Cai and Hsueh - [2017] FamCA 671

FAMILY COURT OF AUSTRALIA

CAI & HSUEH

[2017] FamCA 671

FAMILY LAW – ENFORCEMENT OF ORDERS – Where parties entered into binding financial agreement – Where disagreement as to effect of the financial agreement – Where issue as to agreed funds owing to wife by the husband and payment of same – Where otherwise appropriate to make orders to give effect the parties’ common intention.

Family Law Act 1975 (Cth) s 90KA
Judiciary Act 1903 (Cth) s 32

Cai & Hsueh [2016] FamCA 1081

APPLICANT:

Ms Cai

RESPONDENT:

Mr Hsueh

INDEPENDENT CHILDREN’S LAWYER:

Ms Reid

FILE NUMBER:

PAC

6235

2015

DATE DELIVERED:

1 September 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Shepherd of Shepherds The Family Law Specialists

RESPONDENT – SELF-REPRESENTED LITIGANT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reid of JPM Legal

Orders

That the wife have a charge to the value of $97,500.00 over the husband’s share of the net proceeds of sale of the properties at H Street, Suburb I and Lots 1 and 2/J Street, Suburb K with such charge to be paid out on settlement of the sales.
That the parties do all necessary things and sign all necessary documents so as to procure that from the proceeds of sale of the properties at H Street, Suburb I and Lots 1 and 2/J Street, Suburb K, National Australia Bank (NAB) mortgage being NAB account Number …98 be paid out and be discharged.
That the parties do all necessary things and sign all necessary documents so as to procure upon sale of the properties at H Street, Suburb I and Lots 1 and 2/J Street, Suburb K a release of the said properties from NAB mortgage being account number …47 to the effect that the said mortgage (and the balance then outstanding) will remain secured over the wife’s property at B Street, Suburb C.
That, otherwise, the wife’s Application filed 13 March 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cai & Hsueh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6235 of 2015

Ms Cai

Applicant

And

Mr Hsueh

Respondent

REASONS FOR JUDGMENT

On 13 March 2017 the applicant wife filed an application seeking orders arising from a binding financial agreement (BFA) dated 28 October 2006 entered into between herself and the husband.
In summary, the wife’s application sought orders as follows:
(1)that…

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 Cai and Hsueh

Details

AGLC: Cai and Hsueh [2017] FamCA 671
Case: [2017] FamCA 671
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the matter of *Cai and Hsueh*, Foster J considered an application by the wife concerning property division following the breakdown of the marriage. The dispute centred on the wife's claim for a specific sum of money from the proceeds of sale of certain jointly owned properties, as well as the discharge of a mortgage over those properties.

The primary legal issue before the court was whether the wife was entitled to a charge over the husband's share of the net proceeds of sale of properties located at H Street, Suburb I and Lots 1 and 2/J Street, Suburb K, in the amount of $97,500.00. A further issue concerned the arrangements for the discharge of a National Australia Bank mortgage from these properties and the reallocation of security for another NAB mortgage to the wife's sole property.

Foster J ordered that the wife have a charge over the husband's share of the net proceeds of sale of the specified properties to the value of $97,500.00, to be paid out upon settlement of the sales. The parties were directed to take all necessary steps to ensure that a particular NAB mortgage was paid out and discharged from these proceeds. Additionally, the parties were ordered to facilitate the release of the H Street and J Street properties from another NAB mortgage, with that mortgage remaining secured over the wife's property at B Street, Suburb C. Otherwise, the wife's application filed on 13 March 2017 was dismissed.

Orders

Orders of the court

That the wife have a charge to the value of $97,500.00 over the husband’s share of the net proceeds of sale of the properties at H Street, Suburb I and Lots 1 and 2/J Street, Suburb K with such charge to be paid out on settlement of the sales.

That the parties do all necessary things and sign all necessary documents so as to procure that from the proceeds of sale of the properties at H Street, Suburb I and Lots 1 and 2/J Street, Suburb K, National Australia Bank (NAB) mortgage being NAB account Number …98 be paid out and be discharged.

That the parties do all necessary things and sign all necessary documents so as to procure upon sale of the properties at H Street, Suburb I and Lots 1 and 2/J Street, Suburb K a release of the said properties from NAB mortgage being account number …47 to the effect that the said mortgage (and the balance then outstanding) will remain secured over the wife’s property at B Street, Suburb C.

That, otherwise, the wife’s Application filed 13 March 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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