Macarthur & Macarthur
[2023] FedCFamC1A 166
•29 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Macarthur & Macarthur [2023] FedCFamC1A 166
Appeal from: Macarthur & Macarthur (No 2) [2023] FedCFamC1F 74 Appeal number(s): NAA 58 of 2023 File number(s): BRC 6154 of 2020 Judgment of: ALDRIDGE, JARRETT & STRUM JJ Date of judgment: 29 September 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Spousal maintenance – Where applicant sought to vary and clarify the spousal maintenance orders to assist enforcement – Where the respondent also sought to vary quantum of spousal maintenance payments – Where the primary judge dismissed the applicant’s application for enforcement and varied the orders for spousal maintenance by reducing the amounts to be paid by the respondent – Where the primary judge did not permit the applicant to rely on further affidavit material dealing with financial circumstances – Lack of procedural fairness – Where primary judge considered there had been a change of circumstances enlivening s 83(2) of the Family Law Act 1975 (Cth) – Where any change of circumstances not sufficient to warrant re-examination of the spousal maintenance orders – Error established – Leave to appeal granted – Appeal allowed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 83(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.07, 5.08(1)(a), 6.06(5)(a)
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Caska and Caska (2002) FLC 93-092; [2001] FamCA 1279
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Harford & Spalding [2022] FedCFamC1A 78
House v The King (1936) 55 CLR 499; [1936] HCA 40
Macarthur & Macarthur [2021] FedCFamC1F 15
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 72 Date of hearing: 27 June 2023 Place: Sydney The Applicant: Self-represented litigant The Respondent: Self-represented litigant ORDERS
NAA 58 of 2023
BRC 6154 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MACARTHUR
Applicant
AND: MR MACARTHUR
Respondent
ORDER MADE BY:
ALDRIDGE, JARRETT & STRUM JJ
DATE OF ORDER:
29 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The applicant is granted leave to appeal.
2.The appeal is allowed.
3.The orders made on 17 February 2023 are set aside.
4.The Application in a Proceeding filed on 6 February 2023 and the Response to an Application in a Proceeding filed on 15 February 2023 be remitted for rehearing by the judge before whom the trial of proceeding BRC 6154 of 2020 is to be heard.
5.No order as to costs.
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 Macarthur & Macarthur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, JARRETT & STRUM JJ
By way of Notice of Appeal filed on 16 March 2023 the applicant, Ms Macarthur, seeks leave to appeal and then to appeal, interlocutory orders made on 17 February 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1). By those orders the primary judge dismissed the applicant’s application for enforcement and variation of orders for spousal maintenance made on 26 May 2021 (and varied on 3 September 2021). The primary judge made orders on the response of the respondent, Mr Macarthur, varying the orders for spousal maintenance by reducing the amounts to be paid by him on a periodic basis to the applicant.
The application for leave to appeal was heard together with the proposed appeal. For the following reasons, we grant the application for leave to appeal and allow the appeal.
LEAVE TO APPEAL
It is uncontroversial that leave to appeal the primary judge’s orders is required. It is also uncontroversial that leave will only be granted where the decision of the primary judge was attended by sufficient doubt so as to warrant its reconsideration, and a substantial injustice would result if leave were refused, supposing the original decision to be wrong: Medlow & Medlow (2016) FLC 93-692.
BACKGROUND
Some background is necessary to put the proposed grounds of appeal into context.
Proceedings for property adjustment and spousal maintenance are presently on foot between the parties. They have been listed for final hearing in October 2023.
Amongst other orders, periodic spousal maintenance orders were made by Altobelli J on 26 May 2021. The respondent was ordered to pay to the applicant $1,348 per week with that amount to increase to $2,037 per week upon settlement of the sale of a certain parcel of real property then owned by the parties.
The respondent appealed those orders and applied for a stay of the maintenance order pending the determination of the appeal. As part of the orders he sought in relation to the stay, or as an alternative to the stay order, he sought an order reducing the amount to be paid by way of periodic maintenance to $200 per week “during the time that he is employed” (respondent’s Application in a Case filed on 23 July 2021). He sought a further order that any order for maintenance be suspended in certain circumstances, one of which was when he was “unemployed” (respondent’s Application in a Case filed on 23 July 2021). Thus, either as part of his application for a stay of the May 2021 orders, or independently of it, the respondent applied for a variation of the maintenance order.
