PADNALL & PADNALL - [2014] FamCAFC 145

FAMILY COURT OF AUSTRALIA

PADNALL & PADNALL

[2014] FamCAFC 145

FAMILY LAW – APPEAL – NOTICE OF APPEAL – LEAVE TO APPEAL – where the husband seeks leave to appeal and if leave is granted to appeal against orders made by Federal Magistrate Simpson (as his Honour then was) – where the wife opposes the appeal – where the orders appealed provide for the husband to pay the wife interim spousal maintenance in the sum of $1,462 from 11 May 2012 until the final hearing of the matter – where the Federal Magistrate erred in failing to take into account a bank account held in the name of the wife and in assessing the needs of the wife including all of the expenses of the children of the parties – where the errors of principle relied on to establish leave are comprised in the proposed grounds of appeal – where there is merit in four of the five proposed grounds of appeal pursued – where leave to appeal is granted – where the appeal is allowed in part – where given the nature of the errors of the Federal Magistrate identified his Honour’s orders must be set aside and the matter remitted for rehearing – where the matter has been transferred to the Family Court of Australia and thus the rehearing will take place before a judge of that court.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – FURTHER EVIDENCE – where the husband seeks to adduce further evidence which goes to his income and his capacity to pay spousal maintenance – where the evidence sought to be adduced does not establish error by the primary judicial officer – where in any event the evidence is controversial – where if the evidence is admitted the wife would seek to present her own evidence and to cross-examine the husband and the authors of the documents the husband seeks to present – where the husband did not seek to vary or discharge the order made but instead sought to address the issue through an appeal – applications to adduce further evidence dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where both parties sought costs certificates for the appeal and any rehearing in the event that the application and the appeal were successful – where each party should bear their own costs – where the appeal succeeded on a question of law – parties granted costs certificates.

Family Law Act 1975 (Cth) – s 75(2)(d) and (na)

Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9

Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Clauson & Clauson (1995) FLC 92-595
Drysdale & Drysdale [2011] FamCAFC 85
Mitchell & Mitchell (1995) FLC 92-601
Rutherford & Rutherford (1991) FLC 92-255
Stein & Stein (2000) FLC 93-004
Water Board v Moustakas (1988) CLR 491

APPELLANT:

Mr Padnall

RESPONDENT:

Ms Padnall

FILE NUMBER:

ADC

1244

2012

APPEAL NUMBER:

SOA

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: PADNALL & PADNALL [2014] FamCAFC 145
Case: [2014] FamCAFC 145
Decision Date

CaseChat Overview and Summary

This appeal arises from a decision of the Federal Magistrates Court in relation to spousal maintenance. The husband sought leave to appeal and to appeal against orders made by the Federal Magistrate that he pay interim spousal maintenance of $1,462 per week to the wife. The wife opposed the appeal. The husband relied on five grounds of appeal, the first four of which had merit. The fifth ground was not pursued. Leave to appeal was granted. The appeal was allowed in part. The orders of the Federal Magistrate were set aside and the matter was remitted for rehearing before a judge of the Family Court of Australia. Applications to adduce further evidence were dismissed. Costs certificates were granted to both parties in respect of the appeal and the rehearing.

The husband relied on alleged errors of principle by the Federal Magistrate in determining that the wife was unable to support herself, in failing to take into account a bank account held in the name of the wife, in assessing the needs of the wife including all of the expenses of the children of the parties, and in failing to take into account child support assessments in assessing the needs of the wife. The first two grounds of appeal were made out because the Federal Magistrate had not properly considered the bank account held in the name of the wife and had not properly assessed her needs. The third and fourth grounds of appeal were made out because the Federal Magistrate had not properly considered the child support assessments in assessing the needs of the wife.

The husband also sought to adduce further evidence in the form of financial statements and tax returns to demonstrate that his income had fallen below what the Federal Magistrate had found. Those applications were dismissed because the evidence was not relevant to demonstrate error by the Federal Magistrate, and in any event the evidence was controversial.

The appeal was allowed in part because of the errors of principle identified. In those circumstances the orders of the Federal Magistrate were set aside and the matter was remitted for rehearing because there was no evidence before the Court as to the income and expenditure of the parties as at the date the matter would be reheard. Costs certificates were granted to both parties in respect of the appeal and the rehearing.

Orders