Rosser & Rosser

Case [2023] FedCFamC1A 164

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Rosser & Rosser [2023] FedCFamC1A 164

Application for leave to appeal from: Rosser and Rosser [2023] FCWAM 57
Appeal number(s): NAA 96 of 2023
File number(s): 3582 of 2022
Judgment of: RIETHMULLER J
Date of judgment: 29 September 2023
Catchwords: FAMILY LAW – LEAVE TO APPEAL – Property - Interim costs order for litigation funding – Partial property settlement order - Where application for adjournment refused - Where the applicant alleges procedural unfairness as a result of comments in argument – Test for partial property settlement – No substantial injustice – Leave to appeal is refused
Legislation:

Family Law Act 1975 (Cth) ss 79, 80, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4

Family Court Rules 2021 (WA) r 146

Cases cited:

CDJ v VAJ (1988) 197 CLR 172; [1998] HCA 67

Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633

Medlow & Medlow (2016) FLC 93‑692; [2016] FamCAFC 34

Strahan & Strahan (Interim property orders) (2009) FLC 93-466; [2009] FamCAFC 166

Wenz & Archer (2008) 40 Fam LR 212; [2008] FMCAfam 1119

Number of paragraphs: 40
Date of hearing: 10 August 2023
Place: Parramatta
Counsel for the Applicant: Mr Hedges
Solicitor for the Applicant: Bowen Buchbinder Vilensky
Counsel for the Respondent: Ms McShera
Solicitor for the Respondent: Price Family Law

ORDERS

NAA 96 of 2023
3582 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR ROSSER

Applicant
AND:

MS ROSSER

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

29 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.Appeal NAA 96 of 2023 be dismissed.

3.The applicant pay the respondent’s costs fixed at $11,000.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rosser & Rosser has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RIETHMULLER J

  1. The applicant and the respondent were married in February 2004 (after cohabiting from 1999). They have four children together who are now between 14-21 years of age. They separated in April 2018 and divorced in May 2021. In 2022, after a 23-year relationship, property settlement proceedings were commenced in…

Continue reading Rosser & Rosser

Sign in free to access the full text

Details
AGLC
Rosser & Rosser [2023] FedCFamC1A 164
Case
[2023] FedCFamC1A 164
Decision Date

CaseChat Overview and Summary

The case of Rosser & Rosser involved an appeal against a decision made by the Magistrates Court of Western Australia in a family law matter. The appellant sought leave to appeal the decision, including the option to present new evidence that was not submitted at the first instance. The Federal Circuit and Family Court of Australia was tasked with deciding whether the appellant should be granted leave to appeal and, if so, whether new evidence could be presented. The court needed to assess the merits of the appeal and whether the appellant had demonstrated that the magistrate's decision was sufficiently doubtful to warrant reconsideration by the Full Court. Additionally, the court had to determine if the appellant had shown that a substantial injustice would occur if leave to appeal was refused.

The court examined the grounds for appeal and the proposed new evidence. Regarding the new evidence, the court found that the material concerning the former trustee in bankruptcy did not pertain to the adjournment application but rather to a new basis for an application under section 79(5) of the Family Law Act 1975 (Cth). This new evidence did not demonstrate any appealable error by the magistrate and could not be the basis for an appeal. The court also considered the evidence concerning a supposed error in the amount owed by the appellant to a company, which was strongly disputed by the respondent. The court concluded that even without this alleged asset, the appellant had sufficient capacity to meet the payments ordered by the magistrate.