After a contested hearing of the application on 3 September 2021, Altobelli J refused the stay and ordered that the weekly amount to be paid pursuant to the May 2021 order be increased to $1,435. An additional order was made in the following terms:
2.Any order for spousal maintenance be suspended under the following circumstances:
(a) When the [respondent] is in receipt of no income at all; and
(b) is limited to that period only; and
(c)the [respondent] has forthwith notified the [applicant] of the period when he ceases to, and resumes, receiving an income.
This additional order was in a form different to that sought by the respondent, who had asked for an order for the suspension of his maintenance obligation during periods of “unemployment”. However, the Court declined to use that term for the following reasons:
41.Order 3 proposed by the [respondent] is problematic. This Court has expressed its concerns in relation to the lack of transparency, and inconsistency about the [respondent’s] income and expenses. The order proposed invites disputation about its meaning, but if the orders fail to address the nature of the [respondent’s] employment this also invites further litigation. An order which has regard to changes in the [respondent’s] income is problematic as it invites endless argument about reasonable needs and expenses. The only practical solution is to suspend the order for any period that the [respondent] is in receipt of no income at all. On his own evidence as it is understood by this Court, this is relatively infrequent. The orders will therefore be that any order for spousal maintenance be suspended under the following circumstances:
(a) when the [respondent] is in receipt of no income at all; and
(b) is limited to that period only; and
(c)the [respondent] has forthwith notified the [applicant] of the period when he ceases to, and resumes, receiving an income.
The respondent subsequently discontinued his appeal.
According to the applicant, Order 2 made on 3 September 2021 has proved to be problematical. In her evidence before the primary judge, she deposed:
1.… Child Support Australia requires clarification of Order 2, dated 3 September 2021, as it could be interpreted as allowing the Respondent to choose not to work and not pay maintenance.
…
8. Again Child Support Australia is happy to enforce the order if Order 2 is nullified or given specific guidelines including reasons allowed and not allowed for being unemployed. If anything is unclear, they cannot enforce on my behalf ultimately giving the Applicant the benefit of the doubt in most circumstances. If the courts prefer to enforce the order, I only prefer it being enforced without continuous time, energy, and required litigation on my part, I am open to either. Thank you for your time and efforts into understanding our case.
(Applicant’s affidavit filed on 6 February 2023, paragraphs 1 and 8)
The applicant reiterated these matters in her submissions to the primary judge.
The applications before the primary judge
By her application filed on 7 February 2023 the applicant sought that Order 2 made on 3 September 2021 (set out above) be set aside, with operative effect from 3 September 2021 “as it is too vague and can easily be manipulated, making it difficult to enforce ongoing maintenance”. In the alternative she sought a variation to Order 2 such that the suspension of the respondent’s obligation to pay would only be engaged if he was “unemployed, through no fault of [his] own and actively seeking employment”. That is to say, she sought a substantially similar form of orders to those rejected by Altobelli J on 3 September 2021. Significantly, she did not seek any variation to the amounts to be paid by the respondent, nor did she seek enforcement of the order as such. The purpose of the application was to “clarify” the orders so that they could be acted upon and enforced by Child Support Australia. However, the practical effect of the primary order she sought was to have the respondent’s periodic maintenance obligation continue when he was not receiving income.
The applicant sought an urgent hearing of her application and it was assigned to the primary judge for case management and hearing. On 7 February 2023 the primary judge made procedural orders listing the application for hearing, providing for service upon the respondent and requiring the respondent to “file and serve a Response and affidavit by 4.00 pm on 15 February 2023” (Order 3).
The respondent filed his response and an affidavit (of 92 pages in length including annexures) on 15 February 2023 in accordance with the directions. Significantly, by his response he sought orders to vary the amount of maintenance to be paid by him during periods of employment, depending upon whether he was employed away on site or locally. In the former case the rate of maintenance he sought was $400 per week and in the latter it was $200 per week. He did not seek any variation to Order 2 of the orders made on 3 September 2021.
On 16 February 2023 the applicant filed an amended application and a further affidavit. In her amended application she added the following claims as a second alternative to the relief initially claimed by her:
Additional or Alternative options:
4.The court orders the enforcement of unpaid maintenance payments by the Respondent.
5.If the Respondent is unable to pay the maintenance, the court orders that $75,000 be withdrawn from the [Suburb C] trust. This amount will be used to pay off high interest credit card debt, past due annual vehicle tax, and two missed car payments. In addition, the current monthly maintenance payments must continue to be paid while the Respondent is unemployed. This amounts to approximately $22,960 for the 16-week period from mid-December through mid- April. The total amount required to cover this period and pay off all high interest credit card debt is $97,960.
