Cuyper & Cuyper

Case [2025] FedCFamC1A 176

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Cuyper & Cuyper [2025] FedCFamC1A 176

Appeal from: Cuyper & Cuyper [2025] FCWAM 70
Appeal number(s): NAA 201 of 2025
File number: PTW 506 of 2024
Judgment of: RIETHMULLER J
Date of judgment: 24 September 2025
Catchwords: APPEAL – PROCEDURAL FAIRNESS – Respondent changed orders sought on morning of hearing – Appellant not present at hearing – Failure to afford appellant procedural fairness – Appeal allowed.
APPEAL – PROPERTY – Assessment of Contributions – Error in approach – Implicit assumption of equality as starting point – Appeal allowed.
APPEAL – PROPERTY – Assessment of Contributions – Significant error of fact by presiding magistrate – Appeal allowed.
Legislation:

Family Law Act 1975 (Cth), s 102NA

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth), s 6

Restraining Orders Act 1997 (WA)
Cases cited:

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

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Dumont & Cabrara [2025] FedCFamC1A 82

Preston & Preston (2022) 66 Fam LR 285; [2022] FedCFamC1A 157

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Number of paragraphs: 59
Date of hearing: 19 August 2025
Place: Parramatta
Counsel for the Appellant: The Applicant appeared in person
Counsel for the Respondent: Mr O’Brien
Solicitor for the Respondent: Patrick Legal

ORDERS

NAA 201 of 2025
PTW 506 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS CUYPER

Appellant
AND:

MR CUYPER

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

24 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.Appeal NAA 201/2025 be allowed in part.

2.Orders 2(e) to (g) and Orders 3 to 14 of 8 April 2025 be set aside.

3.Pending further order the net proceeds of sale following the payments set out in Orders 2(a) to (d) of 8 April 2025 be held in the trust account of the solicitors for the respondent pending further order.

4.The respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in the appeal.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS…

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AGLC
Cuyper & Cuyper [2025] FedCFamC1A 176
Case
[2025] FedCFamC1A 176
Decision Date

CaseChat Overview and Summary

In the matter of Cuyper & Cuyper, the appellant, Ms Cuyper, has appealed against the final property orders made by a Magistrate on 8 April 2025. The appeal concerns the procedural fairness afforded to the appellant during the proceedings, the assessment of contributions to the marital property, and an error of fact by the presiding magistrate. The appellant and respondent, Mr Cuyper, had been in a relationship since 2004, married in 2006, and separated in 2021. The appellant had been the primary homemaker and child carer during their marriage. The property orders were made following proceedings initiated by the respondent, who sought urgent orders due to non-payment of the mortgage on their marital home. The appellant did not appear at the final hearing, despite being contacted by telephone to make submissions.

The court was required to determine whether the appellant had been afforded procedural fairness during the proceedings, whether there was an error in the assessment of contributions, and whether there was a significant error of fact by the presiding magistrate. The court found that the appellant had not been afforded procedural fairness, as she was not present at the hearing and had not been given an opportunity to respond to the husband's application. The court also found that there was an error in the assessment of contributions, as the presiding magistrate had implicitly assumed equality as the starting point. Additionally, the court found that there was a significant error of fact by the presiding magistrate, who had made an incorrect assumption about the husband's initial contributions to the marital property.

The court allowed the appeal in part, setting aside certain orders and remitting the matter for rehearing. The court found that the appellant had not been able to place evidence before the court at the final hearing, leaving considerable gaps in the evidence before the learned magistrate. The court concluded that it was in the interests of justice to remit the matter to ensure that justice could be done. The court also found that the respondent should receive a costs certificate, as the appeal had succeeded on errors of law and the error of fact concerning the husband's initial contributions would have resulted in the judgment being set aside regardless of the other errors. The court ordered that Orders 2(e) to (g) and Orders 3 to 14 of 8 April 2025 be set aside, that the net proceeds of sale following the payments set out in Orders 2(a) to (d) of 8 April 2025 be held in the trust account of the solicitors for the respondent pending further order, and that the respondent be granted a costs certificate.

Orders

Orders of the court

NAA 201 of 2025

PTW 506 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS CUYPER

Appellant

AND:

MR CUYPER

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

24 SEPTEMBER 2025

THE COURT ORDERS THAT:

1. Appeal NAA 201/2025 be allowed in part.

2. Orders 2(e) to (g) and Orders 3 to 14 of 8 April 2025 be set aside.

3. Pending further order the net proceeds of sale following the payments set out in Orders 2(a) to (d) of 8 April 2025 be held in the trust account of the solicitors for the respondent pending further order.

