Cao and Trong and Anor - [2018] FamCA 460

AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004
FAMILY COURT OF AUSTRALIA

CAO & TRONG AND ANOR

[2018] FamCA 460

FAMILY LAW – JURISDICTION – Where the Taxation Commissioner intervenes in a property dispute between husband and wife – where the husband is the nominated debtor – where the husband then discontinues his claim for any relief – where the wife has not discontinued but says that she does not seek orders under s 79 of the Act –where the Commissioner seeks to proceed under s79 against both husband and wife to recover the debt against either or both – where the wife maintains there is no jurisdiction – wife’s submissions rejected – where the court finds the jurisdiction is not denied by the discontinuance and/or refusal of the wife to proceed to seek orders –matter adjourned to enable final hearing to be set down.

Family Law Act 1975 (Cth)

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Deputy Commissioner of Taxation v Kliman & Another [2002] FamCA 629
Deputy Federal Commissioner of Taxation v Spanjich (1988) 93 FLR 98; FLC 91-974
Dougherty v Dougherty (1987) 163 CLR 278
In the Marriage of Biltoft (1995) FLC 92-614
In the Marriage of Prince (1984) 54 ALR 467
Martin & Martin [2015] FamCA 260
Phillip Morris Inc v Adam P Brown Male Fashions (1981) 148 CLR 457
Puddy & Grossvard [2010] FamCAFC 54
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

APPLICANT:

Mr Cao

RESPONDENT:

Ms Trong

INTERVENOR:

Deputy Commissioner Of Taxation

FILE NUMBER:

MLC

2555

2016

DATE DELIVERED:

20 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:	Cronin J
HEARING DATE:	7 June 2018

REPRESENTATION

THE APPLICANT:

No Appearance

COUNSEL FOR THE RESPONDENT:

Mr Juebner

SOLICITOR FOR THE RESPONDENT:

JK Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Sest QC with Mr Mazloum

SOLICITOR FOR THE INTERVENOR:

Deputy Commissioner Of Taxation

Orders

Paragraphs 1 to 16 of the wife’s response filed 27 October 2017 are adjourned to a date to be fixed for determination by the Case Management Judge upon allocation of the proceedings to a judge for trial.
That to the extent that the wife seeks orders in the form of paragraph 60 of her assertions contained in the outline of submissions filed on 22 January 2018, the application therein is adjourned in accordance with paragraph 1 hereof.
That to the extent that the wife seeks orders in the form of paragraph 58 and 59 of her assertions contained in the outline of submissions filed on 22 January 2018, the application therein is dismissed.
Having ruled that the Court has jurisdiction to hear the dispute contained in the amended application of the Commissioner as intervener filed 1 June 2018, paragraphs 1 to 8 of that application are consolidated with the response referred to in paragraph 1 hereof and also adjourned to a date to be fixed…

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.

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Details

Case: [2018] FamCA 460
Decision Date: 20 June 2018

CaseChat Overview and Summary

In the matter of *Cao and Trong and Anor*, Cronin J of the Federal Circuit Court of Australia considered a dispute involving the parties, the Commissioner as an intervener, and the wife's response and assertions. The proceedings concerned the wife's claims and the Commissioner's amended application.

The court was required to determine several legal issues, including whether it had jurisdiction to hear the dispute raised by the Commissioner's amended application. Additionally, the court had to consider the wife's applications for orders as set out in her response and outline of submissions, and whether those applications should be adjourned or dismissed.

Cronin J ruled that the Court possessed jurisdiction to hear the dispute contained within the Commissioner's amended application. The court adjourned paragraphs 1 to 16 of the wife's response and paragraphs 1 to 8 of the Commissioner's application for determination by the Case Management Judge upon the allocation of proceedings for trial. However, the court dismissed the wife's applications for orders as contained in paragraphs 58 and 59 of her assertions.

Orders

Orders of the court

Paragraphs 1 to 16 of the wife’s response filed 27 October 2017 are adjourned to a date to be fixed for determination by the Case Management Judge upon allocation of the proceedings to a judge for trial.

That to the extent that the wife seeks orders in the form of paragraph 60 of her assertions contained in the outline of submissions filed on 22 January 2018, the application therein is adjourned in accordance with paragraph 1 hereof.

That to the extent that the wife seeks orders in the form of paragraph 58 and 59 of her assertions contained in the outline of submissions filed on 22 January 2018, the application therein is dismissed.

Having ruled that the Court has jurisdiction to hear the dispute contained in the amended application of the Commissioner as intervener filed 1 June 2018, paragraphs 1 to 8 of that application are consolidated with the response referred to in paragraph 1 hereof and also adjourned to a date to be fixed for determination by the Case Management Judge upon allocation of the proceedings to a judge for trial.

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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