(Applicant’s affidavit filed on 16 February 2023, paragraphs 4–5) (As per the original)
Her supporting affidavit does not directly address specific matters in the respondent’s affidavit, but says this:
7.I have briefly reviewed the respondent’s affidavit and have concerns about its accuracy. There are discrepancies and misrepresentations, and I am unsure where to begin. I will provide evidence of the inaccuracies at a separate time as it requires a thorough examination. Many of the respondent’s statements do not reflect the reality of the situation, and I request the court to take this into consideration.
(Applicant’s affidavit filed on 17 February 2023, paragraph 7) (As per the original)
The applicant brought her amended application to the attention of the primary judge at the commencement of the hearing of the application. The primary judge told the applicant that the rules did not allow her to “make an application yesterday and proceed with it today”. The primary judge sought the respondent’s attitude towards the application. Although the primary judge records in her reasons that the respondent said he was prejudiced by the amendment, the transcript reflects that the highest the respondent put it was:
[THE RESPONDENT]: Your Honour, I’m uncomfortable with it. The applicant saw my financial statement and then remembered there was some money in trust and then she altered the amended ..... the orders sought.
(Transcript 17 February 2023, p.3 lines 10–13)
The primary judge retrieved the amended application and supporting affidavit. She pointed out to the applicant that the rules of the Court provide that she was not entitled to rely on any affidavit which had been filed within 48 hours before the hearing. She also pointed out that the applicant was “only allowed to rely on one affidavit at an interlocutory proceeding” (Transcript 17 February 2023, p.3 lines 36–37). The following exchange then took place:
HER HONOUR: Okay. [Addressing the applicant], it strikes me that you have changed the nature and character of the relief that you seek to such a degree that it would create a prejudice to [the respondent] if I allowed you to proceed on the basis of this amended application. You have two choices.
[THE APPLICANT]: Okay.
HER HONOUR: You may seek an adjournment of your application or you may seek to proceed with the application that you have previously filed.
[THE APPLICANT]: Proceed. It’s – I’m in a urgent situation.
HER HONOUR: Okay. Now, again, in respect of the affidavit which you filed yesterday, that’s not a document which I have read. [Addressing the respondent], do you have a copy of that?
[THE RESPONDENT]: I’m just trying to print it right now, your Honour.
HER HONOUR: Okay.
[THE RESPONDENT]: I hadn’t actually known it was there and I couldn’t see it this morning. I did see the change in orders sought this morning, the amendment, but I didn’t see the affidavit.
HER HONOUR: Okay. So you’re in the position; you haven’t seen it. Now, [addressing the applicant] - - -
[THE RESPONDENT]: No, I haven’t.
HER HONOUR: - - - it strikes me that you’re in the same position as regards that affidavit, that whilst neither of us has seen it, we’re not in a position to start a hearing at this point in time. You are allowed to rely on one affidavit.
[THE APPLICANT]: Okay.
HER HONOUR: If you want to rely on the more recent affidavit, then you may require an adjournment. What do you want to do?
[THE APPLICANT]: Proceed.
(Transcript 17 February 2023, p.3 line 41 to p.4 line 32)
The hearing then proceeded. The applicant made her submissions. During the course of those submissions, the primary judge took care to confine the applicant’s submissions to only addressing matters that were in evidence before her.
Next, the respondent proceeded to make his submissions. The applicant was given the opportunity to reply and each party made some further submissions before the primary judge adjourned the hearing for a short while. Soon thereafter her Honour delivered her reasons for judgment.
The primary judge’s reasons
After setting out the relevant background, the evidence relied upon by each of the parties and the law, her Honour turned to a consideration of the application. At [24], her Honour commenced by making a finding that there had been “a number” of changes in circumstances since the spousal maintenance order was made. Although her Honour did not specify whether the changes had come about since the May 2021 order or the September 2021 variation order, it is tolerably clear from the reasons that her Honour was referring to the September 2021 orders. The primary judge nominated two changes, namely:
24.…
(1)The parties’ daughter has commenced formal education. She is now in Kindergarten;
(2)The [respondent] has experienced a few periods of unemployment – some related to health and others to availability of work.
