FAMILY COURT OF AUSTRALIA
| CAI & HSUEH | [2016] FamCA 1081 |
| FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Where the parties agree that the Financial Agreement is a binding financial agreement for the purposes of the Family Law Act – Whether the respondent has beneficial interest in a property under the terms of the Financial Agreement – Where there is no evidence as to the respondent’s taxable income over the subject periods or of any direct contribution to the ongoing mortgage liability on the property – Where the Court found on the evidence that the respondent is not entitled to a beneficial interest in the property – Whether a lump sum redundancy payment received by the applicant during cohabitation is a “lump sum compensation payment” as contemplated by the Financial Agreement – Where the Court found that the redundancy payment received by the applicant does not constitute a payment for the purposes of the Financial Agreement –Where it is appropriate that no orders be made as to the issue of Capital Gains Tax as provided for in the Financial Agreement |
| Family Law Act 1975 (Cth) ss 90C, 90KA |
| APPLICANT: | Ms Cai |
| RESPONDENT: | Mr Hsueh |
| FILE NUMBER: | PAC | 6235 | of | 2015 |
| DATE DELIVERED: | 19 December 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 16 November 2016 |
REPRESENTATION
| APPLICANT: | Self-Represented Litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Pickering |
| SOLICITOR FOR THE RESPONDENT: | Australian United Lawyers |
Orders
A Declaration that Ms Cai (“the wife”) does not hold a 50 per cent interest in the real estate property at B Street, Suburb C in trust for Mr Hsueh (“the husband”).
A Declaration that the voluntary redundancy payment received by the wife in March 2012 is not a payment provided for in clause 1.1 (g) (ii) of the Financial Agreement between the parties dated 28 October 2006 being a payment by way of:
gifts, inheritances or lump sum compensation payments and damages awards for personal injury.
That any application for costs be made by way of written submissions filed and served within 28 days from the date of these orders with any response thereto to be by way of written submissions filed and served within a further 14 days with judgment thereafter reserved to Chambers.
Otherwise all outstanding Applications and Responses are removed from the list of cases awaiting finalisation.
That by Consent
That pursuant to clause 4.9(d) of the Financial Agreement between the parties dated 28 October 2006 the sum of $195,000 is payable by the husband to the wife.
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 &…
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- AGLC
- Cai and Hsueh [2016] FamCA 1081
- Case
- [2016] FamCA 1081
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the wife held a beneficial interest in the property on trust for the husband, and whether the voluntary redundancy payment fell within the ambit of clause 1.1(g)(ii) of the financial agreement, which excluded certain types of payments such as gifts, inheritances, or lump sum compensation and damages for personal injury. The court was also tasked with making orders regarding the finalisation of outstanding applications and the payment of costs.
Foster J declared that the wife did not hold a 50 per cent interest in the B Street property in trust for the husband. Furthermore, the court declared that the voluntary redundancy payment received by the wife was not a payment of the nature described in clause 1.1(g)(ii) of the financial agreement. By consent, the court also ordered that the husband pay the wife the sum of $195,000 pursuant to clause 4.9(d) of the financial agreement. Directions were made for written submissions regarding costs, and all other outstanding applications were removed from the list.
Orders
Orders of the court
1.
A Declaration that Ms Cai (“the wife”) does not hold a 50 per cent interest in the real estate property at B Street, Suburb C in trust for Mr Hsueh (“the husband”).
2.
A Declaration that the voluntary redundancy payment received by the wife in March 2012 is not a payment provided for in clause 1.1 (g) (ii) of the Financial Agreement between the parties dated 28 October 2006 being a payment by way of:
gifts, inheritances or lump sum compensation payments and damages awards for personal injury.
3.
That any application for costs be made by way of written submissions filed and served within 28 days from the date of these orders with any response thereto to be by way of written submissions filed and served within a further 14 days with judgment thereafter reserved to Chambers.
4.
Otherwise all outstanding Applications and Responses are removed from the list of cases awaiting finalisation.
That by Consent
5.
That pursuant to clause 4.9(d) of the Financial Agreement between the parties dated 28 October 2006 the sum of $195,000 is payable by the husband to the wife.
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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