Hardwick & Hardwick (No 2)

Case [2022] FedCFamC1A 216

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216

Appeal from: Hardwick & Hardwick [2022] FedCFamC2F 834
Appeal number(s): NAA 138 of 2022
File number(s): ROC 104 of 2022
Judgment of: MCCLELLAND DCJ, RIETHMULLER & STRUM JJ
Date of judgment: 19 December 2022
Catchwords:

FAMILY LAW – APPEAL – Leave to appeal from interlocutory orders granting the respondent leave to commence proceedings pursuant to s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) out of time under s 44(3) of the Act – Inadequacy of reasons – Primary judgment attended with sufficient doubt to warrant reconsideration – Appellant’s failure to establish substantial injustice if leave to appeal is denied – Respondent’s mental illness adequate explanation for delay in commencing proceedings – Application for leave to appeal dismissed – Each party to bear their own costs.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Appellant to pay respondent’s costs of the appellant’s Application in an Appeal on party/party basis.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 44(3), 44(4), 75(2), 79, 117(1)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Althaus & Althaus (1982) FLC 91-233; [1979] FamCA 47

Atwill & Atwill (1981) FLC 91-107; [1981] FamCA 72

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59

Carlon & Carlon (1982) FLC 91-272; [1982] FamCA 60

Frost & Nicholson (1981) FLC 91-051; [1981] FamCA 45

Hardwick & Hardwick [2022] FedCFamC1A 179

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

I Pty Ltd and Phong [2019] FamCAFC 247

Jacenko & Jacenko (1986) FLC 91-776; [1986] FamCA 25

Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Mehmet & Mehmet (No 2) (1987) FLC 91-801; [1986] FamCA 24

Moy & Pao [2022] FedCFamC1A 17

Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Robb & Robb (1995) FLC 92-555; [1994] FamCA 136

Sharp & Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150

Skelton and Lindop (2022) 64 Fam LR 617; [2022] FedCFamC1A 47

V and S [2006] FCWA 2

Welland & Hawthorn (2021) 64 Fam LR 520; [2021] FedCFamC1A 43

Whitford & Whitford (1979) FLC 90-612; [1979] FamCA 3

Riethmuller, Grant and Robin Smith, Family Law (Thomson Reuters, 7th edition, 2022)
Number of paragraphs: 88
Date of hearing: 1 November 2022
Place: Heard in Brisbane, delivered in Sydney
The Appellant: Litigant in person
Solicitor for the Respondent: Ms Smith of VAJ Byrne & Co Lawyers

ORDERS

NAA 138 of 2022
ROC 104 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE…

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Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216
Case
[2022] FedCFamC1A 216
Decision Date

CaseChat Overview and Summary

In the case of Hardwick & Hardwick (No 2), the husband appealed against the decision of the primary judge, who had granted leave to the wife to continue with her application for final property adjustment orders under Part VIII of the Family Law Act 1975 (Cth). The wife's application was made more than three years after the parties' divorce, necessitating leave under s 44(3) of the Act. The husband argued that the wife was aware of the divorce proceedings and had not been impacted by adverse mental health, contrary to the primary judge's findings. The wife, on the other hand, contended that her mental health issues had significantly impaired her capacity to engage in discussions regarding property settlement.

The primary legal issue before the court was whether the primary judge had erred in granting leave to the wife to continue with her property proceedings. Specifically, the court had to determine whether the primary judge had made findings without sufficient evidence and whether the wife's mental health issues were adequately considered in granting the leave. The court also had to examine if the husband would suffer substantial injustice if leave to appeal was not granted.

The Full Court found that the primary judge's decision was not impacted by sufficient doubt to warrant reconsideration. The court noted that the primary judge had considered the evidence of the wife's mental health issues and the husband's contentions regarding the wife's awareness of the divorce. The court held that the primary judge's findings were reasonably open to her, as she had appropriately exercised her discretion under s 44(3) of the Act. Furthermore, the court concluded that the husband had not demonstrated that he would suffer substantial injustice if leave to appeal was not granted. Consequently, the appeal was dismissed, and the decision of the primary judge was upheld.