Her Honour then held that “[t]hose changes warrant the Court examining the existing order to determine whether variation, increase, decrease, discharge or suspension are appropriate” (at [25]).
Her Honour proceeded to summarise the applicant’s arguments as follows:
26.I gather from the [applicant’s] evidence that collection of spouse maintenance by the child support agency is hampered by orders which provide for the suspension of payments during periods of unemployment. The agency is (understandably) not able to make determinations as to a person’s employment status on a week by week or contract by contract basis.
27The [applicant] says that the order which provides for suspension during periods of unemployment should be discharged because the ambiguity means she cannot rely on the agency to collect payments on her behalf.
28.She also submitted that enforcement of the order through the Court would be onerous so she sought to remove the ambiguity in the order.
This is, with respect, a misunderstanding of the applicant’s argument. It is apparent from the transcript of the applicant’s submissions that she pointed out to the primary judge that the question of unemployment had vexed Altobelli J on 3 September 2021 and his Honour had expressly determined not to make an order which included the words “unemployed”. It was not the applicant’s evidence or submission that the collection of spousal maintenance by the child support agency was hampered by orders which provide for the suspension of payments during periods of unemployment because the orders did not provide for that. The orders did not require Child Support Australia to make a determination as to the respondent’s employment status on a week by week or contract by contract basis.
Rather, the applicant’s argument was that because the orders did not include the requirement for the respondent to be unemployed rather than simply receiving no income, she was encountering difficulty with collection through Child Support Australia. She put it this way in her submissions:
[THE APPLICANT]: Okay. Yes. I didn’t receive it until after I filed. Child Support Australia will collect, but they are very much – they strictly adhere to the exact wording. Any ambiguity at all will likely result in a non-collection. So they can only collect if it’s, you know, a very solid statement. And when he applied – he made his application, he asked, in the stay, if he’s unemployed, can we suspend payment. And the – and we – he discussed back and forth like, “I’m going to lose my job because of COVID and this”. And the judge was like, “That’s unlikely to happen”. But he goes, “If you’re in absolute no income at all, you can suspend your payments”.
But on the order itself, it doesn’t clarify that you have to be unemployed. It doesn’t clarify anything else. It only has a couple of statements about the no income at all for a period, which – it doesn’t explain what a period is. Yes. And then, coming from – like, does he need to be unemployed or not unemployed. According to this – like, according to child support, since he doesn’t – it doesn’t actually say, you know, why he would need to be unemployed. If he chose to just not work, they would accept that because it doesn’t state on here otherwise. So I wanted – and I know with the judge and from what we discussed in court and why he put it there that that was not his intentions.
So for either – I don’t know if it’s – I think it’s easier to have Child Support Australia collect it. Seems like if I go through the courts to get it collected, it’s going to be a lot more of this and a lot of difficulties. So they can’t collect it without that statement either being removed or clarified. But they said if it’s clarified in a not-appropriate way, then they’re going to have more issues with that. …
(Transcript 17 February 2023, p.5 line 38 to p.6 line 15)
The primary judge then determined the applicant’s application by saying:
29.The difficulty with this argument is that the [applicant] has not established that the [respondent’s] pattern of work has changed such that it would be appropriate that his obligation continue even when he is out of work.
The primary judge then turned to the respondent’s application to change the quantum of spousal maintenance. She recorded the respondent’s evidence about his employment status and the health challenges that he had faced. At [36] she found that his financial circumstances had changed.
After recording some matters about the applicant not providing documents relating to her own attempts to obtain employment as required by an earlier order, the primary judge records that that the applicant had not filed a Financial Statement in support of her application. After discussing what little evidence she had from the applicant about her financial circumstances, the primary judge said:
44.The [respondent] says that the [applicant] has failed to make full and frank financial disclosure as the Rules require and the documents he has received have been limited to a select number of credit card statements. The [applicant] does not significantly dispute this. She says, and I am paraphrasing, that she is overwhelmed. That may be the case but disclosure is mandatory. It provides the Court and her former husband with necessary information to make informed decisions. Without financial information from the [applicant], the Court is not obliged to rely on her broad statements about her financial position. The Court operates on the basis of admissible evidence.
