Keymer & Keymer

Case [2020] FamCAFC 70

FAMILY COURT OF AUSTRALIA

KEYMER & KEYMER [2020] FamCAFC 70

FAMILY LAW – APPEAL – INTERIM SPOUSAL MAINTENANCE ORDER –Where spousal maintenance order made in relation to spousal and child expenses – Impermissibly treated as indistinguishable – Error established – Leave granted to appeal – Appeal allowed in part – Spousal maintenance order set aside – Interim order made – Matter remitted for rehearing.

FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Risk assessment – Risk of harm from exposure to family violence in the mother’s care – Where the father unsuccessfully applied for the child to live with him – Where the risk had been assessed by the appropriate authorities – Where child had lived with the mother for two years post separation – Competing factors – No appealable error established.

FAMILY LAW – APPEAL – COSTS – Where neither party incurred legal costs in the appeal and neither party sought an order for costs – father incurred costs in the way of disbursements and sought a costs certificate for the appeal – Both parties sought and were granted costs certificates for the rehearing.
Family Law Act 1975 (Cth) ss 72, 75(2)(d) and 75(2)(na)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
International Finance Trust Co Ltd v New South Wales Crimes Commission (2009) 240 CLR 319; [2009] HCA 49
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Redman and Redman (1987) FLC 91-805; [1987] FamCA 2
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Salah& Salah (2016) FLC 93-713; [2016] FamCAFC 100
Saxena and Saxena (2006) FLC 93-268; [2006] FamCA 588
Stein v Stein (2000) FLC 93-004; [2000] FamCA 102
APPELLANT: Mr Keymer
RESPONDENT: Ms Keymer
FILE NUMBER: BRC 976 of 2019
APPEAL NUMBER: NOA 77 of 2019
DATE DELIVERED: 2 April 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane
JUDGMENT OF: Ryan (by videolink), Aldridge & Kent JJ
HEARING DATE: 19 March 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 6 August 2019
LOWER COURT MNC: [2019] FCCA 2166

REPRESENTATION

THE APPELLANT: In person
THE RESPONDENT: In person (via telephone)

Orders

  1. The father be granted leave to appeal from Order 15 dated 6 August 2019.

  2. The appeal be allowed in part.

  3. Order 15 dated 6 August 2019 be set aside.

  4. The mother’s application for interim spousal maintenance be remitted for rehearing in the Federal Circuit Court of Australia by a judge other than the primary judge.

  5. Pending further order or determination of the remitted rehearing (whichever first occurs), the father shall pay interim spousal maintenance to the mother in the amount of $386.69 per week, the first payment to be made seven (7) days from the date of these orders and every seven (7) days thereafter.  These payments to be made into the same account into…

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Keymer & Keymer [2020] FamCAFC 70
Case
[2020] FamCAFC 70
Decision Date

CaseChat Overview and Summary

The appeal in Keymer & Keymer involved a dispute over spousal and child-related maintenance and parenting orders. The parties, a husband and wife, appeared before the Family Court of Australia, where a primary judge had made interim orders regarding spousal and child maintenance. The husband, dissatisfied with certain aspects of these orders, sought leave to appeal. The wife contested the appeal on several grounds, including the legality of the spousal maintenance order and the interim parenting orders. The appeal was heard in the Family Court of Australia's appellate division.

The legal issues in the appeal centred on the validity of the spousal maintenance order, whether it was correctly calculated by treating spousal and child expenses as indistinguishable, and the appropriateness of the interim parenting orders in light of the child's safety and welfare. The husband argued that the spousal maintenance order was erroneous because it failed to properly distinguish between spousal and child expenses. Regarding the interim parenting orders, he contended that the risk of harm from family violence had not been adequately considered, especially given the child's extended stay with the mother post-separation.

The court found that the primary judge had erred in treating spousal and child expenses as indistinguishable, which led to an incorrect calculation of the spousal maintenance order. This error warranted setting aside the spousal maintenance order and remitting it for rehearing. However, the court found no appealable error in the interim parenting orders, despite the husband's concerns about the child's exposure to family violence, as the child had been assessed by appropriate authorities and had lived with the mother for two years post-separation. The appeal was allowed in part, the spousal maintenance order was set aside, and the matter was remitted for rehearing. Pending the outcome of the rehearing, the husband was ordered to continue making interim spousal maintenance payments to the wife. Additionally, the court granted costs certificates to both parties for the rehearing and to the husband for his disbursements in the appeal.

Orders

Orders of the court

1.

The father be granted leave to appeal from Order 15 dated 6 August 2019.

2.

The appeal be allowed in part.

3.

Order 15 dated 6 August 2019 be set aside.

4.

The mother’s application for interim spousal maintenance be remitted for rehearing in the Federal Circuit Court of Australia by a judge other than the primary judge.

5.

Pending further order or determination of the remitted rehearing (whichever first occurs), the father shall pay interim spousal maintenance to the mother in the amount of $386.69 per week, the first payment to be made seven (7) days from the date of these orders and every seven (7) days thereafter. These payments to be made into the same account into which payments made pursuant to Order 15 dated 6 August 2019 were made.

6.

The appeal be otherwise dismissed.

7.

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

8.

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

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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