Keeva & Lynet (No 2)

[2024] FedCFamC1A 42

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Keeva & Lynet (No 2) [2024] FedCFamC1A 42

Appeal from:

Lynet & Keeva [2023] FCWA 205

Appeal number:

NAA 307 of 2023

File number:

PTW 1780 of 2021

Judgment of:

TREE, GILL & STRUM JJ

Date of judgment:

28 March 2024

Catchwords:

FAMILY LAW – APPEAL – Property – Spousal maintenance – Where the primary judge varied earlier interim property orders – Adequacy of reasons – Where the primary judge gave no reason as to why it was reasonable and equitable to make the orders – Procedural fairness – Where the primary judge gave no notice to the appellant – Where the respondent did not seek such an order – Where the respondent concedes the appeal – Error identified – Appeal allowed by consent.

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32

Cases cited:

Bhatnager & Riju [2018] FamCAFC 144

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Number of paragraphs:

9

Date of hearing:

21 March 2024

Place:

Heard in Brisbane (via video link), delivered in Cairns

Counsel for the Appellant:

Ms Anderson

Solicitor for the Appellant:

Katie Buck Legal

Counsel for the Respondent:

Mr Hedges SC

Solicitor for the Respondent:

Richardson Legal

ORDERS

NAA 307 of 2023 PTW 1780 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR KEEVA Appellant
AND:	MS LYNET Respondent

ORDER MADE BY:	TREE, GILL & STRUM JJ
DATE OF ORDER:	21 MARCH 2024

ON 21 MARCH 2024 THE COURT ORDERED BY CONSENT THAT:

1.The appellant have leave to appeal Orders 1 and 2 of the Family Court of Western Australia made 29 September 2023.

2.The appeal is allowed.

3.Orders 1 and 2 of the Family Court of Western Australia made 29 September 2023 are set aside.

4.The Application in a Case filed 31 August 2022 (as amended by an amended minute of interim orders sought filed 8 March 2023) and the Amended Response to an Application in a Case filed 6 December 2022 (as amended by an amended minute of interim orders sought filed on 10 March 2023) be remitted to the Family Court of Western Australia for rehearing before a judge other than the primary judge.

5.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.

6.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.

7.The Court grants to each party a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the parties in respect of the costs incurred by them in relation to the rehearing.

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).

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

REASONS FOR JUDGMENT

TREE, GILL & STRUM JJ:

1. On 26 October 2021, a Family Law Magistrate made interim spouse maintenance orders. On 29 September 2023 a judge of the Family Court of Western Australia varied the terms of those orders.

2. By Amended Notice of Appeal filed 18 December 2023, Mr Keeva (“the husband”) seeks leave to appeal from, and if granted, appeals against, the 29 September 2023 orders insofar as they varied the 26 October 2021 orders, on 9 grounds. In her Summary of Argument filed 15 January 2024, Ms Lynet (“the wife”) concedes leave to appeal should be granted, the appeal allowed and the matter remitted for rehearing by another judge of the Family Court of Western Australia.

3. Section 32(3)(d) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides the Full Court may dispose of an appeal by consent. However, we need to be satisfied for ourselves of relevant error by the primary judge (Bhatnager & Riju [2018] FamCAFC 144).

4. The wife concedes at least grounds 1A and 1B, which provide as follows:

   GROUND 1 A

   The primary judge erred by making the order pursuant to s.79 and s.80(1)(h) of the Family Law Act 1975 (Cth).

   GROUND 1 B

   By making the order pursuant to s.79 and s.80(1)(h) of the Act the primary judge erred by failing to accord the proposed appellant procedural fairness.

5. In the husband’s Summary of Argument at [31]–[33] he contended as follows:

   31.Without notice to the parties in his reasons the primary judge said that he made the order pursuant to s.79 and s.80(1)(h) of the Act. There was never any discussion during the hearing about s.79 as a source of power and the wife had not sought such an order. This was an absolute denial of procedural fairness.

   32.As the Full Court observed in Strahan & Strahan (Interim property orders) the interim exercise of s.79 requires a two-step approach. First, the court has to determine if it is appropriate to exercise the power. Once a court proceeds to exercise the power, although consideration of the relevant matters may be brief, a court is required to undertake consideration of the matters in s.79(4) including by reference to s.79(4)(e) the matters in s.75(2) so far as they are relevant. A court also has to determine pursuant to s.79(2) if it is just and equitable to make an order.

   33.The primary judge gave no reasons as to why it was appropriate to make an interim property order and no reasons, even briefly, as to the relevant statutory considerations. As to the second step his Honour gave no reasons as to why it was just and equitable to make an order and no reasons as to why the order he made was appropriate or just and equitable. At best it can be inferred that the primary judge thought that by categorising the order this way this would leave the door open to a trial judge to give consideration as to how the funds were to be taken into account. If this was the path it was a serious error.

   (Footnotes omitted)

6. Later at [47]–[48] the husband’s Summary of Argument continues:

   47.The characterisation of an order as a maintenance order or a property order is important because a property order can only be varied in limited circumstances whereas a maintenance order is more open to variation. Vastly different criteria are necessary to consider in each. The distinction between a maintenance order and a property order was considered by the High Court in Mullane v Mullane. The High Court held that a property order involves an alteration of a party's legal or equitable interests in property whereas a maintenance order does not. A property order for the payment of a capital sum differs from an order for the payment of lump sum maintenance because maintenance is payable from any source including borrowings.

   48.An order may be made pursuant to s.79 that a party pay a specified sum to the other party by instalments. However, that is not what the primary judge did. The only possible description of the order made on 26 October 2021 is that it was a maintenance order and the order made by his Honour was an order varying a maintenance order, but in remained in error. In form it requires a payment of a sum of up to $50,000 per month, for an indefinite period. This cannot constitute an order for adjustment of interests in property.

   (Footnotes omitted)

7. We agree, and it follows that Ground 1A is made out. Ground 1B is really the same complaint viewed from a different angle, and the way the primary judge dealt with the matter was, as the husband contends at paragraph 51 of his Summary of Argument, a significant failure to afford procedural fairness.

8. It follows that error is established as the wife concedes. Further, substantial injustice would ensue to the husband if leave to appeal were not granted (Medlow & Medlow (2016) FLC 93-692). The matter must be remitted for rehearing, given that the parties want to put on further material.

9. The wife did not contribute to the primary judge’s error of law, and therefore should not bear the costs of the appeal, which was promptly and appropriately conceded by her. Both parties should have costs certificates for the appeal and the rehearing.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Gill & Strum.

Associate:

Dated:       28 March 2024