45.There are specific documents which should be served in respect of maintenance applications and these are set out in r 6.06(9) of the Rules as follows:
(9)Without limiting subrule (1), a respondent to an application for maintenance only must bring to the court on the first court date the following documents:
(a)a copy of the respondent’s taxation return for the most recent financial year;
(b)a copy of the respondent’s taxation assessment for the most recent financial year;
(c)copies of the respondent’s bank records for the 12 months immediately before the date when the application was filed;
(d) the respondent’s most recent pay slip;
(e)if the respondent has an Australian Business Number—a copy of the last 4 business activity statements lodged;
(f)any document in the respondent’s possession, custody or control that may assist the court in determining the income, needs and financial resources of the respondent.
46. The [applicant’s] failure to provide the Court and the [respondent] with financial information that she is obliged to provide mean that she is in a position where she is unable to demonstrate by admissible evidence that she continues to satisfy the requirements of an applicant for maintenance.
We are perplexed by the primary judge’s reference to this rule given that it applies to a respondent to an application for maintenance. Ms Macarthur was the applicant. To the extent that it might be said that she was the respondent to Mr Macarthur’s application to vary the maintenance order, she had only been given a little over one day’s notice of that application.
After some further criticisms of the applicant and the material she had placed before the Court, the primary judge said this:
53.The [respondent] has no present capacity to pay and, had he asked to discharge the spouse maintenance orders in their entirety, I may have been inclined to accede to the application, but that is academic since the [respondent] did not ask me to discharge the spouse maintenance orders in their entirety.
54.Because the [applicant] has given me no information about her current income and expenses it is difficult to ascertain what amount is required for her reasonable support.
55.The manner in which the [applicant] has run her case has not assisted her. Rather than proving those matters which need to be proved, she has asserted her need for funds. This is particularly significant since each party has sought to vary the existing orders and, in approaching those competing applications, I must be careful to ensure that any order I make is proper: s 74(1) of the Act.
However, it is unsurprising, with respect, that the applicant did not provide any details of her financial position given:
(a)she is a self-represented litigant with apparently no relevant legal experience; and
(b)the orders for which she applied, at least in her view, had nothing to do with the financial circumstances of either she or the respondent. Rather, she sought “clarification” and amendment of the text of the relevant order to assist with what on the applicant’s case were difficulties she had encountered with Child Support Australia collecting the maintenance.
The unequivocal need for an examination of the parties’ financial circumstances came about because the respondent applied for a variation to the amount of maintenance order. That application was enlivened by the respondent’s response filed on 17 February 2023, less than 48 hours before the hearing before the primary judge.
The primary judge proceeded to consider the respondent’s application for variation. She noted that at the time of the application before her he was not working and at the time the orders were made by Altobelli J he was working. She paid regard to the respondent’s evidence that he was seeking re-employment but was likely to be re-employed in a role that was different to that occupied by him at the time the orders were made by Altobelli J. Her Honour was unable to make a finding about the income that the respondent would earn when he returned to work. She noted that the respondent had expenses including child support and tax. She appears to have accepted his evidence that he would have re-qualification costs of $2,168 and medical treatment costs of $5,200 at some point in the future.
Her Honour concluded:
61.In the absence of any reliable evidence from the [applicant] about her financial position I am required to do the best I can with the available evidence. Clearly the [respondent] has no capacity to pay at present. I therefore cannot accede to the [applicant’s] request to discharge the order which allows him to suspend payments during periods of unemployment.
62.I accept the [applicant’s] submission that the drafting of the order would allow suspension if the [respondent] decided not to work in order to avoid his obligations. I am satisfied that he has not done so and that each time he has been without work he has explained that to my satisfaction.
Her Honour made the orders the subject of this application for leave to appeal.
THE PROPOSED GROUNDS OF APPEAL
The merits of the proposed appeal are relevant to the success of an application for leave to appeal: Ebner & Pappas (2014) FLC 93-619 at [39]; Harford & Spalding [2022] FedCFamC1A 78 at [16].
The applicant proposes six grounds of appeal, namely:
1.The [primary judge] failed to fully articulate the exact nature of the [applicant’s] application.
2. The [primary judge] made errors of fact.
3. The [applicant] was not afforded sufficient procedural fairness.
4.The [primary judge] erred by not considering the [applicant’s] financial statement/evidence already filed within the proceedings.
5.The [applicant] had no right to reply to respondent’s affidavit which changed the entirety of the application.
6.The [primary judge] erred in mistaking the nature of the Amended Application in a Proceeding of the [applicant] as a new application instead of a Reply to the [respondent’s] new evidence.
