Nutley & Nutley

The Full Court of the Family Court of Australia heard an appeal by the husband against property settlement orders made by a single judge. The dispute concerned the division of a property pool valued at $949,172, which included significant superannuation assets. The husband had failed to participate in the original proceedings, despite orders for substituted service.

The legal issues before the Full Court were whether the trial judge had erred in proceeding with an undefended hearing, whether the husband had been denied natural justice and procedural fairness, and whether the property settlement orders made were just and equitable. Specifically, the court considered whether the trial judge had properly proceeded despite the husband's non-participation and whether the adjustment of approximately 16% in favour of the wife for section 75(2) factors was sustainable.

The Full Court found that while the trial judge had not erred in proceeding with the hearing, given the husband knew or ought to have known the orders sought, the award of 16% for section 75(2) factors could not be maintained. The court upheld the appeal in part, re-exercising its discretion. The husband was denied a costs certificate, as the court determined that a litigant could not elect not to participate in proceedings and then claim entitlement to a certificate based on errors arising from that non-participation.