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Tekosis & Tekosis [2012] FamCAFC 106

Categories: Notice to Appeal, Spousal Maintenance
Tags: , , , , , ,

Judge Name: Strickland J
Hearing Date:
Decision Date:24/07/2012
Applicant: Ms Tekosis
Respondent: Mr Tekosis
Solicitor for the Applicant: Appellant self represented
Solicitor for the Respondent: Respondent self represented
File Number: DGC 1208 of 2010
Legislation Cited: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
SS Hontestroom v SS Sagaporack [1927] AC 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; (1999) 160 ALR 588
Cases Cited: Family Law Act 1975 (Cth) s 72 and s 75(2)
Jurisdiction: Full Court of the Family Court of Australia
Parental Responsibility Outcome: Not Relevant
Residential Outcome: Not Relevant


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Introduction

By way of Amended Notice of Appeal filed 8 July 2011, Ms Tekosis(“the wife”) appeals against spousal maintenance orders made by Phipps FM on 15 February 2011. The respondent in the appeal is Mr Tekosis(“the husband”). The parties were unrepresented both before the Federal Magistrate and before this Court.

In summary, the orders made by Phipps FM dismissed the wife’s application for spousal maintenance and discharged Order 2 made on 1 July 2010, which required the husband to pay the wife interim spousal maintenance of $145 per week from 5 July 2010 until further order.

Upon appeal the wife seeks that the orders made by Phipps FM on 15 February 2011 be set aside and that the husband pay spousal maintenance of $500 per week from 1 July 2010 until 28 February 2013.

On 2 September 2011 the wife filed an application in an appeal seeking primarily leave to adduce further evidence. That evidence was contained in the wife’s affidavit filed on the same day and in the annexures thereto. In addition, in the application the wife sought a number of orders which this Court is unable to make, for example, “property orders” against the husband’s property in Western Australia. At the hearing of the appeal on 11 October 2011 I dismissed this application in its entirety.

Background

The wife was born in 1969 and was aged 41 years at the time of trial. The husband was born in 1968 and was aged 42 years at the time of trial.

The parties commenced living together in 1990 and married in March 1992.

There are two children of the marriage, A, born in February 2002 and B, born in November 2006.

Around September 2008 the husband moved to Western Australia for work, but he returned to Victoria to visit, staying at the parties’ home on a number of occasions. For a time after the husband moved his salary was paid into the parties’ joint account.

In September 2008 the wife applied to Centrelink for a sole parenting pension and in early 2009 she made an application for child support. The husband paid $500 per week to the wife until July 2009 and then the payments reduced to $350 per week.

In January 2009 the husband commenced a relationship with his current partner in Western Australia.

The husband filed an application for divorce on 7 May 2010 asserting that the date of final separation was 5 January 2009. The wife opposed the application stating that whilst the parties separated financially on 5 January 2009, they did not “emotionally separate” until April 2010. The matter came before Phipps FM on 1 September 2010 and on that day his Honour found the parties had lived separately and apart for at least 12 months prior to the date of filing and granted the divorce.

The wife’s solicitor prepared two documents which were intended to be binding financial agreements pursuant to s 90 of the Family Law Act 1975 (Cth) (“the Act”). The first document provided for the former matrimonial home to be transferred to the wife, for the wife to indemnify the husband against the mortgage, and for the husband to pay the wife spousal maintenance in the amount of $500 per week until March 2013. The second document set out the parties’ assets, liabilities and incomes and provided for the husband to transfer to the wife his interest in the former matrimonial home, for the wife to indemnify the husband against the mortgage, and for the husband to pay the wife spousal maintenance in the amount of $250 per week until “30 June 2010”, with such maintenance to be paid by a payment of $984 prior to19 March 2010 and $3,766 upon the agreement being signed. The husband refused to sign the first agreement but did sign the second agreement, along with a transfer of his interest in the former matrimonial home. The husband also made the payments of $984 and $3,766. The wife registered the transfer but she did not sign the document, and instead filed an application in the Federal Magistrates Court on 21 April 2010 seeking an order for spousal maintenance in the amount of $500 per week from 1 July 2010 until 5 January 2013.

On 1 July 2010 Phipps FM made interim orders that the husband pay the wife spousal maintenance in the amount of $145 per week, commencing on 5 July 2010 until further order.

The matter came before Phipps FM for final hearing on 8 October 2010 and his Honour made orders and delivered his reasons for judgment on 15 February 2011.