When considering the applicant’s proposed grounds of appeal, we bear in mind that the judgment of the primary judge was a discretionary judgment. The principles to be applied when considering an appeal from such a judgment are set out by the High Court in House v The King (1936) 55 CLR 499 at 504–505:
… 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. …
We also bear in mind that where an appeal court identifies material error, the nature of the appeal process, being a rehearing, requires the court to correct the error: Warren v Coombes (1979) 142 CLR 531 at 552. Although it is for an appellant to identify and establish error on the part of the court below, reasonably discernible material errors should not be ignored, even if the parties do not raise the error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32] and Bahonko v Sterjov (2008) 166 FCR 415 at [3].
Grounds 3 and 5 of the proposed appeal allege a failure to afford the applicant procedural fairness and thus are challenges to the integrity of the administration of justice. They should be dealt with first before other discrete grounds of appeal: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611-612, 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10].
The applicant’s written submissions do not address, in terms, her proposed grounds of appeal. However, her Summary of Argument identifies an alleged want of procedural fairness in the following ways:
4.Procedural bias: The respondent failed to submit his affidavit 48 hours before the hearing, making it challenging for the applicant to review its content. The judge allowed the respondent’s affidavit while disregarding the applicant's second affidavit based on the 48- hour rule.
…
8.Bias in Judicial Assessment: Trial Judge went out of her way to find figures of capacity for the Respondent but was not willing to look at Applicant previous financial statement or ask for clarification. Unsubstantiated assumption were made regarding the applicant’s ability to support herself and her daughter with no clarification or evidence.
…
17.Biased Acceptance: Reasons #58 Trial judge is taking his word for it and did not do the same for me. He has said he can’t get employment nonstop for years now. This is just not true. It’s common to jump contract to contract and is just his excuse. She requires no evidence to back this up while I provided Judge [Altobelli’s] Reasons for Judgement specifically stating that the Respondent keeps saying this and he does not believe it to be true. (Reasons Dated 21/9/2023 #23)
18.Another bias Reasons #61 taking respondents word that he will make less and is not in the same role. He has done the same thing for over a decade. He is in the exact same role and will make the same amount as usual. There is no evidence to prove otherwise. Applicant was not allowed anything without evidence.
…
22.Lack of Opportunity to Respond: If I was given a chance to respond to the respondent’s affidavit I could have not only proved the inconsistencies. I could have provided documentation for myself and avoided so many errors of fact.
…
25.Procedural Fairness: If provided procedural fairness and right to respond there would be plenty of evidence showing differences in Respondents word and evidence. Things would not add up, he is manipulating facts for his own narrative. I should have at least been able to point out the inconsistencies in the evidence he provided.
(Applicant’s Summary of Argument filed on 17 May 2023, paragraphs 4, 8, 17–18, 22 and 25) (As per the original)
The matter raised in paragraph 4 of the applicant’s Summary of Argument has no merit. Although the respondent filed his affidavit less than 48 hours before the hearing date, it was filed in accordance with the directions made by the primary judge on 7 February 2023. In the absence of complaint by the applicant to the primary judge that she was prejudiced by this, it does not give rise to a claim now that she was denied procedural fairness.
Paragraphs 8, 17 and 18 of the applicant’s submissions allege bias. Although framed as allegations of bias, the applicant does not seem to suggest pre-judgment by the primary judge, but rather complains that because the primary judge accepted certain matters that were favourable to the respondent, she was biased towards him. However, that the primary judge determined to accept parts of the evidence given by the respondent with which the applicant did not or does not agree, does not demonstrate appellable bias on her behalf. It is the primary judge simply doing what is required of her.
Paragraphs 22 and 25 of the applicant’s submissions are related. The thrust of these submissions is that the applicant ought to have been permitted to respond to the respondent’s case by being permitted to rely upon her second affidavit, or perhaps another affidavit.
We consider that there is merit in this complaint.
The primary judge prevented the applicant from relying upon her second affidavit because it was not filed at least 48 hours prior to the hearing date as required by r 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Whilst much of that affidavit was submission and the applicant was in a position to and did inform her Honour of many of the matters within it, she also attempted to put into evidence through the affidavit, a document from Services Australia dealing with a JobSeeker payment to the respondent. This was relevant because she wished to make an argument that the respondent’s claims about his income and assets could not be correct having regard to the information in the JobSeeker statement. The applicant was unable to do so because the document was not in evidence (because her affidavit had been rejected) and when she attempted to rely upon the document in submissions, the primary judge prevented her from doing so (Transcript 17 February 2023, p.5 lines 10–36).
