By Debra Cherrie, Principal
The High Court recently handed down its decision in Hsiao v Fazarri (‘Fazarri’).

Background of the case

The parties in Fazarri had a complicated relationship. Before they were married, the respondent (Mr Fazarri) gifted a 10% interest in a property he owned to the applicant (Ms Hsiao). Around eight months later, Mr Fazarri had a heart attack. While he was recovering in hospital, under pressure from Ms Hsiao, he signed a transfer of land granting her an extra 40% ownership of the property. Two months later, the transfer of land was registered and the parties became joint tenants in the property. This means they owned the property jointly and Ms Hsiao would inherit the property upon Mr Fazarri’s death. Following this, a deed of gift was executed which required Mr Fazarri to pay Ms Hsiao’s siblings approximately 50% of the value of the property if she predeceased him and they still owned the property as joint tenants. In 2016, the parties married. They separated 23 days later. They each sought a property settlement in the Family Court. Taussig Cherrie Fildes acted for Mr Fazarri.

The trial

Ms Hsiao sought 50% of Mr Fazarri’s total assets. The Court instead made orders which required Ms Hsiao to transfer her interest in the jointly owned property to Mr Fazarri and for Mr Fazarri to pay her $100,000. All other property was to be retained by the parties as it was held at the time of the orders. Ms Hsiao appealed this decision to the Full Court. She claimed, among other things, that the Court erred by not adequately considering Ms Hsiao’s 50% registered ownership of the jointly owned property and that the decision was not just and equitable.2  She also contended that the Court had been incorrect to determine that Mr Fazarri had only signed the 40% interest to her due to undue influence (although the trial judge actually made no such finding).3 She claimed that the registration of the transfer two months after his heart attack indicated there had been no undue influence. The Full Court denied this appeal. She then sought leave to appeal to the High Court, which was allowed. When Ms Hsiao reached the High Court, her position regarding the undue influence changed. She accepted that the trial Court had not set aside the deed due to undue influence. She also contended that the Full Court had erred by not accepting further evidence, which was said to prove Mr Fazarri failed to disclose pertinent material and that he had acted fraudulently.

Decision

Ms Hsiao was required to file her evidence for the primary trial by 6 June 2018. She failed to do so. Immediately following this, her solicitors ceased acting for her. One day before the trial, she sought an adjournment and for the judge to recuse himself. These requests were refused. Ms Hsiao represented herself, and no explanation was given as to why the solicitors had not prepared the matter for trial. She failed to attend the trial the following day, and the judge found there was no acceptable reason for this behaviour or for her failure to file evidence. The trial proceeded in her absence. The High Court by a three two majority found that the Full Court’s decision to refuse to allow Ms Hsiao to adduce further evidence on appeal was correct. The evidence she had sought to adduce on appeal was available to her before the trial and should have been brought to the attention of the Court from the beginning of the process. The introduction of new evidence at appeal would have necessitated a new trial. The High Court put it succinctly:

The trial was the opportunity for the appellant to put her case and the appellant chose not to participate in it.4

Accordingly, Mr Fazarri was successful. The appeal was quashed, and the decision of the trial judge was affirmed.

Decision

Ms Hsiao was required to file her evidence for the primary trial by 6 June 2018. She failed to do so. Immediately following this, her solicitors ceased acting for her. One day before the trial, she sought an adjournment and for the judge to recuse himself. These requests were refused. Ms Hsiao represented herself, and no explanation was given as to why the solicitors had not prepared the matter for trial. She failed to attend the trial the following day, and the judge found there was no acceptable reason for this behaviour or for her failure to file evidence. The trial proceeded in her absence. The High Court by a three two majority found that the Full Court’s decision to refuse to allow Ms Hsiao to adduce further evidence on appeal was correct. The evidence she had sought to adduce on appeal was available to her before the trial and should have been brought to the attention of the Court from the beginning of the process. The introduction of new evidence at appeal would have necessitated a new trial. The High Court put it succinctly:

The trial was the opportunity for the appellant to put her case and the appellant chose not to participate in it.4

Accordingly, Mr Fazarri was successful. The appeal was quashed, and the decision of the trial judge was affirmed.

Conclusion

The facts of Fazarri are highly unusual, but one principle highlighted by this case is applicable to all family law matters: it is essential to provide all relevant evidence available to you to the court at the beginning of your trial.

1 [2020] HCA 35 (‘Fazarri’).  |  2 As required by Family Law Act 1975 (Cth) s 79(2).  |  3 Fazarri (n 1) [53].  |  4 Fazarri (n 1) [43].