The court dismissed the application for leave to appeal, finding that the appellant had not demonstrated sufficient doubt about the magistrate's decision or that a substantial injustice would result if leave were refused. The court also refused the application to lead further evidence on the appeal, stating that the proposed evidence either pertained to a new basis for an application or involved a factual dispute that did not impact the magistrate's assessment of the appellant's capacity to meet the ordered payments. The court ordered that the appellant pay the respondent's costs of the appeal, setting the amount at $11,000 based on the submissions from both parties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 26(1)(f)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides for jurisdiction to hear and determine appeals from a judgment of the Magistrates Court of Western Australia exercising original jurisdiction under the Family Law Act 1975 (Cth) (“the Act”). Leave to appeal is required to appeal from a prescribed judgment of the Magistrates Court of Western Australia (s 28(1)(b) of the FCFCOA Act). A ‘prescribed judgment’ includes an interlocutory decree (reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)). Interim costs orders, partial property settlement orders and adjournment applications are all interlocutory orders. To obtain leave to appeal, the applicant must demonstrate that the decision of the learned magistrate was “attended by sufficient doubt to warrant it being reconsidered by the Full Court and [that] substantial injustice would result if leave were refused, supposing the decision to be wrong”: see Medlow & Medlow (2016) FLC 93-692 at [57].Application to lead further evidence Whilst it is open to the court to permit further evidence to be led on appeal (see CDJ v VAJ (1988) 197 CLR 172), parties are generally bound by the case they present at first instance. Leave to adduce further evidence on appeal was refused at the hearing of the appeal with reasons to be provided later. The applicant sought leave to lead further evidence on the application for leave to appeal with respect to the issues identified in Ground 3 and Ground 4 of the proposed appeal. The evidence sought to be led in support of Ground 3 was to the effect that on 1 December 2022, the parties had received demands, and later were served with proceedings, from their former trustee in bankruptcy, seeking to recover property from them. This material does not go to the application for an adjournment filed 16 November 2022 before the learned magistrate but goes to a new basis for an application pursuant to s 79(5) of the Act raised orally at the hearing without any evidentiary basis. It does not demonstrate appealable error on the part of the learned magistrate, rather, it may be the basis for a separate interlocutory application. The appropriate course for the applicant is to bring such an application at first instance supported by appropriate affidavit evidence, rather than to attempt to litigate this issue by leading evidence (for the first time) on appeal. Leave to lead further evidence with respect to Ground 3 was therefore refused. The further evidence with respect to Ground 4 founded an argument that the learned magistrate acted upon a wrong fact: that the applicant was owed $50,000 by a company in which he has an interest. The affidavit alleges that this fact, which had been put forward in the applicant’s material before the learned magistrate (and confirmed in submissions by his representatives), was an error, alleging that in reality the applicant owes the company $50,000. The factual claim is strongly disputed by the respondent. The learned magistrate relied upon the proposition that the applicant was owed $50,000 when assessing his capacity to meet the terms of the orders that were made. However, this amount was only one item in a list of assets of the applicant that the learned magistrate found were reasonably available to meet the payments required by the orders. Even without the $50,000, the other assets relied upon by the learned magistrate would be sufficient to meet the payments ordered.

Decision

Reasons for decision

In the absence of evidence to show an error of fact, this ground must be dismissed. In any event, as identified above, the evidence accepted by the learned magistrate showed that the applicant had sufficient capacity to meet the payments set out in the disputed orders even without this alleged asset. This ground is without merit.Conclusion In this matter I am not persuaded that the applicant should be granted leave to appeal. The application for leave to appeal should be dismissed. The applicant has been wholly unsuccessful on the appeal, following a detailed judgment at first instance. The parties’ financial circumstances are referred to above. I am persuaded that in the circumstances of this case, the applicant should pay the costs of the respondent for the appeal pursuant to s 117 of the Act. Counsel for the respondent submitted that costs be fixed at the amount set out in their schedule of costs, $12,472, including $4,322 for solicitors’ fees. The applicant submits that two-thirds of the respondent’s quantum is reasonable. The applicant’s costs schedule set out the applicant’s estimated party and party costs at $17,285.01, including $2,655.01 for solicitor’s fees. The time spent by counsel is similar in both costs estimates (although the applicant’s costs came to a greater total as the applicant was represented by senior counsel). One would ordinarily expect the applicant’s solicitor’s fees to be greater than the respondent’s fees as the applicant is the party instigating the appeal. Both parties are content for me to make a lump sum assessment rather than referring the costs for assessment. I find that $11,000 is a reasonable amount for the respondent’s party and party costs in this matter and make orders accordingly.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.