Newbeld and Newbeld and Anor
[2007] FamCA 1483
•13 December 2007
FAMILY COURT OF AUSTRALIA
| NEWBELD & NEWBELD AND ANOR | [2007] FamCA 1483 |
FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – Spouse Maintenance – Application to discharge or vary overseas maintenance order – Application to stay enforcement of registered maintenance liability – Whether the Federal Magistrate erred in not discharging the spousal maintenance order – Appeal Dismissed.
FAMILY LAW - APPEAL – COSTS – Appellant to pay costs of the Child Support Registrar to be assessed.
| Child Support (Registration and Collection) Act 1988 AMS v AIF (1999) FLC 92-852 | |
| APPELLANT: | MR NEWBELD |
| FIRST RESPONDENT: | MRS NEWBELD |
| SECOND RESPONDENT: | THE CHILD SUPPORT REGISTRAR |
| FILE NUMBER: | BRM | 7806 | of | 2002 |
| APPEAL NUMBER: | NA | 56 | of | 2007 |
| DATE DELIVERED: | 13 December 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 2 November 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 12 July 2007 |
LOWER COURT MNC: | [2007] FMCAfam 465 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Baston |
| SOLICITOR FOR THE 1ST RESPONDENT: | Ryan Kruger Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Schulte |
| SOLICITOR FOR THE 2ND RESPONDENT: | Australian Government Solicitor |
Orders
The appeal is dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Newbeld & Newbeld & Another.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 56 of 2007
File Number: BRM 7806 of 2002
| MR NEWBELD |
Appellant
And
| MRS NEWBELD |
First Respondent
And
THE CHILD SUPPORT REGISTRAR
Second Respondent
REASONS FOR JUDGMENT
Introduction
In a Notice of Appeal filed 9 August 2007, the appellant husband, Mr Newbeld, appeals from orders made by Federal Magistrate Slack on 12 July 2007. This appeal concerns the enforcement and discharge of a spousal maintenance order of the Superior Court of Arizona made on 5 August 1997.
The order appealed from is contained in paragraph (1) of the orders as follows:
(1)That the registered maintenance liability be discharged as and from
31 May 2005(provided that any monies paid under the liability since 31 May 2005 be applied to the reduction of arrears owing under the liability).
I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Background
The trial Judge recorded the largely uncontroversial history of the relationship between the parties. The appellant is 63 years old (born October 1944) and the first respondent is 69 years old (born June 1938). The parties married in May 1970 and separated in 1995. There are two children of the marriage, both of whom had attained 18 years of age by the time of separation.
During the marriage, the parties lived and worked in Sweden, Australia, New Zealand and the United States of America. Just prior to separation, the parties were residing in Arizona in the United States of America. In September 1995, the first respondent moved to Sweden and has lived there since that time.
Litigation History
There exists a somewhat convoluted history of litigation between the appellant husband and first respondent wife regarding the spousal maintenance order that is the subject of this appeal. For this reason, I will briefly outline the history of proceedings to this date.
On 25 October 1995 the wife commenced proceedings in the Superior Court of Arizona for property settlement, divorce and spousal maintenance. On 26 May 1996, Commissioner Reinstein made temporary orders which required the husband to pay the sum of US$500 per month in spousal maintenance to the wife, pending the final determination of the application.
Sometime in May or June 1996 the husband left the United States of America and returned to live in Australia. The wife had already returned to Sweden.
In August 1996, contempt proceedings were brought against the husband in the Superior Court of Arizona for his failure to pay the spousal maintenance ordered by Commissioner Reinstein. On 11 September 1996, judgment was entered against him requiring that he pay US$2,750 in arrears to the wife.
On 16 January 1997 the husband brought an application to stay the Arizona proceedings. This was refused and a civil arrest warrant was issued for the husband’s arrest for his failure to pay the monies owed under the orders of 26 May 1996.
On 3 April 1997 the husband filed an application for property settlement in the Family Court of Australia, in the Townsville Registry. He sought an equal division of property.
