STAMMLER & STAMMLER
[2019] FamCAFC 174
•2 October 2019
FAMILY COURT OF AUSTRALIA
| STAMMLER & STAMMLER | [2019] FamCAFC 174 |
| FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal should be allowed, the order appealed be set aside, and the matter be remitted for rehearing – Where there is a basis here for leave to appeal to be granted and for the appeal to be allowed – Where it is conceded that the Magistrate was led into error as a result of incorrect facts put by the respondent in relation to his income – Leave to appeal granted – Appeal allowed – Order set aside – Proceedings remitted to the Magistrates Court of Western Australia for rehearing by a Magistrate other than the trial Magistrate. |
| Family Law Act 1975 (Cth) |
| Bhatnagar & Riju [2018] FamCAFC 144 |
| APPLICANT: | Ms Stammler |
| RESPONDENT: | Mr Stammler |
| FILE NUMBER: | PTW | 9071 | of | 2018 |
| APPEAL NUMBER: | WEA | L33 | of | 2019 |
| DATE DELIVERED: | 2 October 2019 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 2 October 2019 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT ORDER DATE: | 24 May 2019 |
| LOWER COURT MNC: | NA |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sommeville-Brown |
| SOLICITOR FOR THE APPLICANT: | Kim Wilson & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Beckerling |
| SOLICITOR FOR THE RESPONDENT: | Holden Barlow |
Orders by Consent
The time for the Notice of Appeal to be filed be extended to 2 September 2019 NOTING THAT on 2 September 2019 a Draft Notice of Appeal was received by the court being the Notice the applicant sought to proceed upon in the event of an extension of time to file that Notice being granted.
Leave to appeal be granted.
The appeal be allowed.
Paragraph 11 of the Orders of Magistrate Glass made on 24 May 2019 to the extent that it dismissed the applicant’s application for interim periodic spousal maintenance be set aside.
The application for interim periodic spousal maintenance be remitted for rehearing in the Magistrates Court of Western Australia before a Magistrate other than Magistrate Glass.
There be no order as to costs.
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 Stammler & Stammler 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA L33 of 2019
File Number: PTW 9071 of 2018
| Ms Stammler |
Applicant
And
| Mr Stammler |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court is an Application in an Appeal filed by Ms Stammler (“the wife”) on 2 September 2019, seeking an extension of time to file a Notice of Appeal against an order made by Magistrate Glass in the Magistrates Court of Western Australia on 24 May 2019.
In support of that application, there was an affidavit filed on 3 September 2019, and in addition, as is required, a Draft Notice of Appeal was forwarded to the court on 2 September 2019.
That Draft Notice of Appeal was the Notice that the applicant sought to proceed upon in the event of there being an extension of time.
Mr Stammler (“the husband”) consents to that application, and I propose to make an order extending the time for the Notice of Appeal to be filed to September 2019, namely the date that the court received the Draft Notice of Appeal, on the basis that that Notice of Appeal is the Notice that the applicant now seeks to pursue.
In that Notice of Appeal, as is required, leave to appeal is sought, and if leave is granted the appeal be allowed.
The parties have reached an agreement in relation to the appeal, both in respect of leave to appeal and the appeal itself, and seek that consent orders be made providing first, that leave to appeal be granted, secondly, the appeal be allowed, thirdly, paragraph 11 of the order made by the Magistrate on 24 May 2019, insofar as it dismissed the applicant’s application for interim periodic spousal maintenance, be set aside, and fourthly, the application for interim periodic spousal maintenance be remitted for rehearing in the Magistrates Court of Western Australia by a Magistrate other than Magistrate Glass.
The issue then for this Court is whether leave to appeal should be granted by consent, and then whether the appeal should be allowed by consent.
Having received submissions as to those matters from counsel, it seems that the basis of leave to appeal is the same as the basis on which it is agreed that the appeal should be allowed, and I will come to that in a moment.
In relation to whether an appeal should be allowed by consent, I refer to and quote from a decision of the Full Court of this Court in Bhatnagar & Riju [2018] FamCAFC 144, and specifically from the reasons for judgment delivered by Murphy J, which reasons were agreed to by Ainslie-Wallace J and myself, as follows:
3.There is some judicial debate as to whether an appellate court must be satisfied of error when an appeal by consent of the parties is sought to be allowed. In Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 246 ALR 15, the Full Court of the Federal Court said in relation to a provision similar to the relevant provision of the Family Law Act 1975 (Cth) (“the Act”):
[43]In 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.
4. The Full Court of the Federal Court concluded:
[51]In 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.
5.A subsequent Full Court of the Federal Court in Citigroup Pty Ltd v Mason (2008) 250 ALR 7, said that “there may be … a basis for concluding that [Telstra Corporation] was plainly wrong”, albeit that the later court conceded that, “[i]n the absence of that contention being advanced and detailed submissions” being provided, they were “constrained to follow the earlier Full Court’s judgment”.
6.I am only aware of one decision in this Court in respect of that issue, called Simpson & Brockmann (2009) FLC 93-403. In that case, Warnick J at [5] referred to “some debate in intermediate Appellate Courts” to which I have just referred. Although his Honour did not elaborate on that debate, his Honour said at [6]:
I, for myself, if satisfied that an Appellate Court can make orders allowing an appeal by consent and consequential orders, consider the Court might still decline to do so in particular circumstances…
7.These reasons are given by me pursuant to my view that it is in fact necessary, consistent with what the Full Court of the Federal Court in Telstra Corporation said, for us to be satisfied of appealable error and to give reasons accordingly.
I agree that that is the correct position, and I am of the view that here there is a basis for leave to appeal to be granted, and for the appeal to be allowed.
In the Notice of Appeal there are extensive facts set out in support of the application for leave to appeal, and there are a number of grounds of appeal in the event that leave is granted.
The particular issue upon which it is agreed that leave should be granted and the appeal allowed is this. The approach adopted by his Honour in addressing the application was to first look at the question of whether the respondent husband was reasonably able to maintain the applicant, his Honour taking the view that if that was not the case, then he would not need to consider whether the applicant wife had established that she was unable to support herself.
In applying that approach, unfortunately the facts that his Honour found in relation to, at least, the income of the respondent husband, were incorrect. It is readily conceded by counsel for the respondent husband, that the mistake in that regard by his Honour, was a mistake that the respondent husband led his Honour into. And the effect of that was, as his Honour says in [16]:
I am not satisfied that the Respondent has any reasonable capacity to maintain the Applicant. It is academic to determine the extent of her need for such maintenance.
His Honour, as a result of that finding, did not then proceed to consider the extent of the applicant’s need for maintenance, and in that context, her ability to support herself. Thus what is said is, that if his Honour had the correct facts, and in particular in relation to the respondent husband’s income, his Honour may well have found it necessary to move to consider the extent of the applicant’s need for maintenance, and whether she was unable to support herself.
I am satisfied that that does provide a basis for leave to appeal to be granted and the appeal to be allowed. In other words, I am satisfied that an appealable error has been made by his Honour, and it seems to me to be entirely proper that the parties should consent to leave to appeal being granted, the appeal being allowed, the relevant order of his Honour being set aside, and the proceedings being remitted for rehearing.
I certify that the preceding fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 2 October 2019.
Associate:
Date: 10 October 2019
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