Family law: November 2022

PROPERTY

Full Court sets aside property order in short, childless de facto relationship

In Grunseth & Wighton [2022] FedCFamC1A 132 (26 August 2022) the Full Court (Alstergren CJ, Aldridge & Brasch JJ) allowed a de facto wife’s appeal in a case involving a childless de facto relationship that lasted for ‘just under three years’.

The parties purchased a property (‘the B town property’), the de facto wife contributed 70 per cent of the purchase price and the husband 30 per cent. The parties registered the B town property 70:30 in favour of the wife (at [5]).

The de facto husband paid $160,000 to the de facto wife. The parties agreed the intention of the payment was such that the B town property would be registered 50:50 between them.

As first instance, the Court ordered a division of 52.5 per cent to the de facto husband and 47.5 per cent to the de facto wife. The Full Court said (from [37]):

‘[W]e cannot reconcile the ultimate determination … with the … fact that the [de facto wife] … contributed over 52.5 per cent of the … assets and with assets to which the [de facto husband] … made no contribution to at all. …

[74] … [T]here is much to be said for the proposition that the parties should … receive the property owned by them … particularly so when the ownership of the B Town property was … structured … to reflect the parties’ contributions …

[76] The … payment of $160,000 … was paid by the [de facto husband] … to gain an increased share of the B Town property … [A]n allowance must be made in [his] … favour for at least that sum.

[88] … [T]he order will provide for the sale of the … property and the division of the proceeds 70 per cent to the [de facto wife] … and 30 per cent to the [de facto husband] … [and] for the payment of $160,000 by the [de facto wife] … to the [de facto husband] …’

PROPERTY

Court erred by making enforcement orders that substantively varied the parties’ rights pursuant to a registered arbitral award

In Lasso & Malaka [2022] FedCFamC1A 130 (23 August 2022) the Full Court (Austin, Tree & Williams JJ) allowed a husband’s appeal from orders of Wilson J in respect of an arbitral award that was registered pursuant to s 13H of the Family Law Act (‘Act’).

The award provided for the husband to transfer his interest in the former family home to the wife and within 90 days the wife was to refinance the mortgage on an investment property (at [6]). If the wife was unable to refinance within a further 30 days, the husband could elect to pay the wife $325,000 and retain the property.

The wife obtained finance approval and provided notice to her conveyancer, but not the husband. On the expiration of the 90 day period, the husband paid $325,000 to the wife and said the property vested in him.

The wife filed an application for enforcement.

At first instance, the Court found the ‘award should be given effect but in accordance with new dates’ (at [23]). The Court also made orders for the wife to return the $325,000 to the husband and that the husband transfer his interest in the property.

The Full Court said (from [30]):

‘Counsel for the [wife] submitted, subject to … exceptions, once perfected … an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant) [1977] HCA 7 … There is no reason why the same conclusion should not apply to an arbitral award …

[31] Exceptions to the principle … include matters where the orders sought to be varied are consequential or machinery orders …

[40] … The [first instance] … orders … substantially varied the terms of the decree …

[42] It was incumbent on the … judge to raise with the parties the orders he proposed to make … The failure … to do so is a denial of procedural fairness.

[60] Not only did the primary judge fail to identify the source of power he purportedly exercised to make the … orders, the orders could not have been made pursuant to s 13K or s 105 of the Act, nor … the general power …’