On 21 May 1997 the property proceedings were heard by Judge Hutt in the Superior Court of Arizona. Final Orders were made on 5 August 1997, whereby the wife was to receive US$300,000 from the husband, representing her half share of the community property at the date of trial. In relation to ongoing spousal maintenance, Judge Hutt ordered that the husband pay the sum of US$3,000 per month to the wife for the remainder of her life. The marriage was dissolved. It is apparent from the transcript that the husband was not present at the hearing although he was represented by lawyers.
On 19 January 1998, Jordan J heard and determined an application by the wife to have the orders regarding property settlement made in the Superior Court of Arizona recognised in Australia. That application did not succeed.
On 23 December 1998 the wife filed a response to the husband’s application for property settlement in Australia (filed 3 April 1997). She sought a permanent stay of the appellant’s application and a declaration that she was entitled to received US$300,000 from the appellant. Lindenmayer J made orders on 26 May 1999 that the husband’s application for property settlement be permanently stayed. He also made declarations in relation to the money owed under the judgment of Judge Hutt in the Superior Court of Arizona.
On 29 September 1999 Jerrard J heard and determined an application by the husband to have his rights under the orders of Judge Hutt recognised and offset by the obligations awarded to the wife. This application was dismissed.
Enforcement proceedings were initiated against the husband for the property orders and that application was determined by Registrar Spelleken on 20 October 1999.
The husband sought to review Registrar Spelleken’s determination. In reasons delivered on 25 May 2000, Warnick J dismissed the appellant’s Application for Review and the enforcement summons was listed before Registrar Spelleken on 14 June 2000.
On 10 August 2000 the maintenance order of the Superior Court of Arizona was registered in Australia. On 26 September 2002 the Child Support Registrar commenced proceedings in the Federal Magistrates Court to enforce the spousal maintenance order and recover any arrears and late payment penalties owing under the order. The Child Support Registrar is now the second respondent to these proceedings.
The husband then filed his present applications for the discharge of the spousal maintenance order and all arrears accrued and to stay the orders of the Superior Court of Arizona. This application was heard by Federal Magistrate Rimmer on 6 June 2005 and judgment delivered on 22 September 2005, whereby the spousal maintenance order was to be suspended until further order of the court and all other applications of the husband and the wife be dismissed (including the husband’s application for discharge of all arrears).
The husband appealed from those orders. In reasons delivered on 19 May 2006, the husband’s appeal was allowed and the orders of Rimmer FM were set aside. The matter was remitted to the Federal Magistrates Court for rehearing.
The matter was heard by Federal Magistrate Slack on 10 and 11 April 2007 and 12 June 2007. It is the orders of Slack FM (delivered on 12 July 2007) which are the subject of the appeal.
The issues raised by the husband for his Honour’s determination were contained in two applications. In the application filed 10 January 2003 the husband asked for a stay of the enforcement proceedings until a ruling from the Arizona Court and in the application filed 16 July 2007 that pursuant to Regulation 36(2) the Act the orders made in the Arizona Court be discharged and arrears remitted. The Child Support Registrar asked for enforcement of a debt payable to the Commonwealth under s.30 of the Child Support (Registration and Collection) Act 1988 in relation to the maintenance.
Grounds of Appeal
As the husband was successful in part before the Federal Magistrate, the appeal relates only to a time frame between 5 August 1997 and 31 May 2005. The husband seeks to be relieved of the maintenance liability for that period
The appellant’s numerous and extensive grounds of appeal can generally be divided into three separate complaints.
First, he asserts that the Federal Magistrate failed to give adequate reasons for his decision, particularly with respect to his findings in relation to the wife’s evidence at trial in the Superior Court of Arizona.
Secondly, that his Honour made findings in favour of the husband but failed to execute those findings and apply the relevant principles. The husband referred to the Federal Magistrate’s apparent failure to consider the relevant circumstances of the parties.
Finally, the husband alleges that the Federal Magistrate made errors of law with respect to his application of precedent and legislation. Each of these grounds will be considered in more detail when considering the husband’s submissions.
Judgment
His Honour was “persuaded that there is a just cause for varying the registered maintenance liability in this matter but only from the 31 May 2005.”
