Parties in Dispute over Application to Leave to Appeal Magistrate Court Orders
Andreas & Gabris [2021] FedCFamC1A 24 (29 September 2021)
The husband filed a leave to appeal against two of the orders made by a Family Law Magistrate of the Magistrates Court of Western Australia. The wife opposes the granting of leave, and the appeal if leave is granted. The Court, in adjudicating this dispute, applied the test of whether the decision of the Magistrate is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision was wrong.
Facts:
The parties met in late 2016, and according to the husband, commenced cohabitation and married in 2017. They separated on a final basis in 2019. On 3 April 2017, the husband purchased a property at Y in New South Wales in the wife’s name, and that became the matrimonial home. Upon separation the wife remained living in that home.
The husband's declared income is $46,852 per week. The declared value of his property is $270,522,153 with no liabilities. The wife's declared income is $650 per week from dividends and rent. The declared value of her property is $4,115,217 with liabilities of $530,665, which includes the amount of $298,230 being the quoted cost of renovations at the Y property, and legal fees of $128,906. The mother asserts that if the property is sold as sought by the husband in the substantive proceedings, there is no telling if the money spent on renovations will be recouped in that sale. If it was found by the trial judge that the advance should not have been made, then the trial judge could simply order the wife to repay the amount, given the extent of the wife’s net assets.
The husband’s senior counsel conceded that if the payment is by way of interim or partial property settlement, then there would be no difficulty in it being recovered by the husband in the context of the orders that would be made for final property settlement by the trial judge. It was also submitted that the amounts the husband is obliged to pay the wife may not be recoverable if it is found that the order should not have been made. On 13 April 2020, an open offer was made to the wife to settle the entire proceedings. However, the offer was not accepted, and it lapsed on 17 April 2020. Thus, as at the date of the hearing before his Honour, the husband’s position in relation to the orders that he sought was as set out in his Final Orders Application filed on 24 March 2020.
His Honour relied on the lapsed open offer in his reasons for judgment as well as in making the order for the lump sum payment. The appeal in relation to the lump sum order for the following grounds: firstly, the Learned Magistrate erred in relying on the appellant’s lapsed open offer. Secondly, for leaving the characterisation of the lump sum payment to the trial judge. Thirdly, for failing to address s 79. The appellant sought an order for costs in the event that leave to appeal was granted and the appeal against both orders was allowed. The respondent sought an order for costs in the event that leave to appeal was dismissed
Issues:
I. Whether the decision of the Magistrate is attended by sufficient doubt to warrant it being reconsidered.
II. Whether substantial injustice would result if leave were refused, supposing the decision was wrong.
Applicable law:
Family Law Act 1975 (Cth) s 72, s 75(2), s 74, s 79 - basis for rejecting the assertion that his Honour failed to engage with the question required to be addressed.
Analysis:
It was necessary for his Honour to observe the requirements of s 79(2) and s 79(4) to find that the order was just and equitable and the respective contributions of the parties and their future needs provided the basis for making the order. As said by the senior counsel for the husband, the court, however, will know from the first document in the tender bundle that the husband has available to the wife an open offer of settlement significantly better than that. It was open to his Honour to refer to and rely on the open offer, albeit it had lapsed, for the purposes of gauging whether the lump sum payment sought by the wife was less or more than the wife might receive on a final basis.
In the order his Honour made that he did not “characterise the nature of the payment”, but it is equally plain from his Honour’s reasons for judgment the nature of the order he was making, namely an interim property settlement order. To find that the order is just and equitable, the respective contributions of the parties and their future needs should provide the basis for the order being made. The wife’s senior counsel attempted to argue that, where there was a concession by the husband in the form of an open offer that the payment sought is less than what the wife is likely to receive on an overall basis, then it was unnecessary to address s 79. However, that argument was not put with any force, and the wife’s senior counsel was unable to cite any authority for that proposition.
Conclusion:
The Court dismissed the application for leave to appeal against paragraph 2 of the Order made by the primary Magistrate on 22 March 2021. The application for leave to appeal against paragraph 1 of the said Order be granted, the appeal against that Order be allowed, and that Order be set aside. The proceedings in relation to the lump sum amount of $298,230 sought by the respondent wife for renovations is to be remitted for rehearing to the Magistrates Court of Western Australia to be heard by a Family Law Magistrate other than the primary Magistrate. There should be no order for costs. However, each party should have a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth), in relation to the successful application for leave to appeal and the appeal against the lump sum payment order, and in relation to the rehearing of those proceedings.
