Cao and Trong and Anor - [2017] FamCA 245

FAMILY COURT OF AUSTRALIA

CAO & TRONG AND ANOR

[2017] FamCA 245

FAMILY LAW – PROPERTY – partial property division – spousal maintenance – child support – where there is an injunction precluding the wife accessing any property – where the injunction was consented to – where the injunction is oppressive – where consideration is given to variation – where wife seeks to pay large legal fees but court considers that should wait until after trial but prospective fees should be limited.

Child Support (Assessment) Act 1986 (Cth)
Family Law Act 1975 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
AMP Investments Pty Ltd v Trade Practices Commission (1983) 48 ALR 475
Deputy Commissioner of Taxation v Kliman (2002) 29 Fam LR 301
Marello and Marello (No 2) [2011] FamCA 799
Rogers v Rogers (No 2) (2016) 55 Fam LR 167
The Commissioner of Taxation v Worsnop (2009) 40 Fam LR 552
Trustee for N Lasic v Lasic (2009) 41 FLR 369

APPLICANT:

Mr Cao

RESPONDENT:

Ms Trong

INTERVENOR:

Commissioner of Taxation, Commonwealth of Australia

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

2555

2016

DATE DELIVERED:

24 April 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC

SOLICITOR FOR THE APPLICANT:

KCL Law

COUNSEL FOR THE RESPONDENT:

Mr North SC with Ms Devine

SOLICITOR FOR THE RESPONDENT:

JK Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Mazloum

SOLICITOR FOR THE INTERVENOR:

ATO Review & Dispute Resolution

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the injunction in the order made on 5 October 2016 in so far as it affects the wife is varied to allow her to sell such shares in B Ltd that will provide $305,000 net.
That of the $305,000, $237,000 is to be paid to the solicitors for the wife to be held by them on trust to pay counsel’s fees associated with the hearing on 13 April 2017, $7000 towards the costs of the solicitor for the hearing on 13April 2017 and otherwise the remaining sum to be held on trust in respect of the forthcoming final hearing of all outstanding matters between the parties.
That the wife be at liberty to use the remaining $68,000 for the living expenses of herself and the three children in addition to the child support paid by the husband.
That the file be referred to the case management judge for consideration as to whether this trial should be listed as soon as practicable on the basis that the parties assert that it is ready for trial subject only to the completion of discovery obligations.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel including senior counsel and, in the case of the wife, junior counsel.
That all extant interim applications are…

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: [2017] FamCA 245
Decision Date: 24 April 2017

CaseChat Overview and Summary

In the matter of *Cao and Trong and Anor*, heard before Cronin J, the dispute concerned an application to vary an existing injunction that affected the wife's ability to sell shares in B Ltd. The parties sought to address the financial implications of the ongoing proceedings, particularly concerning the wife's access to funds for legal costs and living expenses.

The primary legal issues before the court were whether to vary the existing injunction to permit the wife to sell a specific amount of shares in B Ltd, and how the proceeds of such a sale should be allocated. The court was also required to determine the reasonableness of engaging counsel for the wife and to consider the timing of the final trial.

Cronin J reasoned that it was appropriate to vary the injunction to allow the wife to sell shares to realise $305,000 net. This sum was to be distributed in a specific manner: $237,000 to the wife's solicitors on trust for counsel's fees for a hearing on 13 April 2017, $7,000 for the solicitor's costs for the same hearing, and the remainder to be held on trust for the forthcoming final hearing. A further $68,000 was permitted for the wife's living expenses and those of the three children, in addition to child support. The court also certified that it was reasonable for the wife to engage counsel, including senior counsel, and junior counsel. All other interim applications were dismissed. The file was referred to the case management judge to consider listing the trial as soon as practicable, given the parties' assertions that the matter was ready for trial subject to discovery.

Orders

Orders of the court

That the injunction in the order made on 5 October 2016 in so far as it affects the wife is varied to allow her to sell such shares in B Ltd that will provide $305,000 net.

That of the $305,000, $237,000 is to be paid to the solicitors for the wife to be held by them on trust to pay counsel’s fees associated with the hearing on 13 April 2017, $7000 towards the costs of the solicitor for the hearing on 13April 2017 and otherwise the remaining sum to be held on trust in respect of the forthcoming final hearing of all outstanding matters between the parties.

That the wife be at liberty to use the remaining $68,000 for the living expenses of herself and the three children in addition to the child support paid by the husband.

That the file be referred to the case management judge for consideration as to whether this trial should be listed as soon as practicable on the basis that the parties assert that it is ready for trial subject only to the completion of discovery obligations.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel including senior counsel and, in the case of the wife, junior counsel.

That all extant interim applications are otherwise 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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