FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hien & Chien [2021] FedCFamC2F 111
File number(s): CAC 2913 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 29 September 2021 Catchwords: FAMILY LAW – interlocutory application to set aside earlier consent Orders – Applicant Husband contends that the Wife suppressed evidence at the time of the consent Orders regarding her intention to sell the former marital residence – documentary evidence provided by the Wife and under subpoenæ issued by the Husband confirm that the Wife decided to sell the property some 2-3 months after settlement after spending significant funds on renovations on the advice of estate agents – a price higher than the valuation of 18 months earlier was obtained – in fact the Husband obtained his own valuation six months after the Wife’s valuation which showed the property had increased in value – the Husband never disclosed this later valuation either to the Wife or to the Court until just before the hearing in response to the Wife’s solicitor seeking discovery of any such valuation – Husband’s duty to the Court in such Applications to provide full and accurate evidence – Husband failed to establish that the Wife had suppressed evidence plus the Wife had strongly disproved such contentions – Application dismissed with an Order for costs in her favour. Legislation: Evidence Act 1995 (Cth), s 118
Family Law Act 1975(Cth), ss 45A(2) and (3), 75, 79, 79A(1)(a)
Cases cited: Barker v Barker (2007) 36 Fam LR 650
C v Commonwealth (2015) 234 81; (2015) 327 ALR 195
Ebner & Pappas (2104) FLC 93-619
Gebert & Gebert (1990) 14 Fam LR 62; (1990) FLC 92-137
Giannarelli v Wraith (1988) 165 CLR 543
Gitane v Velacruz (2008) 39 Fam LR 460
Gollings v Scott (2007) 37 Fam LR 428
Lane & Lane (2016) FLC 93-699
Lindon v Commonwealth (No.2) (1996) 136 ALR 251
Patching & Patching (1995) 18 Fam LR 675; (1995) FLC 92-585
Pearce & Pearce [2016] FamCAFC 14
Prowse & Prowse (1994) 18 Fam LR 384
Ritter & Ritter [2020] FamCAFC 86
Rondel v Worsley [1969] 1 AC 191
Smith & Smith (1991) 15 Fam LR 706; (1991) FLC 92-261
Spencer v Commonwealth (1907) 5 CLR 418
Spencer v Commonwealth (2010) 241 CLR 118
Three Rivers District Council v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1G. Dal Pont, Lawyers’ Professional Responsibility (Sixth Edition) (Sydney: Lawbook Company, 2017)
Division: Division 2 Family Law Registry: Canberra Number of paragraphs: 160 Date of hearing: 16 June 2020 Counsel for the Applicant: Mr C Othen Counsel for the Respondent: Mr N James Solicitor for the Applicant: Farrar Gesini Dunn Solicitor for the Respondent: Robinson + McGuinness ORDERS
CAC 2913 of 2020 FEDERALCIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HIEN
Applicant
AND: MS CHIEN
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
29 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Initiating Application, filed 21st
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CaseChat Overview and Summary
The central legal issues before the court were whether Mr Hien had demonstrated that Ms Chien had indeed suppressed evidence, and if the evidence supported such a claim. Additionally, the court had to consider the respective duties of the parties in providing full and accurate information to the court, especially in the context of interlocutory applications. The court assessed the documentary evidence provided by both parties, including valuations and communications with estate agents, and the timing of these actions relative to the consent orders. Mr Hien's failure to disclose his own later valuation, obtained six months after Ms Chien's, also formed part of the court's consideration.
In dismissing Mr Hien's application, the court found that he had not substantiated his claims of suppression of evidence. The documentary evidence provided by Ms Chien, along with her strong rebuttal of Mr Hien's allegations, led the court to conclude that Ms Chien had not acted improperly. Furthermore, the court noted Mr Hien's own failure to disclose a later valuation which showed an increase in the property's value, a matter which he had not disclosed to Ms Chien or the court until prompted by discovery requests. As such, the court held that Mr Hien's application was without merit and ordered that he pay Ms Chien's costs within the specified timeframe.
Orders
Orders of the court
CAC 2913 of 2020
FEDERALCIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HIEN
Applicant
AND:
MS CHIEN
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
29 SEPTEMBER 2021
THE COURT ORDERS THAT:
1. The Initiating Application, filed 21st December 2020, be dismissed.
2. Absent any Application regarding indemnity costs being filed within 14 days, within 28 days, the Applicant is to pay the Respondent’s costs, either as agreed or taxed.
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 Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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