Raymond & Raymond

Case [2024] FedCFamC1A 45

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Raymond & Raymond [2024] FedCFamC1A 45

Appeal from: Raymond & Raymond [2023] FedCFamC2F 1396
Appeal number: NAA 316 of 2023
File number: NCC 838 of 2023
Judgment of: AUSTIN J
Date of judgment: 28 March 2024
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the husband seeks leave to appeal interlocutory financial orders requiring him to pay the wife lump sum and periodic spousal maintenance – Where at least one of the grounds of appeal appeared to have merit – Leave to appeal granted – Where the primary judge did not deny the husband procedural fairness by discounting his weekly expenses in determining his capacity to pay spousal maintenance – Where the husband alleges mistaken findings by the primary judge about the wife’s need for spousal maintenance – Where the findings made about the wife’s need for financial support were open on the available evidence and withstands complaints in the appeal that the primary judge could or should have come to different conclusions – Where the primary judge found the husband will earn a higher income from his new business – Where the husband contends the primary judge failed to make due allowance for the extra income tax for which he would inevitably be prospectively liable – Where the amount of the periodic interim spousal maintenance order is too high and the obligation to pay it under the appealed order causes the husband financial hardship – Appeal allowed in part – Where the husband refused the re-exercise of discretion and insisted on his right to adduce updated evidence – Where the periodic spousal maintenance amount is substituted for a lesser sum in the interim – Where the wife’s application for periodic spousal maintenance is remitted for rehearing – Costs reserved.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 72, 74, 75, 83

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458

Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

De Winter and De Winter (1979) FLC 90-605

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Faulkes & Tomkins (2018) FLC 93-854; [2018] FamCAFC 151

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16

Kearney & McMasters [2024] FedCFamC1A 2

Lenova & Lenova (2011) FLC 93-467; [2011]…

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AGLC
Raymond & Raymond [2024] FedCFamC1A 45
Case
[2024] FedCFamC1A 45
Decision Date

CaseChat Overview and Summary

In the matter of Raymond v Raymond, the husband sought leave to appeal the interlocutory financial orders made by the court in relation to his ex-wife. The court was required to decide whether the husband had established sufficient doubt in the primary judge's decision to warrant appellate scrutiny and whether substantial injustice would result if leave were refused. The husband argued that the amount of the periodic interim spousal maintenance order was too high and caused him financial hardship, and that the primary judge had made mistaken findings about the wife's need for spousal maintenance. The court found that the husband had established sufficient doubt in respect of Order 3(b) and granted leave to appeal.

The court held that the findings made about the wife's need for financial support were open on the available evidence and withstands complaints in the appeal that the primary judge could or should have come to different conclusions. The court also found that the primary judge found the husband will earn a higher income from his new business, and that the husband had failed to make due allowance for the extra income tax for which he would inevitably be prospectively liable. However, the court held that the amount of the periodic interim spousal maintenance order was too high and the obligation to pay it under the current order causes the husband financial hardship. The appeal was allowed in part, and the amount of the periodic spousal maintenance was substituted for a lesser sum in the interim. The wife's application for periodic spousal maintenance was remitted for rehearing. Costs of the appeal were reserved.

Orders

Orders of the court

NAA 316 of 2023

NCC 838 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR RAYMOND

Appellant

AND:

MS RAYMOND

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1. The application for leave to appeal is granted.

2. The appeal is allowed in part.

3. Order 3(b) made on 20 October 2023 is:

(a) varied by the substitution of “$545.00” for “$685.00” in the interim, but

(b) set aside upon the re-determination of the respondent’s application for the appellant’s payment of interim periodic spousal maintenance pursuant to Order 4 hereof.

4. The respondent’s application for the appellant’s payment of interim periodic spousal maintenance is remitted for rehearing by the Federal Circuit and Family Court of Australia (Division 2).

5. Costs of the appeal are reserved for 28 days.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

For the following reasons, leave to appeal is granted, the appeal is allowed in part, the dispute over the payment of interim periodic spousal maintenance is remitted for rehearing, and as an interim measure the existing order is varied as to its amount.Background The parties separated in January 2023 and proceedings between them for financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) were commenced by the husband in March 2023. Numerous competing interlocutory applications were listed for hearing before the primary judge in August 2023. Somewhat unusually, the interim hearing spanned three days and entailed the cross-examination of witnesses. The hearing was concluded in October 2023 and judgment was delivered a few days later. Several orders were made to determine the applications, but the only orders which are presently relevant are these:2.The wife shall have sole use and occupation of the property situate and known as [the former family home] subject to the following:(a)The wife is responsible to pay one half of all periodic and minimum principal and interest repayments due to [the bank] pursuant to the home loan accounts [numbers] as and when they fall due and payable; and (b)The wife is responsible to pay on half of the rates, insurances and utilities as and when they fall due and payable.3.Pursuant to s. 74 of the Family Law Act 1975(Cth) the husband shall pay or cause to be paid for the benefit of the wife by way of spousal maintenance:(a)A lump sum of $5,500.00 with payment to the wife to be made within 14 days of the date of these orders; and (b)A periodic sum of $685.00 each week with the first payment to be made within 7 days of the date of these orders and weekly thereafter; and (c)All Health insurance premiums due and payable for the [private health fund] family health insurance. As can be seen, Order 2 grants the wife exclusive occupation of the former family home, subject to her fulfilment of certain conditions, and Order 3 requires the husband to pay her spousal maintenance in three different forms.Leave to appeal It is uncontentious the appealed judgment, as is embodied in two those orders, is a “prescribed judgment” (reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)), meaning any appeal from it requires the grant of leave (s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). While the discretion to grant leave to appeal is unfettered, the grant ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]). In determining whether the first instance decision is attended by sufficient doubt, it is necessary to analyse the merit of the proposed grounds of appeal. As will be explained, the husband can only establish such doubt in respect of Order 3(b). The amount of the periodic interim spousal maintenance order is too high and the obligation to pay it under the current order causes the husband financial hardship. Leave to appeal should be granted.The proposed appeal

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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