Nadales and Nadales (No. 2)
[2018] FamCAFC 229
•20 November 2018
FAMILY COURT OF AUSTRALIA
| NADALES & NADALES (NO. 2) | [2018] FamCAFC 229 |
| FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the reasons for judgment are inadequate – Where there is no analysis of the evidence, the law that applies or who bore the onus of proof and what needed to be established – Where the Appeal Court is unable from the brief reasons to ascertain the reasoning upon which the decision is based – Where by consent leave to appeal is granted and the appeal is allowed – Orders appealed set aside – Application for spousal maintenance remitted to the Federal Court of Australia for rehearing by a judge other than the primary judge. |
| Family Law Act 1975 (Cth) | |
| Bennett and Bennett (1991) FLC 92-191 | |
| APPELLANT: | Mr Nadales |
| RESPONDENT: | Ms Nadales |
| FILE NUMBER: | MLC | 10434 | of | 2017 |
| APPEAL NUMBER: | SOA | 29 | Of | 2018 |
| DATE DELIVERED: | 20 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 20 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 April 2018 |
| LOWER COURT MNC: | [2018] FCCA 1091 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITORS FOR THE APPELLANT: | Tasiopoulos Lambros & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Testart |
| SOLICITORS FOR THE RESPONDENT: | Robinson Gill Lawyers |
Orders
The appellant husband have leave to appeal orders (2) and (3) of the orders made by Judge Wilson on 5 April 2018.
The appeal be allowed.
Orders (2) and (3) made on 5 April 2018 be set aside.
The application by the respondent wife for spousal maintenance be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Wilson.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nadales & Nadales (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 29 of 2018
File Number: MLC 10434 of 2017
| Mr Nadales |
Appellant
And
| Ms Nadales |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an application by Mr Nadales (“the husband”) for leave to appeal, and if leave is granted, to appeal against two of the orders made by Judge Wilson on 5 April 2018.
The Notice of Appeal which brings the matter to this Court was filed on 1 May 2018.
I conducted a directions hearing on 20 September 2018 when the matter was listed for hearing today, and orders were made to prepare the matter for hearing.
The orders the subject of the application for leave to appeal and the appeal are first, order (2) which provided that “[u]ntil further order, commencing on 12 April 2018, the husband pay to the wife the sum of $400 per week”, and secondly, order (3) which provided for the husband to “pay the wife’s costs of the spousal maintenance application”.
When the hearing commenced today the husband appeared without legal representation, but Ms Nadales (“the wife”) appeared represented by Counsel, Mr Testart.
There are a number of difficulties in terms of documents for the purposes of today’s hearing, all of which I do not need to revisit, but it became apparent that neither the husband nor Mr Testart had been provided with the ex tempore reasons for judgment delivered by the primary judge on 5 April 2018.
Importantly, those reasons comprised two paragraphs only, as follows:
1.I am satisfied that the resistant attitude of the husband has necessitated this hearing today. While it is true the applicant sought an amount less than the sum ultimately ordered, the respondent has steadfastly refused to pay any amount, asserting variously that –
a) he was unable to afford it;
b)he had no income from which to pay the maintenance sought; and
c) that he had no financial ability to do so.
2.With the slightest probing around the factual edges, the respondent properly conceded that he had access to a line of borrowings that enables him to meet his day-to-day expenses. There should be no reason why he is unable to provide, in some small measure, for his wife of almost 20 years in the modest request that she sought today.
Having, unlike Mr Testart and the husband, had the benefit of seeing those reasons for judgment virtually from when this matter commenced in this Court, I had certainly formed the preliminary view that those reasons were inadequate, and as such, again on a preliminary view, there was appealable error sufficient to require leave to appeal to be granted, and in that event, the appeal allowed.
Of course, specifically referring to Mr Testart, he came to the hearing today without that knowledge. He, and indeed the husband, had up to that point been operating on the basis that the reasons for judgment so called were set out in the transcript of the hearing of 5 April 2018. However, as is now clear, that is not the case, and there are these reasons for judgment which need to be considered.
Having been alerted to this, and having had the opportunity to peruse those reasons for judgment, Mr Testart obtained instructions from his client that in the circumstances, his client could not oppose leave being granted and the appeal being allowed for the reason which I have just expressed, namely there is appealable error in that those reasons are inadequate. To amplify that, there is plainly no analysis of the evidence, no analysis of the law that applies, no analysis of who bore the onus of proof and what needed to be established, and in terms of the relevant authorities, the Appeal Court is unable from those brief reasons to ascertain the reasoning upon which the decision is based; the pathway to the decision made by the primary judge is not revealed, and justice is not seen to have been done. In that regard I refer to the well-known authority of Bennett and Bennett (1991) FLC 92-191.
Given that, this matter can be disposed of by consent. The authorities are such that even though a respondent may consent to the disposition of an application or an appeal in the way that is now being proposed, it is still necessary for this Court to be satisfied of appealable error by the primary judge, and in that regard I repeat that I am so satisfied for the reasons that I have just given
On that basis I am prepared to make the orders that are proposed.
I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 20 November 2018.
Associate:
Date: 26 November 2018
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