Broadly speaking, there were three arguments presented by the husband in relation to the spousal maintenance order. In his Reasons for Judgment, his Honour dealt with each of these in turn. First, the appellant asserted that the wife had the capacity to support herself at the time the orders of Judge Hutt were made (5 August 1997) and subsequently. The undisputed evidence of the wife was that she had lived in Sweden since 1996 and had not been in paid employment. She was not challenged to any significant extent about her reasonable needs of AUS$1,282 per week. Additionally, she was not in good health and Slack FM was satisfied that she would not return to paid employment. He concluded:
55.There is no evidence that the wife has been able to adequately support herself since the separation from any earned income. It is not in dispute that she has remained unemployed since the separation. I am not satisfied that she has been adequately able to support herself on the pensions and charity that she has received.
56.I am not therefore satisfied that there has been any significant change in the wife’s circumstances since the Arizona orders were made. I am satisfied that she has not been able to adequately support herself.
Secondly, the husband contended that the wife received much of the community property and had given false and misleading testimony to the Superior Court of Arizona regarding this property. His Honour noted that the appellant had ample opportunity to put his case to the Family Court of Australia (when he appeared before Lindenmayer and Warnick JJ on two separate occasions) and to the Superior Court of Arizona at the hearing in his attempts to reopen the matter.
It was acknowledged that the Arizona Court refused to allow the husband to present evidence in the matter because he was in arrears for the interim maintenance payments to the wife. As his Honour stated “[h]e was the author of his own misfortune in that regard” (paragraph 59).
With respect to his appearances before the Family Court, it was noted that every application made by the husband concerning this matter has been unsuccessful. As no additional evidence was presented at trial, Slack FM concluded that:
61.…I am simply not satisfied on the evidence that the wife has or has had the property and/or resources as alleged by the husband.
The final argument alleged by the husband at trial was that during the hearing before the Superior Court of Arizona, the wife knew the husband’s true income but falsely alleged he had a much higher income. The husband’s evidence was that his taxable income for the relevant period before the decision of Judge Hutt was less than US$39,000 per annum. He contends that he never had the capacity to pay the maintenance orders as the wife knew.
Again, his Honour acknowledged that the husband had the opportunity to be represented at the hearing of the Superior Court of Arizona if he paid the arrears owing under the interim maintenance orders. His application to reopen the hearing was refused.
Furthermore, Slack FM made much of the appellant’s assertion that his income was less than US$39,000 per annum, and labelled this assertion on his behalf as “disingenuous”. His Honour proceeded to outline the husband’s involvement in various business ventures during and after the marriage.
Between 1990 and 1995, the appellant had the control of the profits and assets of a company (“Company A”). Although the company ceased trading, the appellant retained the intellectual property of the company.
After separation, the appellant incorporated another company (“Company B”), using the intellectual property and assets of Company A. His shares in that company were estimated to be worth $65,000 in August 1996. The assets of Company B were not part of the community property shared with the wife, and there was no evidence to suggest that the wife had control of either company after separation. His Honour concluded that:
70.… Although the husband can assert that his personal taxable income for the period leading up to the Arizona Court orders was near $39,000 per year, that ignores the fact that in addition to that, he was in control of the profits of [Company A] and was also in control of the intellectual property and assets of [Company A] which he subsequently used to establish [Company B].
71.The husband has simply not provided any evidence to satisfy me that the orders made by the Arizona Court were based on fraudulent or false or misleading testimony about his income or resources given by the wife. To the contrary, the available evidence suggests that the husband did have the capacity to pay the maintenance as ordered.
72.The evidentiary onus to establish that there has been a change in his circumstances since the Arizona orders is upon the husband. He has not provided evidence of his income, financial resources and/or living expenses for the years between 1996 and 2004.
…
81.Notwithstanding the deficiencies in the disclosure of documents by the husband, however, I am satisfied that since May 2005 (the date of the filing of the statement of financial circumstances relied upon by him in these proceedings) he has not had the capacity to meet the maintenance payments under the Arizona Orders.
Despite discrepancies in the disclosure of documents by the appellant, his Honour was satisfied that since May 2005 the appellant has been unable to meet the maintenance payments required by the orders of Judge Hutt. He concluded:
82.Whilst I have some concerns about the husband’s credibility in so far as his financial circumstances are concerned, in particular, whether he has the capacity to once again use the intellectual property he has in the [machine design technology] to generate an income for himself, I am nevertheless satisfied with the evidence of the husband that since May 2005 he has had an income of less than $40,000 per annum.
