Sabrige and Sabrige
[2018] FamCAFC 250
•12 December 2018
FAMILY COURT OF AUSTRALIA
| SABRIGE & SABRIGE | [2018] FamCAFC 250 |
| FAMILY LAW – APPEAL – INTERIM PARENTING – INTERIM SPOUSAL MAINTENANCE – Where the appeal was allowed by consent – Where the Full Court was satisfied of appealable error – Where the primary judge failed to give adequate reasons – Where the primary judge failed to consider legal principles and mandatory legislative considerations – Where the primary judge made orders for interim spousal maintenance without affording the parties procedural fairness – Appeal allowed by consent – Costs certificates ordered. |
| Australian Constitution s 92 Family Law Regulations 1984 (Cth) reg 15A |
| A v A: (Relocation Approach) (2000) FLC 93-035; [2000] FamCA 751 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Ashton and Ashton (1982) FLC 91-285; [1982] FamCA 9 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Bhatnagar & Riju [2018] FamCAFC 144 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Chapman and Chapman (1979) FLC 90-671; [1979] FamCA 14 Citigroup Pty Ltd v Mason (2008) 171 FCR 96; [2008] FCAFC 151 Clague and Clague (1987) FLC 91-810; [1987] FamCA 29 Goode and Goode (2006) FLC 93-286; [2006] FamCAFC 1346 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Keehan & Keehan (No. 2) [2018] FamCAFC 139 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Pettitt v Dunkley [1971] 1 NSWLR 376 Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348 Sampson & Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365 Simpson & Brockmann (2009) FLC 93-403; [2009] FamCAFC 73 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Telstra Corporation Ltd v Minister for Broadband, Communicationsandthe Digital Economy (2008) 166 FCR 64; [2008] FCAFC 7 Vanzin & Vanzin [2014] FamCAFC 245 |
| APPELLANT: | Ms Sabrige |
| RESPONDENT: | Mr Sabrige |
| FILE NUMBER: | BRC | 3936 | of | 2018 |
| APPEAL NUMBER: | NOA | 49 | of | 2018 |
| DATE DELIVERED: | 12 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy, Aldridge & Kent JJ |
| HEARING DATE: | 28 September 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 31 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bunning |
| SOLICITOR FOR THE APPELLANT: | KLM Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Sorensen |
| SOLICITOR FOR THE RESPONDENT: | RB Family Law |
it is ordered by consent:
Pursuant to s 94AA of the Family Law Act 1975 (Cth) the appellant has leave to appeal the Orders of Judge Egan dated 31 May 2018.
The Appeal be allowed.
Orders 16, 17, 18, 19, 31 and 32 of the Orders of Judge Egan dated 31 May 2018 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for rehearing before a Judge, other than Judge Egan.
it is further ordered:
Each party bear their own costs of and incidental to the appeal.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing.
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 Sabrige & Sabrige 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 49 of 2018
File Number: BRC 3936 of 2018
| Ms Sabrige |
Appellant
And
| Mr Sabrige |
Respondent
REASONS FOR JUDGMENT
On 28 September 2018, orders by consent were made granting leave to appeal and allowing an appeal against interim parenting and spousal maintenance orders made by Judge Egan on 31 May 2018. We indicated that we would deliver reasons as to why we agreed that error was established. These are those reasons.
There is judicial debate regarding whether an appellate court must be satisfied of error when parties consent to allowing an appeal.[1] The Full Court of the Federal Court of Australia in Telstra Corporation Ltd v Minister for Broadband, Communicationsandthe Digital Economy[2] said (in relation to an analogue of s 94(2)[3] of the Family Law Act 1975 (Cth) (“the Act”)):
43In making any consent order the Court must be satisfied that the order is within power and appropriate. The question is whether, before it can make an order allowing an appeal by consent of the parties, the Court must be satisfied that there was a legal or factual error or an error in the exercise of a discretion by the primary judge.
…
51In our opinion none of the preceding authorities relieves this Court of the duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error.
[1] Bhatnagar & Riju [2018] FamCAFC 144 at [3] – [7]. See also, Simpson & Brockmann (2009) FLC 93-403 at [5] – [6] (Warnick J).
[2] (2008) 166 FCR 64 (“Telstra Corporation”); cf decision in Citigroup Pty Ltd v Mason (2008) 171 FCR 96, particularly at [7] – [8].
[3] See, Federal Court of Australia Act 1976 (Cth) s 28.
For our part, we respectfully agree.
The context for the proceedings at first instance
Prior to separation in March 2018, the parties were in a relationship for about six and a half years (having been married for nearly three of those years). The mother is the full-time carer of the parties’ only child, K. K is now five years old. At the time of separation, the mother unilaterally moved with the child from the parties’ residence in E City to D Town. The issues on appeal arise as a result of that move.