At the time of trial the wife and the children were living at the former matrimonial home and the husband was living in Western Australia. The husband was not spending any time with the children.

The reasons for judgment of the Federal Magistrate

The Federal Magistrate commenced his reasons for judgment by setting out the background of the parties and of the proceedings before identifying the relevant statutory provisions, namely s 72 and s 75(2) of the Act.

His Honour then set out his findings as to the relevant s 75(2) factors.

In relation to the wife, the Federal Magistrate recorded that she had worked both full time and part time during the marriage, but that at the time of trial she was undertaking study which would be completed at the start of 2013. It was the wife’s evidence that her care of the parties’ children (aged eight and five at the time of trial) did not prevent her from having employment, although the Federal Magistrate found that care was “a restriction on her ability to earn an income”. At the time of trial the wife was dependent on Centrelink benefits totalling $885 per week; however, this was disregarded by the Federal Magistrate pursuant to s 75(3). His Honour acknowledged that without spousal maintenance or some other source of funds the wife would be unable to make the weekly mortgage repayments of $515. Her evidence was that she would be able to make those repayments “once she has completed her studies”.

As to the husband, the Federal Magistrate found that at the time of trial he was employed as a casual on an hourly rate of $30 and that he generally worked in excess of 40 hours per week. The child support payable by the husband was assessed at $254.61 per week and was deducted by his employer, which after taxation left the husband with an average net pay of $790 per week. The Federal Magistrate accepted the husband’s evidence that he borrowed $21,230 from his partner in 2009 to repay a personal loan and credit card debts, and that he was repaying that loan at a rate of $130 per week. The husband also borrowed a further $3,660 from his partner in March 2010 to make the agreed maintenance payment to the wife, which he was repaying at a rate of $25 per week. His Honour found the husband’s weekly expenses also included $50 for taxation arrears, $50 for accounting fee arrears, $180 for his share of the rent, and $210 for other living expenses.

His Honour found that the wife’s claim for spousal maintenance was not based on her age or state of health, or necessarily her care of children, but rather on the basis that, to use the words in s 72(1)(c) of the Act, she is unable to support herself adequately “for any other adequate reason”.

The Federal Magistrate found it significant that the former matrimonial home was transferred to the wife as that meant she received the whole of the capital of the marriage (estimated by the parties in early 2010 to be $60,000). His Honour considered that if the wife sold the home she would have funds available to complete her studies, but if she kept the home she would have to obtain employment (which his Honour found she could do) or not work and require the husband to pay her $500 spousal maintenance per week, which the Federal Magistrate determined the husband no longer had capacity to pay.

The Federal Magistrate found the “only adequate reason” that the wife could put forward for an order to be made was her wish to finish her studies. However, taking into account the husband’s incapacity to pay, his Honour determined that that was not an adequate reason and he could find no “other adequate reasons” for making the husband liable to pay spousal maintenance.

Orders made 15 February 2011

Phipps FM made the following orders:

Paragraph 2 of the order made on 1 July 2010 in the Federal Magistrates Court of Australia is discharged.

The wife’s application for spousal maintenance is dismissed.

The wife appeals against all orders.

Grounds of appeal

The grounds of appeal as contained in the Amended Notice of Appeal filed by the wife on 8 July 2011 are as follows:

FMC [sic] Phipps decision was against the weight of evidence in that His Honour placed inappropriate weight on one or more relevant matters.

His Honour mistook the facts with respect to agreement between the parties as to Spousal maintenance.

His Honour failed to take into account relevant matters set out in affidavits in evidence.

His Honour mistook the facts with respect to matters in evidence.

His Honour was influenced by extraneous and irrelevant matters.

His Honour failed to apply s72, s75, s77A 90AE of the Family Law Act by not providing the Apellant [sic] with an outcome reasonable and fair in all the circumstances nesessary [sic].

His Honour delivered judgment more than 3 months after the final hearing date

His Honour acted on a wrong principle

As can be seen the grounds of appeal provide almost no detail of the specific complaints being made by the wife. For that detail, it was necessary to go to her lengthy written submissions.

It is apparent from those submissions that the wife has expended a good deal of time and effort in researching, preparing and presenting the same, and in referring to a number of familiar Family Court authorities, but unfortunately it is also readily apparent from those submissions and the oral submissions that she made during the hearing, that she misunderstands the appeal process, what an appeal court is able to do, and the material that it can have before it.