The evidence about the respondent’s income or assets was relevant because it was the respondent’s application to vary the amount of the maintenance orders on the basis that his income was either nil or likely to be less than it was when the orders for maintenance were varied.
Whilst the applicant can make no complaint about her Honour’s direction that the respondent was permitted to file his affidavit material less than 48 hours prior to the commencement of the hearing given that she had asked for an urgent hearing of her application, the respondent’s response did more than simply respond to the relief sought by the applicant. He took the opportunity to himself apply for a variation to the maintenance order by a reduction in the amounts payable under it. Orders 1 and 2 of his response deal with the applicant’s application. However, Orders 3, 4 and 5 present his own application for variation.
His supporting affidavit was 92 pages in length (including annexures). Notwithstanding her inability to “fully review” his affidavit the applicant did not seek an adjournment of the proceeding but rather sought to answer some of the matters raised by the respondent through her second affidavit (Transcript 17 February 2023, p.16 line 45). She was not permitted to rely upon that affidavit. Had she been permitted to do so, it might have been the case that the respondent sought an adjournment of the proceedings, but given the content of the affidavit we think that unlikely.
In practical terms, the applicant had less than two days’ notice of the basis upon which the respondent was applying to vary the amount payable pursuant to the maintenance order. She sought to meet his case by relying upon evidence that she provided through her second affidavit which she later unsuccessfully sought to tender. That she was not permitted to rely upon that evidence in those circumstances, we think, was a denial of procedural fairness.
In this context, her Honour’s reference at [18] of her reasons for judgment to r 5.08(1)(a) of the Rules which only permits one affidavit per witness and r 5.07 of the Rules, which requires filing two business days before the hearing is problematic. It fails to recognise the very different nature of the applicant’s application and the respondent’s application. That difference demanded that the applicant be given an opportunity to respond to the respondent’s case. Whilst her Honour suggested that the application might need to be adjourned so as to permit the respondent to deal with the applicant’s Amended Application in a Case and her supporting affidavit, no such suggestion was made so as to permit the applicant to do likewise in respect of the relief sought by the respondent.
Allied with these grounds are the grounds raised in paragraphs 22 and 25 of the applicant’s submissions. The response filed by the respondent introduced to the application to be determined by the primary judge, for the first time, contentions about his income. The application as pursued by the applicant did not raise questions of the income or expenses of either the applicant or the respondent and as put by the applicant was for the purpose of “clarification” of Order 2 of the varied maintenance orders. The applicant was entitled to deal with the respondent’s allegations about his income and, as she indicated to the primary judge, she wished to provide evidence demonstrating that the respondent’s assertions about his income should not be accepted.
The applicant did not seek an adjournment of the proceedings on the basis of the orders sought by the respondent or the evidence that he relied upon for those orders. However, the primary judge did not bring to the attention of the applicant, a self-represented litigant, that the orders sought by the respondent required her Honour to consider again the applicant’s need for maintenance and the respondent’s capacity to pay maintenance to her. The applicant had not filed any evidence that bore upon her financial circumstances. She did not file a Financial Statement. Given the nature of the relief that she was seeking in her application, one could not be critical of the applicant for not filing that evidence, notwithstanding the terms of r 6.06(5)(a) of the Rules.
However, upon the filing of the response seeking a variation to the quantum of the maintenance orders, that evidence became relevant and necessary. The applicant was also entitled to put on evidence that bore upon the respondent’s capacity to pay maintenance. The primary judge did not bring the necessity for such evidence to the attention of the applicant nor give her the opportunity to put such evidence before the Court. It is clear from the applicant’s second affidavit (which the primary judge read but did not permit the applicant to rely on) that the applicant took issue with the respondent’s income and his income earning capacity.
The applicant makes out her claim of a lack of procedural fairness and Grounds 3 and 5 of her proposed Notice of Appeal has merit.
The first proposed ground of appeal asserts that the primary judge failed to fully articulate the “exact nature of the [applicant’s] application”. We do not think that there is any merit in this proposed ground. The primary judge identified the practical effect of what the applicant was seeking – the removal of the obligation on the respondent to pay maintenance when he was receiving no income. She identified that the applicant was seeking clarification of Order 2 in the alternative, although as we have suggested at [25] above, seems to have misapprehended the applicant’s argument somewhat.
