Chen and Chen and Anor - [2016] FamCA 758

FAMILY COURT OF AUSTRALIA

CHEN & CHEN AND ANOR

[2016] FamCA 758

FAMILY LAW – Injunctive relief declines on the basis of the evidence. Inferences to be drawn from the evidence as presented. Jurisdiction in dispute and issue concerns injunctions pending determination of jurisdiction. Injunctions sought against third party where documents suggest contractual obligations were at arm’s length. Injunction application refused.

Family Law Act 1975 (Cth)

ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199
Abella v Anderson [1987] 2 QdR 1
Jackson v Stirling [1987] HCA 23; (1987) 162 CLR 612
R v Ross-Jones; exparte Green (1984) FLC 91-555
Waugh and Waugh [2000] FamCA 1183; (2000) FLC 93-052
Woodcock and Woodcock (1997) FLC 92-739
Yunghanns and Ors and Yunghanns [1999] FamCA 64

APPLICANT:

Ms Chen

RESPONDENT:

Mr Chen

THIRD PARTY:

Ms Quen

FILE NUMBER:

MLC

5805

2016

DATE DELIVERED:

8 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

7 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Davis

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

COUNSEL FOR THE THIRD PARTY:

Mr Glick QC with Dr Ingleby

SOLICITOR FOR THE THIRD PARTY:

Oakfair Lawyers

Orders

That to the extent necessary to say so, paragraph 6 of the orders made on 27 July 2016 is discharged.
That paragraphs 7, 8 and 9 of the orders made on 27 July 2016 are discharged.
That leave is granted to all parties to file such further applications and affidavits as they are so advised.
That paragraphs 2, 3, 4, 5 and 6 of the application for interim orders contained in the amended initiating application by the wife filed 27 July 2016 are dismissed.
That paragraph 1 of the application for interim orders contained in the response to the initiating application filed by the husband on 5 August 2016 is dismissed.
That paragraphs 1 and 2 of the application for interim orders contained in the response to the initiating application filed by the third party on 27 July 2016 together with paragraph 1 of her application in a case filed 31 August 2016 are adjourned to a date to be fixed to be determined at a time that the case management judge so directs.
That the application in a case filed by the husband on 1 September 2016 is dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, senior counsel and in the case of the third party, two counsel to attend.

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 Chen & Chen and Anor 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…

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 Chen and Chen and Anor

Details

AGLC: Chen and Chen and Anor [2016] FamCA 758
Case: [2016] FamCA 758
Decision Date: 8 September 2016

CaseChat Overview and Summary

In the matter of *Chen and Chen*, Cronin J considered applications for interim orders in proceedings between the wife and the husband, and also involving a third party. The dispute concerned various interim applications filed by the parties.

The court was required to determine the fate of several interim applications made by the wife, the husband, and a third party. These applications sought various orders, including the discharge of existing orders and the granting of new interim relief.

Cronin J discharged certain paragraphs of previous orders made on 27 July 2016, and dismissed several interim applications made by the wife, the husband, and the third party. Leave was granted to all parties to file further applications and affidavits. Some applications by the third party were adjourned to a date to be fixed. The court also certified that it was reasonable for counsel, including senior counsel and, in the case of the third party, two counsel, to attend the proceedings.

Orders

Orders of the court

That to the extent necessary to say so, paragraph 6 of the orders made on 27 July 2016 is discharged.

That paragraphs 7, 8 and 9 of the orders made on 27 July 2016 are discharged.

That leave is granted to all parties to file such further applications and affidavits as they are so advised.

That paragraphs 2, 3, 4, 5 and 6 of the application for interim orders contained in the amended initiating application by the wife filed 27 July 2016 are dismissed.

That paragraph 1 of the application for interim orders contained in the response to the initiating application filed by the husband on 5 August 2016 is dismissed.

That paragraphs 1 and 2 of the application for interim orders contained in the response to the initiating application filed by the third party on 27 July 2016 together with paragraph 1 of her application in a case filed 31 August 2016 are adjourned to a date to be fixed to be determined at a time that the case management judge so directs.

That the application in a case filed by the husband on 1 September 2016 is dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, senior counsel and in the case of the third party, two counsel to attend.

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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