Holden v Wolff

[2014] HCASL 221

HOLDEN

v

WOLFF

[2014] HCASL 221
S121/2014

1. The respondent applied to the Federal Magistrates Court of Australia (Foster FM) seeking a property settlement and a de facto spousal maintenance order under provisions of the Family Law Act 1975 (Cth) ("the Act") which commenced on 1 March 2009 ("the commencement date")[1].  It was incumbent on the respondent to prove that the de facto relationship was continuing at the commencement date.  The respondent's case was that the de facto relationship continued until December 2009.  The applicant's case was that the relationship ended in January 2006.   Resolution of this issue was dealt with as a separate question.  

   [1]Family Law Act 1975 (Cth), Pt VIIIAB.

2. Foster FM dismissed the respondent's application because he was not satisfied that the de facto relationship continued after January 2006.  His Honour took into account a letter written by the respondent to the applicant, which his Honour said, "clearly acknowledges the end of the relationship between the [respondent] and [applicant]"[2].  The respondent's evidence was that she had given the letter to the applicant in December 2009.   Foster FM found that the letter had been given to the applicant in January 2006[3]. 

   [2]Wolff v Holden [2012] FMCAfam 924 at [22].

   [3]Wolff v Holden [2012] FMCAfam 924 at [23]

3. The respondent appealed to the Full Court of the Family Court of Australia (Bryant CJ, Thackray and Austin JJ).  On 19 March 2014, the Full Court unanimously allowed the appeal, set aside the orders of Foster FM and remitted the matter for re-hearing by a judge of the Federal Circuit Court of Australia. 

4. The applicant seeks special leave to appeal.  The application was not filed within time[4] and the applicant asks that compliance with the time limit be dispensed with[5].  He has provided a satisfactory explanation for the delay, however, for the reasons to be given, there is no utility in an order enlarging the time in which to bring the application.  The applicant's complaint is that the Full Court failed to properly discharge its appellate duty to rehear the appeal[6].   He contends that, despite error in Foster FM's fact finding, there was ample evidence to support his Honour's ultimate conclusion.  

   [4]High Court Rules 2004 (Cth), r 41.02.1 provides that an application shall be filed within 28 days after the judgment below was pronounced.

   [5]High Court Rules 2004 (Cth), r 41.02.2.

   [6]Family Law Act 1975 (Cth), s 94AAA(1).

5. The factual error that the Full Court identified was that there was no evidence that the letter had been provided to the applicant in January 2006.  The Full Court said that the findings as to the content and timing of the letter were "vitally important" to Foster FM's conclusion[7].   In addition to this error, the Full Court found that there had been a procedural "anomaly" of a fundamental character[8].   The anomaly also related to the letter.  The letter was annexed to an affidavit of the applicant.  It was written in Mandarin.   A translation of it, which was also annexed to the applicant's affidavit, had not been received into evidence.  There was no evidence of the letter's contents.  After judgment was reserved, the applicant's solicitor forwarded a translation of the letter by email to Foster FM's Associate.   The Full Court found that his Honour must have relied upon that translation in making his finding[9].

   The application does not raise any question of principle concerning the conduct of appeals by way of re-hearing under the Act. There is no reason to doubt the correctness of the Full Court's order.

   The application is dismissed.

   [7]Wolff v Holden [2014] FamCAFC 74 at [39].

   [8]Wolff v Holden [2014] FamCAFC 74 at [2], [41]-[42].

   [9]Wolff v Holden [2014] FamCAFC 74 at [41].

6. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
10 December 2014 S.J. Gageler