relationship post-separation and had moved on,
such decision of the Learned Magistrate was unreasonable and plainly unjust and outside the range of a proper exercise of discretion.
(As per the original)
The test for unreasonableness as articulated in House v The King was discussed in Norbis v Norbis (1986) 161 CLR 513 at 540 per Brennan J:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
There is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong (per Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627).
Turning to the ground itself, firstly it is noted that it squarely contradicts the challenge made by Ground 1 in asserting the primary magistrate failed to determine the wife’s spousal maintenance application.
Secondly, I am not satisfied of the assumption which underpins this ground, namely that s 75(2)(o) factors determined the outcome of the wife’s application. Rather, as I have explained when considering Ground 2, the primary magistrate was not satisfied of the husband’s capacity to pay spousal maintenance, and his reference to s 75(2)(o) was, in a sense, a belt-and-braces approach.
Thirdly, even if the primary magistrate did determine the application on the basis of s 75(2)(o) factors, I am not persuaded that it was such an unreasonable outcome as to be outside the range of reasonable disagreement, or no proper exercise of the discretion. Further, it cannot be said that the matters referred to in this ground were not able to be considered under s 75, and thus the primary magistrate did not take into account an irrelevant consideration.
Moreover, the weight ascribed to relevant considerations was quintessentially a matter for the primary magistrate (Gronow v Gronow (1979) 144 CLR 513 at 519–520). The fact that I likely would have given them less weight is not sufficient to establish error.
This ground fails.
Ground 4
This ground was first raised orally at the hearing of the appeal, when leave was given to amend the Notice of Appeal to include both it and Ground 5.
As formulated, this ground provided:
4.The learned primary magistrate erred in finding that at best the husband’s surplus was $261 per week.
This challenge arises from the primary magistrate’s conclusions to the effect that his Honour could not determine the husband’s capacity to pay spousal maintenance. To succeed on this ground the wife would need to show that conclusion was not open on the evidence (Edwards v Noble (1971) 125 CLR 296 at 304 and 307).
Central to the wife’s argument was an exhibit created by her which purported to demonstrate discounts that ought to be applied to expenses claimed by the husband in his financial statement. It was said that after those discounts were applied, the husband had surplus income of $750 per week.
However the husband did not have an opportunity to dispute that document, except by way of his counsel’s submissions. In those submissions, there was considerable traverse of individual amounts sought to be discounted, and a further assertion that the husband had not included in his financial statement the payment of his legal fees and repayment of a loan he had taken to pay previous legal fees (Transcript 8 March 2022, p.27 lines 8–12). If those payments were ignored, then the husband conceded a capacity of $261 per week; if they were included, it reduced to $111 per week (Transcript 8 March 2022, p.27 lines 8–12).
Plainly there was considerable uncertainty as to the husband’s capacity to meet an order for spousal maintenance, particularly given that both his income and expenses were expressly said to be estimates (husband’s financial statement filed 27 January 2022, p.2).
It was for the wife to satisfy the primary magistrate of the husband’s capacity to pay, and the state of the evidence was sufficiently unclear that it was certainly open to the primary magistrate to conclude as he did, namely that he could not “make definitive findings as to what surplus, if any, the husband has over income and expenditure” (Transcript 11 March 2022, p.6 lines 13–14).
This ground is without merit.
Ground 5
This ground was also added during the hearing of the appeal, as follows:
5.The learned primary magistrate erred in finding that he could not determine the husband’s surplus of income over expenditure.
The challenge raised by this ground is that the primary magistrate erred by failing to specifically find the husband’s capacity to pay spousal maintenance was in the sum of $750, based upon the wife’s tendered exhibit which purported to identify discounts to the husband’s expenses as claimed in his financial statement.
However as I noted in discussing Ground 4, the discounts were not conceded by the husband, and further, whilst he made concessions, not only was there still a degree of conjecture attached to them, but on one construction, any such capacity was as little as $111. Given that both the husband’s weekly income and expenses were estimates, there was no compulsion on the primary magistrate to accept any of the proffered figures, whether as contended by the wife or the husband. Again, the fact that I may have taken a more robust approach does not demonstrate appealable error.
This ground does not enjoy merit.
conclusion
No ground of appeal enjoys merit, and hence there is not sufficient doubt attending the decision of the primary magistrate to warrant a grant of leave.
It is therefore not necessary to consider the question of substantial injustice, or the related issue raised by the husband’s Notice of Contention, namely whether the wife had failed to properly demonstrate that she did not have access to a total and permanent disability payment as adjunct to her superannuation policy.
outcome
The wife’s application for leave to appeal will be refused, and her Notice of Appeal filed 8 April 2022, as amended by leave given during the hearing on 4 August 2022, will be dismissed, as will the husband’s Notice of Contention.
costs
In the event the wife’s appeal was dismissed, the husband sought that the wife pay his costs in the total of $10,820.56. Whilst the wife did not oppose a costs order generally, she contended that any order should be in the sum of $5,000 and payment deferred until 28 days after the finalisation of the principal property settlement proceedings between the parties. That figure was said to be justified by the wife’s own costs, which were quantified in her schedule at $5,591.64, to which, it seems, some discount was applied. The deferral of payment was based upon the wife’s presently parlous financial position.
Bearing in mind the disparity of the parties’ financial position, the outcome of the appeal, and extant proceedings, I am satisfied that the costs order should be as contended by the wife.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 8 September 2022
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