Fernsby & Zhao - [2023] FedCFamC1A 107

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fernsby & Zhao [2023] FedCFamC1A 107

Appeal from: Fernsby & Zhao (No 2) [2023] FedCFamC2F 79

Appeal number(s): NAA 41 of 2023

File number(s): BRC 11937 of 2020

Judgment of: TREE J

Date of judgment: 5 July 2023

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Procedural fairness – Whether the primary judge failed to afford the husband procedural fairness – Where the husband failed to comply with orders to file affidavit material – Where the final hearing proceeded on an undefended basis – Whether the primary judge failed to consider relevant matters – Where there was no evidence of the purported matters before the primary judge – Whether there was a miscarriage of justice – Where no ground of appeal is successful – Appeal dismissed – Orders made for the filing of written submissions on costs.

Legislation:
Family Law Act 1975 (Cth) s 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36)

Cases cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Morgan & Valverde (2022) FLC 94-100; [2022] FedCFamC1A 133

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Saso & Saso [2023] FedCFamC1A 65

Number of paragraphs: 35

Date of hearing: 22 June 2023

Place: Cairns (via video link)

The Appellant: Self-represented litigant

Counsel for the Respondent: Mr Linklater-Steele

Solicitor for the Respondent: Cooper Grace Ward Lawyers
ORDERS

NAA 41 of 2023
BRC 11937 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR FERNSBY

Appellant

AND:
MS ZHAO

Respondent

order made by:

TREE J

DATE OF ORDER:

5 july 2023

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.No later than 4.00pm on 12 July 2023 the respondent is to make file and serve submissions and any material in support of her application for costs against the appellant.
3.No later than 4.00pm on 19 July 2023 the appellant is to make file and serve submissions and any material in response to the respondent’s application for costs.
4.No later than 4.00pm on 26 July 2023 the respondent is to make file and serve any submissions strictly in reply to any material filed by the appellant under Order 3.
5.Upon the filing of submissions under Order 4 above, the judgment in relation to costs is reserved.

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…

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 Fernsby & Zhao

Details

AGLC: Fernsby & Zhao [2023] FedCFamC1A 107
Case: [2023] FedCFamC1A 107
Decision Date

CaseChat Overview and Summary

The appeal before the court involves the husband, born in Australia, and the wife, born in Country D. The primary dispute concerns the property settlement following the final separation of the couple, who married in 2014 and separated in 2020. The husband initiated property proceedings in 2020 in Australia, which were conducted on an undefended basis after he failed to comply with orders for trial preparation and subsequently failed to appear at the scheduled hearing on 31 August 2022. The primary judge proceeded with the final hearing on 1 November 2022, resulting in orders that largely maintained the status quo regarding the ownership of each party's property. The husband appeals against certain orders, specifically those that determine the distribution of the property and discharge previous orders and applications.

The central legal issues before the court were whether the husband was afforded procedural fairness and natural justice during the proceedings, and whether the primary judge erred in making the property orders against him. The husband argued that he was denied procedural fairness due to the absence of a trial affidavit and his failure to attend the hearing. He contended that these factors prejudiced the outcome of the property settlement, leading to an unfair distribution of assets and liabilities.

The court found that the husband's arguments lacked merit. It determined that the husband's absence and failure to file a trial affidavit did not prejudice the proceedings or result in an unfair outcome. The court observed that the husband had ample opportunity to comply with procedural requirements but chose not to do so. Furthermore, the court noted that the wife had provided comprehensive evidence regarding the property and financial situation, which allowed the primary judge to make informed decisions. The court upheld the primary judge's orders, finding no procedural unfairness or error in the property settlement.

In conclusion, the appeal was dismissed, and the orders of the primary judge were affirmed. The husband is to retain the assets he holds in his name, and the wife retains her property along with the associated liabilities. All previous orders and applications are discharged.

