Chong and Chong - [2016] FCCA 1559

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHONG & CHONG

[2016] FCCA 1559

Catchwords:
FAMILY LAW – Property – characterisation of payment to parties from monies held in trust.

Legislation:

Federal Circuit Court of Australia Act1999, s.39
Family Law Act 1975, s.117

Cases cited:
Strahan & Strahan [2009] FamCAFC 166

Applicant:

MR CHONG

Respondent:

MS CHONG

File Number:

MLC 11660 of 2015

Judgment of:

Judge Small

Hearing date:

30 May 2016

Date of Last Submission:

30 May 2016

Delivered at:

Melbourne

Delivered on:

30 May 2016

REPRESENTATION

Counsel for the Applicant:

Ms R. Teicher

Solicitors for the Applicant:

Jeanne Gorman

Counsel for the Respondent:

Ms R.L. Wheeler

Solicitors for the Respondent:

Kennedy Partners

ORDERS

$80,000.00 of the monies from the sale of the property at Property M in the state of Victoria be forthwith released to the Husband by the Wife’s solicitors, such sum to be characterised as a partial property settlement.
$150,000.00 of the monies from the sale of the property at Property M in the state of Victoria be forthwith released to the Wife by the Wife’s solicitors, such sum to be characterised as a partial property settlement.
Pursuant to section 39 of the Federal Circuit Court of Australia Act1999, these proceedings shall be transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court deems appropriate.
The Conciliation Conference date of 14 September 2016 at 11:00am shall be vacated.
The Final Hearing dates of 30 March 2017 and 31 March 2017 shall be vacated.

IT IS NOTED that publication of this judgment under the pseudonym Chong & Chong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11660 of 2015

MR CHONG

Applicant

And

MS CHONG

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The matter of Chong comes before me today for interim hearing, having been adjourned from the duty list last week. The only matter that is before the Court today is whether the husband ought to be paid the sum of $80,000 from the proceeds of sale of the parties’ former matrimonial home at Property M. That amount sits in a solicitor’s trust account and it is now said to be in the sum of $269,195.
The wife’s response to the application for $80,000 from that sum is to seek the sum of $150,000 from the same monies and for all of that to be considered partial property settlement on the side of each party or to the benefit of each party.
The husband’s application is contained in his Amended Application in a Case which was filed on 10 May 2016. After the original Application in a Case was filed in March 2016 he then filed an Amended…

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 Chong and Chong

Details

AGLC: Chong and Chong [2016] FCCA 1559
Case: [2016] FCCA 1559
Decision Date: 30 May 2016

CaseChat Overview and Summary

In the matter of *Chong and Chong*, heard by Judge Small, the dispute concerned the division of property between the parties. The court was required to make orders regarding the distribution of funds arising from the sale of a property located in Victoria.

The central legal issue before the court was how to characterise and distribute the proceeds from the sale of the parties' property as a partial property settlement. The court also had to consider the appropriate forum for the continuation of the proceedings.

Judge Small ordered that $80,000.00 of the sale proceeds be released to the Husband and $150,000.00 be released to the Wife, with both sums to be treated as partial property settlements. Furthermore, the proceedings were transferred to the Melbourne Registry of the Family Court of Australia for further determination, and previously scheduled conciliation conference and final hearing dates were vacated.

Orders

Orders of the court

$80,000.00 of the monies from the sale of the property at Property M in the state of Victoria be forthwith released to the Husband by the Wife’s solicitors, such sum to be characterised as a partial property settlement.

$150,000.00 of the monies from the sale of the property at Property M in the state of Victoria be forthwith released to the Wife by the Wife’s solicitors, such sum to be characterised as a partial property settlement.

Pursuant to section 39 of the Federal Circuit Court of Australia Act 1999, these proceedings shall be transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court deems appropriate.

The Conciliation Conference date of 14 September 2016 at 11:00am shall be vacated.

The Final Hearing dates of 30 March 2017 and 31 March 2017 shall be vacated.

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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