CAO & TRONG - [2021] FamCA 316

FAMILY COURT OF AUSTRALIA

CAO & TRONG

[2021] FamCA 316

FAMILY LAW – INTERIM PROPERTY ORDER – fourth application for funding – no new circumstances – property settlement unlikely to be reversible – part heard trial recommencing in 10 days – application refused.

Armington & Armington and Ors (No. 2) [2020] FamCA 751
Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507
Verdon & Verdon [2020] FamCA 824

APPLICANT:

Mr Cao

RESPONDENT:	Ms Trong
INTERVENOR	Deputy Commissioner of Taxation

FILE NUMBER:

MLC

2555

2016

DATE DELIVERED:

13 May 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

13 May 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr R. Ingleby

SOLICITOR FOR THE APPLICANT:

Westminster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr D. Carlile

SOLICITOR FOR THE RESPONDENT:	JK Lawyers
COUNSEL FOR THE INTERVENOR:	Mr P. Sest QC with Mr H. Mazloum

SOLICITOR FOR THE INTERVENOR:

Australian Government Solicitor

Orders

I dismiss the wife’s amended application in a case filed on 13 May 2021.
The resumption of this part heard trial remains fixed for a further nine days on 24 May 2021.
I reserve the costs of today of all parties including Senior Counsel for the trial.

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 Cao & Trong 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 MELBOURNE

FILE NUMBER: MLC 2555 of 2016

Mr Cao

Applicant

And

Ms Trong

Respondent

And

Deputy Commission of Taxation

Intervenor

EX TEMPORE REASONS FOR JUDGMENT

The resumption of the trial of this proceeding was fixed part heard to recommence on 24 May 2021, one business day and a week from today. An application for funding was made by the wife. That was the fourth application for funding. The last one, dealt with by my reasons given on 9 December 2019 was refused.
For there to be a proper basis for this application it was necessary for the wife to advance cogent evidence of new circumstances. In my view none was evidenced on this application.
On the hearing of the last application one of the main reasons for the refusal of the application was the fact that on the arithmetic in this case any order for a part property settlement was unlikely to be reversible.
The wife said new circumstances existed, namely a new sum was sought. She contended among other things that she had to pay the previous counsel’s fees and a new date 14 months after the part heard proceeding had elapsed.
It…

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 CAO & TRONG

Details

AGLC: CAO & TRONG [2021] FamCA 316
Case: [2021] FamCA 316
Decision Date: 13 May 2021

CaseChat Overview and Summary

In *Cao & Trong*, the wife sought a fourth interim order for funding for her legal representation. The husband opposed the application. The matter came before Wilson J in the Family Court of Australia.

The central legal issue was whether the wife had demonstrated sufficient grounds to justify a further interim order for funding, particularly given the proximity of the recommencement of a part-heard trial. The court was required to consider the wife's financial position, the nature of the proceedings, and the likelihood of any property settlement being reversible.

Wilson J dismissed the wife's application, reasoning that there were no new circumstances to warrant a further interim order for funding. The judge noted that the property settlement was unlikely to be reversible and that the part-heard trial was scheduled to recommence in a short timeframe. The court's decision reflected a consideration of the stage of proceedings and the wife's prior applications for similar relief.

The wife's amended application was dismissed, and the resumption of the part-heard trial was confirmed for 24 May 2021. Costs were reserved.

Orders

Orders of the court

Orders

1. I dismiss the wife’s amended application in a case filed on 13 May 2021.

2. The resumption of this part heard trial remains fixed for a further nine days on 24 May 2021.

3. I reserve the costs of today of all parties including Senior Counsel for the trial.

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 Cao & Trong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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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