83. My reasons for reaching that conclusion are:
a)There are no indications and there is no evidence from any other source that he has earned any greater amounts of income or that he has had a greater earning capacity.
b)Whilst I have no satisfactory explanation why he has not relied on his intellectual property in the machine design to earn an income, I am satisfied that there is no other evidence to support a conclusion that he has been hiding income or actively in business using that technology.
c)There is no indication or evidence about his lifestyle that would indicate to me that he is living beyond his alleged income. There is no evidence of excessive expenditure or living circumstances, or lifestyle choices such as overseas holidays, expensive motor vehicles, clothing or purchases etc that would indicate that he has failed to disclose his true position.
d)I accept that the husband is highly motivated to discharge this liability but I listened carefully to his cross-examination and I did not detect any deliberate false testimony that would suggest that he has tried to mislead the Court about his current circumstances.
His Honour considered the husband’s age and capacity to continue working and concluded that the husband would have a limited ability to meet the debt and any ongoing maintenance for the wife.
With respect to the maintenance arrears, the appellant argued that his current financial circumstances should have been taken into account in determining if he has the capacity to pay the arrears. Although his Honour had regard to this consideration, he was not persuaded to discharge the arrears owing up to and including May 2005, for the reasons he explained as follows:
87.The husband has made no payments under the maintenance orders made by the Arizona Court. He has an attitude that he has been dealt a serious injustice and consequently, has simply refused to comply with the Arizona orders. I am satisfied that this has been his motivation for failing to pay the maintenance in accordance with the Arizona orders. Even at this hearing he has chosen not to put any evidence of his financial circumstances for the years after the orders until 2005.
88.At the moment he retains the intellectual property from [Compnay B] and he is also proceeding with his claim against [Ms L]. According to his claim against [Ms L] he used his income and the business [Company B] to contribute to the property of [Ms L]. This income should have in part been used to satisfy the Arizona order. Although the husband has, prima facie, limited capacity to meet the arrears owing under the orders he nevertheless has the claim against [Ms L].
Thus his Honour concluded:
89.I am not satisfied that the arrears owing under the Arizona orders should be discharged on the basis that the husband has no present capacity to meet those arrears.
90.Having come to that conclusion and for the reasons already given, I am not persuaded that I should stay the enforcement proceedings against the husband.
Submissions of the Appellant
Ultimately the husband is seeking an order discharging the arrears from the spousal maintenance order made by the Arizona Court. The appellant’s written and oral submissions closely follow the grounds of appeal and for the sake of efficiency each of these three broad complaints will be considered in turn.
The husband asserts that his Honour “failed to give adequate reasons for this Decision and his failure to do so amounts to an error of law” (Ground 2, Grounds of Appeal). He argues that the Federal Magistrate failed to explain his conclusions with respect to the wife’s evidence at trial in the Superior Court of Arizona. The husband submitted that his Honour failed to address this point in his Reasons for Judgment despite the husband’s evidence regarding the wife’s inconsistent, “false and misleading” testimony.
Additionally, the husband submitted that his Honour failed to consider the complete orders of Judge Hutt (made on 5 August 1997) and the complete orders of Lindenmayer J (made on 26 May 1999) in making his decision, and that he did not regard the fact that the appellant’s application before Jerrard J (29 September 1999) was dismissed because it was in the wrong form, not for lack of evidence.
With respect to the second complaint (that his Honour failed to execute his findings in favour of the appellant) the appellant submitted that Slack FM failed to consider and give appropriate weight to the appellant’s unchallenged evidence regarding his age, current earning capacity and ability to meet the arrears. Emphasis was placed on paragraph 54 of his affidavit filed 19 March 2007 which demonstrated his income from both Australia and America from 1983 to 2005.
Further, he argued that his Honour did not consider the wife’s earning capacity and financial status when making the orders. This led, it is submitted, to an unjust decision.
