FAMILY LAW – APPEAL – Appeal against orders made by a Federal Magistrate providing for interim spousal maintenance – Where husband required to satisfy the wife’s entitlements to spousal maintenance out of property over which he had control – Minor factual errors made by the learned Federal Magistrate could not have vitiated the exercise of his discretion – Not established that the Federal Magistrate failed at law to properly assess the capacity of the wife to support herself or the capacity of the husband to pay spousal maintenance – Not established that the Federal Magistrate erred in giving inadequate or excessive weight to particular facts or in failing to consider relevant facts – Not established that the Federal Magistrate’s order was manifestly excessive and unjust – No proposed ground of appeal having merit, the husband’s application dismissed – Husband ordered to pay the wife’s costs of the appeal
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 De Winter & De Winter (1979) FLC 90-605 Rutherford and Rutherford (1991) FLC 92-255
APPELLANT:
MR MARONEY
RESPONDENT:
MRS MARONEY
FILE NUMBER:
PAC
5008
of
2008
APPEAL NUMBER:
EA
146
of
2008
DATE DELIVERED:
26 March 2009
PLACE DELIVERED:
Parramatta
JUDGMENT OF:
Coleman J
HEARING DATE:
5 March 2009
LOWER COURT JURISDICTION:
Federal Magistrates Court
LOWER COURT JUDGMENT DATE:
17 December 2008
LOWER COURT MNC:
FMCAfam 1451
REPRESENTATION
ADVOCATE FOR THE APPELLANT:
Mr Brown
SOLICITOR FOR THE APPELLANT:
Browns the Family Lawyers
COUNSEL FOR THE RESPONDENT:
Mr Kenny
SOLICITOR FOR THE RESPONDENT:
Shepherds Family Law
Orders
That the husband’s application for leave to appeal filed 22 December 2008 be dismissed.
That the husband pay the wife’s costs of and incidental to the husband’s application in the sum of $4 000.
That the husband have 60 days within which to pay the wife’s costs.
IT IS NOTED that publication of this judgment under the pseudonym Maroney & Maroney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT PARRAMATTA
Appeal Number: EA 146 of 2008 File Number: PAC 5008 of 2008
MR MARONEY
Appellant
And
MRS MARONEY
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 22 December 2008 Mr Maroney (“the husband”) sought leave to appeal against orders made by Federal Magistrate Donald on 17 December 2008 in proceedings between the husband and Mrs Maroney (“the wife”).
The orders of the Federal Magistrate provided, in essence, that the husband pay the wife $905 per week by way of interim spousal maintenance. The orders provided that the husband facilitate the payment of such monies in part by directing that rental income from two properties, one jointly owned by the parties, one owned solely by the husband, be paid to the wife. The husband was ordered to pay the difference between such rentals and the wife’s entitlement of $905 per week.
The husband sought that if his application for leave to appeal…
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
Maroney & Maroney [2009] FamCAFC 45
Case
[2009] FamCAFC 45
Decision Date
CaseChat Overview and Summary
The appeal in Maroney & Maroney was against the orders made by a Federal Magistrate regarding interim spousal maintenance. The husband was required to satisfy the wife’s entitlements to spousal maintenance out of property over which he had control. The husband challenged the decisions of the Federal Magistrate on several grounds, including that the Magistrate failed to take into account certain relevant facts, such as sums withdrawn by the wife post-separation and the wife sharing expenses with adult children, and that the Magistrate improperly assessed the capacity of the wife to support herself and the husband to pay spousal maintenance.
The court examined whether the minor factual errors made by the Federal Magistrate could have vitiated the exercise of his discretion. The court found that these errors did not vitiate the decision and that the Federal Magistrate did not fail to properly assess the capacity of the wife to support herself or the husband to pay spousal maintenance. The court also noted that the husband did not establish that the Federal Magistrate gave inadequate or excessive weight to particular facts or failed to consider relevant facts. Additionally, the court held that the Federal Magistrate's order was not manifestly excessive and unjust. As a result, the husband's application was dismissed, and the husband was ordered to pay the wife's costs of the appeal.
The court dismissed the husband's appeal and ordered that he pay the wife's costs of and incidental to the husband's application in the sum of $4,000, with a 60-day period within which to pay the wife’s costs.
Orders
Orders of the court
1.
That the husband’s application for leave to appeal filed 22 December 2008 be dismissed.
2.
That the husband pay the wife’s costs of and incidental to the husband’s application in the sum of $4 000.
3.
That the husband have 60 days within which to pay the wife’s costs.
Background
Background to the litigation
Ground 2 of the husband’s Amended Notice of Appeal provided:2. That His Honour failed to take into account relevant facts including:(a)That the wife had the benefit of sums of over $8,000 withdrawn from the personal and business accounts of the parties by her, or payments made from those accounts for her benefit after the time of separation. (b)That the wife had the benefit of sharing expenses, including rental, with the 2 adult children. Counsel for the husband, at least inferentially, acknowledged that, whilst potentially significant in the final property settlement proceedings, in proceedings focussing upon “the prospective situation of the parties”, the receipt by the wife of $8 000 in the post separation period did not necessarily assume significance. To the extent that it was submitted that the learned Federal Magistrate had erred in not having regard to the $8 000 as a “possible source of the sum of $10 092 asserted to be in the wife’s bank account per her financial statement”, the Court’s conclusion with respect to the challenge to his Honour’s findings with respect to that account precludes this claim from succeeding. A more vexed issue related to the learned Federal Magistrate’s refusal to apportion the rental paid by the wife with respect to premises occupied by her and the adult children of the marriage. Those children were aged 18 and 19 years. As noted earlier, his Honour’s observation that there was no evidence before him as to the capacity of the adult children to contribute to the wife’s rental was accurate. Perhaps disingenuously the wife asserted in her financial statement that she did not know what the adult children were earning. The husband however did not assert in his affidavit that the children were earning. Had he done so, the onus would clearly have been on the wife to be more forthcoming than she appears to have been in her financial statement. Whilst Counsel for the husband raised this in submissions before the learned Federal Magistrate, that could not change the status of the evidence, or the absence of evidence in relation to this topic. Whilst it may well be that it will emerge in the property settlement proceedings that the parties’ adult children had the capacity to contribute to the wife’s rental, no basis for criticising the learned Federal Magistrate’s conclusions with respect to the topic has been demonstrated before this Court. Ground 3 of the Amended Notice of Appeal provided:3.That his honour erred in law in that:(a)His Honour failed to properly assess the capacity of the wife to support herself in that he failed to take into account property in the possession of the wife (bank account) and property of which she was a joint owner (real estate at [F property]).(b)That His Honour failed to properly assess the capacity of the husband to pay spousal maintenance in that His Honour:(i)Having assessed that the husband had no capacity to pay spousal maintenance from his periodic income, then concluded that he had a capacity to pay owing to his control of the assets of the parties.(ii)His Honour failed to take into account that one of the assets said to be controlled by the husband was the matrimonial home in which the husband resides, and therefore not available for sale.(iii)His Honour gave no reason for concluding that the husband had a capacity to pay owing to his control of the assets of the parties, beyond merely referring to the existence of such assets.(iv)If the decision of His Honour, by implication, found that the husband had the capacity to pay the spouse ordered by depletion of capital assets available to him, His Honour applied an incorrect approach in that His Honour should have had regard to the income derivable from those capital assets. (v)His Honour failed to make any assessment of the capacity of the husband to pay the spousal maintenance as assessed.