Appeal Allowed 7 years out of time in Family Law Case Involving Property Proceedings and Hardship Considerations
Dimmick & Harrison (No 3) [2023] FedCFamC1A 81 (25 May 2023)
In the case of Dimmick & Harrison, the Federal Circuit and Family Court of Australia's appellate jurisdiction examined an appeal regarding a primary judge's decision to dismiss the appellant's application to bring property proceedings out of time. The case centered on whether the primary judge made errors in determining if there was a prima facie case and in considering if hardship would be occasioned.
Issue: The main issue in this case was whether the appellant should be granted leave to bring property proceedings seven years out of time. The primary judge had denied this application, leading to the current appeal.
Rule: Under Section 44(6) of the Family Law Act 1975 (Cth), an appellant must demonstrate that hardship would be occasioned if leave were not granted. To establish hardship, the appellant must demonstrate a prima facie case of some consequence.
Application: In determining whether the appellant had a prima facie case, the primary judge considered the assets of the parties, their respective contributions, and any adjustment in relation to future needs. However, several errors were identified in her reasoning.
Firstly, there was an erroneous finding that a typographical error on the respondent’s Financial Statement was evidence of a mortgage balance when there was no such evidence. The judge inferred this without supporting evidence, which constituted an error.
Secondly, the primary judge wrongly found that the appellant had no liabilities when evidence showed that he had a credit card debt of about $19,000. In light of his financial position, this error was significant.
Thirdly, while considering whether the appellant had a prima facie case and therefore potential hardship if leave were not granted, the primary judge failed to consider non-financial contributions and factors related to his health and limited earning capacity.
Relevant case law includes Edmunds & Edmunds (2018) FLC 93-847 and House v The King (1936) 55 CLR 499 which established guidelines for determining if an applicant has a prima facie case and identifying categories for appellate intervention respectively.
Conclusion: As a result of these errors and omissions in consideration, it was determined that there was a failure to properly apply relevant law and precedent in assessing if there was a prima facie case and potential hardship for the appellant. This constituted grounds for appeal as per House v The King guidelines.
Concerns: The judgment raises concerns about thoroughness in considering all relevant factors when determining hardship under Section 44(6) of Family Law Act. It emphasizes the importance of considering all aspects of an individual's financial situation including non-financial contributions and liabilities. Additionally, it highlights potential pitfalls in making assumptions or inferring facts without concrete evidence.
Details of Parties:
- Appellant: Mr. Dimmick
- Respondent: Executor Estate of the late Ms. Harrison