The mother alleges that the father perpetrated family violence against her. Temporary Protection Orders were made in March 2018 and on that date, the father also signed an undertaking on a “without admissions” basis that he would “be of good behaviour towards the [mother and K] and not commit an act of domestic violence” against them. The father denies the allegations and asserts that it is the mother who instigates physical violence. Understandably, given the interlocutory nature of the proceedings before his Honour, no findings were made, or could have been made, in relation to that vigorously contested issue.
The parties initially participated in a dispute resolution conference on 29 March 2018 which resulted in the father spending two consecutive nights with the child on 29 and 30 March 2018, and then one night per week from 5.30 pm on Friday until 5.30 pm on Saturday. The father deposes to his view that it is not “in K’s best interests to have her time with [the father] restricted to one (1) night a week”.[4] The father filed an Initiating Application on 12 April 2018 seeking return of the child to E City.
[4] Father’s affidavit filed 12 April 2018 at paragraph 27.
His Honour made interim parenting orders on 31 May 2018. His Honour did not publish reasons for judgment. If reasons were given at all they must be gleaned from the transcript of proceedings.
The appeal relates to Orders 16 – 19 and 31 – 32 of those orders. As will be seen, there was some difficulty with the mother’s compliance with those orders. In summary, those orders provided that:
a)The child spend time with the father from 6.00 pm on Friday until 5.00 pm on Sunday with changeovers to occur at E City McDonald’s;
b)The “mother shall relocate with the child to E City”;
c)The father shall vacate the former matrimonial home for two weeks to allow the mother to move in, and the mother shall within that time identify a suitable three-bedroom rental property within three kilometres of the child’s school;
d)The father shall pay the bond, electricity, water, rent and other charges for the mother’s rental property and pay the mother $300 per week in interim spousal maintenance;
e)The father shall communicate with the child via Skype or FaceTime for 20 minutes each Wednesday between 4.00 pm and 6.00 pm or as otherwise agreed; and
f)The parties shall do all acts and things necessary to re-enrol K at E City State School.
The mother did not comply with his Honour’s orders. The court record shows that on 28 August 2018, Magistrate Madsen made orders in the Magistrate’s Court of Queensland pursuant to s 68R of the Act varying his Honour’s orders.
The effect of those orders was that the child was to live with the father until further order. On the same day, and in breach of those orders, the mother unilaterally took possession of the child. A recovery order was made that afternoon for the return of the child to the father’s care.
On 11 September 2018, orders were made by Judge Coates which reinstated the orders originally made by Judge Egan on 31 May 2018. No appeal was lodged in respect of Judge Coates’ orders; the appeal relates only to the orders initially made by Judge Egan.
Leave to appeal and the mother’s grounds of appeal
Given the interlocutory nature of the spousal maintenance orders, the mother is required to seek leave to appeal.[5] We are satisfied that leave to appeal should be granted. As will emerge, we are satisfied that his Honour’s interim spousal maintenance order is attended by sufficient doubt and that the father suffers injustice.
[5] Family Law Act 1975 (Cth) s 94AA. Leave is not required in respect of the interim parenting orders: Family Law Regulations 1984 (Cth) reg 15A.
The mother’s Amended Notice of Appeal contains four grounds of appeal. Ground 1.1 asserts that his Honour erred by ordering the mother to return to E City with the child “without properly considering or giving reasons” in respect of a number of matters listed. Ground 1.2 asserts procedural unfairness in the making of the spousal maintenance orders and lists various matters demonstrative of that assertion. Ground 1.3 asserts that his Honour erred by “not affording the Mother the opportunity to spend meaningful time with the child”. Finally, ground 1.4 asserts that his Honour made orders that the child communicate with the father via Skype, “without properly considering” the assertions as to domestic violence.
We think it is appropriate to summarise these grounds into the following broad categories:
a)His Honour’s reasons were inadequate (Grounds 1.1 and 1.4);
b)His Honour failed to consider the relevant legal principles and the legislative pathway in coming to the parenting decision that he did (Ground 1.3); and
c)His Honour made orders for spousal maintenance without there being an application before the Court and without any necessary evidence being before the Court (Ground 1.2).
Inadequacy of Reasons
Counsel for the mother asserts in his written submissions that his Honour “failed to give sufficient (or it is submitted) any Reasons for Judgment in the matter”. Grounds 1.1 and 1.4 refer to matters which, counsel submits, his Honour failed to take into account in making orders that the mother and child return to E City and orders in respect of time and communication with the father.
