Badir & Badir (2022) FedCFamC2F 335

The case of Badir & Badir [2022] FedCFamC2F 335 is an appeal from Badir & Badir No. 2 [2021] FedCFamC2F 335.

This is an appeal from an interim spousal maintenance Order.

The appeal was unsuccessful, and the Appellant had to pay the Respondent’s costs in the sum of $17,416.65 within 28 days.

These parties cohabited from 1993 to 2013. They reconciled during June or July 2014 and separated on a final basis in July 2020.

After the initial separation, the parties entered into Consent Orders on 20 July 2014. The Consent Orders were not in dispute and contained a notation that the parties had reconciled.

The husband purchased a hospitality franchise in his sole name. He argued that between October 2018 and September 2021 the wife withdrew at least $72,893.12 from the business which he asserts were used for her personal expenses.

The wife says they were used to maintain the motor vehicle which she used and continues to use for the purpose of the business.

The wife filed an application on 30 October 2020.

The court said:

“That application is relevant only to the extent that it included an application for interim spousal maintenance.”

The court set the matter down for a callover to allocate a hearing date to hear the Respondent’s Application pursuant to section 79A of the Act.

In October 2021, the Primary Judge made an Order that upon the wife establishing her own residence, the husband would pay her periodic spouse maintenance on the interim basis in the sum of $600 per week with the first such payment to be due and payable on the Monday following written notice to the husband from the wife that she had established her own residence and taken occupation thereof, such payment to be made into an account with a financial institution in her name with the wife to notify the husband of the details therein in the same written notice.

The wife has appealed those Orders.

The court started with its approach and legal principles. It referred to Gilligan and Addison [2018] FamCAFC 211referring to the fact that an appeal has to be categorised otherwise it will be futile.

Appellate intervention may be required, the court said, where the Primary Judge:

“(a)    Acts upon a wrong principle; or

(b)     Allows extraneous or irrelevant matters to guide or affect the decision; or

(c)     Mistakes the facts; or

(d)     Fails to take into account some material consideration; or

(e)     Makes a decision that, upon the facts, is unreasonable or plainly unjust.”

An appeal can also succeed on the basis of an inadequacy of reasons. The court in this case referred to Rigby & Olsen [2021] FedCFamC1A 46.

The court at paragraph 20 said:

“The appropriate process to follow in considering an application for spousal maintenance is the four step process as set out in Saxena and Saxena [2006] FamCA 588; (2006) FLC 93-268 per Coleman J:

(1)     To what extent can the applicant support him/herself?

(2)     What are the applicant’s reasonable needs?

(3)     What capacity does the respondent have to meet an order?

(4)     If steps 1-3 favour the applicant, what order is reasonable having regard to s 75(2)?“

The purpose of spousal maintenance was recognised to make provision for future needs and is future focused rather than the focus that a contributions case makes on the past.

Hall v Hall (2016) 257 CLR 490 at 496, was considered. Sections 72, 74 and 75(2) are considered.

Paragraph 25 of this Judgment says:

“In Hall at [3]-[8], the High court confirmed that an applicant seeking orders for spousal maintenance carries the evidentiary burden as set out in s 140 of the Evidence Act 1995 (Cth). However, the High court confirmed that, in the context of interim spousal proceedings, “[t]he evidence need not be so extensive and the findings not so precise” as in an application for a final order.”

And the evidence is of an “ordinary standard of proof in a civil proceeding”.

There are lots of words within the sections that have been interpreted over time.

McCrossen & McCrossen (2006) FLC 93-283 at [32] considered the word “adequately”.

Brown & Brown (2007) FLC 93-316 further considered that concept.

In 2009, Maroney & Maroney [2009] FamCAFC 45 at [56], the Full confirmed that “in determining the “capacity” of a party to satisfy an order for interim spousal maintenance, the court is not confined to considering only that party’s income, but rather: “Once a party…establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.”

Paragraph 30 of this Judgment says:

“The appellant faces challenges in establishing errors in respect to factual findings made by a trial judge.”

There is then a discussion of the authority.

This appeal was unsuccessful. There is a good discussion of each of the appeal grounds.

As the appeal was without merit, the application for leave to appeal was dismissed.

There was then a useful discussion of section 117 of the Act.

The court focussed on section 117(2A)(g) referring to Manesh & Manesh No. 2 [2021] FamCAFC 47 at [63] noting that the point of requiring leave in respect to appealing interim decisions is to discourage endless interlocutory litigation and appeals that have the capacity to prolong Family Law litigation.

The court determined that there should be an order for costs in favour of the Respondent.

The court also commented that to fail to make an order for costs would deprive the Respondent of the benefit of the order for interim spouse maintenance.

The court accepted that the costs were logical, fair and reasonable, and relied on the authorities considered and the principles adumbrated in Bilson & Geer (Costs) [2017] FamCAFC 7 at [40] to [49].