Hogai & Galit (No 3) [2025] FedCFamC1A 170 (18 September 2025)

🔹 Introduction

In Hogai & Galit (No 3), the husband appealed final parenting and property orders that divided assets 55/45 in favour of the wife and gave her primary care of their child. He argued the property orders were unfair, particularly concerning a foreign property and funds lost in a fraudulent scheme. The Full Court dismissed the appeal, emphasising that parties cannot sidestep disclosure obligations, resile from concessions, or rely on dissatisfaction instead of demonstrating legal error.

🔹 Facts and Issues

• Marriage & Separation: Married 2004, two children (eldest now adult, youngest 13). Separated 2022; child has lived with wife since.
• Orders (April 2025):
• Parenting: Child to live with wife, spend Sundays/special occasions with husband; joint parental responsibility.
• Property: Wife to receive family home, proceeds of two investment properties, and super split; husband to retain foreign property; $200,000 cash adjustment owed to wife. Split: 55/45 in wife’s favour.
• Appeal Grounds:
• Parenting: Orders gave him too little time.
• Property: Errors in including foreign property, valuation disputes, and add-back of $225,000 lost in scam.
• Enforceability of orders (cash adjustment, property transfer).
• Wife allegedly gave false evidence in family violence proceedings.
• His settlement offers were ignored.

Key Issues for the Court:

1. Did the primary judge err in determining parenting arrangements?
2. Was it wrong to include the foreign property at conceded value?
3. Was it correct to “add back” the $225,000 lost in a fraudulent scheme?
4. Were the orders manifestly unjust or unenforceable?

🔹 Rule (Law)

• Appeals: Limited to identifying appealable error, not rehearing grievances (Allesch v Maunz (2000) 203 CLR 172).
• Disclosure & compliance: Parties must comply with orders; failure justifies remedial measures (Family Law Rules 2021 rr 1.33, 10.26, 10.27).
• Add-backs: Exceptional but available where reckless disposal of matrimonial funds reduces the pool (Kowaliw v Kowaliw (1981) FLC 91-092 principle).
• Enforcement: Property transfers can be executed by registrars (Family Law Act s 106A). Money orders enforceable under Pt XIII.
• Bias & perjury claims: Appeals cannot re-litigate credibility or perjury (D’Orta-Ekenaike v VLA (2005) 223 CLR 1).
• Costs: Impecuniosity does not preclude adverse costs orders (NT v Sangare (2019) 265 CLR 164).

🔹 Application (Court’s Reasoning)

1. Parenting: Grounds were mere dissatisfaction without identifying error. Best interests findings stood.
2. Foreign property: Husband had conceded value ($780,000). His late attempt to withdraw was disallowed due to non-compliance and surprise to wife. Judge entitled to rely on his admission.
3. $225,000 fraud loss: Husband unilaterally invested matrimonial funds after separation. Judge treated it as reckless and “added back” to his property pool. Court affirmed this was consistent with authority and fair.
4. Enforceability: Orders (cash adjustment, property transfers) were legally enforceable (s 106A, Pt XIII).
5. False evidence claims: Impermissible collateral attack; credibility findings stand.
6. Settlement offers: Wife entitled to reject; irrelevant except for potential costs.

🔹 Analysis of Judgment & Reasoning

Justice Austin stressed that:

• Appeals are not a “second chance” to run a different case; compliance and timely disclosure are essential.
• The husband’s defaults meant the wife’s evidence was unchallenged, making the division fair and reasonable.
• The 55/45 split was supported by contributions and future needs; far from “manifestly unjust”.
• Reckless dissipation of assets justified the add-back, preventing the wife from bearing loss she did not cause.
• Costs ($8,800) were ordered against the husband due to multiple unmeritorious applications.

🔹 Take-Home Lesson

Family law appeals require identifiable legal error, not dissatisfaction. Concessions at trial bind unless formally withdrawn. Non-disclosure, delay, and reckless financial decisions can seriously disadvantage a party. Courts will protect fairness by refusing late evidence and “adding back” dissipated funds.

👉 Lesson: Always comply with disclosure orders and trial directions. Appeals are not do-overs.