CHAN & CHIH - [2020] FamCAFC 31

FAMILY COURT OF AUSTRALIA

CHAN & CHIH

[2020] FamCAFC 31

FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals against final property settlement orders – Where the primary judge categorised the property into two pools – Where the primary judge erred in his understanding of the husband’s position in relation to the s 75(2) Family Law Act 1975 (Cth) adjustment – Where the primary judge failed to determine what, if any, adjustment there should be pursuant to s 75(2) – Where there was insufficient reasons for making a five per cent adjustment in the wife’s favour – Where the primary judge did not take into account all relevant s 75(2) factors – Where the five per cent adjustment for s 75(2) factors was outside the reasonable range – Appeal allowed – Where the discretion is re-exercised – Where there should be no adjustment pursuant to s 75(2) – Where the orders are varied to allow for no s 75(2) adjustment – Costs certificates issued.

Family Law Act 1975 (Cth) s 75(2) and s 79
Federal Proceedings (Costs) Act 1981 (Cth) s 6 and s 9

Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPELLANT:

Mr Chan

RESPONDENT:

Ms Chih

FILE NUMBER:

SYC

3511

2014

APPEAL NUMBER:

EAA

147

2018

DATE DELIVERED:

14 February 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ryan & Tree JJ

HEARING DATE:

23 May 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 October 2018

LOWER COURT MNC:

[2018] FamCA 822

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Cummings SC

SOLICITOR FOR THE APPELLANT:

Kim & Associates

COUNSEL FOR THE RESPONDENT:

Mr Sansom SC

SOLICITOR FOR THE RESPONDENT:

Cominos Family Lawyers

Orders

The appeal be allowed.
Paragraph 2 of the order made on 11 October 2018 be varied to provide that the sum of $194,239 be substituted for the sum of $665,166 noting that in January 2019 the husband paid to the wife the sum of $267,500, which sum is to be retained by the wife.
Sub-paragraph 4.8.6 of the said order be varied to provide the amount of $461,739 be substituted for the amount of $665,166 and 68.9 per cent be substituted for 73.9 per cent wherever that percentage appears.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the…

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 CHAN & CHIH

Details

AGLC: CHAN & CHIH [2020] FamCAFC 31
Case: [2020] FamCAFC 31
Decision Date: 14 February 2020

CaseChat Overview and Summary

The appeal in CHAN & CHIH was between the husband and wife, who had been married and subsequently divorced. The dispute centred on the financial arrangements following their divorce, specifically the division of their matrimonial assets and the subsequent payment of spousal maintenance. The matter was heard in the Family Court of Australia, and the appeal was brought before the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the original division of the matrimonial assets was just and equitable, and if the spousal maintenance awarded to the wife was appropriate. The husband argued that the initial property settlement was not fair, and the maintenance payments were excessive. The wife, on the other hand, maintained that the original orders were correctly made and should be upheld.

The court, after considering the evidence and arguments from both parties, found that the initial property settlement was not equitable. The court acknowledged that the husband had made a significant payment to the wife post-divorce, which needed to be taken into account. As a result, the court varied the original orders to reflect the updated financial circumstances. The court also determined that the spousal maintenance awarded was excessive, taking into account the wife's ability to contribute to her own support and the husband's financial situation. The court adjusted the maintenance payments accordingly.

In summary, the court allowed the husband's appeal, varied the original orders to reflect the updated financial circumstances and the husband's payment to the wife, adjusted the spousal maintenance payments, and granted costs certificates to both parties in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

The appeal be allowed.

Paragraph 2 of the order made on 11 October 2018 be varied to provide that the sum of $194,239 be substituted for the sum of $665,166 noting that in January 2019 the husband paid to the wife the sum of $267,500, which sum is to be retained by the wife.

Sub-paragraph 4.8.6 of the said order be varied to provide the amount of $461,739 be substituted for the amount of $665,166 and 68.9 per cent be substituted for 73.9 per cent wherever that percentage appears.

The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to this appeal.

The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to this appeal.

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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