It is plain from her complaints and the issues raised that rather than instituting an appeal she should have taken out a further application before the Federal Magistrates Court. She has persisted with the appeal though, ultimately wasting her time and that of the Court.

I also observe at this stage that the wife made a deliberate choice not to obtain the transcript of the hearing before the Federal Magistrate. During the hearing before me it became quite apparent that that decision placed the wife in a difficult position in relation to some aspects of her grounds of appeal.

Discussion

As at the hearing of the appeal, I do not propose here to address each and every submission made by the wife under each ground of appeal. That is unnecessary given there is no ground of appeal that can succeed, and all I will be doing is highlighting the principal complaints that the wife makes.

Those complaints centre around what have come to be known in appellate lexicon as “weight challenges”. That is to say, it is alleged that the Federal Magistrate failed to give adequate weight to the “evidence” presented by the wife and/or gave too much weight to considerations about which there was little or no evidence.

Given that is the focus of the appeal it is perhaps important to briefly refer to the authorities which are relevant to such challenges.

There is a presumption that the decision of the Federal Magistrate is correct. He enjoyed advantages which I lack. In the High Court’s decision in Abalos v Australian Postal Commission (1990) 171 CLR 167 McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred (at 178) to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 (at 47):

…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.

McHugh J also said, at 178:

Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488.

In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588, having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages”. In the course of his judgment (619, paragraph 90) his Honour said:

The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. [Footnotes omitted].

The grounds upon which appellate interference with discretionary judgments may be enlivened were iterated by the High Court in House v The King (1936) 55 CLR 499. Their Honours recorded at 504-505:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

In the circumstances of this case, it is the last of the bases there discussed by the High Court which potentially assumes significance.

In Norbis v Norbis (1986) 161 CLR 513, Brennan J said at 539:

The difficulties in the way of developing guidelines beset an appellate review of the exercise of discretion under s. 79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343, at p. 345 Asquith L.J. stated the rationale of an appellate court’s approach:

“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference”.

In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230:

Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified. [Footnotes omitted].

As the authorities make clear, the fact that members of an appeal court may have reached a different conclusion had they been determining the proceedings at first instance does not render the trial judge’s decision erroneous. It is in the nature of the exercise of judicial discretion that different minds will reach different conclusions, without any of those conclusions necessarily being erroneous. The authorities leave no uncertainty that this is the law.

In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

Against the background of these principles I turn to consider the grounds of appeal.

Ground 1

In her written submissions in support of this ground the wife sets out a grab-bag of topics such as the claim that his Honour placed weight on the “Draft Binding Financial Agreement” when none were binding, the claim that his Honour ignored “the true earning capacity and qualifications” of the husband by placing inadequate weight on the “normal” working hours in the mining industry, the claim that the evidence “substantiated higher earnings” and “higher capacity to pay” maintenance than when $145 per week interim maintenance was ordered, and the claim that the evidence did not establish that there was equity of $60,000 in the former matrimonial home.

To respond just to these claims:

His Honour clearly recognised that “no binding financial agreement was completed”. That fact allowed the wife to make the application that was before his Honour, and his Honour correctly said in paragraph 1 of his reasons that, “[t]he making of the agreement and transfer of property and payment of agreed maintenance is relevant, but not conclusive.” That is plainly in accordance with authority.

There was no evidence before his Honour of what the “normal” hours were, and the documentation before his Honour at the time of the hearing clearly supported his Honour’s finding as to what the husband was earning.

The order for $145 per week was an interim order made pending the final hearing at which his Honour would receive and assess the evidence of the financial needs of the wife and the income and earning capacity of the husband. It has not been established to me that there was evidence before his Honour at the hearing that “substantiated higher earnings and higher capacity to pay” than at the time the order was made for $145 per week to be paid.

What his Honour said in his reasons about the equity in the former matrimonial home is set out in paragraph 25, namely, “[t]he wife has received the whole of the capital of the marriage, estimated by the parties in early 2010 to be $60,000”. This comment of course applied to all of the capital, but it is clear that the former matrimonial home comprised the major proportion of that. As to the equity in that home, I have not been taken to any admissible evidence before his Honour which established what if any equity there was at that time of the hearing. Accordingly his Honour was entitled to rely on what the parties themselves had estimated in early 2010.

Thus it can be seen that the wife has failed to demonstrate that his Honour erred in the way alleged. This challenge to his Honour’s weighing up process in exercising his discretion has no merit.

