Chang & Giang - [2021] FedCFamC2F 8

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Chang & Giang [2021] FedCFamC2F 8

File number(s):	SYC 6826 of 2017
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	25 October 2021
Catchwords:	FAMILY LAW – SUMMARY DISMISSAL – whether a de facto relationship existed – determination as to date of separation – where Application for Final Orders made within the standard application period – whether application for Final Orders had reasonable prospects of success – declaration made pursuant to s 90RD of the Family Law Act 1975 (Cth) – application dismissed
Legislation	Evidence Act 1995 (Cth), s 128 Family Law Act 1975 (Cth), ss 4AA, 44(5)-(6), 90RD, 90SB, 90SM, 117(1)-(2) Family Law Rules 2004 (Cth), r 10.12 Federal Circuit Court Rules 2001 (Cth), rr 13.10, 21.02 Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), rr 10.09, 12.13
Cases cited:	Beck & Beck (2004) FLC 93-181 Clarence & Crisp (2016) FLC 93-728 Friar & Friar [2011] FamCAFC 71 Mayson & Wellard (2021) FLC 94-034
Division:	Division 2 Family Law
Number of paragraphs:	132
Date of hearing:	15 and 22 July 2021
Place:	Sydney
Solicitor for the Applicant:	Ren Zhou Lawyers
Counsel for the Respondent:	Mr Lawrence
Solicitor for the Respondent:	Andy Pham Lawyers

ORDERS

SYC 6826 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CHANG Applicant
AND:	Ms GIANG Respondent

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	25 OCTOBER 2021

THE COURT ORDERS THAT:

The de facto wife’s application for the summary dismissal of the de facto husband’s Application for Final Orders is dismissed.
The de facto husband quantify the costs incurred in responding to the de facto wife’s application in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and on an indemnity basis, and serve such notice on the de facto wife within 14 days.
The costs of the de facto husband arising from this application are reserved to the final hearing.
The matter is listed for directions on a date and time to be fixed.

THE COURT DECLARES:

A.Pursuant to s 90RD of the Family Law Act 1975 (Cth), that a de facto relationship existed between the parties from around November 2000 until July 2017.

THE COURT NOTES THAT:

A.On the basis of the above declaration, the de facto husband instituted proceedings for final orders within the standard application period, and leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) is not required for the continuation of the proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975

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 Chang & Giang

Details

AGLC: Chang & Giang [2021] FedCFamC2F 8
Case: [2021] FedCFamC2F 8
Decision Date: 25 October 2021

CaseChat Overview and Summary

The case of Chang & Giang involved a dispute regarding the existence of a de facto relationship between the parties, Mr. Chang and Ms. Giang, and the timing of their separation. The matter was heard and determined by Judge Beckhouse in Division 2 of the Federal Circuit and Family Court of Australia. The key legal issues before the court were whether a de facto relationship existed between the parties, the determination of the date of separation, and the assessment of the prospects of success of an application for final orders made by the de facto husband within the standard application period. The de facto wife had applied for the summary dismissal of the de facto husband's application for final orders.

Judge Beckhouse dismissed the de facto wife's application for summary dismissal, finding that a de facto relationship did exist between the parties from around November 2000 until July 2017. The judge noted that, based on this declaration, the de facto husband had instituted proceedings for final orders within the standard application period, and therefore, leave pursuant to section 44(6) of the Family Law Act 1975 (Cth) was not required for the continuation of the proceedings. The court also ordered that the de facto husband quantify the costs incurred in responding to the de facto wife's application and serve such notice on the de facto wife within 14 days. The costs of the de facto husband arising from this application were reserved to the final hearing, and the matter was listed for directions to be fixed at a later date.

Orders

Orders of the court

SYC 6826 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CHANG

Applicant

AND:

Ms GIANG

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

25 OCTOBER 2021

THE COURT ORDERS THAT:

The de facto wife’s application for the summary dismissal of the de facto husband’s Application for Final Orders is dismissed.

The de facto husband quantify the costs incurred in responding to the de facto wife’s application in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and on an indemnity basis, and serve such notice on the de facto wife within 14 days.

The costs of the de facto husband arising from this application are reserved to the final hearing.

The matter is listed for directions on a date and time to be fixed.

THE COURT DECLARES:

A. Pursuant to s 90RD of the Family Law Act 1975 (Cth), that a de facto relationship existed between the parties from around November 2000 until July 2017.

THE COURT NOTES THAT:

A. On the basis of the above declaration, the de facto husband instituted proceedings for final orders within the standard application period, and leave pursuant to s 44(6) of the Family Law Act 1975 (Cth) is not required for the continuation of the proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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