LEONG & MING - [2018] FamCAFC 7

FAMILY COURT OF AUSTRALIA

LEONG & MING

[2018] FamCAFC 7

FAMILY LAW – APPLICATION IN AN APPEAL – where the appellant sought leave to dispense with the trial transcript for the purpose of the appeal – where the respondent did not object – application allowed

FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – where the respondent orally sought leave to adduce further evidence – where the appellant did not object – application allowed and evidence admitted

FAMILY LAW – APPEAL – where the appellant contended that the trial judge failed to take account of additional liabilities of the parties existing at the time of trial – where the respondent acknowledged that there was evidence before the trial judge as to the existence of the subject liabilities – where the trial judge made no reference to the existence of those liabilities in the reasons for judgment – where the trial judge made no reference to whom, as between the two parties, should bear responsibility for such liabilities – where the trial judge erred by failing to have regard to material considerations – appeal allowed – proceedings remitted to Federal Circuit Court for re-hearing – no order as to costs

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172
De Winter v De Winter (1979) 23 ALR 211
House v The King (1936) 55 CLR 499; [1936] HCA 40

APPELLANT:

Mr Leong

RESPONDENT:

Ms Ming

FILE NUMBER:

CSC

2014

APPEAL NUMBER:

2017

DATE DELIVERED:

19 January 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

10 January 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 January 2017

LOWER COURT MNC:

[2017] FCCA 65

REPRESENTATION

THE APPELLANT:	In person via video-link
THE RESPONDENT:	In person via video-link with the assistance of an interpreter

Orders

IT IS ORDERED THAT:

The appellant husband’s Application in an Appeal filed on 2 November 2017 to dispense with the requirement that he obtain and file the trial transcript for the purpose of the hearing of this appeal is allowed.
The oral application of the respondent wife to adduce further evidence on appeal, being a letter from the local authority concerning outstanding rates on the E property is allowed and that letter be admitted and marked Exhibit 1 in the appeal.
The appeal from the orders made by Judge Coker on 19 January 2017 is allowed.
The orders made by Judge Coker on 19 January 2017 be set aside.
The proceedings be remitted for re-hearing in the Federal Circuit Court by a Judge other than Judge Coker.
There be no order as to costs of the appeal proceedings.

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 Leong & Ming has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act

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 LEONG & MING

Details

AGLC: LEONG & MING [2018] FamCAFC 7
Case: [2018] FamCAFC 7
Decision Date: 19 January 2018

CaseChat Overview and Summary

The appellant, the husband, appealed against orders made by Judge Coker in the Federal Circuit Court, concerning a property settlement between the parties. The respondent, the wife, did not contest the appeal or any of the husband's applications. The husband sought leave to dispense with the trial transcript for the appeal, which the wife did not oppose. The wife also sought leave to adduce further evidence in the form of a letter from the local authority regarding outstanding rates on the property. The husband did not object to this application either.

The court was required to determine whether the husband could dispense with the trial transcript for the purposes of the appeal, whether the wife could adduce further evidence on appeal, and whether the trial judge erred in failing to consider certain liabilities of the parties. The court found that the husband could dispense with the trial transcript as the wife did not oppose the application. The court also allowed the wife to adduce further evidence, as the husband did not object. Regarding the merits of the appeal, the court found that the trial judge failed to consider additional liabilities of the parties that existed at the time of trial. Although there was evidence before the trial judge regarding these liabilities, the judge did not reference them in the reasons for judgment or indicate who should bear responsibility for them. The court found that the trial judge erred by failing to have regard to material considerations and allowed the appeal.

The court set aside the orders made by Judge Coker and remitted the proceedings for re-hearing in the Federal Circuit Court by a different judge. The court made no order as to the costs of the appeal proceedings. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

IT IS ORDERED THAT:

The appellant husband’s Application in an Appeal filed on 2 November 2017 to dispense with the requirement that he obtain and file the trial transcript for the purpose of the hearing of this appeal is allowed.

The oral application of the respondent wife to adduce further evidence on appeal, being a letter from the local authority concerning outstanding rates on the E property is allowed and that letter be admitted and marked Exhibit 1 in the appeal.

The appeal from the orders made by Judge Coker on 19 January 2017 is allowed.

The orders made by Judge Coker on 19 January 2017 be set aside.

The proceedings be remitted for re-hearing in the Federal Circuit Court by a Judge other than Judge Coker.

There be no order as to costs of the appeal proceedings.

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

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.