· 2022-02-18T16:09:30+0000 · 750 posts

Appellant Applies for Spousal Maintenance

Grange & Grange [2022] FedCFamC1A 9 (7 February 2022)

The appellant contends that he was unable to support himself. The appellant relied solely on the receipt of a disability support pension. The Court, in adjudicating this dispute, relied upon the gateway in s 72 of the Family Law Act 1975 (Cth).

Facts:

This matter concerns an appeal from a decision by the primary judge dated 18 June 2021 dismissing the appellant’s claim for spousal maintenance. After a 30 year marriage and seven children, the appellant and the respondent had no property to divide. The appellant’s application for spousal maintenance was dismissed on 18 June 2021 and, but for this appeal, that decision would have ended what has been a 10 year saga of litigation between the parties.

The primary judge's finding was made in circumstances where the appellant submitted that he was unable to adequately support himself:

by reason of his age and physical and mental incapacity for appropriate gainful employment;
because, as a result of the outcome of earlier proceedings involving the parties, it had been determined that the parties had no marital assets to distribute after the breakdown of their marriage; and
because the appellant’s personal circumstances are such that it is necessary for his daughter to support him.

In this appeal, the application was filed on 22 November 2021 supported by an 80 page affidavit by the appellant including annexures. A further two affidavits were filed on 7 December 2021. The evidence sought to be adduced in the appeal relates to the respondent’s capacity to pay spouse maintenance. Not only was the application and supporting material not filed in the time permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) but the evidence sought to be relied upon was not relevant to any ground of appeal.

The respondent seeks costs in the appeal and in the applications to adduce further evidence in the appeal.

Issue:

Whether or not the primary judge err in finding that the appellant had failed to prove he was unable to support himself adequately.

Applicable law:

Evidence Act 1995 (Cth) Pt 3.3, s 140 - set out “the ordinary standard of proof in a civil proceeding".

Family Law Act 1975 (Cth) s 72 - provides that a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(b) - provides that when hearing an appeal, this Court has a discretion to receive further evidence.

Social Security Act 1991 (Cth) s 94 - sets out the qualifications for a disability support pension.

Baghti & Baghti [2013] FamCAFC 194 - provides that the Court has the power to dismiss an appeal which has no utility.

Beach Petroleum NL and Another v Johnson and Others (1995) 135 ALR 160 - provides that it has for some considerable time been the practice of this Court to fix costs wherever possible, so as to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
Bonan v Hadgkiss (2007) 160 FCR 29; [2007] FCAFC 113 - where there is no utility in the current appeal and as it does not raise any matter of general importance, it should be dismissed.

Grange & Grange and Ors [2019] FamCAFC 205 - provides that as a result of the outcome of earlier proceedings involving the parties, it had been determined that the parties had no marital assets to distribute after the breakdown of their marriage.

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 - provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately ... having regard to any relevant matter referred to in [s] 75(2)”.

Jardin and Another v Metcash Ltd and Another (2011) 285 ALR 677; [2011] NSWCA 409 - provides that a court can act to halt proceedings (including an appeal) that pose a question that has become moot, that is that will produce no foreseeable consequence for the parties.

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 - provides that the evidence relied upon “must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture”.

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 - Lord Mansfield said that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.

Analysis:

The appellant sought to argue at paragraphs 50 through 52 of the Summary of Argument filed 22 October 2021, that the respondent was bound by an earlier admission that she had the capacity to pay spousal maintenance to the appellant. However, there was no such previous admission by the respondent. Even if the appellant succeeds in establishing error as alleged, there is no challenge to the finding by the primary judge that the respondent was not reasonably able to maintain the appellant.

In the absence of evidence from the appellant and in the absence of any medical report being tendered in evidence, the appellant relies solely upon the fact that he is in receipt of a disability support pension to establish that he is unable to adequately support himself. There was no evidence of the reason why or the basis upon which he has been (apparently) approved to receive a disability support pension.

Conclusion:

The Court ordered the affidavit of Ms A Grange, the husband’s daughter, filed 26 October 2020 be added to the Appeal Book. The appeal is dismissed. The appellant is to pay the respondent’s costs of and incidental to the appeal. The application to adduce further evidence is fixed in the sum of $6,000.

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