4. The respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in the appeal.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The appellant appeals against final property orders made by a learned Magistrate on 8 April 2025. BACKGROUND The appellant wife (aged 41 years) and the respondent husband (aged 48 years) commenced a relationship in or around March 2004. In June 2004 they began cohabiting at a home owned by the husband prior to the relationship which became the marital home (the “Suburb B Property”). The parties married in 2006. There are two children of the parties’ marriage, aged 16 and 18 years. The wife ceased paid employment in approximately January 2007 and assumed the role of primary homemaker and child carer. The parties separated on a final basis in June 2021. The wife left the Suburb B Property with the children in February 2021 to reside at a hotel. The husband continued to reside in the Suburb B Property from February 2021 until 3 April 2022 when he relocated interstate (notifying the wife by text message of the town to which he intended to relocate). The wife and the children resided at the hotel until approximately June 2021. The housing arrangements of the wife during the interim from June 2021 to December 2023 were not the subject of evidence before the court. The wife resumed occupancy of the Suburb B Property in or about December 2023, before moving to the small town in which the husband was then residing interstate in October 2024. History of the proceedings The husband commenced the proceedings on 22 January 2024, seeking an urgent hearing due to non-payment of the mortgage on the Suburb B Property. The matter came before the court on 8 February 2024. The presiding Magistrate made orders by consent for the wife to be liable for any payments associated with the Suburb B Property and for the wife to file her responding documents. The matter was adjourned for directions to 27 March 2024. On 11 March 2024 the wife filed a Response to the Initiating Application. On 27 March 2024 directions were made for the wife to file an amended response, orders were made for disclosure, and a conciliation conference was allocated for 7 June 2024. On 5 June 2024 the wife filed an application in the proceedings, which was listed for the following day. The conciliation conference was vacated and the matter adjourned to 2 August 2024, when the wife’s application in a case was dismissed and further procedural orders were made. On 30 August the parties attended a conciliation conference, however the matter did not settle. Various procedural orders were made and the matter was listed for final hearing on 10 February 2025. A further interlocutory hearing was scheduled for 16 January, however it was recorded that:30Shortly prior to the hearing on 16 January 2025, the [wife] lodged correspondence indicating her reluctance to proceed with the financial matters, referencing personal safety concerns for the welfare of herself and the children. She did not file any documents in response to the [husband]’s application, nor did she seek any other orders. Whilst the wife failed to appear at the hearing on 16 January, she was contacted by telephone to enable her to make submissions. The learned Magistrate recounts that:32 The [wife] indicated that she was unwilling to proceed with the matter any further, that she viewed the Court system as a means of “subjecting her to further abuse”, and that she intended to take “legal action”. However, the [wife] was not able to identify what action she proposed to take.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no merit in this ground of appeal.CONCLUSIONS The appeal must be allowed for the reasons set out above. There is no dispute that the real property must be sold. I am not persuaded that there is any error that relates to the orders for the sale of the property (and the machinery provisions for that order), thus that Order will not be set aside. As a result, only Orders 2(e) to 2(g) and 3 to 14 will be set aside. The orders for the distribution of the net proceeds (Orders 2(e) to 2(g)) will be discharged, and orders made for the net proceeds to be held in the respondent’s solicitor’s trust account pending further order. The appellant does not consent to this court re-exercising the relevant discretion pursuant to the Family Law Act. She argues that she had been labouring under the effects of mental health issues which impeded her participation in the property settlement proceedings and led to her having no evidence before the court at the final hearing. She says that she now seeks to place evidence before the court and participate in the proceedings. The appeal to this court is by way of “rehearing”. On such an appeal “an appellate court may, itself, exercise the discretion in question by reference to circumstances as they then exist, it is not bound to do so.”: Allesch v Maunz (2000) 203 CLR 172, [30]. Where the relevant facts have been determined by the court at first instance, it is usually appropriate for this court to determine the matter rather than remitting it for re-hearing. However, in this case the appellant has not placed evidence before the court at first instance leaving considerable gaps in the evidence before the learned magistrate. The appellant is unrepresented. The appellant also had the option of applying to set aside the orders on the basis that they were made in her absence. I am persuaded that the interests of justice demand that this matter be remitted to ensure that justice can be done.COSTS The appeal succeeded on errors of law. The appellant has incurred no recoverable costs as she represented herself on the appeal. The error of fact concerning the husband’s initial contributions would have resulted in the judgment being set aside regardless of the other errors. That error was not induced by the respondent. I am persuaded that in the circumstances of this appeal the respondent should receive a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

Ratio Decidendi

Legal Principle Established

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