His Honour did not give reasons. Nothing contained within the transcript provides an explanation, much less an adequate explanation, for the parenting orders that were made. Nor does the transcript provide any foundation for concluding that his Honour considered or met the mandatory requirements of Part VII of the Act. The same is true of the orders for interim spousal maintenance.
This Court said recently in Keehan & Keehan (No. 2):[6]
18. This is by no means the first case in which an appeal from the Federal Circuit Court of Australia has seen no formal reasons and either an express or implied reliance upon the transcript as those reasons. Whether or not as a matter of law the transcript can stand as reasons, it is a practice – certainly in respect of a trial – which, with all respect, in my view, should cease. Whatever might be thought of the merits of a party’s case, formal reasons, however brief and suited to the proceedings at hand, are an essential part of transparent justice.
[6] [2018] FamCAFC 139 (Murphy J; Aldridge and Kent JJ agreeing).
That statement reflects the dictates of earlier authority. “[I]t is the duty of the judge, unless there are exceptional circumstances, to give some indication of the basis of his decision”.[7] However, the rule is not hard and fast:[8]
as in other cases of judicial discretion, it may be possible for an appellate court to conclude from the mere circumstances of the case or any reason assigned that the decision to give no reasons proceeded on some error in principle as to the duty involved.
(Citations omitted)
[7]Pettitt v Dunkley [1971] 1 NSWLR 376 at 390 (Moffitt JA; Manning JA agreeing).
[8]Pettitt v Dunkley at 390 (Moffitt JA; Manning JA agreeing).
Thus, the extent of adequate reasons will depend on the nature of the case and its issues. For example, it is not “necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant”, nor for example, “where the considerations of fact and law are clear”.[9] Rather, “[t]he adequacy of the reasons will depend upon the circumstances of the case”.[10]
[9]Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 (Mahoney JA).
[10]Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 (Gray J; Fullagar and Tadgell JJ agreeing).
However:[11]
subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.
[11]Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 (Mahoney JA).
Interim decisions in the Federal Circuit Court of Australia have a particular context. Almost invariably they “are made within busy lists containing many cases with equal claims to be heard” and embrace “‘…an abridged process where the scope of the inquiry is significantly curtailed’ (Goode & Goode (2006) FLC 93-286 at [68])”.[12]
[12]Vanzin & Vanzin [2014] FamCAFC 245 at [20] (Murphy J).
However, those considerations do not:[13]
21.…obviate the need to give reasons for the decision reached; the orders pertain to the life of a child, however benign the issues might seem, and the parents should know why a decision has been reached (see for example, Kirby J writing extra-curially ‘Always permissible, usually desirable and often obligatory’ (1994) 12 ABR 121,135-6)…
[13]Vanzin & Vanzin (Murphy J).
The proceedings before his Honour concerned the living arrangements of a five year old child pending a trial. In such proceedings, even though interlocutory in nature, “very vulnerable and significant interests are at stake”.[14] Judicial decisions in such cases involve the application of a particular statutory framework (both the provisions of the Act and the relevant Rules) that aims to fulfil important objectives and principles as set out at the commencement of Part VII of the Act.[15]
[14] See, CDJ v VAJ (1998) 197 CLR 172 at 231 (Kirby J).
[15]Family Law Act 1975 (Cth) s 60B.
Fundamentally, the fact that the parenting proceedings are interlocutory does not deter from the necessity to comply with the considerations mandated by Part VII of the Act.[16]
[16]Goode and Goode (2006) FLC 93-286 at [82]; Banks & Banks (2015) FLC 93-637.
His Honour made an order by consent for equal shared parental responsibility. Accordingly, the power to make any parenting order is conditioned by the requirements of s 65DAA.[17] His Honour refers to neither during the course of the proceedings, and nothing contained within the transcript suggests any consideration of the mandatory pre-condition to the exercise of the power which his Honour was seeking to invoke.
[17]MRR v GR (2010) 240 CLR 461.
Furthermore, the proceedings before his Honour required a determination as to whether K’s best interests were served by returning her to E City, in circumstances where the mother unilaterally moved her about a two-hour drive from the father. A consideration of K’s best interests required consideration of the fact that, prior to separation, K had, on both parties’ evidence, spent significant time with both her parents.
As a pre-condition to the exercise of the s 65D power, his Honour was required to sequentially consider equal time and substantial and significant time and to explain, however briefly, his conclusions for making, or not making, orders meeting those definitions.
Plainly enough, this matter required, albeit on an interim basis with all that implies, the determination of significant issues. Those determinations, as is the case in most, if not all, proceedings involving children, will have significant consequences for K.
