FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dimmick & Harrison (No 3) [2023] FedCFamC1A 81
Appeal from: Dimmick & Harrison [2022] FedCFamC2F 1329 Appeal number(s): NAA 14 of 2023 File number(s): SYC 4298 of 2021 Judgment of: SCHONELL J Date of judgment: 25 May 2023 Catchwords: FAMILY LAW – APPEAL – Leave to institute proceedings out of time – Where the appellant at trial sought leave to institute property proceedings seven years out of time – Whether the primary judge fell into error in determining if there was a prima facie case and in considering if hardship would be occasioned – Where the primary judge fell into error in inferring that a typographical error on the respondent’s Financial Statement was the mortgage balance when there was no evidence of such – Where the primary judge made an erroneous finding that the appellant had no liabilities – Where the primary judge did not consider the non-financial and homemaker contributions as well as the matters within the rubric of s 90SF(3) of the Family Law Act 1975 (Cth) – Where mistake of fact and failure to take into account some material consideration has been established – Inadequacy of reasons – Where the primary judge did not provide reasons as to why the appellant’s non-financial contributions, poor health and limited employment options would not lead to a conclusion that the appellant would not suffer hardship if leave were not granted – Leave to appeal allowed – Appeal allowed – Matter remitted for rehearing – Costs certificates issued. Legislation: Family Law Act 1975 (Cth) ss 44, 90RD, 90SF, 90SM Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121
Emerald & Emerald (2018) FLC 93-870; [2018] FamCAFC 217
Gadzen & Simpkin (2018) FLC 93-871; [2018] FamCAFC 218
House v The King (1936) 55 CLR 499; [1936] HCA 40
Masih & El Saeid [2020] FamCAFC 152
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Sharp v Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Walker and Walker (1984) FLC 91-564; [1984] FamCA 55
Whitford and Whitford (1979) FLC 90-612; [1979] FamCA 3
Number of paragraphs: 49 Date of hearing: 18 May 2023 Place: Sydney Counsel for the Appellant: Dr Barnett SC with Mr Bateman Solicitor for the Appellant: G & D Lawyers Counsel for the Respondent: Mr Galapo Solicitor for the Respondent: Jenman Lawyers ORDERS
NAA 14 of 2023
SYC 4298 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DIMMICK
Appellant
AND: EXECUTOR ESTATE OF THE LATE MS HARRISON
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
25 MAY 2023
THE COURT ORDERS THAT:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.Order 2 made by the Federal Circuit and Family Court of Australia (Division 2) on 22 December 2022 is set aside.
4.The matter is remitted…
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- AGLC
- Dimmick & Harrison (No 3) [2023] FedCFamC1A 81
- Case
- [2023] FedCFamC1A 81
- Decision Date
CaseChat Overview and Summary
In the case of Dimmick & Harrison (No 3), the appellant, Dimmick, sought to appeal a determination by the primary judge that he and the respondent, Harrison, were in a de facto relationship between 2000 and 2012. Dimmick had filed an initiating application for leave to appeal seven years beyond the statutory time limit, which led to the primary judge considering whether the appeal should proceed. The primary judge assessed the application based on whether Dimmick could demonstrate hardship if leave were not granted, requiring him to establish a prima facie case and a real probability of success. The primary judge also considered the assets of the parties, contribution-based entitlements, and future needs, while noting the absence of a jointly prepared Balance Sheet and the typographical error in the respondent’s Financial Statement.
The legal issues before the court included whether the primary judge erred in determining the appellant's entitlement to leave to appeal and whether a substantial injustice would be caused to the appellant if leave were not granted. The primary judge's decision hinged on whether Dimmick could demonstrate a real probability of success and whether the absence of certain evidence prejudiced the appeal. The court also had to consider the High Court’s principles from Stanford v Stanford and whether the delay in filing the application warranted granting leave.
The court found that the primary judge erred in her assessment of Dimmick's application for leave to appeal. It was determined that the primary judge failed to adequately consider the absence of a jointly prepared Balance Sheet and the typographical error in the respondent’s Financial Statement, which could have influenced the assessment of the parties' assets and entitlements. The court concluded that a substantial injustice would result if leave to appeal were not granted. Consequently, the matter was remitted to another judge for reconsideration of the application for leave to appeal. The court also ordered that a costs certificate be granted to both parties given the successful appeal on a point of law.
