Hsiao v Fazarri

The case of *Hsiao v Fazarri* involved an appeal to the High Court of Australia concerning property settlement orders made under the *Family Law Act 1975* (Cth). The dispute arose after a very short marriage of 23 days. The appellant wife had initially received a 10% interest in a residential property as a gift from the respondent husband, and subsequently received a further 40% interest via a transfer of land. The parties also executed a deed of gift concerning the property. The appellant did not appear at the trial, and the matter proceeded as an undefended hearing, resulting in property settlement orders that significantly altered the parties' interests in the property.

The High Court was required to determine several legal issues. These included whether the primary judge failed to take into account the existing legal and equitable interests of the parties when making the property settlement orders, and whether the primary judge's approach to the deed of gift amounted to a failure to consider a material factor. Furthermore, the Court considered whether it was open to the primary judge to assess that the appellant had made only a 10% financial contribution to the property's acquisition, and crucially, whether the Full Court of the Family Court of Australia erred in refusing to exercise its discretion under s 93A(2) of the *Family Law Act* to receive further evidence on appeal.

The High Court allowed the appeal, finding that the Full Court had erred in its refusal to admit further evidence. The Court reasoned that the discretion to receive further evidence under s 93A(2) exists to serve the demands of justice. In this instance, the appellant's failure to appear at trial was attributed to circumstances where she may not have fully understood the significance of the evidence, and the refusal to admit further evidence, particularly concerning the transfer of the 40% interest, potentially led to a miscarriage of justice. The Court also indicated that the primary judge's assessment of the appellant's contribution as only 10% was unrealistic, given the legal and beneficial interest she held in the property, and that a just and equitable outcome would likely have resulted in a significantly larger award to the appellant had her full interest been properly considered.

Consequently, the High Court ordered that the orders of the Full Court be set aside, and in their place, the appeal to the Full Court be allowed with costs. The orders of the primary judge were also set aside, and the matter was remitted to the primary judge for further determination according to law. The respondent was ordered to pay the appellant's costs of the appeal to the High Court.