Dimmick & Harrison (No 2)
[2024] FedCFamC2F 29
•19 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dimmick & Harrison (No 2) [2024] FedCFamC2F 29
File number: SYC 4298 of 2021 Judgment of: JUDGE LIOUMIS Date of judgment: 19 January 2024 Catchwords: FAMILY LAW – PROPERTY – De facto relationship – Jurisdiction – De facto husband’s application for leave to institute property settlement proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) – Where the de facto wife died prior to an order being made pursuant to section 44(6) of the Family Law Act 1975 (Cth) – Where findings are made that there were no property proceedings before the Court at the date of the death of the de facto wife – Where the Court has no jurisdiction to hear the matter – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 44(6), 90SM, 90RD Cases cited: Dimmick & Harrison (No 3) [2023] FedCFamC1A 81
Phillips and Phillips (1985) FLC 91-634
Rampling and Rampling (1988) FLC 91-902
Simonds (Deceased) & Coyle (2019) FLC 93-895
Slater & Slater (1985) FLC 91-641
Division: Division 2 Family Law Number of paragraphs: 32 Date of last submission: 22 December 2023 Date of hearing: 31 October 2023 Place: Sydney Counsel for the Applicant: Mr O’Brien of Counsel Solicitor for the Applicant: G & D Lawyers Counsel for the Respondent: Mr Galapo of Counsel Solicitor for the Respondent: Jenman Lawyers ORDERS
SYC 4298 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DIMMICK
Applicant
AND: EXECUTOR, THE ESTATE OF THE LATE MS HARRISON
Respondent
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
19 JANUARY 2024
THE COURT ORDERS THAT:
1.The Initiating Application filed 9 June 2021 is dismissed.
2.The proceedings are removed from the list of matters awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The Applicant has applied for leave to apply for orders pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”) out of time.
The preliminary issue for the Court to determine is whether section 90SM(5) of the Act provides the Court with jurisdiction to hear the proceedings in circumstances where the Respondent in the primary proceedings, Ms Harrison, passed away after the conclusion of the hearing before Her Honour Judge Boyle but prior to delivery of the decision.
Her Honour Judge Boyle determined that no leave should be granted to the Applicant Mr Dimmick (“the Applicant”); a decision successfully appealed by the Applicant.
The Respondent in these proceedings is the son of the late Ms Harrison, Mr Harrison, as the Executor of her Estate. For ease of reference, the late Respondent Wife and the Executor of her Estate will be referred to as “the Respondent.”
EVIDENCE
Pursuant to Orders made on 31 October 2023, the parties each filed written submissions in relation to the issue of jurisdiction.
The Applicant relies on the following documents:
(a)Outline of Submissions filed 5 December 2023; and
(b)Material filed in the Digital Appeal Book in proceedings NAA 14 of 2023.
The Respondent relies on their Outline of Submissions filed 22 December 2023.
SUMMARY OF PROCEEDINGS
On 9 June 2021, the Applicant filed an Initiating Application seeking property division orders pursuant to section 90SM of the Act.
The Respondent filed a Response seeking a declaration that no de facto relationship existed or in the alternative, that there was no de facto relationship in existence for a period of two years.
A Reply was filed by the Applicant on 13 October 2021 seeking a declaration that the parties were in a de facto relationship from 2002 to March 2020.
On 21 February 2022, the Applicant filed an Amended Initiating Application that amalgamated the relief sought in the Initiating Application and the Reply. The Applicant did not seek leave to proceed out of time.
The matter was listed for final hearing on 14, 15 & 31 March 2022 before Judge Boyle on the issue of the section 90RD declarations sought by the parties, and judgment was reserved at the conclusion of the hearing.
The Respondent Ms Harrison died in 2022. Notably, this was after the parties had closed their cases but before the delivery of judgement.
On 20 December 2022, the matter was re-listed before Judge Boyle and Ms Harrison’s death was formally recorded.
On 22 December 2022, Judge Boyle delivered judgment. Her Honour found that a de facto relationship existed from 2000 to 2012. As a consequence of this finding, the Applicant required leave pursuant to section 44(6) of the Act because the proceedings had been brought outside the standard application period. Her Honour did not grant leave and dismissed the Initiating Application filed by the Applicant on 9 June 2021, the Amended Initiating Application filed by the Applicant on 21 February 2022, and the Reply filed by the Applicant on 13 October 2021.