Finally, the husband argues that the Federal Magistrate made errors of law as a result of his reasoning and decisions. In particular, the husband made reference to his Honour’s reliance on Lutzke (1995) 5 FamLR 533 (affirmed by the Full Court in Vakil (1997) FLC 92-743). Although it was conceded that Slack FM correctly identified the guiding approach contained in that decision, the husband submitted that his Honour did not consider the entirety of the ratio when he failed to quote the last lines of the decision. To deal with this submission it is necessary to set out the relevant parts of the judgment commencing at paragraph 48:
48.Thus on the husband’s application I am to consider making orders under s.83 of the Family Law Act 1975 that the registered maintenance liability be discharged.
49.As to what constitutes just cause under s.83(1)(c), the observations of Lindenmayer J in the marriage of Lutzke (1979) 5 FLC 90-714 which were adopted by the Full Court in the marriage of Vakil (1997) FLC 92-743, sets out the considerations that should be taken into account. His Honour said at p.78,832:
… the Act is silent as to what may constitute just cause for the discharge of an order. In my opinion, however, the words "just cause" are not used in any broad general sense nor are they intended to import any abstract notions of justice, "palm tree" or otherwise, into the determination of applications for discharge. In my opinion, those words must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a "cause" for the discharge of an existing maintenance order will be a just cause only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said it is "right" or "proper" that the order should be discharged.
It is correct that some part of the judgment of Lindemayer J from Lutzke (supra) was not included. Those parts are as follows at p.78,832:
…If there were any room for doubt that this is the correct approach, in my opinion that doubt is removed by sec. 83(7) which provides:
(7) For the purpose of this section, the court shall have regard to the provisions of sections 72, 73, 75 and 76.
The sections therein referred to are, of course, the substantive sections of the Act dealing with the principles upon which applications for maintenance are to be determined. In addition to those sections I am of the opinion that, although not mentioned in sec. 83(7), sec. 43, being a section stating a fundamental principle of the Act applicable to all types of proceedings under the Act, must also be taken into account by the court in exercising the jurisdiction conferred upon it by sec. 83(1)(c).
The husband also submitted that the Federal Magistrate’s application of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000, Statutory Rules 2000 No. 80 amounted to an error in law. In his decision, Slack FM extensively outlined the application of the law in this area. However, the husband submitted that his Honour erred in law by not finding that the treaty with the United States of America did not come into force until 2003 and that the Child Support Agency has not assisted the husband since that time.
Reference was made to the Federal Magistrate’s failure to comply “with the order by the Appeals Judge to rehear the application...before Federal Magistrate Rimmer, but also hearing the Application by the Child Support Agency for enforcement of the order by the Superior Court of Arizona. This amounted to confusion and followed by an error of law” (Ground 1, Grounds of Appeal).
Finally, it was submitted that the Federal Magistrate erred in his approach to the case as it was “conduct driven” rather than “capacity driven”. By this, the appellant alleges that his Honour erred in law by focussing on the appellant’s past conduct rather than his capacity to meet the arrears. It was also submitted that the Federal Magistrate’s consideration of the proceedings against a former partner was an error in law as it involved speculating on the outcome of an undecided proceeding, which is not dealt with under sections 72 and 75 of the Act.
Submissions of the First Respondent (the Wife)
Counsel for the first respondent made oral submissions during the appeal, and provided short written submissions.
First, counsel submitted that the decision of Warnick J (19 May 2006) held that the appeal against Rimmer FM had merit because the learned Federal Magistrate had failed to analyse the financial circumstances of each of the parties for each year in the period leading up to the date of judgment, when considering the appropriateness of the spousal maintenance order. It is for this reason that the matter was referred for rehearing before Slack FM.
In this respect, it was submitted that the appellant has proceeded in reliance on his current financial circumstances, and has not established his financial position throughout the entire period.
With respect to the first respondent’s evidence at trial in Arizona, although it was acknowledged that she may have inadvertently given incorrect information, this was not sufficient to prove that the Arizona judgement was vitiated by fraud. For example, even if the judge in Arizona mistook the evidence about the house in Sweden or that the wife’s evidence was incorrect, there was no value attributed to that property and it made no impact on the decision.
