Seitzinger & Seitzinger - [2014] FamCAFC 244

FAMILY COURT OF AUSTRALIA

SEITZINGER & SEITZINGER

[2014] FamCAFC 244

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the wife sought interim spousal maintenance of $1,000 per week and her application was dismissed – Where the husband has a high income and the wife lives on social security and charity – The magistrate erred in finding the wife had worked full-time after the separation – The magistrate erred in finding that the wife had capacity to work despite medical evidence indicating she was suffering from depression – Merit found in other complaints – Application for leave to appeal allowed and appeal allowed in relation to this issue – Matter remitted for rehearing – Costs certificates granted for the appeal and rehearing.

FAMILY LAW – APPEAL – COSTS – Where the wife sought an interim lump sum payment of $50,000 for her legal costs or a “dollar for dollar” order in the alternative and her application was dismissed – The magistrate was correct in placing weight on the husband’s offer to assist the wife to obtain a loan secured over the unencumbered matrimonial home to cover her legal fees – Application for leave to appeal refused.

Family Law Act 1975 (Cth), s 72, s 79
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004 (Cth), r 5.01, r 15.41

Harris and Harris (1993) FLC 92-378
Jess and Ors & Jess and Ors [2014] FamCAFC 227
Murkin & Murkin (1980) FLC 90-806
Strahan & Strahan (2011) FLC 93-466

APPELLANT:

Ms Seitzinger

RESPONDENT:

Mr Seitzinger

FILE NUMBER:

PTW

3309

2013

APPEAL NUMBER:

16L

2014

DATE DELIVERED:

24 December 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

27 November 2014

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

23 June 2014

LOWER COURT MNC:

[2014] FCWAM 107

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Farmer

SOLICITOR FOR THE APPELLANT:

Siobhan M Vincent & Associates

COUNSEL FOR THE RESPONDENT:

Mr Berry SC

SOLICITOR FOR THE RESPONDENT:

Clairs Keeley

Orders

The appellant have leave to appeal against the dismissal of her application for interim periodic spousal maintenance.
The application for leave to appeal be otherwise dismissed.
The appeal against the order of Acting Magistrate De Maio made on 23 June 2014 dismissing the appellant’s application for interim periodic spousal maintenance be allowed.
The order of Acting Magistrate De Maio made on 23 June 2014 dismissing the appellant’s application for interim periodic spousal maintenance be discharged.
The appellant’s application for interim periodic spousal maintenance be remitted for hearing in the Magistrates Court of Western Australia before a Magistrate other than Acting Magistrate De Maio.
There be no order as to the costs of the appeal.
The court grants to the appellant a costs certificate pursuant to the provisions of 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…

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: Seitzinger & Seitzinger [2014] FamCAFC 244
Case: [2014] FamCAFC 244
Decision Date: 24 December 2014

CaseChat Overview and Summary

The matter before the court was an appeal against the decision of Acting Magistrate De Maio, who dismissed the appellant’s application for interim periodic spousal maintenance. The appellant, who relied on social security and charity for her livelihood, sought $1,000 per week in spousal maintenance from the respondent, a high-income earner. The appeal also addressed the dismissal of the appellant's request for a lump sum payment of $50,000 or a "dollar for dollar" order for her legal costs.

The central legal issues were whether the magistrate correctly dismissed the appellant's application for spousal maintenance and whether the magistrate was justified in rejecting the lump sum payment for legal costs. The appellant argued that the magistrate erred in finding she had worked full-time after the separation and had the capacity to work despite medical evidence of depression. The respondent contended that the magistrate's decision should be upheld. The court needed to determine if the magistrate's findings were supported by the evidence and if the orders on spousal maintenance and legal costs were appropriate.

The court found merit in the appellant’s appeal concerning the spousal maintenance. The magistrate's conclusion that the appellant had worked full-time after the separation was incorrect, as the evidence indicated otherwise. Additionally, the magistrate overlooked the medical evidence of the appellant’s depression, which undermined the finding of her capacity to work. Therefore, the appeal was allowed regarding the spousal maintenance order, and the matter was remitted for rehearing before a different magistrate. Concerning the legal costs, the court upheld the magistrate's decision, finding that the respondent's offer to assist the appellant in obtaining a loan secured over the matrimonial home was reasonable.

The court granted the appellant leave to appeal against the dismissal of her application for interim periodic spousal maintenance and allowed the appeal in relation to that issue. The order dismissing the appellant's application for spousal maintenance was discharged, and the matter was remitted for rehearing. Costs certificates were granted to both parties for the appeal and the rehearing. No order was made regarding the costs of the appeal.

Orders

Orders of the court

The appellant have leave to appeal against the dismissal of her application for interim periodic spousal maintenance.

The application for leave to appeal be otherwise dismissed.

The appeal against the order of Acting Magistrate De Maio made on 23 June 2014 dismissing the appellant’s application for interim periodic spousal maintenance be allowed.

The order of Acting Magistrate De Maio made on 23 June 2014 dismissing the appellant’s application for interim periodic spousal maintenance be discharged.

The appellant’s application for interim periodic spousal maintenance be remitted for hearing in the Magistrates Court of Western Australia before a Magistrate other than Acting Magistrate De Maio.

There be no order as to the costs of the appeal.

The court grants to the appellant a costs certificate pursuant to the provisions of 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 her in relation to the appeal.

The court grants to the respondent a costs certificate pursuant to the provisions of 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 him in relation to the appeal.

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 of the application for interim periodic spousal maintenance.

Background

Background to the litigation

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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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