Hsiao v Fazarri [2020] HCA 35

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ

HSIAO APPELLANT

AND

FAZARRI RESPONDENT

Hsiao v Fazarri [2020] HCA 35 Date of Hearing: 7 August 2020 Date of Judgment: 14 October 2020 M137/2019

ORDER

Appeal dismissed with costs.

On appeal from the Family Court of Australia

Representation

A J Myers QC with M C Hines and S J Moloney for the appellant (instructed by Armstrong Legal)

B W Walker SC with A M Dinelli and N A Wootton for the respondent (instructed by Taussig Cherrie Fildes)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hsiao v Fazarri

Family law – Property settlements – Where respondent husband made gift to appellant wife of ten per cent interest in residential dwelling ("the property") – Where respondent subsequently signed transfer of land giving appellant further 40 per cent interest in the property – Where parties registered as joint tenants then executed deed of gift providing for payment to appellant's siblings if appellant predeceased respondent while they remained joint tenants – Where parties subsequently married then separated after 23 days – Where each party sought orders under s 79(1) of Family Law Act 1975 (Cth) altering interests in property of marriage ("property settlement orders") – Where appellant did not appear at trial so matter proceeded as undefended hearing – Whether primary judge failed to take existing legal and equitable interests of parties into account for purposes of s 79(1) of Family Law Act – Whether primary judge's approach to deed of gift amounted to failure to take material consideration into account – Whether open to primary judge to determine that making of property settlement orders was just and equitable – Whether open to primary judge to assess that appellant made ten per cent financial contribution to acquisition of the property – Whether Full Court of the Family Court of Australia erred in refusing to exercise discretion conferred by s 93A(2) of Family Law Act to receive further evidence on appeal.