Matthews and Matthews
[2014] FamCAFC 99
•10 June 2014
FAMILY COURT OF AUSTRALIA
| MATTHEWS & MATTHEWS | [2014] FamCAFC 99 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Where party ordered to pay $100,000 – Where source of power is not apparent – Where applicant seeks expedition – EXPEDITION ORDERED. |
| Family Law Act 1975 (Cth): ss 75(2), 79 |
| APPLICANT: | Mr Matthews |
| RESPONDENT: | Mrs Matthews |
| FILE NUMBER: | NCC | 962 | of | 2008 |
| APPEAL NUMBER: | EA | 33 | of | 2014 |
| DATE DELIVERED: | 10 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 10 June 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Boyd Olsen Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Michael Vassili Barristers & Solicitors |
Orders
That the hearing of the notice of appeal filed by Mr Matthews on 18 March 2014 is expedited.
Subject to further directions by the Eastern Appeal Registrar the appeal is tentatively listed for 10.00 am on 19 June 2014.
Orders 5, 6 and 7 of the orders dated 5 June 2014 are varied by deleting wherever it appears “17 July 2014” and inserting “13 June 2014”.
Order 8 of the orders dated 5 June 2014 is varied by deleting “14 August 2014” and inserting “17 June 2014”.
The appeal index as contained in Order 3 of the orders dated 5 June 2014 is varied by inserting a new document 5 being orders of the Federal Circuit Court dated 19 November 2012.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Matthews 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 SYDNEY |
FILE NUMBER: NCC 962 of 2008
APPEAL NUMBER: EA 33 of 2014
| Mr Matthews |
Applicant
And
| Mrs Matthews |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
This is an application filed by Mr Matthews (“the husband”) for expedition of an application for leave to appeal and, if leave is granted, an appeal in relation to an order that he pay Mrs Matthews (“the wife”) $100,000 within 21 days of 24 February 2014. The latter date being the date upon which the order was made.
The order was made by Cleary J on the application of the wife and in the context of property settlement and parenting proceedings conducted under the Family Law Act 1975 (Cth) (“the Act”). Her Honour has not published her reasons. Without reasons, it is difficult to assess the significance of the order for the payment of $100,000. It is suggested that, to some extent, her Honour’s reasons may be gleaned from the transcript of the proceedings.
Doing the best that I can from the transcript, it would appear that the parties cohabited for some time and that there are two children of their relationship. The children live with the wife, and the husband pays minimal child support.
In the transcript, one can see reference to the husband having suffered a major injury prior to the commencement of cohabitation, as a consequence of which he received a large damages settlement. Again, reading between the lines of the transcript, it would appear that little remains of the settlement monies and that there is a live issue in relation to the assessment of the parties’ contributions and what adjustment might be made in the wife’s favour pursuant to s 75(2) of the Act.
It follows that, although a payment of $100,000 may in some cases be considered a modest sum, and thus easily assessed as comprising but a small part of the recipient’s entitlement pursuant to s 79, it is, in the absence of reasons from her Honour where that preliminary assessment has been made, not possible at this point to safely reach that conclusion.
Thus, one must look to the order itself to try and understand the power exercised by her Honour. With respect to the submissions made in this application, I remain uncertain about the source of power. The order in its terms is unusual and does not on its face demonstrate the power which her Honour exercised in determining that the $100,000 should be paid and that it should be subject to the conditions contained in its subparagraphs 2(a) and 2(b).
The position taken by the wife is that it is really a matter for the court whether expedition is given. However, given that the parties’ property proceedings are listed for final hearing to commence in early July 2014 before her Honour, a question is raised about the utility of an appeal. As I understand the submission, it is to the effect that if this order was made in error, any error can be rectified when the totality of the parties’ financial circumstances are considered in the property settlement proceedings. That is a submission that has some attraction to it. However, what it does not address is that there is at present an obligation on the husband to pay a not insignificant amount of money in circumstances and in the exercise of power that is not immediately apparent and where it could not be said the notice of appeal fails to raise matters of merit.
On balance, I am persuaded that the application for expedition should be granted and will order accordingly.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 10 June 2014.
Associate:
Date: 17 June 2014
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