In relation to proposed Ground 2, we do not understand the applicant to identify any particular errors of fact made by the primary judge. The applicant’s complaint is more properly seen as a complaint that the primary judge did not make the findings for which the applicant contended. Proposed Ground 2 has no merit.
Nor do we consider that proposed Grounds 4 and 6 have any merit. Given that we will grant leave to appeal and allow the appeal, little is to be gained by considering these proposed grounds further.
Other grounds
In addition to the matters in which we have found merit, consistent with the obligation on the court not to ignore material errors, even if not raised by the parties, we think the following demonstrates appellable error.
Her Honour, quite properly, dealt with the relief sought by the respondent pursuant to s 83(2) of the Family Law Act 1975 (Cth). By force of that subsection, the Court shall not vary an earlier maintenance order unless it is satisfied of changed circumstances which justify the variation: Caska and Caska (2002) FLC 93-092.
The primary judge found that there had been “a number of changes in circumstances since the spouse maintenance order was made” (at [24]). Her Honour thought those changes warranted “the Court examining the existing order to determine whether variation, increase, decrease, discharge or suspension are appropriate” (at [25]). The primary judge specified two changes – that the parties’ daughter had commenced formal education because she was now in “Kindergarten” and that the respondent had experienced a few periods of unemployment.
Her Honour did not explain why those changes warranted the examination she identified. It is difficult to see how they did. The fact that the parties’ daughter had commenced Kindergarten is at best a neutral matter especially given that the applicant was not applying to increase the amount of maintenance to be paid by the respondent.
As to the second matter, the orders made on 3 September 2021 were made on the basis that the respondent’s employment was sporadic and there were times when he would earn no income. Her Honour’s statement at [29] of her reasons for judgment is at odds with her finding at [36] that there had indeed been a change in circumstance constituted by the respondent’s pattern of work namely that he had experienced a few periods of unemployment with some related to health and others to availability of work. A pattern whereby the respondent was employed and earning income for some periods and not employed and not earning an income for others was the pattern taken into account by Altobelli J on 3 September 2021. They were the very circumstances which were contemplated by those orders. Order 2 was engaged when the respondent was without income. His Honour’s reasons for judgment (Macarthur & Macarthur [2021] FedCFamC1F 15) make that clear: e.g., [22] and [43].
It cannot reasonably be said, we think, that the changes in circumstances identified by her Honour justified any variation to the maintenance orders at all, let alone a reduction in the amount to be paid when the respondent was employed and earning an income.
As to that matter, we cannot see how her Honour fixed upon the amounts she ordered to be paid by way of periodic maintenance, given that the respondent led no evidence about what he expected to earn when he was employed in the roles he contemplated. As her Honour records:
56.… The [respondent] indicates an intention to seek both on site and local work – which will be paid at different rates. I do not know what those rates are.
…
59.Justice Altobelli found that the [respondent] had a surplus of income over expenses when employed in the role he was undertaking at the date of that hearing. He is no longer in that role. He is not employed but his response is premised on a return to work. He says his earnings are likely to be less but that is just conjecture at this stage.
Her Honour seems to have simply accepted the figures proffered by the respondent as the appropriate amounts to be paid. The basis upon which they were calculated by the respondent were entirely unexplained. Given that Order 2 expressly catered for the circumstance that had arisen – the respondent not being in receipt of income – there was no warrant to vary the quantum of the periodic payments on the basis that the respondent thought that when he returned to work he might earn less. If that turned out to be so, that would be the appropriate time to consider variation of the relevant orders.
Although not the subject of a proposed ground of appeal, we consider that her Honour has erred by misapplying the requirements of s 83(2) of the Act. The changes in circumstances found by her Honour could not on any reasonable view justify any variation to the orders made on 3 September 2021 when those orders expressly contemplated and made provision for the circumstance that the respondent might find himself without income.
CONCLUSIONS
We consider that the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration. We consider that a substantial injustice would result if leave were refused. Leave to appeal is appropriate.
For the reasons we have given above, we allow the appeal and set aside the orders of the primary judge.
At the final hearing of the proceedings between the parties each will give evidence of their financial positions. Given the imminence of that final hearing, we consider it appropriate to remit the hearing of the applicant’s Application in a Case and the respondent’s response to it, to the judge hearing the trial of the proceedings, rather than attempt to determine the application and response to it on less than fulsome material.
Neither party was legally represented and neither pursued an order for costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Jarrett & Strum. Associate:
Dated: 29 September 2023
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