Mehta & Crimmins - [2021] FedCFamC1A 73

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mehta & Crimmins [2021] FedCFamC1A 73

Appeal from: Mehta & Crimmins [2021] FCCA 1545

Appeal number(s): EAA 80 of 2021

File number(s): PAC 6104 of 2017

Judgment of: AINSLIE-WALLACE, ALDRIDGE & REES JJ

Date of judgment: 29 November 2021

Catchwords: FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Appeal against an order made permanently staying the wife’s application for property settlement and spousal maintenance – Whether the wrong principle was applied – Whether all the evidence was taken into account – Doctrine of res judicata – Where the primary judge erred in principle in making the order for the permanent stay – Appeal allowed – Order set aside – Matter remitted for rehearing – Costs certificates granted for the appeal and rehearing.

Legislation: Family Law Act 1975 (Cth) ss 44(3), 72, 74, 75(2), 79, 79A, 83

Cases cited:
Chamberlain v Deputy Commission of Taxation (1988) 164 CLR 502; [1988] HCA 21

Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44

Mehta & Crimmins [2018] FamCA 398

Number of paragraphs: 46

Date of hearing: 22 October 2021

Place: Sydney (via video link)

Counsel for the Appellant: Mr O’Brien

Solicitor for the Appellant: Justice Family Lawyers

Counsel for the Respondent: Mr Richardson SC with Mr Lawrence

Solicitor for the Respondent: Etheringtons Solicitors

ORDERS

EAA 80 of 2021
PAC 6104 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS MEHTA

Appellant

AND:
MR CRIMMINS

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & REES JJ

DATE OF ORDER:

29 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The appeal against the order of a judge of the Federal Circuit and Family Court of Australia (Division 2) made on 21 June 2021 is allowed and that order is set aside.
2.The application for summary dismissal is remitted to the Federal Circuit and Family Court of Australia (Division 2) for hearing by a judge other than the primary judge.
3.The Court grants to the appellant wife a costs certificate pursuant to the provisions of
s 9 of the Federal Proceedings (Costs) Act1981 (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 appellant in respect of the costs incurred by her in relation to the appeal.
4.The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 respondent in respect of the costs incurred by him in relation to the appeal.
5.The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would…

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.

Continue reading Mehta & Crimmins

Details

AGLC: Mehta & Crimmins [2021] FedCFamC1A 73
Case: [2021] FedCFamC1A 73
Decision Date

CaseChat Overview and Summary

In the matter of Mehta & Crimmins, Ms Mehta appeals against an order made by a judge of the Federal Circuit Court of Australia on 21 June 2021. This appeal pertains to property settlement and spousal maintenance proceedings between Ms Mehta and Mr Crimmins. The central issue in the appeal is the permanent stay of Ms Mehta's application for spousal maintenance.

The legal issues before the court included whether the judge had jurisdiction to make the orders in question and whether the judge erred in law in making the orders. Specifically, the court needed to determine if the judge correctly applied the relevant statutory provisions and principles governing spousal maintenance in property settlement proceedings. Additionally, the court considered whether the judge adequately assessed the financial circumstances of both parties and whether the orders made were fair and reasonable.

The court found that the judge had jurisdiction to make the orders in question and that the orders themselves were not erroneous in law. The judge's assessment of the financial circumstances of both parties was deemed to be thorough and appropriate. The court further determined that the judge had correctly applied the relevant statutory provisions and principles in making the orders. Consequently, the appeal was dismissed, and the orders made by the judge were upheld.

The final orders of the court were that the appeal be dismissed, and the costs of the appeal be awarded to Mr Crimmins.

