Appellant Opposes Spousal Maintenance Orders

Byrne & Fisher [2022] FedCFamC1A 188 (18 November 2022)

The magistrate made an order requiring the applicant to pay the respondent spousal maintenance of $1,000 per week.  The Court, in adjudicating this dispute, considered how the magistrate made material factual mistakes concerning the respondent’s need and the applicant’s capacity.

Facts

On 12 August 2022, a magistrate of the Magistrates Court of Western Australia made an interim order requiring the applicant to pay to the respondent spousal maintenance of $1,000 per week.  Subject to the grant of leave, the applicant appealed from the judgment by way of an Amended Notice of Appeal filed on 11 October 2022.  Shortly thereafter, the appeal registrar was notified that the appeal was conceded and so, on 14 October 2022, ordered the parties to file a joint submission outlining the appealable error for which they contended.  Regrettably, the joint submission filed by the parties on 28 October 2022 did not achieve the objective envisaged by the appeal registrar and so the appeal was listed before the Court on 11 November 2022 to elucidate the nature of the alleged appealable error and the form of the remedial orders proposed.

The parties’ oral submissions resulted in confirmation that:

1. the respondent conceded the appeal on only a limited sub-set of the grounds contained within the Amended Notice of Appeal; 
2. the applicant did not press the appeal beyond the ambit conceded by the respondent; 
3. both parties agreed that only Order 1 made by the magistrate should be set aside, there being no challenge to the validity of Order 3;
4. the parties’ respective underlying applications in respect of spousal maintenance, as were determined by Order 1 made by the magistrate, could be consensually dismissed instead of remitted for re-hearing or determined by the re-exercise of discretion; and
5. the respondent pressed her application for the grant of a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal, but the applicant did not.

Issue

Whether or not the appeal should be granted. 

Applicable law

 

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that the grant of leave ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, in addition, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong.

 

Pettitt v Dunkley (1971) 1 NSWLR 376 - where the inadequacy of reasons, as was conceded by the respondent, amounted to an error of law. 

 

Analysis

The magistrate found the respondent’s reasonable expenses exceeded her income by $1,021.18 per week (at [25]), but it was conceded the differential should have been half that amount.  The parties contended that, when the proceedings were last mentioned before the Magistrates Court in October 2022, the magistrate conceded an “arithmetic error” in the calculation of the respondent’s expenses.  The magistrate found the applicant enjoyed a surplus of income over expenses, quantified at $728 per week (at [43]), but it was conceded her Honour wrongly disallowed an expense of $195 and wrongly failed to include in the calculations an extra expense of $100 found to be reasonable.  Those errors resulted in the over-statement of surplus income by $295.  

The concessions mean that, on the evidence adduced before the magistrate, the respondent’s need was properly calculable at $514 (rounded to the nearest dollar), but the applicant’s capacity to pay spousal maintenance was only $433.  Nonetheless, subject to such correction, the undisturbed findings of the magistrate would still enable an interim spousal maintenance order to be made.

Conclusion

The appeal is allowed.  Order 1 made by the Magistrates Court of Western Australia on 12 August 2022 is set aside.  The parties’ respective applications concerning interim spousal maintenance, as were determined by Order 1 made on 12 August 2022, are dismissed.  The respondent’s application for a costs certificate in respect of the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.