Masri & Dooley - [2023] FedCFamC1A 63

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Masri & Dooley [2023] FedCFamC1A 63

Appeal from: Masri & Dooley (No 3) [2022] FedCFamC2F 1711

Appeal number(s): NAA 290 of 2022

File number(s): BRC 2410 of 2018

Judgment of: AUSTIN J

Date of judgment: 8 May 2023

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Where the appellant complained the limitation period for property settlement orders had expired – Where an order was made granting the parties leave to proceed out of time – Where the appellant could not establish his denial of procedural fairness – Where the appellant did not challenge the expert valuation evidence at final hearing – Where the appeal lacks merit – Application in an Appeal – Further evidence – Where the appellant sought to adduce further evidence addressing the value of property – Where the evidence does not reveal error by the primary judge – Application dismissed – Appeal dismissed – Self-represented parties – No question of costs.

Legislation:
Evidence Act 1995 (Cth

Family Law Act 1975 (Cth) Pt VIIAB and VII, s 44)

Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Eden & Eden [2022] FedCFamC1A 178

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Number of paragraphs: 43

Date of hearing: 8 May 2023

Place: Newcastle (via Microsoft Teams)

The Appellant: Litigant in person

The Respondent: Litigant in person
ORDERS

NAA 290 of 2022
BRC 2410 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR MASRI

Appellant

AND:
MS DOOLEY

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

8 May 2023

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 20 March 2023 is dismissed.
2.The appeal is dismissed.

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).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Masri & Dooley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

By an Amended Notice of Appeal filed on 20 March 2023, the appellant appeals from property settlement orders made between the parties under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 13 December 2022.
The appeal should be dismissed for the reasons which follow.
Background
Proceedings were first commenced by the appellant in March 2018. At that time,…

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.

Continue reading Masri & Dooley

Details

AGLC: Masri & Dooley [2023] FedCFamC1A 63
Case: [2023] FedCFamC1A 63
Decision Date

CaseChat Overview and Summary

The appeal in Masri & Dooley was heard in the Family Court of Australia, involving a dispute between the appellant and the respondent over parenting and property settlement matters. The appellant initially sought parenting orders under the Family Law Act 1975 (Cth), but the respondent expanded the dispute to include property settlement relief. The parties sought consent orders for property settlement, which were denied due to procedural issues and the application being out of time. The parenting dispute was resolved, but the financial dispute required judicial determination. The trial was adjourned and eventually determined on the papers, with the primary judge finding the parties' contributions were equal, but a 10 per cent adjustment in the respondent’s favour was warranted, resulting in a 60/40 division of assets in her favour.

The central legal issue in the appeal was the valuation of the encumbered parcel of real property owned by the wife, referred to as "the A property". The primary judge found this property to be valued at $280,000, based on the unchallenged evidence of a registered real estate valuer. This valuation was integral to the calculation of the asset pool and the subsequent division of assets between the parties. The appellant contested this valuation, arguing it was incorrect and lower than its true value. The appeal focused on whether the primary judge erred in accepting the lower valuation of the A property and the subsequent impact on the division of assets. The court had to determine if the primary judge’s findings on the valuation of the A property were reasonable and supported by the evidence.

The Family Court of Australia dismissed the appeal, upholding the primary judge's findings and orders. The court found that the primary judge’s valuation of the A property was reasonable and based on unchallenged expert evidence. The court rejected the appellant’s argument that the valuation was incorrect, affirming the primary judge’s assessment of the evidence. The court also confirmed the overall division of assets and the calculation of the payments due to the respondent. The primary judge’s orders, including the division of assets and the payment timeline, were upheld, with the appellant required to pay the respondent $87,203.32 within 60 days, or face the sale of his encumbered parcel of real property to satisfy the orders.

Orders

Orders of the court

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Background

Background to the litigation

The appeal should be dismissed for the reasons which follow.Background Proceedings were first commenced by the appellant in March 2018. At that time, he sought only parenting orders under Pt VII of the Act. The respondent filed her Response in April 2018, broadening the ambit of the dispute by also seeking property settlement relief under Pt VIIIAB of the Act. The appellant filed a Reply in June 2018, joining issue in the financial dispute. The parties applied for property settlement orders to be made with their consent in August 2018, but the primary judge found the application was not granted because it was not shown the trustee of a superannuation fund had been afforded procedural fairness and the issue of the application being brought out of time had not been addressed (at [5]–[7]). The latter issue was significant because the parties were found to have only been in a de facto relationship between 2006 and 2015 (at [7] and [17]), though leave was subsequently granted to bring the competing applications of property settlement out of time (at [8]). The parenting dispute was resolved by orders made in June 2020 (at [3]), but the financial dispute required judicial determination. The trial was initially listed for hearing in July 2022, but was vacated on that date and the proceedings were adjourned to September 2022 for further directions. The trial was then re-listed in November 2022, at which time neither party was legally represented, each elected not to cross-examine the other or any other witness, and both invited the primary judge to determine the proceedings on the papers in chambers (at [15]). The primary judge found the parties’ contributions were equal (at [46]), but that a 10 per cent adjustment in the respondent’s favour was warranted on account of her principal responsibility for the supervision, care and financial support of the parties’ child, resulting in an overall 60/40 division of assets in the respondent’s favour (at [47]–[52]). The parties’ net assets and superannuation were found to be valued at $495,079 (at [41] and [43]), subject to which finding it was calculated that the appellant must pay the respondent $76,199 in order that she retain assets and superannuation worth 60 per cent of the net value of the property (at [56] and [59]). Integral to those calculations was a finding by the primary judge that the encumbered parcel of real property owned by the wife (“the A property”) was valued at $280,000 (at [41]), which finding was based on the unchallenged evidence of a registered real estate valuer (at [42a]). The evidence and the finding on that particular issue are central to this appeal. The appellant was also ordered to pay the respondent an extra $11,004.32, which is the amount by which he short-paid money to her, due under interim orders made in October 2020 (at [23]–[27] and [60]–[61]). The appealed orders gave the appellant 60 days within which to raise finance to make the total payment of $87,203.32 to the respondent, in default of which his encumbered parcel of real property (“the B property”) would have to be sold and the net sale proceeds used to satisfy the orders (at [62]–[64]).

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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NAA 290 of 2022 BRC 2410 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR MASRI Appellant
AND:	MS DOOLEY Respondent

Appeal from:	Masri & Dooley (No 3) [2022] FedCFamC2F 1711
Appeal number(s):	NAA 290 of 2022
File number(s):	BRC 2410 of 2018
Judgment of:	AUSTIN J
Date of judgment:	8 May 2023
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Appeal from property settlement orders – Where the appellant complained the limitation period for property settlement orders had expired – Where an order was made granting the parties leave to proceed out of time – Where the appellant could not establish his denial of procedural fairness – Where the appellant did not challenge the expert valuation evidence at final hearing – Where the appeal lacks merit – Application in an Appeal – Further evidence – Where the appellant sought to adduce further evidence addressing the value of property – Where the evidence does not reveal error by the primary judge – Application dismissed – Appeal dismissed – Self-represented parties – No question of costs.
Legislation:	Evidence Act 1995 (Cth Family Law Act 1975 (Cth) Pt VIIAB and VII, s 44)
Cases cited:	CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Eden & Eden [2022] FedCFamC1A 178 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Number of paragraphs:	43
Date of hearing:	8 May 2023
Place:	Newcastle (via Microsoft Teams)
The Appellant:	Litigant in person
The Respondent:	Litigant in person

order made by:	AUSTIN J
DATE OF ORDER:	8 May 2023