Chau and Cao (No 2) - [2019] FamCAFC 254

FAMILY COURT OF AUSTRALIA

CHAU & CAO (NO. 2)

[2019] FamCAFC 254

FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from orders made by the primary judge dismissing the wife’s application for property settlement –Where the primary judge attributed appropriate weight to the wife’s parenting contributions – Where the primary judge did take into account relevant considerations – Where the wife cannot rely upon an argument in the appeal that she did not raise before the primary judge – Where the grounds of appeal lack merit – Appeal dismissed – Where the wife is to pay the husband’s costs in a fixed sum.

Family Law Act 1975 (Cth) Pt VIII

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

APPELLANT:

Ms Chau

RESPONDENT:

Mr Cao

FILE NUMBER:

SYC

2741

2014

APPEAL NUMBER:

2019

DATE DELIVERED:

20 December 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Aldridge & Harper JJ

HEARING DATE:

27 September 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 February 2019

LOWER COURT MNC:

[2019] FamCA 97

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

WB Legal

COUNSEL FOR THE RESPONDENT:

Ms Christie SC

SOLICITOR FOR THE RESPONDENT:

Linden Legal

Orders

The appeal be dismissed.
The appellant wife pay the costs of the respondent husband fixed in the sum of $32,735 in the manner following:
(a)The amount of $20,000 currently held by the solicitors for the respondent husband pursuant to an order made on 13 June 2019 be paid to the respondent husband forthwith;
(b)Within twenty-eight (28) days of the date of these orders, the balance of $12,735 be paid by the appellant wife to the respondent husband.

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 Chau & Cao (No. 2) 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 31 of 2019
File Number: SYC 2741 of 2014

Ms Chau

Appellant

And

Mr Cao

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 26 March 2019, Ms Chau (“the wife”) appeals against final property settlement orders made by the primary judge on 27 February 2019. The primary judge dismissed the wife’s application for property settlement orders filed on 8 May 2014, and discharged an order made on 8 August 2014 by a…

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 Chau and Cao (No 2)

Details

AGLC: Chau and Cao (No 2) [2019] FamCAFC 254
Case: [2019] FamCAFC 254
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Chau and Cao (No 2) involved a wife appealing against the orders made by a primary judge in a property settlement matter. The wife contested the outcome of the primary judge's decision, which dismissed her application for a property settlement. The wife's appeal argued that the primary judge had not correctly weighed her contributions as a parent and had failed to consider relevant factors in the decision-making process. The court was required to determine if the primary judge's approach was correct and whether the wife's grounds for appeal were valid.

In assessing the appeal, the court examined the primary judge's consideration of the wife's parenting contributions, finding that appropriate weight had been given. The court also reviewed the factors the primary judge had considered, concluding that all relevant matters had been taken into account. Additionally, the court noted that the wife could not rely on an argument that was not presented during the original proceedings. Consequently, the court found that the wife's grounds for appeal lacked merit. The appeal was dismissed, and the wife was ordered to pay the husband's costs in a fixed sum.

The court ordered that the appeal be dismissed and that the wife pay the husband's costs in a fixed sum of $32,735. Part of this amount, $20,000, had already been held by the husband's solicitors. The remaining $12,735 was to be paid by the wife to the husband within 28 days from the date of the court's orders. This sum was to be paid in the manner specified, and the form of the order would be subject to the entry of the order in the court’s records.

Orders

Orders of the court

The appeal be dismissed.

The appellant wife pay the costs of the respondent husband fixed in the sum of $32,735 in the manner following:

(a) The amount of $20,000 currently held by the solicitors for the respondent husband pursuant to an order made on 13 June 2019 be paid to the respondent husband forthwith;

(b) Within twenty-eight (28) days of the date of these orders, the balance of $12,735 be paid by the appellant wife to the respondent husband.

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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