Against that background of the issues and the legislative requirements sits a complete lack of reasons for his Honour’s decision. The challenge as to inadequacy of reasons embraced by grounds 1.1 and 1.4 must succeed. The concession that error is established is properly made.
Consideration of Section 65DAA
We have already observed that it is not possible to discern if, or in what manner, his Honour considered the mandatory requirements of, in particular, s 65DAA.[18]
[18] Section 65DAA(6) of the Act does not apply. While the order for equal shared parental responsibility was by consent, the Court was not being asked “to make a parenting order with the consent of all the parties to the proceedings” because, relevantly, only the equal shared parental responsibility order was made by consent.
Not only was a consideration of equal time, and substantial and significant time, required by s 65DAA, a specific proposal put forward by the father sought interim parenting orders that K initially spend time with him six nights per fortnight building to equal time from Term 1, 2019. His Honour not only gave no reasons for rejecting that proposal (whatever its merits or otherwise might have been), but nothing within the transcript reveals his Honour engaging with the proposal at all.[19]
[19] See, transcript, 31 May 2018, p 10 ln 25 to p 11 ln 18; p 12 ln 45 to p 13 ln 3; p 13 ln 40 to p 14 ln 16.
His Honour commented that the father was “not in a position to have shared care” but the evidence of the father to the contrary was not at all addressed by his Honour.
Further, the effect of his Honour’s orders is that the mother will see the child only during the week and on Sunday evening in circumstances where the child is attending school. The requirements of s 65DAA, and in particular s 65DAA(2), are bilateral. There is no indication in the transcript that his Honour considered the mandatory requirements of that section.
Counsel for the mother also challenges Order 18. That order provides that “the mother shall relocate with the child to [E City]” (emphasis added). Counsel asserts that his Honour’s orders failed to take into account “well established law that an adult has a right to live where they wish”.[20] In so asserting, counsel cites s 92 of the Australian Constitution, AMS v AIF[21] and A v A (Relocation Approach).[22] Relying on what was said by the majority in Sampson & Hartnett (No. 10),[23] it is contended that any such order should only be made in exceptional circumstances and nothing about the circumstances here can be properly so regarded.[24]
[20] Mother’s Summary of Argument filed 10 September 2018 at paragraph 30.
[21] (1999) 199 CLR 160.
[22] (2000) FLC 93-035.
[23] (2007) FLC 93-350.
[24] (2007) FLC 93-350 (Bryant CJ and Warnick J), particularly at 82,016 [58] – 82,017 [59].
Nothing within the transcript reveals reference by his Honour to the relevant legal principles nor any “exceptional circumstances” justifying an order dictating where the mother should live. Conversely neither by reference to the required mandatory legislative considerations nor more broadly, does his Honour provide reasons as to how and why K’s best interests dictated where she should live, with whom and for what periods.
Ground 1.3 is made out. The concession as to appealable error is properly made.
Procedural unfairness in the orders for spousal maintenance
Ground 1.2 asserts procedural unfairness in that his Honour made orders for spousal maintenance (Orders 19(d) and (e)) without any application being before the Court; without any notice being given to the parties; and without any evidence as to the parties’ financial positions.
In Allesch v Maunz,[25] Kirby J said:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”…
[25] (2000) 203 CLR 172 at 184 [35]; see also, Re F: Litigants in person guidelines (2001) FLC 93-072 at 88,279 [253].
Section 77 of the Act permits the making of an urgent spousal maintenance order where the Court is satisfied that a “party is in immediate need of financial assistance” but that in the circumstances it is “not practicable … to determine immediately what order, if any, should be made”. Such applications can be made orally.[26]
[26]Clague and Clague (1987) FLC 91-810 at 76,108.
No s 77 application was made by the mother either ahead of the hearing or orally at it.
The orders made are orders for “interim spousal maintenance”. The requirements for orders of that type differ to those applicable to an application for urgent spousal maintenance.[27] However, no application for interim spousal maintenance was made by the mother either. In that respect, it should be noted that the father had offered to “pay for a bond and … assist [the mother] with her rent” in the event that K and the mother returned to E City.[28]
[27]Ashton and Ashton (1982) FLC 91-285 at 77,613–4 (Nygh J).
[28] Transcript, 31 May 2018, p 12 ln 38–40.
Unsurprisingly, absent the urgent and necessitous circumstances contemplated for a s 77 order, applications for spousal maintenance, including interim spousal maintenance, are to be made on notice and are to be accompanied by sworn evidence deposing as to the required need and incapacity to meet that need. Thereafter, what is contemplated is a hearing at which, in cases of interim maintenance, a short exploration of those issues and the putative payer’s capacity to meet an established need is conducted before orders are made.
