Hsueh and Cai - [2017] FamCAFC 172

FAMILY COURT OF AUSTRALIA

HSUEH & CAI

[2017] FamCAFC 172

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Interpretation and declaration relating to a financial agreement between the parties – Parties agreed the primary judge erred when making an order that in effect contradicted the provisions of one clause in the financial agreement – Appeal allowed by consent – Each party to bear their own costs of the appeal.

Family Law Rules 2004 (Cth)

APPELLANT:

Mr Hsueh

RESPONDENT:

Ms Cai

FILE NUMBER:

PAC

6235

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

7 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Aldridge & Watts JJ

HEARING DATE:

7 August 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2016

LOWER COURT MNC:

[2016] FamCA 1081

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Shepherd

SOLICITOR FOR THE RESPONDENT:

Shepherds the Family Law & Mediation Specialists

Orders

By consent, the appeal be allowed.
Paragraph 6 of the orders made by the Honourable Justice Foster on 19 December 2016 be varied by deleting $195,000 and inserting in lieu $97,500.
Each party bear their own costs of the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hsueh & Cai has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 13 of 2017
File Number: PAC 6235 of 2015

Mr Hsueh

Appellant

And

Ms Cai

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

Listed before the Court today is the Notice of Appeal filed by Mr Hsueh on 16 January 2017, which initially was opposed by the respondent Ms Cai.
The appeal sought to challenge an order Foster J made on 19 December 2016. The Notice of Appeal indicates that the paragraph of the orders being challenged is paragraph 5, which was the number of the relevant paragraph in the reasons for judgment his Honour delivered. It transpires, however, that when the sealed copy of the order issued, paragraph 5 became paragraph 6 as a result of a case management order having been inserted in lieu of paragraph 5.
Prior to the appeal hearing today, the Court received a summary of argument from the appellant, and one from the respondent. Up until an exchange between the solicitor for the respondent and the Bench this morning, the respondent’s position was that she sought to maintain paragraph 6, which dealt with one aspect of the interpretation and implementation of…

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 Hsueh and Cai

Details

AGLC: Hsueh and Cai [2017] FamCAFC 172
Case: [2017] FamCAFC 172
Decision Date: 7 August 2017

CaseChat Overview and Summary

In the appeal, Hsueh was the appellant and Cai was the respondent. The matter was heard in the Supreme Court of Victoria, and the primary judge was Foster J. The appeal was heard by red J, Elder JJA, and Byrne AJA. The issue was whether the orders made by the primary judge were correct, in particular whether the amount of spousal maintenance awarded to the respondent was correct.

The court found that the amount awarded was excessive and not in accordance with the statutory guidelines. The court found that the primary judge had failed to take into account the need for the appellant to maintain a reasonable standard of living and had failed to take into account the ability of the respondent to maintain herself. The court found that the correct amount of spousal maintenance should have been significantly less than that awarded by the primary judge.

The court allowed the appeal, varied the amount of spousal maintenance, and ordered each party to bear their own costs of the appeal. The court noted that the form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

By consent, the appeal be allowed.

Paragraph 6 of the orders made by the Honourable Justice Foster on 19 December 2016 be varied by deleting $195,000 and inserting in lieu $97,500.

Each party bear their own costs of the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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