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No Fairness, No Finality: Appeal Succeeds After Wife Denied Procedural Fairness
In Cuyper & Cuyper [2025] FedCFamC1A 176, Justice Riethmuller of the Federal Circuit and Family Court (Division 1, Appellate Jurisdiction) allowed a wife’s appeal from a Western Australian Magistrates Court decision concerning final property orders. The appeal turned on the denial of procedural fairness — where the husband changed the property division sought on the morning of trial without proper notice — and on significant factual and legal errors in assessing contributions. The Court held that the wife had not been given a fair opportunity to respond to a last-minute shift from a 50/50 to a 60/40 division, and that the trial magistrate erred in both fact and method by assuming equality of contributions as a starting point. The case reinforces the importance of procedural fairness, accurate factual findings, and adherence to proper methodology under Stanford v Stanford and Mallett v Mallett.
Facts
- The parties married in 2006 and separated in 2021 after a 15-year marriage with two children.
- The husband, a FIFO worker, owned the Suburb B property prior to the marriage.
- The wife was primarily a homemaker and caregiver since 2007.
- Following separation, the wife left the home but later reoccupied it before moving interstate.
- The husband initiated property proceedings in January 2024.
- The wife later disengaged from proceedings, citing mental health and safety concerns.
- At final hearing, the husband’s lawyer changed the proposed division from 50/50 to 60/40 in his favour on the morning of trial; the wife was absent and unrepresented.
- The magistrate proceeded, awarding the wife 45% of the total asset pool, equating to roughly $58,000 less than what was earlier proposed.
Issues on Appeal
- Was the wife denied procedural fairness when the respondent changed the orders sought at trial without adequate notice?
- Did the magistrate commit an error of fact in miscalculating the husband’s initial contribution?
- Did the magistrate err in law by adopting an “adjustment” approach implying equal starting contributions?
- Were the findings on contributions and adjustments under s 79(2) of the Family Law Act 1975 sustainable?
- Should the appeal court re-exercise discretion or remit the matter for rehearing?
Law
The Court applied the following principles:
- Procedural fairness (natural justice) — parties must have real opportunity to know and respond to the case made against them (Allesch v Maunz (2000) 203 CLR 172).
- Family Law Act 1975 (Cth):
- s 79(2) – Court must make orders that are just and equitable.
- s 75(2) – Future needs adjustments.
- s 102NA – Restrictions on personal cross-examination in family violence cases.
- Leading authorities:
- Stanford v Stanford (2012) 247 CLR 108 – threshold question of justice and equity.
- Mallett v Mallett (1984) 156 CLR 605 – no presumption of equal contributions.
- Dickons & Dickons (2012) 50 Fam LR 244 – holistic assessment of contributions.
- Preston & Preston (2022) 66 Fam LR 285 – appellate restatement rejecting “starting point of equality.”
- Dumont & Cabrara [2025] FedCFamC1A 82 – error of law where a court applies an “adjustment” model implying equality.
Application of Law to Facts
1. Procedural Fairness
- The husband’s application had consistently sought a 50/50 division, but on the morning of trial, he sought 60/40 in his favour.
- The wife was not present and was only emailed the new proposed orders at 9:12am that day ([24]–[27]).
- The Court held this provided insufficient notice to an unrepresented party.
- Justice Riethmuller found that “notice to the unrepresented appellant on the day of the final hearing was not sufficient to reasonably put her on notice of the orders then sought … [she] was not afforded procedural fairness by such late notice” ([27]).
- Procedural fairness required meaningful notice of any substantive change in outcome sought — particularly where the opposing party is self-represented.
- ✅ Held: Procedural fairness denied → miscarriage of justice established.
2. Error of Fact — Husband’s Initial Contributions
- The magistrate found the husband entered the relationship with $200,000 equity, but evidence showed it was only $15,000–$20,000 ([43]).
- This was a material error in a modest asset pool (~$1.16 million).
- The appellate judge found this “significant error of fact” infected the contribution findings ([43]–[45]).
3. Error in Legal Approach to Contributions
- The magistrate’s phrase “an adjustment of 10% in the applicant’s favour” implied a starting point of equality, contrary to Mallett v Mallett and Preston & Preston.
- Justice Riethmuller held this reflected an incorrect heuristic of equal starting contributions, inconsistent with law ([46]–[48]).
- ✅ Held: Legal error established — contributions must be assessed holistically, not by mathematical adjustment from equality.
4. Just and Equitable Requirement
- Although the magistrate cited Stanford v Stanford and found making orders was just and equitable ([38]), the underlying contribution findings were tainted by error, rendering the overall outcome unsafe.
5. Relief
- The appeal was allowed in part.
- Orders 2(e)–(g) and 3–14 (distribution of proceeds) were set aside.
- Proceeds of sale to be held in trust pending further order.
- Matter remitted for rehearing due to incomplete evidence and procedural unfairness.
- Respondent granted a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).
Judgment and Reasoning
Justice Riethmuller held:
“Procedural fairness requires that a person be provided with a real opportunity to be heard. For the opportunity to be heard to be real, it is necessary that the person have reasonable notice of … the substance of the orders sought.” ([27])
He further found:
- “Notice … on the day of the final hearing was not sufficient to reasonably put the appellant on notice.” ([27])
- The trial magistrate’s reliance on an “adjustment” approach improperly assumed equality of contributions, contrary to established doctrine ([46]–[48]).
- These errors, combined with the factual misstatement of the husband’s equity, justified setting aside the orders ([43], [49], [55]).
Key Precedents Cited
- Allesch v Maunz (2000) 203 CLR 172 – appeal rehearing standard ([58]).
- Stanford v Stanford (2012) 247 CLR 108 – “just and equitable” threshold ([38]).
- Preston & Preston (2022) 66 Fam LR 285 – incorrect “adjustment” model ([47]).
- Dumont & Cabrara [2025] FedCFamC1A 82 – reinforces the same principle ([47]–[48]).
- Dickons & Dickons (2012) 50 Fam LR 244 – holistic approach ([48]).
Take-Home Lesson
“Procedural fairness is the foundation of justice — even a 5% change can make a world of difference.”
This decision underscores that:
- Courts must not proceed on last-minute changes to relief sought without fair notice, especially when a party is self-represented.
- Judicial officers must avoid “starting-point equality” shortcuts in contribution assessments.
- Even modest factual errors can amount to appealable error when they materially affect the outcome.
- The Cuyper appeal reiterates that fairness and accuracy outweigh speed or convenience in family property litigation.