MACKNAIR & MACKNAIR - [2015] FamCAFC 106

FAMILY COURT OF AUSTRALIA

MACKNAIR & MACKNAIR

[2015] FamCAFC 106

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Appeal from a decision of a Federal Circuit Court judge heard by a single judge of the Appeal Division – Where there is an error in the calculation of the husband’s reasonable expenses – Appeal granted.

FAMILY LAW – CROSS-APPEAL – SPOUSAL MAINTENANCE – Where it is alleged the primary judge erred in including a loan owed by the husband to his brother – Where the wife failed to demonstrate an error – Cross-appeal dismissed.

Family Law Act 1975 (Cth) ss 72(1), 75(2), 94AAA(3)
Federal Proceedings (Costs) Act 1981 (Cth)

De Winter & De Winter (1979) FLC 90-605
Freestone & Freestone [2013] FamCAFC 190
House v R (1936) 55 CLR 499

APPELLANT/CROSS-RESPONDENT:

Mr Macknair

RESPONDENT/CROSS-APPELLANT:

Ms Macknair

FILE NUMBER:

BRC

10829

2013

APPEAL NUMBER:

2015

DATE DELIVERED:

11 June 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

11 June 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 February 2015

LOWER COURT MNC:

[2015] FCCA 297

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Appeared in person

SOLICITOR FOR THE RESPONDENT:

Appeared in person

Orders

The appeal be allowed.
Order 1 made 13 February 2015 be discharged and in lieu thereof the appellant husband pay the respondent wife spousal maintenance in the sum of $437 per week, effective from 30 January 2015.
The wife pay the husband the lump sum of $1,014 (without interest) within three months of the date of these orders.
There be no order as to costs of the appeal.
The Court grants to the husband a costs certificate pursuant to the provisions of 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 payment under that Act to the husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the wife a costs certificate pursuant to the provisions of s 6 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 wife in respect of the costs incurred by her in relation to the appeal.
The cross-appeal be dismissed.
No order as to costs for the cross-appeal.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 13 of 2015
File Number: BRC 10829 of 2013

Mr Macknair

Appellant/Cross-Respondent

And

Ms Macknair

Respondent/Cross-Appellant

REASONS FOR JUDGMENT

On 13 February 2015, Judge Cassidy made final orders that Mr Macknair (“the husband”) pay a sum of $515…

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

AGLC: MACKNAIR & MACKNAIR [2015] FamCAFC 106
Case: [2015] FamCAFC 106
Decision Date: 11 June 2015

CaseChat Overview and Summary

The case of Macknair & Macknair involved an appeal by the husband against a decision of the Federal Circuit Court regarding spousal maintenance, and a cross-appeal by the wife against the same decision. The husband contested the amount of spousal maintenance ordered by the primary judge, arguing that there was an error in the calculation of his reasonable expenses. The wife, on the other hand, claimed that the primary judge had erred in including a loan owed by the husband to his brother as an asset in the calculation of maintenance.

The court was required to determine whether there was an error in the calculation of the husband's reasonable expenses and whether the primary judge had correctly included the loan as an asset. The court found that there was indeed an error in the calculation of the husband's expenses, which warranted a correction in the maintenance amount. However, the court dismissed the wife's cross-appeal, finding no error in the inclusion of the loan as an asset.

The appeal was allowed, and the court ordered that the husband pay spousal maintenance in the sum of $437 per week, effective from 30 January 2015. The wife was ordered to pay the husband a lump sum of $1,014 within three months of the date of these orders. The court did not order either party to pay the costs of the appeal or the cross-appeal. Additionally, the court granted both parties a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth), allowing the Attorney-General to authorise payment of the costs incurred by each party in relation to the appeal.

Orders

Orders of the court

The appeal be allowed.

Order 1 made 13 February 2015 be discharged and in lieu thereof the appellant husband pay the respondent wife spousal maintenance in the sum of $437 per week, effective from 30 January 2015.

The wife pay the husband the lump sum of $1,014 (without interest) within three months of the date of these orders.

There be no order as to costs of the appeal.

The Court grants to the husband a costs certificate pursuant to the provisions of 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 payment under that Act to the husband in respect of the costs incurred by him in relation to the appeal.

The Court grants to the wife a costs certificate pursuant to the provisions of s 6 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 wife in respect of the costs incurred by her in relation to the appeal.

The cross-appeal be dismissed.

No order as to costs for the cross-appeal.

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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