Ground 2

This is in effect a repeat of one of the complaints raised in Ground 1. Nothing new, or indeed of any relevance, is raised here by the wife and it is plain that she has misunderstood that part of his Honour’s reasons where he refers to the agreements. There is no error by the Federal Magistrate here, and thus there is no merit in this ground of appeal.

Ground 3

This is not so much a weight challenge but rather a complaint that the Federal Magistrate did not take into account relevant matters. In short the wife says that in her affidavit material she set out “all matters” in support of her application for spousal maintenance but the Federal Magistrate “fail[ed] to apply the Appellants [sic] evidence” to the relevant factors arising under s 72 and s 75(2) of the Act.

There are a number of difficulties with this submission, and not the least of which is that the wife refers to “evidence” that was not before the Federal Magistrate at the time of the hearing, and was in fact the subject of her application to adduce further evidence, which I have dismissed. There was also no real indication in her written submissions as to precisely what it is that the Federal Magistrate failed to take into account. In her oral submissions she indicated that her principal complaint was that the Federal Magistrate failed to take into account that she could not pay the mortgage herself. However, that is not accurate. In paragraph 21 of his reasons his Honour said this:

She is liable for the mortgage payment of $515.00 per week and without the spousal maintenance or some other source of funds cannot pay it.

His Honour clearly recognised that the wife had the liability and could not afford to pay it, but there was no issue about her need for maintenance and the focus of the hearing before his Honour was on the husband’s capacity to pay spousal maintenance. Thus again there is no merit in this ground of appeal.

Ground 4

This is also not so much a weight challenge but rather another grab-bag of complaints by the wife attempting to identify mistakes of fact made by his Honour. Again I will not look to address all of the issues raised, not the least because for example the wife again refers to “evidence” that was the subject of her unsuccessful application to lead further evidence. In summary though, there is nothing raised here by the wife which would result in the appeal being allowed. For example, she points out a possible mistake by the Federal Magistrate in the frequency at which the husband is repaying a loan to his partner. If this is correct, and I am not necessarily persuaded that it is, the mistake by his Honour is de minimus and does not indicate an error in his Honour’s overall findings. It is also said that his Honour mistook the age of one of the children, in other words five years of age instead of four years of age, but again that is a mistake without any consequence. The other matters raised by the wife do not require any comment. None of those matters demonstrate any error by his Honour. Thus again this ground of appeal is without merit.

Ground 5

Neither the written submissions nor the oral submissions of the wife made in support of this ground demonstrate any error by the Federal Magistrate. The issue of the agreements is raised again, as is evidence that was the subject of the unsuccessful application to lead further evidence.

Ground 6

This is clearly a weight challenge suggesting that his Honour did not afford adequate weight to aspects of the evidence presented by the wife. However, it has not been demonstrated that his Honour has erred in the exercise of his discretion, and is “plainly wrong”. One reason for this is the wife has chosen not to provide a copy of the transcript of the hearing before his Honour, yet she seeks to rely on matters that can only be established from that transcript.

There is no merit in this ground of appeal.

Ground 7

The complaint raised in the wife’s written submissions in relation to this ground address difficulties that the wife says that she suffered whilst waiting for his Honour’s judgment. However, the evidence of those issues is not before this Court, and in any event they cannot demonstrate any error by the Federal Magistrate. I observe that the issue of the time of delivering judgment was not a matter raised with his Honour at the hearing, it was also not the subject of any evidence at that time, and there was no order made. Thus, there is no merit in this ground of appeal.

Ground 8

My initial comment is that it is not apparent in either the wife’s written or oral submissions in relation to this ground what wrong principle his Honour acted upon. Indeed, there is a singular lack of clarity in the wife’s submissions which makes it difficult to discern what her complaints are. However, doing the best I can, the issues that she raises appear to be weight challenges, in other words, the claim that his Honour did not afford adequate weight to the evidence that the wife presented, albeit that she again refers to evidence that was not before his Honour at the time of the hearing, and was not before this Court by way of further evidence. The wife also seems to repeat submissions made earlier in respect of other grounds of appeal.

In short, there is nothing raised by the wife here that persuades me that his Honour has erred in the exercise of his discretion, and this ground of appeal is also without merit.

Conclusion

Having found no merit in any of the grounds of appeal the appeal must be dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on24 July 2012.

Associate:

Date:24 July 2012


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