M and M - [2008] FCWA 58

[2008] FCWA 58

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	M and M [2008] FCWA 58
CORAM	:	PENNY J
HEARD	:	11 & 22 FEBRUARY 2008
DELIVERED	:	27 MAY 2008
FILE NO/S	:	PT 2188 of 2001
BETWEEN	:	M Applicant/Wife
AND
M Respondent/Husband
Catchwords:

Spousal maintenance - enforcement application - wife sought that it be dealt with ex parte - application refused - application to be served

Legislation:

Family Law Act 1975 - s 83

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr J Butler
Respondent:	Self Represented Litigant

[2008] FCWA 58

Solicitors:

Applicant:	Butlers
Respondent:	Not Applicable

Case(s) referred to in judgment(s):

M and M(2006) FLC 93-291 M and M[2003] FCWA 124 M and M[2005] FCWA 51

M and M[2005] FCWA 52 M and M[2007] FCWA 85

[2008] FCWA 58

1 The issue before the Court is the Form 2 Application and the Form 17 Third
Party Debt Notice both filed by the wife on 25 January 2008. The wife requested that both applications be heard without notice to the husband. The Form 2 Application seeks the following orders:

“1. That a judgment be entered against [Mr M] in the amount of $ (to be calculated to the date the Order is made) by way of unpaid spousal maintenance to the date of this Order.
2. That the Form 17 issue to the Trustee of the [CLP] Superannuation Fund for the judgement amount of $ $ (to be calculated to the date the Order is made).
3. That the wife cause the Trustee of the [CLP] Superannuation Fund to be served with a copy of this Order as soon as is reasonably possible after the Order issues.
4. That the Trustee of the [CLP] Superannuation Fund be released from compliance with the existing Injunction to the extent necessary to enable the Trustee to pay to the wife the amount owing by the husband to the wife and shown above in this Order.
5. Such further Orders as the Court deems appropriate.”

2 Counsel for the wife handed up on 11 February 2008 a Minute of Ex Parte Orders Sought which contained the following:
“Upon the hearing of the Wife’s Form 2 Application filed 23 January 2008
the following Orders are sought by the wife on an ex parte basis:
1. That a judgement be entered against [Mr M] in the amount of $53,928.57 by way of unpaid spousal maintenance to the date of this Order.
2. That the Form 17 Notice issue to the Trustee of the [CLP] Superannuation Fund for the judgement amount of $53,928.57.
3. That the wife cause the Trustee of the [CLP] Superannuation Fund to be served with a copy of this Order as soon as is reasonable possible after the Order issues.
4. That the Trustee of the [CLP] Superannuation Fund be released from compliance with the existing Injunction to the extent necessary to enable the Trustee to pay to the…

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

Case: [2008] FCWA 58
Decision Date: 27 MAY 2008

CaseChat Overview and Summary

In the Family Court of Australia, the parties involved in the matter were M and M, a married couple. The wife, M, sought an enforcement order for spousal maintenance payments that were due but not paid by her husband, M. The wife applied for the enforcement to be dealt with ex parte, meaning without the husband being notified or given an opportunity to respond. The husband, M, opposed this application and argued that it should be served on him instead, to allow him to respond and potentially negotiate a different arrangement.

The court was required to determine whether the application for enforcement of spousal maintenance should proceed ex parte or if it should be served on the husband to give him the opportunity to be heard. This involved considering the principles of natural justice and procedural fairness, as well as the circumstances of the case, including the urgency of the wife's need for financial support and the potential consequences for the husband if the application was granted without his input.

The court found that, while the wife's need for financial support was urgent, the principles of natural justice required that the husband be given an opportunity to respond to the application. The court held that the application for enforcement of spousal maintenance should not proceed ex parte but should instead be served on the husband. This decision allowed the husband to be heard and to potentially present any relevant information or arguments that could affect the outcome of the application. The court's reasoning was based on the importance of ensuring that all parties have a fair opportunity to present their case and that decisions are not made without adequate consideration of all relevant factors.

As a result of the court's decision, the application for enforcement of spousal maintenance was not granted ex parte. Instead, the application was to be served on the husband, allowing him to respond and participate in the proceedings. This outcome ensured that the husband's rights to a fair hearing and to be heard were protected, while still addressing the wife's urgent need for financial support.

Orders