Chun & Zheng - [2023] FedCFamC2F 377

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chun & Zheng [2023] FedCFamC2F 377

File number: MLC 7378 of 2022

Judgment of: JUDGE BLAKE

Date of judgment: 27 March 2023

Catchwords: FAMILY LAW – Undefended hearing – where husband sought adjournment – adjournment refused – leave to proceed undefended granted – adjustment of property interests – significant contribution by wife’s mother – contributions favour the wife – adjustment for future needs.

Legislation:
Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(2), 79(4).

Federal Circuit and Family Court of Australia (Family Law Rules) 2021 rr 1.33, 1.33(2)(c), 10.25, 10.26(2), 10.26(2)(c), 10.27, 10.27(2).

Cases cited:
Bevan & Bevan [2013] FamCAFC 116

Binns & Palister [2021] FedCFamC1F 142

Deng & Galinski [2021] FCCA 843

Dickons & Dickons [2012] FamCAFC 154

Eufrosin & Eufrosin [2014] FamCAFC 191

Kleine & Kleine [2021] FedCFamC1F 51

Lanceley & Lanceley (1994) 18 Fam LR 71

Lovine & Connor [2012] FamCAFC 168

Stanford v Stanford [2012] HCA 52

Zane & Allan [2008] FamCAFC 115

Division: Division 2 Family Law

Number of paragraphs: 56

Date of hearing: 27 March 2023

Place: Melbourne

Counsel for the Applicant: Mr Arnold

Solicitor for the Applicant: Hiways Lawyers

Solicitor for the Respondent: In Person

Solicitor for the Respondent: None
ORDERS

MLC 7378 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CHUN

Applicant

AND:
MR ZHENG

Respondent

order made by:

JUDGE BLAKE

DATE OF ORDER:

27 MARCH 2023

THE COURT ORDERS THAT:
1.The Applicant Wife has permission to pursue her application for property orders on an undefended basis as contemplated under rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) and permission to seek judgment in default under rules 10.26(2)(c) and 10.27(2) of the Rules.
2.Order 3 of the Orders of 18 August 2022 made in respect of spousal maintenance, be discharged.

The B Street, Suburb C Property
3.Within 7 days from the date of these Orders, the Respondent must do all acts and things necessary to vacate the property situated and known as B Street, Suburb C in the State of Victoria, being the whole of the land described in certificate of title Volume … Folio … (“the B Street, Suburb C Property”).
4.Within 60 days from the date of these Orders, the parties shall do all acts and things and sign all documents necessary to transfer to the Applicant (“the transfer”), at the expenses of the Applicant, the Respondent’s right, title and interest in the B Street, Suburb C Property.
5.That for the purpose of the transfer, both parties shall do all acts and things and sign all documents as may be necessary to discharge the mortgage secured over the B Street, Suburb C Property and in favour of Commonwealth Bank of Australia (Mortgage dealing: …); and the Applicant shall as soon as practicable, refinance the mortgage into her name at her sole expense.
6.Upon completion of the transfer of the B Street, Suburb C Property, 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 Chun & Zheng

Details

AGLC: Chun & Zheng [2023] FedCFamC2F 377
Case: [2023] FedCFamC2F 377
Decision Date

CaseChat Overview and Summary

In Chun & Zheng, the wife sought final orders in respect of property matters. The husband opposed the wife’s application to proceed on an undefended basis, and also sought an adjournment of the hearing. Judge Blake refused the husband's application for an adjournment, and granted the wife leave to proceed undefended. In relation to the substantive orders sought, the Court found it was just and equitable to embark upon an exercise in determining how the assets of the parties are to be split. The Court found that the wife's mother's contributions to the relationship significantly favoured the wife, and also that an adjustment for future needs of the wife should be made. The Court ordered that the B Street, Suburb C property would be transferred to the wife, and the husband would pay the wife a sum of money. The Court also discharged an earlier order for spousal maintenance.

Orders