Orders

Orders of the court

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Background

Background to the litigation

Despite the husband’s opposition, leave was granted to the wife to rely upon that Summary of Argument in circumstances where her solicitor, by way of notation at the conclusion of that document, noted that the delay had been as a result of illness impacting the solicitor. Such leave was granted because it is established that a relatively benign error, arising from circumstances impacting upon a party’s lawyer, should not usually be visited upon their innocent clients (Allesch v Maunz (2000) 203 CLR 172 at 186; Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at [14], [33], [68] and [70]). Further, the husband was unable to identify any prejudice resulting from the relatively minor delay that had occurred in respect of the wife’s late filing of that document.Background facts The husband is currently 44 years of age and the wife is 41 years of age. The parties commenced their relationship in either 2001 or 2002, and were married in 2004. They subsequently separated in 2015. Accordingly, as noted by the primary judge, the parties’ relationship was approximately 13 or 14 years in duration (at [5]). There is one child of the relationship, who is now 18 years of age. The wife also has a child from a previous relationship who is now 21 years of age. There is no suggestion that the adult children are dependent on the parties, however the wife contends that the care she provided for both children will be a relevant consideration in the property settlement proceedings pursuant to Part VIII of the Act if the husband is not successful in this appeal. The parties were divorced on 24 January 2018, with the divorce taking effect on 25 January 2018. The wife made an application for final property adjustment orders on 4 February 2022. As a period of three years had elapsed since the divorce, the wife required leave pursuant to s 44(3) of the Act in order to continue with her application. The wife contends that during the course of 2018 and 2019, the parties were engaged in discussions relating to their financial affairs. The wife contends that those discussions included the prospect of the parties entering into a binding financial agreement to finalise their respective entitlements to the property of the parties’ marriage. The husband disputes that the parties were engaged in ongoing discussions regarding their financial affairs during 2018 and 2019, but contends that, in or about February 2017, the parties entered into an informal agreement whereby he would continue to provide financial support to the wife until 2020. The wife contends that she has suffered significant mental health difficulties in the period subsequent to separation, which precluded her from focusing upon the continuing discussions she contends had been taking place between the parties’ respective legal advisers up to and including the wife’s admission to City A Hospital in August 2019. The husband acknowledges the wife was admitted to City A Hospital in August 2019, but contends it was a result of substance misuse rather than mental illness.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As earlier noted, the test as to whether an appellant should be granted leave to appeal from an interlocutory order is twofold and conjunctive. That is, it is necessary for the appellant to establish both:(1)That the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court; and(2)That he would suffer a substantial injustice if leave to appeal is not granted.Has the decision of the primary judge being impacted by sufficient doubt, warranting reconsideration We will firstly deal with Grounds 1 and 3, which we consider to be without merit for the following reasons. Ground 1 Ground 1 is essentially divided into two parts. The first part of Ground 1 sets out the contention that the primary judge failed to consider “all evidence and has made findings of fact on important issues which could not be supported with evidence”. Expressed in those terms, this ground of appeal is unsatisfactorily ambiguous. It is not the Court’s function to rummage through the Notice of Appeal and the evidence in order to find an arguable ground of appeal (I Pty Ltd and Phong [2019] FamCAFC 247 at [32] referring to Bahonko v Sterjov (2008) 166 FCR 415 at [3]). In respect of the second part of Ground 1, the husband sets out, in his Summary of Argument, various factors which he says support his contention that the wife was aware of the divorce, for example:(a)That the divorce was made by joint application;(b)That the wife was legally represented at the time of divorce;(c)That the wife requested a copy of the parties’ divorce certificate from the husband on 4 June 2019;(d)That the wife was aware the husband had remarried; and(e)That from 2018 onwards, subpoena material indicates the wife completed medical declarations and ticked “divorce” as her marital status. Whilst these examples, as set out in the husband’s Summary of Argument filed 16 September 2022, support his contention that the wife was aware of the parties’ divorce, the primary judge explicitly stated at [14] and [15] that she acknowledged this issue to be a fact in dispute between the parties and that she could not make a finding on that matter in the context of the interlocutory proceedings, where the evidence of the wife was untested. In exercising her discretion to grant leave for the wife to continue with the proceedings pursuant to s 44(3) of the Act, the primary judge had regard to the evidence concerning the wife suffering periods of adverse mental health, which the primary judge found impacted upon her capacity to make decisions concerning the initiation of property proceedings. For reasons which we subsequently explain, those findings were reasonably open to the primary judge. Accordingly, it is clear the primary judge did not grant leave to the wife simply on the basis of the wife’s contention that she was not aware of the parties’ divorce. For these reasons, the husband has failed to establish appellable error in respect to either part of what, in combination, constitutes Ground 1 of his Notice of Appeal.Ground 3