Hsu & Lau - [2024] FedCFamC2F 1165

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hsu & Lau [2024] FedCFamC2F 1165

File number(s): SYC 5813 of 2022

Judgment of: JUDGE BECKHOUSE

Date of judgment: 23 December 2024

Catchwords: FAMILY LAW – PROPERTY– Where wife seeks to vary or set aside Final Orders made on 2 May 2013 pursuant to s 90SN(1)(b) – (c) – Where husband seeks to enforce those Final Orders – Finding of default by both parties – The Final Orders be varied or set aside in substantive proceedings.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 79A, 90SM, 90SN, 106A

Cases cited:
Blackwell & Scott (2017) FLC 93-775

Cawthorn & Cawthorn (1998) FLC 92-805

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389

Guild & Stasiuk [2020] FamCA 348

La Rocca & La Rocca (1991) FLC 92-222

Monticone & Monticone (1990) FLC 92-114

Oastler & Oastler (1993) FLC 92-390

Re Young and Harston’s Contract (1885) 31 Ch D 168

Rohde & Rohde (1984) FLC 91-592

Wernham & Campagnola [2012] FamCAFC 137

Macquarie Dictionary, Pan Macmillan Australia, 2024

Division: Division 2 Family Law

Number of paragraphs: 135

Date of hearing: 26-27 April 2023, 20-21 February 2024 & 5 April 2024

Place: Sydney

Counsel for the Applicant: Mr Morahan

Solicitor for the Applicant: Chen Shan Lawyers

Counsel for the Respondent: Mr Connor

Solicitor for the Respondent: Taylor & Scott Lawyers
ORDERS

SYC 5813 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HSU

Applicant

AND:
MR LAU

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

23 DECEMBER 2024

THE COURT ORDERS THAT:
1.The final property orders made by the Honourable Justice Aldridge on 2 May 2013 be varied or set aside pursuant to s 90SN(1)(c) of the Family Law Act 1975 (Cth).
2.The substantive proceedings be listed for Directions before Judge Beckhouse on 22 January 2025 at 9.30 am by Webex for the making of trial directions.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The parties to these proceedings are the applicant de facto wife, Ms Hsu and the respondent de facto husband, Mr Lau.
They were in a de facto relationship of around 17 years duration and…

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 Hsu & Lau

Details

AGLC: Hsu & Lau [2024] FedCFamC2F 1165
Case: [2024] FedCFamC2F 1165
Decision Date: 23 December 2024

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia was an application by Ms Hsu to vary or set aside the final property settlement orders made on 2 May 2013. The husband, Mr Lau, opposed the application, seeking enforcement of the orders. The application was brought under section 90SN(1)(b) and (c) of the Family Law Act 1975 (Cth), on the basis of a significant change in circumstances, and also on the basis that the orders were unjust. The court found that both parties had defaulted, with neither party having provided complete financial disclosure, and that there were serious issues of credibility affecting both parties. The court concluded that the orders should be varied or set aside and directed substantive proceedings be listed for directions.

The legal issues the court needed to determine were whether there had been a significant change in circumstances since the original orders were made, and whether the orders were unjust or should be set aside. The court found that there had been a significant change in circumstances, noting that both parties had defaulted and failed to provide full financial disclosure, which impacted the fairness of the orders. The court also found that the orders were unjust due to the parties' defaults, and that setting aside the orders was in the best interests of justice. The court held that the orders should be varied or set aside in substantive proceedings, and directed that those proceedings be listed for directions.

In its reasons, the court noted that both parties had defaulted by not providing full financial disclosure, which undermined the fairness of the original orders. The court found that there had been a significant change in circumstances, as both parties' financial positions had changed materially since the original orders were made. The court concluded that the orders were unjust and should be varied or set aside, directing that substantive proceedings be listed for directions. The court emphasised the importance of full financial disclosure in property settlement proceedings and the impact of defaults on the fairness of orders.

The court ordered that the final property settlement orders made on 2 May 2013 be varied or set aside, and that substantive proceedings be listed for directions before Judge Beckhouse on 22 January 2025. The form of the order was subject to entry in the Court’s records, and the court reserved the right to review the reasons for judgment to correct minor errors or to record variations to the order.

Orders

Orders of the court

SYC 5813 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS HSU

Applicant

AND:

MR LAU

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

23 DECEMBER 2024

THE COURT ORDERS THAT:

1. The final property orders made by the Honourable Justice Aldridge on 2 May 2013 be varied or set aside pursuant to s 90SN(1)(c) of the Family Law Act 1975 (Cth).

2. The substantive proceedings be listed for Directions before Judge Beckhouse on 22 January 2025 at 9.30 am by Webex for the making of trial directions.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 5813 of 2022
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	23 December 2024
Catchwords:	FAMILY LAW – PROPERTY– Where wife seeks to vary or set aside Final Orders made on 2 May 2013 pursuant to s 90SN(1)(b) – (c) – Where husband seeks to enforce those Final Orders – Finding of default by both parties – The Final Orders be varied or set aside in substantive proceedings.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 79A, 90SM, 90SN, 106A
Cases cited:	Blackwell & Scott (2017) FLC 93-775 Cawthorn & Cawthorn (1998) FLC 92-805 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Guild & Stasiuk [2020] FamCA 348 La Rocca & La Rocca (1991) FLC 92-222 Monticone & Monticone (1990) FLC 92-114 Oastler & Oastler (1993) FLC 92-390 Re Young and Harston’s Contract (1885) 31 Ch D 168 Rohde & Rohde (1984) FLC 91-592 Wernham & Campagnola [2012] FamCAFC 137 Macquarie Dictionary, Pan Macmillan Australia, 2024
Division:	Division 2 Family Law
Number of paragraphs:	135
Date of hearing:	26-27 April 2023, 20-21 February 2024 & 5 April 2024
Place:	Sydney
Counsel for the Applicant:	Mr Morahan
Solicitor for the Applicant:	Chen Shan Lawyers
Counsel for the Respondent:	Mr Connor
Solicitor for the Respondent:	Taylor & Scott Lawyers

SYC 5813 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HSU Applicant
AND:	MR LAU Respondent

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	23 DECEMBER 2024