The legal issues before the court included whether the primary judge erred in determining the appellant's entitlement to leave to appeal and whether a substantial injustice would be caused to the appellant if leave were not granted. The primary judge's decision hinged on whether Dimmick could demonstrate a real probability of success and whether the absence of certain evidence prejudiced the appeal. The court also had to consider the High Court’s principles from Stanford v Stanford and whether the delay in filing the application warranted granting leave.
The court found that the primary judge erred in her assessment of Dimmick's application for leave to appeal. It was determined that the primary judge failed to adequately consider the absence of a jointly prepared Balance Sheet and the typographical error in the respondent’s Financial Statement, which could have influenced the assessment of the parties' assets and entitlements. The court concluded that a substantial injustice would result if leave to appeal were not granted. Consequently, the matter was remitted to another judge for reconsideration of the application for leave to appeal. The court also ordered that a costs certificate be granted to both parties given the successful appeal on a point of law.
Orders
Orders of the court
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Background
Background to the litigation
For the following reasons, I am satisfied that the primary judge’s determination was erroneous.BACKGROUND The primary judge determined that the parties were in a de facto relationship between 2000 and 2012. In circumstances where the appellant filed his Initiating Application on 9 June 2021, it was some seven years after the expiry of the time in which to bring an application. The primary judge, having determined the length of the parties’ relationship, proceeded to hear the appellant’s application for leave. The primary judge accurately recorded that the appellant bore the onus to satisfy the Court that hardship would be caused if leave were not granted. In that respect, the primary judge recorded that the appellant needed to establish that he had “a prima facie case worth pursuing, or a real probability of success” (at [101]) (footnote omitted). The primary judge identified that in assessing whether the appellant had a prima facie case, the Court would consider the assets of the parties, the contribution based entitlements and any adjustment necessary in relation to the parties’ future needs (at [104]). There is no issue that the primary judge correctly identified the relevant legal principles. The primary judge identified that no cost notices were filed nor did the appellant provide any estimate of the future costs of the litigation. The primary judge also identified that neither party addressed a consideration of the principles arising from the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108. The primary judge thereafter identified that she did not have the benefit of a jointly prepared Balance Sheet and that on the material the best she could identify was that the respondent had purchased a property at Suburb B (“the Suburb B property”) for $747,000 subject to a mortgage (at [110]). There was no evidence of its current value. The appellant had assets having a value of $1,343, did not have any liabilities, and had superannuation of either $1,137 or $5,214 (at [106]). The primary judge found that a sum of $430,000 referenced in the respondent’s Financial Statement filed 28 February 2022 as cash at bank was a typographical error in circumstances where the case as conducted was that the only significant asset was the Suburb B property (at [108]). This sum was found by the primary judge to be the mortgage balance. The primary judge observed in relation to the contribution based entitlements: the length of the relationship; the initial contributions; that the respondent received an inheritance, some of which was used to pay a tax debt of the appellant; and that the respondent paid the mortgage and utilities on the Suburb B property. The primary judge recorded the appellant’s concession that he made no direct contribution to the purchase of the Suburb B property, that the appellant was a guarantor on the refinance, and that a payment of funds from his superannuation was used to repay a loan to the respondent but not otherwise.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
I am satisfied that Ground 3 demonstrates error.CONCLUSION Where the appellant has established error, I am satisfied that a substantial injustice would be occasioned to the appellant if leave to appeal were not granted. Senior counsel for the appellant and counsel for the respondent both submitted that given the state of the evidence, I could not re-exercise the discretion. The consequence, as unfortunate as it is, is that the matter will be remitted to another judge other than the primary judge for determination as to whether or not leave should be granted. In circumstances where the appellant has been successful on a point of law, then it is appropriate that a costs certificate be granted to each of the parties. I will make orders accordingly.
Ratio Decidendi
Legal Principle Established
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