The Applicant filed a Notice of Appeal on 18 January 2023, later amended on 12 April 2023, seeking leave to appeal and thereafter, to appeal the refusal to grant leave to bring proceedings out of time.[1] It is important to note that pursuant to the Amended Notice of Appeal filed 12 April 2023, no appeal was brought in relation to the findings of the length of the relationship.[2] The Honourable Justice Schonell found that the primary judge had erred in the exercise of her discretion denying leave to the Applicant. The matter was remitted to determine the issue of whether pursuant to section 44(6) of the Act, leave should be granted to prosecute the Application for financial orders filed 9 June 2021.[3]
[1] Dimmick & Harrison (No 3) [2023] FedCFamC1A 81 at [2].
[2] Ibid.
[3] Ibid Order 4.
No issue of whether the Court had jurisdiction was raised by any party until the matter was before me for hearing on 31 October 2023, at which time the Applicant brought the Court’s attention to this issue. On that date, directions were made that each party file submissions as to whether the Court had jurisdiction to hear the matter.
COMPETING APPLICATIONS
Central to the determination of this matter is the Full Court authority of Simonds (Deceased) & Coyle (2019) FLC 93-895 (“Simonds”).
The Applicant submits that the Court may have jurisdiction because:
(a)The issue of leave was raised prior to the death of the Respondent.
(b)The primary judge in the original proceedings exercised jurisdiction and made findings which are not in issue as to the dates on which the de facto relationship existed.
(c)The Full Court then exercised its jurisdiction over the matter and heard the appeal, ultimately remitting the question of leave to this Court for rehearing.
The Applicant submits that if the Court finds that the case of Simonds did not properly consider the meaning of “proceeding” then it is open to the Court to find that:[4]
The statutory language of a ‘proceeding’ as incorporating ‘a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding’ comfortably includes an application under s.44 (6) of the Act for leave to appear outside of time.
(emphasis as per original)
[4] Outline of Submissions filed by Applicant at [19].
The Respondent submits that the Court does not have jurisdiction to hear the matter, and that Simonds is Full Court authority for this proposition.
THE LAW
The factual scenario in Simonds is similar to the current proceedings.
In Simonds, there was a dispute as to the period of the de facto relationship. The de facto husband asserted that the relationship ended in 2013 and as such, the application by the wife was out of time, while the de facto wife contended that the relationship ended in 2015. The husband died prior to the conclusion of the proceedings. The primary judge found that the relationship ended in 2013 and as such, the application filed by the wife in 2017 was out of time.
The Full Court considered whether the Court held jurisdiction in circumstances where at the date of the death of the husband:[5]
…there was no valid or competent proceedings for property settlement before the Court … there had been an Initiating Application filed by the de facto wife on 10 May 2017 seeking an order for property settlement, but that application was void and of no effect because leave to file that application had not been given by the Court pursuant to s 44(6) of the Act.
[5] Simonds (Deceased) & Coyle (2019) FLC 93-895 at [19].
The Honourable Justice Strickland noted that there is no power under the Act for proceedings such as these to be instituted after the death of a party,[6] and found the only power that exists is pursuant to section 90SM(8) of the Act which allows for property proceedings not completed at the date of death of a party to continue to finality.[7]
[6] Ibid at [23].
[7] Ibid at [24].
As in this matter, the Full Court in Simonds grappled with the circumstance of whether an application for leave to proceed out of time was a “proceeding” that had been commenced and thus fell under the auspice of section 90SM(8).
The Full Court considered the cases of Slater & Slater (1985) FLC 91-641, Rampling and Rampling (1988) FLC 91-902 and Phillips and Phillips (1985) FLC 91-634 as clear authority for the proposition that the Court has no power to make a section 90SM order until an order pursuant to section 44(6) has been made.
The Full Court in Simonds carefully considered the meaning of “proceeding” and held that proceedings with respect to leave to institute section 90SM proceedings are not section 90SM proceedings.
CONCLUSION
In this case, while the hearing had concluded and submissions had been made prior to the death of the Respondent, no order had been made pursuant to section 44(6) of the Act. I find that this means that there were no property proceedings before the Court at the date of the Respondent’s death.
The Applicant submits that this Court exercised jurisdiction in issuing the final orders and the Full Court also exercised its jurisdiction in determining the appeal. That may be so, but I find that the Court on both occasions did so without considering the jurisdictional basis for such decisions.
There is no specific provision under the Act for proceedings under section 44(6) to continue after the death of one of the parties. As such, I find that the Court no longer has jurisdiction in respect of the Applicant’s application.
I make Orders accordingly.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 19 January 2024
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