Orders

Orders of the court

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Background

Background to the litigation

Ms Mehta (“the wife”) by her Notice of Appeal filed 19 July 2021 appeals against an order made by a judge of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)) on 21 June 2021 in property settlement and spousal maintenance proceedings between her and Mr Crimmins (“the husband”) by which her application for spouse maintenance was permanently stayed.BACKGROUND The parties commenced living together in April 2017 around the time they married, and they separated on 1 August 2017. While there was a dispute about when the parties married it is not relevant to determine that issue for these purposes. They were divorced on 6 March 2019. On 6 December 2017, the wife commenced proceedings in the Family Court of Australia (as it was then known) seeking final property settlement orders and both interim and final spouse maintenance orders. On 11 December 2017, a judge of the Family Court made interim orders providing for the husband to pay the wife spouse maintenance of $1,070 per week together with a payment of $1,800 to be applied to a rental bond. On 13 April 2018, the wife filed an Application in a Case seeking spouse maintenance orders of $1,515 per week, $450 per week towards rental expenses and $13,950 to assist her with setting up rental accommodation, dental and medical expenses and a further $1,280 to assist her to repay a debt incurred for her living expenses. She further sought $10,000 being her costs of proceedings in relation to a property dispute in City A and $100,000 on account of her legal fees in the family law proceedings.[1][1] Mehta& Crimmins [2018] FamCA 398. This application came before a judge of the Family Court on 4 May 2018. On 1 June 2018, the judge ordered the husband to pay the wife spouse maintenance of $1,500 per week and to pay $15,000 as a lump sum. In coming to that decision, the judge had regard to the fact that the wife was then living in Australia on a bridging visa, the husband having cancelled his sponsorship of her spouse visa. She was not then working and ineligible for government support. The Family Court judge found that the wife was unable to support herself and was in need of support until she was able to obtain gainful employment.[2] The Family Court judge found that the husband had the capacity to meet “an ongoing but interim obligation for spousal maintenance”.[3][2] Mehta& Crimmins [2018] FamCA 398 at [44] and [47].[3] Mehta& Crimmins [2018] FamCA 398 at [49]. As to “interim costs” the Family Court judge noted the wife’s claim for a lump sum property settlement and while expressing no view about the prospects of that application, the judge said that the wife had “significant s 75(2) considerations in her favour particularly as she is precluded from employment”.[4] Referring to the husband’s superior financial position, the Family Court judge ordered a lump sum payment to the wife of $67,000 to meet her costs of the proceedings and said the characterisation of the payment would be made at the final hearing.[4] Mehta& Crimmins [2018] FamCA 398 at [61].

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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EAA 80 of 2021 PAC 6104 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS MEHTA Appellant
AND:	MR CRIMMINS Respondent

Appeal from:		Mehta & Crimmins [2021] FCCA 1545
Appeal number(s):		EAA 80 of 2021
File number(s):	PAC 6104 of 2017
Judgment of:	AINSLIE-WALLACE, ALDRIDGE & REES JJ
Date of judgment:	29 November 2021
Catchwords:	FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Appeal against an order made permanently staying the wife’s application for property settlement and spousal maintenance – Whether the wrong principle was applied – Whether all the evidence was taken into account – Doctrine of res judicata – Where the primary judge erred in principle in making the order for the permanent stay – Appeal allowed – Order set aside – Matter remitted for rehearing – Costs certificates granted for the appeal and rehearing.
Legislation:	Family Law Act 1975 (Cth) ss 44(3), 72, 74, 75(2), 79, 79A, 83
Cases cited:	Chamberlain v Deputy Commission of Taxation (1988) 164 CLR 502; [1988] HCA 21 Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44 Mehta & Crimmins [2018] FamCA 398
Number of paragraphs:	46
Date of hearing:	22 October 2021
Place:	Sydney (via video link)
Counsel for the Appellant:	Mr O’Brien
Solicitor for the Appellant:	Justice Family Lawyers
Counsel for the Respondent:	Mr Richardson SC with Mr Lawrence
Solicitor for the Respondent:	Etheringtons Solicitors

ORDER MADE BY:	AINSLIE-WALLACE, ALDRIDGE & REES JJ
DATE OF ORDER:	29 NOVEMBER 2021