Lee and Duan - [2009] FMCAfam 557

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE & DUAN

[2009] FMCAfam 557

FAMILY LAW – Property dispute – extraordinary facts – immigration sham – neither party’s version credible – impossibility of affirmative factual findings – unusual outcome.

Evidence Act 1995, s.140
Federal Magistrates Act1999, s.14
Family Law Act 1975, ss.4, 71, 75(2)
Marriage Act 1961, ss.5, 23
Dr Anthony Dickey - Family Law – Fourth Edition

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
In the Marriage of Deniz (1977) FLC 90-252
In the Marriage of Nemir Osman [1989] FamCA 78
In the Marriage of Hosking (1994) FamCA 87
R v Cahill [1978] 2 NSWLR 453
Briginshaw v Briginshaw (1938) 60 CLR 336
Granada Tavern v Smith [2008] FCA 646

Applicant:

MR LEE

Respondent:

MS DUAN

File Number:

MLC 12396 of 2007

Judgment of:

Burchardt FM

Hearing dates:

24 & 25 February, 5 March & 1 May 2009

Date of Last Submission:

22 May 2009

Delivered at:

Melbourne

Delivered on:

12 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr F. Lim

Solicitors for the Applicant:

Francis Lim Barristers & Solicitors

Counsel for the Respondent:

Ms M. Pandeli

Solicitors for the Respondent:

Maria Barbayannis & Co

ORDERS

Each party retain all chattels presently in their possession.
Out of the funds held in Trust the total of $7,400.00 be paid to Maria Barbayannis & Co to satisfy the orders already made.
The funds held on Trust by the solicitors for the applicant remain so held until further order of this Court or of the Family Court of Australia, following agreement in writing between the solicitors for the parties on their instructions as to their distribution.

IT IS NOTED that publication of this judgment under the pseudonym Lee & Duan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 12396 of 2007

MR LEE

Applicant

And

MS DUAN

Respondent

REASONS FOR JUDGMENT

This is a property dispute. Leaving aside some very minor issues as to chattels, the real dispute is who gets how much of the net proceeds of the sale of the former home jointly owned by the parties. There is some $230,000 held on trust pending the resolution of these proceedings.
This is a wholly extraordinary case, turning on the most outlandish assertions made by the parties. For the reasons that follow, I have come to the conclusion that it is wholly beyond my power to ascertain the level of contributions made by either of the parties to the purchase of the former home and I have come to the conclusion that the web of lies and obfuscation that the parties have put in place prevents the Court making any order whatsoever.
In the ultimate, I have concluded that the proceeds of the sale of the home should simply be held in trust until such time as the parties themselves decide who should…

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 Lee and Duan

Details

AGLC: Lee and Duan [2009] FMCAfam 557
Case: [2009] FMCAfam 557
Decision Date: 12 June 2009

CaseChat Overview and Summary

The case of Lee and Duan was heard in the Federal Circuit Court of Australia. The dispute between the parties, Lee and Duan, concerned the distribution of assets following their separation, particularly the allocation of funds held in trust by their solicitors. This matter included claims regarding personal property and financial settlements. The Federal Circuit Court was tasked with resolving these financial issues to provide a clear and fair division of the couple's assets.

The legal issues before the court required a determination of the appropriate distribution of the funds held in trust by the solicitors. This included the allocation of $7,400 to satisfy prior orders made by the court and the remaining funds' disposition, pending further agreement between the parties or direction from the Family Court of Australia. The court needed to ensure that the division of assets was equitable, considering the specific circumstances of the case and the existing orders.

The court ruled that each party should retain all personal property currently in their possession. It was ordered that $7,400 be paid from the trust funds to Maria Barbayannis & Co to satisfy prior court orders. The remaining funds held in trust by the solicitors were to remain in trust until the parties reached a written agreement on their distribution or until the Family Court of Australia provided further directions. This approach ensured that the existing obligations were met while allowing the parties to negotiate the remaining financial matters in a structured manner.

The final orders of the court included the retention of personal property by both parties, the payment of $7,400 from the trust funds to Maria Barbayannis & Co, and the continued holding of the remaining trust funds until an agreement was reached or further court direction was provided. This decision aimed to balance the immediate needs of the case with the flexibility required for future negotiations between the parties.

Orders

Orders of the court

Each party retain all chattels presently in their possession.

Out of the funds held in Trust the total of $7,400.00 be paid to Maria Barbayannis & Co to satisfy the orders already made.

The funds held on Trust by the solicitors for the applicant remain so held until further order of this Court or of the Family Court of Australia, following agreement in writing between the solicitors for the parties on their instructions as to their distribution.

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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