Fazarri and Hsiao (No. 2) - [2018] FamCA 447

AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004
FAMILY COURT OF AUSTRALIA

FAZARRI & HSIAO (NO. 2)

[2018] FamCA 447

PROPERTY SETTLEMENT – Undefended proceeding – where the wife was refused an adjournment and then did not participate further, refusing to return to the court on the second day – where the husband satisfies the court that his contribution both financial and non-financial was overwhelming by comparison to that of the wife – where the s 75(2) factors do not assist the wife because of the absence of evidence and because of the fact that the husband maintained that the wife could obtain employment – s 106A order made on the basis of anticipatory non-compliance by the wife.

Family Law Act 1975 (Cth)

Beneke and Beneke (1996) 20 FamLR 841
Gabel & Yardley [2008] FamCAFC 162; [2008] 40 Fam LR 66
Livesey v Jenkins [1984] UKHL 3; (1985) 1 All E.R. 106
Oriolo v Oriolo (1985) FLC 91-653
Stanford v Stanford (2012) 247 CLR 208
Tate & Tate [2000] FamCA 1040

APPLICANT:

Mr Fazarri

RESPONDENT:

Ms Hsiao

FILE NUMBER:

MLC

11418

2016

DATE DELIVERED:

19 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North SC with Mr Schmidt

SOLICITOR FOR THE APPLICANT:	Taussig Cherrie Fildes
THE RESPONDENT:	No Appearance

Orders

That the husband pay to the wife $100,000 by 4.00pm on 1 August 2018.
That the joint tenancy of the parties in the real property at G Street, Suburb H being the whole of the land described in Certificate of Title Volume … Folio … is forthwith severed and each party forthwith holds any interest in that property in accordance with these orders.
That by 4.00pm on 1 August 2018, the wife sign a transfer of land prepared by and at the expense of the husband, to him, of all of her interest in the property at G Street, Suburb H being the land described in the title referred to above.
That the wife provide to the husband through his solicitors, within 14 days, the spare key to the husband’s motor vehicle and the remote keys for the property at G Street.
If the wife fails to comply with her obligations under these orders, then pursuant to s 106A of the Family Law Act 1975 (Cth), the registrar of the Family Court of Australia at Melbourne is authorised to execute all necessary deeds and documents in the name of the wife and to do all acts and things necessary to give validity and operation to these orders.
To give effect to these orders, the registrar shall be entitled to be satisfied of the wife’s failure to comply upon the affidavit of the solicitor for the husband.
That each party otherwise retain, to the exclusion of the other, all other property (including choses in action) in the possession of such party as at the date of these orders noting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Fazarri and Hsiao (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 447
Decision Date: 19 June 2018

CaseChat Overview and Summary

In *Fazarri and Hsiao (No. 2)*, Cronin J of the Family Court of Australia considered the financial and property settlement dispute between a husband and wife. The proceedings involved the division of assets and the transfer of interests in real property.

The court was required to determine the appropriate orders for the division of property, including the disposition of a jointly owned property and the payment of a sum of money between the parties. The court also had to consider the mechanism for enforcing compliance with its orders, particularly in relation to the transfer of property interests.

Cronin J ordered that the husband pay $100,000 to the wife by 1 August 2018. The court further ordered the immediate severance of the joint tenancy in the parties' real property at G Street, Suburb H, with the wife to sign a transfer of her interest in that property to the husband by the same date. The wife was also required to provide spare keys to the husband's vehicle and the property within 14 days. To ensure compliance, the registrar of the Family Court was authorised to execute necessary documents in the wife's name if she failed to comply with her obligations, upon affidavit evidence from the husband's solicitor. Each party was to retain all other property in their possession, with the wife's sole remaining interest in the G Street property being the $100,000 payment. The husband's application filed on 18 May 2018 was otherwise dismissed.

Orders

Orders of the court

That the husband pay to the wife $100,000 by 4.00pm on 1 August 2018.

That the joint tenancy of the parties in the real property at G Street, Suburb H being the whole of the land described in Certificate of Title Volume … Folio … is forthwith severed and each party forthwith holds any interest in that property in accordance with these orders.

That by 4.00pm on 1 August 2018, the wife sign a transfer of land prepared by and at the expense of the husband, to him, of all of her interest in the property at G Street, Suburb H being the land described in the title referred to above.

That the wife provide to the husband through his solicitors, within 14 days, the spare key to the husband’s motor vehicle and the remote keys for the property at G Street.

If the wife fails to comply with her obligations under these orders, then pursuant to s 106A of the Family Law Act 1975 (Cth), the registrar of the Family Court of Australia at Melbourne is authorised to execute all necessary deeds and documents in the name of the wife and to do all acts and things necessary to give validity and operation to these orders.

To give effect to these orders, the registrar shall be entitled to be satisfied of the wife’s failure to comply upon the affidavit of the solicitor for the husband.

That each party otherwise retain, to the exclusion of the other, all other property (including choses in action) in the possession of such party as at the date of these orders noting that the only interest that the wife has in G Street forthwith is to the extent of $100,000 provided by these orders.

That any party seeking costs arising out of these proceedings, make such application by written submission to be delivered to the court and served on the other party by no later than 4.00pm on 1 August 2018 and subject to any response by the other party no later than 14 days later, the matter be determined in chambers.

That the application of the husband filed 18 May 2018 is otherwise dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.