Abair & Sarinen

Case [2021] FamCAFC 103

FAMILY COURT OF AUSTRALIA

Abair & Sarinen [2021] FamCAFC 103

Appeal from: Abair & Sarinen [2020] FCCA 1212
Appeal number(s): EAA 46 of 2020
File number(s): PAC 5998 of 2017
Judgment of: STRICKLAND, AUSTIN & TREE JJ
Date of judgment: 25 June 2021
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Undefended hearing – Where the appellant husband appeals from final property settlement orders following an undefended hearing – Challenges to the procedural nature of the undefended hearing – Where the appellant husband requested for the hearing to proceed on his written material – Whether findings open on the evidence – Whether evidence taken into account – Assessment of contributions – Adequacy of reasons – Where no error is made out – Appeal dismissed – Appellant husband to pay respondent wife’s costs of appeal in fixed sum.
Legislation: Family Law Act 1975 (Cth) ss 75(2), 79
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

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

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Division: Appeal Division
Number of paragraphs: 60
Date of hearing: 14 April 2021
Place: Heard in Sydney, delivered in Cairns
The Appellant: Self-represented
Counsel for the Respondent: Mr Gardiner
Solicitor for the Respondent: King & York Lawyers

ORDERS

EAA 46 of 2020
PAC 5998 of 2017

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR ABAIR

Appellant
AND:

MS SARINEN

Respondent

ORDER MADE BY:

STRICKLAND, AUSTIN & TREE JJ

DATE OF ORDER:

25 June 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant husband pay the respondent wife’s costs of and incidental to the appeal in the sum of $10,000.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abair & Sarinen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

STRICKLAND, AUSTIN & TREE JJ:

INTRODUCTION

  1. On 13 March 2020, the primary judge made final property settlement orders between Mr Abair (“the husband”) and Ms Sarinen (“the wife”) following an undefended hearing consequent upon the husband not appearing at that hearing. Those orders provide for the husband to transfer his interest in the former matrimonial home to the wife, or in the event the wife is unable to refinance the property into her sole name, it is to be sold and the net sale proceeds paid to the wife. Otherwise, the parties are to retain all other property in their respective names, including their…

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AGLC
Abair & Sarinen [2021] FamCAFC 103
Case
[2021] FamCAFC 103
Decision Date

CaseChat Overview and Summary

In this appeal, the husband, Mr Abair, contested the final property settlement orders made by the Family Court following an undefended hearing. The wife, Ms Sarinen, did not appeal. The husband's arguments centered on the procedural aspects of the hearing, the adequacy of the reasons provided by the primary judge, and the assessment of contributions during the marriage. The husband argued that the proceedings were unfair as he did not attend in person and requested that the hearing proceed on his written material. He also contested the primary judge's preference for the wife's evidence and the adequacy of the reasons provided in the judgment.

The legal issues before the court included whether the findings made by the primary judge were open to challenge based on the evidence presented, whether the evidence was properly taken into account, and whether the contributions made by both parties were correctly assessed. The court had to determine if there was any procedural error that warranted setting aside the property settlement orders. The husband argued that the primary judge failed to consider his written submissions adequately and that the findings were not supported by the evidence.

The court found that there was no procedural error in the way the hearing was conducted or in the primary judge's assessment of the evidence. The husband's failure to appear in person and his decision to submit written arguments did not deprive the court of the opportunity to properly consider the case. The court was satisfied that the primary judge's reasons were adequate and that the evidence was appropriately considered. The assessment of contributions was found to be correct, taking into account the wife's higher income throughout the relationship. As a result, the appeal was dismissed.

The appeal was dismissed, and the husband was ordered to pay the wife's costs of the appeal in the sum of $10,000. The court's decision underscored the importance of procedural fairness and the necessity for parties to be present in undefended hearings to ensure their interests are adequately represented. The outcome also highlighted the court's role in independently assessing the contributions of each party in property settlement disputes.

Orders

Orders of the court

EAA 46 of 2020

PAC 5998 of 2017

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR ABAIR

Appellant

AND:

MS SARINEN

Respondent

ORDER MADE BY:

STRICKLAND, AUSTIN & TREE JJ

DATE OF ORDER:

25 June 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant husband pay the respondent wife’s costs of and incidental to the appeal in the sum of $10,000.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

From those orders, the husband has appealed. For the reasons which follow, the appeal fails.BACKGROUND The husband was born in 1967 and is currently 54 years old. The wife was born in 1970 and is currently 51 years old. Both parties were born in Country C, met there in 1997, and married later that year. For some time thereafter, they continued to live in Country C. The husband travelled to Australia in October 2003, and the wife followed in February 2004. There are three children of the marriage aged 22 years, 20 years and 13 years. The wife is the primary carer of the youngest child. In 2005, a property in Country C was transferred to the husband by his father. In April 2007, the parties purchased the former matrimonial home for $421,000, with the wife contributing $22,000 to the purchase price and the remaining funds being sourced from a mortgage in both parties’ names. The parties operated a joint bank account into which their respective incomes were paid, and from which their mortgage and general living expenses were met. As found by the primary judge, the wife’s contributions in this respect exceeded the husband’s, due to her higher income throughout the relationship (at [29]). In 2016, a second property in Country C (“second Country C property”) was transferred to the husband by his father. Both Country C properties were transferred into the husband’s name without consideration and without any legal obligation to repay any monies to the husband’s father’s estate (at [28]). In February 2017, the parties separated under one roof, and in March 2018 the husband vacated the former matrimonial home and returned to Country C. The husband has had “limited to no involvement with the children” since then (at [32]). The husband’s father died on 17 December 2019.THE PRIMARY JUDGE’S REASONS At the commencement of the reasons for judgment, the primary judge outlined the undefended nature of the proceedings, and identified the material of each party relied upon. Notably, his Honour stated:2.The wife appeared and legally represented; the husband failed to appear in person, however, he had filed and served trial-related documents. In his written argument document, the husband referred to the death of his parents, and stated that:Due to that reason, the applicant is unable to travel overseas. I am submitting my written arguments under the review of honourable Court.3.At page 6 of that written argument document, under the health [sic] "Plea", the husband states: Please accept my application on merits and decide the documents already submitted to the honourable Court. The death certificates of my both parents are enclosed with my written arguments under the review of honourable Courts.In the circumstances, and observing that these proceedings were set down for hearing on 7 January 2020, it is in the interests of justice that the Court proceed to determine on a final basis these property proceedings.(As per the original) In relation to the evidence, the primary judge made clear that where the parties’ factual assertions were in contest, his Honour preferred “the evidence of the wife by reason of the husband failing to attend in person the trial of the proceedings, and thereby having deprived the wife of cross-examining him through her counsel” (at [11]).

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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