Macarthur & Macarthur

Case [2023] FedCFamC1A 166

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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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AGLC
Macarthur & Macarthur [2023] FedCFamC1A 166
Case
[2023] FedCFamC1A 166
Decision Date

CaseChat Overview and Summary

In the matter of Macarthur and Macarthur, the applicant sought to vary and clarify the spousal maintenance orders to assist with enforcement, while the respondent also sought to vary the quantum of spousal maintenance payments. The primary judge dismissed the applicant’s application for enforcement and varied the spousal maintenance orders by reducing the amounts payable by the respondent. The primary judge did not permit the applicant to rely on further affidavit material dealing with financial circumstances, which the Court found to be a matter of procedural fairness. The primary judge also considered a change of circumstances under section 83(2) of the Family Law Act 1975 (Cth), but the Court found this change was not sufficient to warrant re-examination of the spousal maintenance orders.

The legal issues before the Court included whether leave to appeal the primary judge’s orders was warranted, whether the primary judge misapplied the requirements of section 83(2) of the Family Law Act, and whether there was a lack of procedural fairness in not allowing the applicant to rely on further affidavit material. The Court found that the primary judge had erred by misapplying section 83(2) of the Act, as the changes in circumstances could not justify any variation to the orders made on 3 September 2021. The Court also found that the decision of the primary judge was attended by sufficient doubt to warrant reconsideration and that a substantial injustice would result if leave were refused. Therefore, leave to appeal was granted, the appeal was allowed, and the orders made on 17 February 2023 were set aside. The Court further ordered that the application and response to it be remitted for rehearing by the trial judge.

The Court's final orders included granting the applicant leave to appeal, allowing the appeal, setting aside the orders made on 17 February 2023, remitting the application and response to it for rehearing by the trial judge, and making no order as to costs. These orders were subject to review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The decision underscores the importance of procedural fairness in family law proceedings and the need for primary judges to correctly apply the provisions of the Family Law Act when varying spousal maintenance orders.

Orders

Orders of the court

NAA 58 of 2023

BRC 6154 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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