BAO & QUADE - [2021] FCCA 630

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAO & QUADE

[2021] FCCA 630

Catchwords:
FAMILY LAW – Property and parenting.

PRACTICE AND PROCEDURE – Joinder of parties after the commencement of proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.79, 75

Federal Circuit Court Rules 2001, r.11.01, 11.05

Cases cited:

Wayne v Dillon (2008) 40 Fam LR 543

Watson v Ling (2013) FLC 93-527

Manderville & Borah [2019] FCCA 2752

Applicant:

MS BAO

Respondent:

MR QUADE

File Number:

BRC 5272 of 2020

Judgment of:

Judge Howard

Hearing date:

19 March 2021

Date of Last Submission:

19 March 2021

Delivered at:

Brisbane

Delivered on:

1 April 2021

REPRESENTATION

Solicitors for the Applicant:

North Coast Law

The Respondent attending as a self-represented litigant.

ORDERS

That the applications contained in paragraphs 1, 2, 3, 4, 5 and 11 of the Application in a Case filed by the Respondent (Mr Quade) on 9 October 2020 are hereby dismissed.
That the balance of the Application in a Case filed by the Respondent (Mr Quade) on 9 October 2020 shall be adjourned to a date to be fixed in the Federal Circuit Court of Australia in Brisbane.

IT IS NOTED that publication of this judgment under the pseudonym Bao & Quade is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5272 of 2020

MS BAO

Applicant

And

MR QUADE

Respondent

REASONS FOR JUDGMENT

The matter before the Court involves property and parenting issues.
On 19 March 2021 the matter came before the Court for the hearing of a particular application. The husband (the respondent in the main proceedings) had filed an Application in a Case on 9 October 2020, seeking various orders. However, at the hearing on 19 March 2021 the application really became focused upon whether or not the Court should grant leave to the husband to join a person by the name of Ms C (also known as Ms C). Ms C was born in 1996. Ms C is the daughter of the applicant wife in the current proceedings. Ms C was born in China. Ms C's father was the first husband of the wife (Ms Bao). Ms C's father was a member of the China armed forces. Unfortunately for Ms C her father was killed in an aircraft accident in 1997.
The husband alleges that the wife owned an apartment in City D, China. He says that after the separation the property was sold on 18 October 2018 and he alleges (in his brief affidavit filed 30 September 2020) that the net proceeds of sale of the apartment were paid to Ms C (the wife's daughter). In paragraph 5 of that affidavit the husband refers to the apartment as being "her residential apartment property". That is a reference to the wife. The husband has provided in annexure 1 of his affidavit a copy of a document which is written in Mandarin (on the reverse page) and translated into English on the front page.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BAO & QUADE

Details

AGLC: BAO & QUADE [2021] FCCA 630
Case: [2021] FCCA 630
Decision Date: 1 April 2021

CaseChat Overview and Summary

In the matter of BAO & QUADE, Judge Howard of the Federal Circuit Court of Australia considered a dispute concerning property and parenting matters between the parties. The proceedings involved applications made by the Respondent, Mr Quade, filed on 9 October 2020.

The central legal issue before the Court was the joinder of parties after the commencement of proceedings, specifically in the context of family law property and parenting disputes. The Court was required to determine the validity and appropriateness of the applications made by Mr Quade in this regard.

Judge Howard dismissed several of the applications made by Mr Quade, as contained in specific paragraphs of his filing on 9 October 2020. The remaining aspects of Mr Quade's application were adjourned to a future date to be set in the Federal Circuit Court of Australia in Brisbane.

Orders

Orders of the court

That the applications contained in paragraphs 1, 2, 3, 4, 5 and 11 of the Application in a Case filed by the Respondent (Mr Quade) on 9 October 2020 are hereby dismissed.

That the balance of the Application in a Case filed by the Respondent (Mr Quade) on 9 October 2020 shall be adjourned to a date to be fixed in the Federal Circuit Court of Australia in Brisbane.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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