Parties Dispute Property Settlement Orders
Sartini & Riaz [2022] FedCFamC1A 164 (11 October 2022)
The appeal challenges an order permitting the husband to retain the home. Those orders provided that if the husband paid a fixed sum to the wife, she would be required to transfer her interest in the home to him. The Court, in resolving this dispute, assessed whether the primary judge failed to afford procedural fairness.
Facts
Property settlement orders were made by a judge of the Federal Circuit and Family Court of Australia (Division 2) in proceedings between Ms. Sartini (“the wife”) and Mr. Riaz (“the husband”). The primary judge found that the property should be divided so that the wife receives 55 percent of the net assets and the husband 45 percent.
The significant asset was the family home which the husband, at least in his Response, sought to retain. Thus, his Honour, ordered that the husband pay $654,443.15 to the wife within 60 days and if he did so, she was to transfer her interest in the family home to him. If the husband did not, the home was to be sold with the proceeds divided so as to give effect to the above percentage distribution.
The wife contends that he had abandoned his claim to retain the home in his written submissions and that the order was unfair at the time it was made because it had increased markedly in value from its earlier agreed value. The hearing was approached on the basis that the home had an agreed value of $1.5 million. The wife sought to adduce evidence on the appeal that the valuation which led to the agreed value was prepared in August 2020. She also wished to adduce a ‘kerbside’ valuation dated 7 April 2022 which valued the property at $1.85 million.
The wife submitted that this evidence identified error on the part of the primary judge because the order enabling the husband to retain the home by payment of a fixed sum had the effect that he received the benefit of all of the increase in value, which would have been shared had the order been for the sale of the property and a percentage division of the proceeds. The wife filed a Second Further Amended Initiating Application on 9 April 2021 which sought an order for the sale of the home. On 23 March 2020, the husband filed an Amended Response in which he sought orders that he retain the home (Orders 10.1 and 10.2) and, alternatively, that it be sold (Orders 10.3–10.13).
Issue
Whether or not the appeal should be granted.
Applicable law
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 - provides that where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to the other litigants.
Analysis
The subject evidence is a statement of the effect of his Honour’s orders in the light of the proposed evidence, but that does not point automatically to error. It simply establishes that from August 2020 to April 2022 the property increased in value (leaving aside any obvious difficulties with the second valuation).
On 14 May 2021, the wife filed her written submissions. Despite it being apparent at this time that the husband was seeking to retain the home, the submissions did not address that question or the form of orders to be made. There is no reference to Orders 10.1 and 10.2 which provided for him to retain the home.
His Honour complied with that obligation by taking into account the family home at its agreed value. The wife agreed on the value of the home and asked the primary judge to proceed on that basis. At no stage did the wife suggest that another course should have been taken. She did not seek to tender an updated valuation, such as at the further hearing in August 2021, or subsequently apply to reopen the evidence.
Conclusion
The Application in an Appeal filed on 30 June 2022 is dismissed. The Application in an Appeal filed on 28 July 2022 is dismissed. The appeal is allowed. Orders 15 and 16 made on 23 March 2022 are set aside.
