REDDINGTON & PONTOW
[2018] FamCAFC 33
•8 February 2018
FAMILY COURT OF AUSTRALIA
| REDDINGTON & PONTOW | [2018] FamCAFC 33 |
| FAMILY LAW – LEAVE TO APPEAL – where the primary judge dismissed an application pursuant to s 44(6) – where leave to appeal is required – where the grounds contain arguable errors of principle by the primary judge – where the husband contended that the property was “so small” that no substantial injustice could occur – where the value of the parties’ property was not agreed, nor was it the subject of findings – where refusing leave would result in substantial injustice to the wife – application for leave to appeal allowed – costs reserved to the Full Court. |
| Family Law Act 1975 (Cth) ss 44(3), 44(6) |
| Carlon and Carlon (1982) FLC 91-272 Emamy and Marino (1994) FLC 92-487 |
| APPLICANT: | Ms Reddington |
| RESPONDENT: | Mr Pontow |
| FILE NUMBER: | BRC | 2068 | of | 2017 |
| APPEAL NUMBER: | NOA | 44 | of | 2017 |
| DATE DELIVERED: | 8 February 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ainslie‑Wallace and Murphy JJ |
| HEARING DATE: | 8 February 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 2293 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Ryan, Ryan Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Kingston, Norman & Kingston |
Orders
The applicant have leave to appeal the order made by Judge Vasta on 4 August 2017.
The matter be referred to the Appeals Registrar for directions as to the preparation for, and the hearing of, the appeal.
The costs of today be reserved to the Full Court on the hearing of the appeal.
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 Reddington & Pontow 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 44 of 2017
File Number: BRC 2068 of 2017
| Ms Reddington |
Applicant
And
| Mr Pontow |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
MURPHY J
[1]As was stated would occur when this judgment was delivered orally, citations quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons.
On 4 August 2017, Judge Vasta dismissed an application for leave to institute proceedings pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”). The applicant seeks leave to appeal that decision. That application is heard discretely by us this morning.
In respect of whether leave to appeal is in fact necessary, in Taffa & Taffa,[2] which involved a question of whether leave to appeal was required in respect of an application for settlement of property in a marriage filed out of time, reference was made at [10] to the debate that ensued following the decisions in Emamy and Marino[3] and in Thallon and Thallon.[4] It was held in Taffa, that since the decisions to which I have earlier referred were handed down “this Court has consistently held that leave is required to appeal an order refusing leave pursuant to s 44(3).”[5]
[2] [2014] FamCAFC 106 (‘Taffa’).
[3] (1994) FLC 92-487.
[4] (1992) FLC 92-322.
[5]At [10] citing Hedley & Hedley (2008) FLC 93-413; Richardson & Richardson [2008] FamCAFC 107; Sharp & Sharp [2011] FamCAFC 150.
I am unable to see any material difference between the requirements of s 44(3) and those of s 44(6), which I note are in effectively identical terms. In respect of the issue under discussion, in my view, it is correct for the parties to have proceeded on the basis that leave to appeal is required.
The prospective grounds of appeal relied upon are, with respect, poorly drawn, and resemble more an outline of argument in many respects. In some instances they appear, at least on their face, to refer to evidence which, by reference to his Honour’s reasons, does not appear to have been before him.
For present purposes, however, the grounds can be seen to articulate a prima facie case of error on the part of the primary judge. Further, it is, of course, this Court’s duty to correct error if it be discerned by us.[6]
[6] Warren v Coombes (1979) 142 CLR 531, 552.
It is sufficient for present purposes to say that, despite arguments to the contrary from the respondent, I am persuaded that there are fairly arguable errors of principle. For example:
a)the applicability of the s 44(6) requirement of hardship and the application of that;
b)the consideration by his Honour of child support in respect of an application pursuant to s 44(6);
c)what his Honour said about superannuation, and in particular the availability of superannuation splitting orders; and
d)what was said by his Honour with respect to the available remedies under State legislation if the application for leave before him was refused.
To the extent that it is argued in the written submissions filed by each of the parties, that in effect, the applicant’s delay should be effectively determinative of the issue of leave to appeal (as distinct from being an issue on the appeal itself), the argument should be rejected. See the decision of the Full Court in Carlon and Carlon.[7]
[7] (1982) FLC 91-272, 77,533; See also, Slocomb & Hedgewood (2015) FLC 93-678.
It is argued that the property of the parties, or either of them, is “so small” that no substantial injustice could occur and, related to that, that the cost of litigating the issue is out of proportion to its size.
In a sense, that argument reflects what his Honour said at [26]. For present purposes, it is sufficient to say that, in these leave proceedings, arguments might legitimately be advanced against that proposition. Further, as the solicitor for the applicant points out, the reference to the “pool of property” is a reference to property and values which had not as yet been agreed or otherwise the subject of findings in the substantive matter.
Substantial injustice results to the applicant, in my view, by reason of her inability to pursue an adjustment of property after a 12-year relationship that produced three children who are, it seems, in her primary care. The injustice alleged is exacerbated by the potential alternative remedies available to her under State legislation being of significantly narrower scope, including significantly, the availability of superannuation splitting orders.
In my view, the applicant establishes that there is the potential for argument in respect of errors of principle, and the applicant also establishes that substantial injustice would occur if leave to appeal was not granted.
I would order:
a)that the applicant be granted leave to appeal the orders of Judge Vasta made on 4 August 2017;
b)that the matter be referred to the Appeals Registrar for the making of all such directions as might be necessary for the appeal to proceed at the first available sittings of the Full Court.
I would reserve the question of the costs of this application to the Full Court.
AINSLIE-WALLACE J
I agree with the orders proposed by Justice Murphy and the reasons for making those orders.
STRICKLAND J
I too agree with the reasons given by Justice Murphy and the orders proposed by him. Thus, the orders of the court will be:
(1)The applicant have leave to appeal the order made by Judge Vasta on 4 August 2017.
(2)The matter be referred to the Appeals Registrar for directions as to the preparation for, and the hearing of, the appeal.
(3)The costs of today be reserved to the Full Court on the hearing of the appeal.
I certify that the preceding fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ainslie‑Wallace and Murphy JJ) delivered on 8 February 2018.
Associate:
Date: 19 February 2018
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