Fleming & Schmidt

Case [2017] FamCAFC 12

FAMILY COURT OF AUSTRALIA

FLEMING & SCHMIDT [2017] FamCAFC 12

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – where the trial judge declared that a de facto relationship existed between the parties for approximately 20 years – where the appellant asserts that the trial judge erred in so declaring – where the appellant attempted to re-agitate the same or similar arguments as he did before the trial judge – where the appellant contended that determinative weight ought to have been placed upon those circumstances which he said contra-indicated the existence of a de facto relationship – where the Full Court found no error in the trial judge’s approach – appeal dismissed.
FAMILY LAW – APPEAL – PROPERTY – where the appellant sought to challenge on appeal the findings of the trial judge in respect of the identity and valuation of property to be considered – where the parties had agreed at trial upon the items and valuation of property before the trial judge – where it was not open for him to make such challenges for the first time on appeal – where the appellant made complaint about his legal representation at the trial – where no error on the part of the trial judge was demonstrated – appeal dismissed.

FAMILY LAW – SEPARATE APPEAL – COSTS – where the appellant in this appeal sought to appeal a costs order made by the trial judge – where the appellant contended that the trial judge erred in the quantum of costs ordered – where no error is demonstrated – appeal dismissed.

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth)
Fleming & Schmidt [2015] FamCAFC 123
Gronow v Gronow (1979) 144 CLR 513
Harris and Harris (1991) FLC 92-254
House v The King (1936) 55 CLR 499
Lynam, J.L. v. Director-General of Social Security (1984) FLC 91-577
Robinson and Higginbotham (1991) FLC 92-209
Sinclair & Whittaker (2013) FLC 93-551
University of Wollongong v Metwally (1985) 60 ALR 68
APPELLANT: Mr Fleming
RESPONDENT: Ms Schmidt
FILE NUMBER: DUC 239 of 2013
APPEAL NUMBERS: EA 123 of 2014
EA 10 of

2015
DATE DELIVERED: 9 February 2017
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Kent & Cronin JJ
HEARING DATE: 6 December 2016
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE:

5 August 2014

23 December 2014
LOWER COURT MNC: [2014] FCCA 1625
[2014] FCCA 2997

REPRESENTATION

THE APPELLANT: In Person
COUNSEL FOR THE RESPONDENT: Ms Judge
SOLICITOR FOR THE RESPONDENT: Osborne Legal

Orders

EA123 of 2014

  1. The appeal be dismissed.

  2. The appellant, Mr Fleming, pay the costs of the respondent, Ms Schmidt, of and incidental to the appeal, including any reserved costs, such costs to be assessed, on a party/party basis if not agreed.

EA10 of 2015

  1. The application of Ms Schmidt for leave to appeal against the order for a stay of the orders made on 23 December 2014 be dismissed.

  2. The appeal of Ms Schmidt against…

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AGLC
Fleming & Schmidt [2017] FamCAFC 12
Case
[2017] FamCAFC 12
Decision Date

CaseChat Overview and Summary

In the case of Fleming v Schmidt, the Full Court of the Family Court of Australia was called upon to review the decision of the trial judge regarding the existence of a de facto relationship between the parties and the valuation and identity of the property in question. The appellant, Mr Fleming, contested the trial judge's declaration that a de facto relationship existed between him and the respondent, Ms Schmidt, for approximately 20 years. He further argued that the trial judge should have given more weight to certain circumstances that, in his view, contradicted the existence of such a relationship. Additionally, Mr Fleming sought to challenge the findings of the trial judge concerning the property, despite having agreed on the items and valuation of the property before the trial judge. The court held that the trial judge's approach was correct, and no error was found in the determination of the de facto relationship or the property valuation. The appeal was dismissed.

The legal issues before the court encompassed the interpretation of the criteria for determining the existence of a de facto relationship under the Family Law Act, as well as the appropriate circumstances in which challenges to property valuation findings can be made on appeal. The court examined the evidence presented at trial and the reasoning of the trial judge to ascertain whether any error had been made in the determination of the relationship and property. The court found that the trial judge's approach was thorough and the evidence supported the findings. The Full Court concluded that Mr Fleming's attempts to re-litigate the issues were not successful, and his appeal was dismissed.

The reasoning of the Full Court was grounded in the thorough analysis of the trial judge's findings and the evidence presented. The court found that the trial judge had correctly applied the criteria for determining the existence of a de facto relationship, and there was no basis to overturn the decision. The Full Court also determined that the challenges to the property valuation were not permissible as they had not been raised during the trial. The court further noted that Mr Fleming's complaints about his legal representation did not constitute grounds for appeal. The Full Court dismissed the appeal and ordered Mr Fleming to pay the costs of the appeal on a party/party basis.

The orders of the court were that the appeal brought by Mr Fleming be dismissed, and he pay the costs of the appeal. Additionally, the court dismissed the application of Ms Schmidt for leave to appeal against the order for a stay of the orders made on 23 December 2014 and her appeal against the order for costs made on the same date. There was no order as to costs of this appeal.

Orders

Orders of the court

EA123 of 2014

1.

The appeal be dismissed.

2.

The appellant, Mr Fleming, pay the costs of the respondent, Ms Schmidt, of and incidental to the appeal, including any reserved costs, such costs to be assessed, on a party/party basis if not agreed.

EA10 of 2015

1.

The application of Ms Schmidt for leave to appeal against the order for a stay of the orders made on 23 December 2014 be dismissed.

2.

The appeal of Ms Schmidt against the order for costs made on 23 December 2014 be dismissed.

3.

There be no order as to costs of this appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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