Those requirements are familiar in any event to ordinary notions of procedural fairness. Conversely, s 77 applications are rare and are “intended to deal with urgent situations” and are “normally relevant for a defined or definable period of time”.[29]
[29]Chapman and Chapman (1979) FLC 90-671 at 78,569.
None of the requirements for an interim spousal maintenance order were met in this case. There were no sworn financial statements from either party nor any other evidence of need or capacity to pay. Indeed, the suggestion that the mother might make such an application emanated entirely from his Honour:[30]
[30] Transcript, 31 May 2018, p 17 ln 17 to p 18 ln 4.
[HIS HONOUR:] …how many bedrooms and, sort of, swimming pool and – what’s the present home?
[FATHER’S SOLICITOR]: Six bedrooms in the home.
HIS HONOUR: Well, she doesn’t need six bedrooms…
[FATHER’S SOLICITOR]: She has her own makeup room and – you mean where she will stay?
HIS HONOUR: No. No. I’m talking about the renting of a property. Part of her interim spousal maintenance will have to be that [the father] pays the rent and maintenance for a property.
[FATHER’S SOLICITOR]: There’s no property application before the court, your Honour, and I’m just clarifying that, just in case - - -
HIS HONOUR: Well, [the mother] can make an oral application and I will make an order, because it’s only proper that that be done.
[FATHER’S SOLICITOR]: Yes. Thank you.
HIS HONOUR: So you better get some instructions as to how much he should pay per week, in addition to paying for a rental property.
[FATHER’S SOLICITOR]: Thank you, your Honour.
His Honour’s proposed order was answered, it seems, by reference to this exchange:[31]
[31] Transcript, 31 May 2018, p 20 ln 23 to p 21 ln 21.
[FATHER’S SOLICITOR]: The instructions you asked me to seek, he said that he understood that the rent could be at $350 per week and then he would – $300 - - -
HIS HONOUR: It’s going to be more than that.
[FATHER’S SOLICITOR]: $300 per week - - -
HIS HONOUR: It’s going to be more than that.
[FATHER’S SOLICITOR]: - - - spousal maintenance.
HIS HONOUR: It’s going to be more than that.
[FATHER’S SOLICITOR]: I’m sorry. I thought you asked me to obtain instructions and I just did. That’s – if you’re not happy with that figure then - - -
HIS HONOUR: Well - - -
[FATHER’S SOLICITOR]: - - - we’re obviously in your hands, but - - -
HIS HONOUR: - - - it just seems to me that the amount of rental will be the going rate for three bedroom homes within three kilometres of the city – of the school.
[FATHER’S SOLICITOR]: Yes. I mean, obviously, because - - -
HIS HONOUR: And I don’t know - - -
[FATHER’S SOLICITOR]: - - - then I could get three rentals that are the peak rentals on the market in the area. That’s all.
HIS HONOUR: Well, that’s why it has to be - - -
[FATHER’S SOLICITOR]: There has got to be some sense of capping.
HIS HONOUR: - - - reasonable accommodation. I said - - -
[FATHER’S SOLICITOR]: Reasonable. Thank you.
HIS HONOUR: - - - for the reasonable housing. I mean, he doesn’t want his daughter living in a hovel.
[FATHER’S SOLICITOR]: No.
HIS HONOUR: And I imagine he wouldn’t be wanting the wife to live in a hovel, so it has got to be a decent property. He is to pay for that and he has to pay her whatever the going rate is, as assessed by Child Support.
His Honour’s order was made without notice to the father and without any application from the mother prior to her being invited to make an oral application by his Honour. There was no evidence before his Honour of the father’s financial circumstances and, then, the necessary need and capacity to pay. There was no evidence of what the father’s child support obligation would be consequent upon the parenting orders which his Honour was to make. The father had no proper opportunity to meet a case for interim spousal maintenance. His Honour did not engage in the process required for determining interim spousal maintenance applications.[32]
[32]Family Law Act 1975 (Cth) ss 72, 74 and 75.
His Honour gave no reasons for making an order for spousal maintenance nor for the quantum arrived at.
Ground 1.2 is made out. The concession as to appealable error is properly made.
Conclusion
We are satisfied that his Honour’s orders were affected by appealable error justifying the parties seeking that the appeal be allowed by consent.
We are satisfied the errors are those of his Honour to which neither party actively contributed. There are no circumstances which justify an order that one party pay the other’s costs. As the errors arose because of errors of law by his Honour, certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are warranted and orders to that effect are made accordingly.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 12 December 2018.
Associate:
Date: 12 December 2018
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