It was submitted that both parties were represented at the time and both parties made submissions. Although the appellant was not present, submissions were made on his behalf by his legal representative
It was submitted that any remedy the husband had, ended after the order made by Lindemayer J.
Finally, counsel for the first respondent submitted that the Federal Magistrate reached an appropriate conclusion based on the evidence presented before him and that the only evidence of financial circumstances provided by the appellant was a Financial Statement for May 2005.
Submissions OF the Second Respondent
(the child support Registrar)
The second respondent asserted in their written submissions that the appellant failed to demonstrate just cause for the Arizona order to be discharged, and to discharge the evidentiary onus in relation to the husband’s change in circumstances since the Arizona Court Orders were made. Particular reference was made to the period between 1996 and 2004. It was further asserted that the husband failed to show that he was unable to meet and pay the spousal maintenance orders made by the Arizona Court;
The second respondent submits that the Federal Magistrate made no error of law in making the orders. It is useful to repeat part of their written submissions:
5.It was open to the learned Federal Magistrate to find that due to lack of evidence he was not satisfied that the orders made by the Superior Court of Arizona were based on fraudulent or false or misleading testimony about the appellant’s income of resources given by the second respondent (the wife);
6.The learned Federal Magistrate correctly identified that the second respondent has not been in paid employment since the Arizona Court Orders were made. The Federal Magistrate thus dismissed the appellant’s assertion that the second respondent has income and/or the capacity to support herself both at the time that the Arizona Court Orders were made and since that time;
7.The learned Federal Magistrate appropriately identified that the husband has made little or no attempt to comply with the spousal maintenance order made by the Arizona Court;
8.The learned Federal Magistrate correctly held that the appellant did not take all appropriate legal steps to appeal the spousal maintenance order whether in the Superior Court of Arizona or in an Australian Court prior to the filing of his application pursuant to Regulation 36 of the Family Law Regulations;
9.The Federal Magistrate made appropriate findings, applied the law and made an order clearly within his discretion;
10.The path by which the result has been reached is discernable from the reasons (Bennett and Bennett (1991) FLC 92-191);
The second respondent thus submitted that to succeed in the appeal the applicant must demonstrate that the Federal Magistrate’s decision was unreasonable and that no reasonable court would have made it.
Appellate Principles
It is appropriate to identify the principles governing an appeal from a discretionary judgment. The law in this respect is well settled.
In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J described the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:
There is a strong presumption in favour of the correctness of the decision appealed from and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.
It was further enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
Thus it is necessary to first establish whether there is any recognised ground for reviewing a discretionary decision consistent with these appellate principles. As was explained by Kirby J in AMS v AIF (1999) FLC 92-852, at 86-043:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
In the case of discretionary decisions, it is only where the effect of the orders exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere, per Brennan J in Norbis v Norbis (1986) FLC 91-712 at 75,178.
As some of the grounds of appeal attack the adequacy of his Honour’s reasons, it is appropriate that I refer to the following passage from the decision of the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266-267:
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
Conclusions
The decision of Vakil (supra) was particularly relied upon by the appellant. This is understandable because some factual matters and the relief sought in each case are similar. The significant difference is that important findings of fact made by the Indian Court in Vakil (supra) were demonstrably incorrect. The trial Judge in Australia found that the wife withheld evidence from the Indian Court and that her evidence was false. Both findings of fact were not made in the present case and have not been successfully challenged. It is not otherwise submitted by the appellant that the trial Judge misunderstood the law in this respect or applied wrong principles.
The appellant has failed to successfully challenge the findings of fact made by the trial Judge. In particular he failed to demonstrate that his Honour was not entitled to conclude that the husband had discharged the onus on him to prove that he did not have the capacity to pay the ordered amount for the relevant period.
As to the ground of appeal related to reasons, in his carefully prepared judgment it is quite clear what findings the Federal Magistrate made about the evidence where it was controversial or an issue and it is quite clear why he made the orders.
In relation to both the stay application and the application that the maintenance orders be discharged the appellant has failed to demonstrate any error of law on the part of the Federal Magistrate or any error in the exercise of his discretion such that the appeal should be allowed.
I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 13 December 2007
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