Orders

Orders of the court

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Background

Background to the litigation

Ms Zhao (“the wife”) opposes the appeal. For the reasons which follow, the appeal will be dismissed.BACKGROUND The husband was born in Australia and the wife in Country D. At the time of final hearing, the husband was aged 43 years and the wife 46. They have no children to their relationship, although they each have one child from previous relationships. In 2013, the parties commenced cohabitation in Country D and were subsequently married in 2014. In 2017, they moved to Australia. Later that year, they first separated and the husband commenced property proceedings in the Country D Family Court, but subsequently discontinued them the following year. In 2018, the parties reconciled. In 2020, the parties separated on a final basis, and the husband commenced these property proceedings in Australia. On 31 August 2022, the primary judge listed the matter for a final hearing to commence on 1 November 2022 and made orders which readied the matter for trial. The husband failed to attend that hearing on 31 August 2022 and failed to comply with the orders to file trial material, save for what purported to be his Financial Statement filed on 18 October 2022. On 1 November 2022, the husband appeared by way of telephone. Although he had filed no trial affidavit as required under the 31 August 2022 orders, on the day of trial he filed an application seeking that the proceedings be stayed. The primary judge dismissed that application and, as contemplated by the 31 August 2022 orders, the final hearing proceeded on an undefended basis. The primary judge’s 2 February 2023 orders essentially provide for each party to retain the property (including liabilities attached to those assets) that is held in their respective names or in their possession, although that said, the pool was negative, as the liabilities exceeded the assets by well over $1 million. Specifically, the wife retained property worth $4,374,452 and liabilities of $5,713,650 (Order 3). The assets the husband is to retain under the orders were worth $120,000 and he assumed responsibility for no liabilities (Order 1). The orders further provide that all previous orders are discharged and all extant applications are dismissed (Order 6). The husband appeals only Orders 3 and 6.THE APPEAL The Notice of Appeal was amended at the commencement of the hearing. However the husband’s Summary of Argument did not address the grounds as they appeared in the Amended Notice of Appeal, but rather addressed only new Ground 8. He clarified that only those matters in Grounds 8(b), (c), (d) and (e) – which in any event substantially overlapped the other grounds – were pressed. I shall adopt that approach in dealing with the appeal. The appeal raises no matter of general principle and hence these reasons are in short form (Federal Circuit and Family Court of Australia Act 2021 (Cth), s 36(2)).Ground 8(b) This ground provides:b.The [husband] was not afforded procedural fairness or natural justice resulting in the making of the property orders against him.

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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NAA 41 of 2023 BRC 11937 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR FERNSBY Appellant
AND:	MS ZHAO Respondent

Appeal from:	Fernsby & Zhao (No 2) [2023] FedCFamC2F 79
Appeal number(s):	NAA 41 of 2023
File number(s):	BRC 11937 of 2020
Judgment of:	TREE J
Date of judgment:	5 July 2023
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from final property settlement orders – Procedural fairness – Whether the primary judge failed to afford the husband procedural fairness – Where the husband failed to comply with orders to file affidavit material – Where the final hearing proceeded on an undefended basis – Whether the primary judge failed to consider relevant matters – Where there was no evidence of the purported matters before the primary judge – Whether there was a miscarriage of justice – Where no ground of appeal is successful – Appeal dismissed – Orders made for the filing of written submissions on costs.
Legislation:	Family Law Act 1975 (Cth) s 102NA Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36)
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Morgan & Valverde (2022) FLC 94-100; [2022] FedCFamC1A 133 Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 Saso & Saso [2023] FedCFamC1A 65
Number of paragraphs:	35
Date of hearing:	22 June 2023
Place:	Cairns (via video link)
The Appellant:	Self-represented litigant
Counsel for the Respondent:	Mr Linklater-Steele
Solicitor for the Respondent:	Cooper Grace Ward Lawyers

order made by:	TREE J
DATE OF ORDER:	5 july 2023