LONG & PENG - [2020] FamCAFC 56

FAMILY COURT OF AUSTRALIA

LONG & PENG

[2020] FamCAFC 56

FAMILY LAW – APPEAL – PROPERTY – Findings of fact – Where the evidence proffered by both parties was compromised and deficient – Uncorroborated testimony of party subject to adverse credit findings – Failure to give full disclosure – Application in an appeal to adduce further evidence – Further evidence could not establish error – Application in an Appeal dismissed – Appeal dismissed.

FAMILY LAW – COSTS – Where the appellant has been wholly unsuccessful and the respondent has unnecessarily incurred expense – Costs order made.

Family Law Act 1975 (Cth) ss 81, 93A(2) and 94AAA(7)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT:

Ms Long

RESPONDENT:

Mr Peng

FILE NUMBER:

BRC

2041

2016

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

13 March 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ryan & Watts JJ

HEARING DATE:

6 February 2020

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

24 July 2019

LOWER COURT MNC:

[2019] FCCA 1987

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Yu

SOLICITOR FOR THE APPELLANT:

Pi-En Hsu Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hanlon

SOLICITOR FOR THE RESPONDENT:

Queensland Legal Practice

Orders

The husband have leave to rely on his late filed Schedule of Costs.
The Application in an Appeal filed 16 December 2019 be dismissed.
The appeal be dismissed.
The wife pay the husband’s costs of and incidental to the appeal fixed in the amount of $22,027.12 within one (1) month.

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 Long & Peng 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 BRISBANE

Appeal Number: NOA 72 of 2019
File Number: BRC 2041 of 2016

Ms Long

Appellant

And

Mr Peng

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal against property settlement orders made by a judge of the Federal Circuit Court on 24 July 2019. In essence, Ms Long (“the wife”), contends that by reason of contributions she should have received at least 50 per cent of the parties’ property in Australia. Based on the property pool as propounded by the wife, she received something like 22-25 per cent. On the property pool as found, the wife received in the vicinity of 50 per cent.
The respondent is Mr Peng (“the husband”). He resists the appeal and seeks to uphold the…

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 LONG & PENG

Details

AGLC: LONG & PENG [2020] FamCAFC 56
Case: [2020] FamCAFC 56
Decision Date: 13 March 2020

CaseChat Overview and Summary

The case involved Long, the appellant, and Peng, the respondent, in a family law appeal concerning the distribution of property. The primary dispute revolved around the findings of fact in the original judgment, specifically whether the evidence provided by both parties was adequate and whether there was a failure to give full disclosure. The matter was heard in the Family Court of Australia. The appellant sought to adduce further evidence to establish an error in the original decision, while the respondent opposed this application, arguing that the evidence was deficient and uncorroborated.

The legal issues before the court included whether the evidence presented by the appellant was sufficient to warrant a change in the findings of fact, and whether the respondent's failure to give full disclosure was a ground for appeal. The court had to determine if the appellant's application to adduce further evidence could establish an error in the original decision and whether the respondent's failure to provide full disclosure affected the outcome. Additionally, the court considered the costs implications of the appeal, given the appellant's lack of success.

The court found that the evidence provided by both parties was compromised and deficient, with the appellant's testimony being uncorroborated and subject to adverse credit findings. The court held that the application to adduce further evidence could not establish an error in the original decision, and thus dismissed the application. Consequently, the appeal was dismissed, and the court found that the respondent had unnecessarily incurred expenses due to the appellant's unsuccessful appeal. As a result, the court ordered that the wife pay the husband’s costs of and incidental to the appeal.

The court's final orders were that the husband have leave to rely on his late filed Schedule of Costs, the Application in an Appeal filed on 16 December 2019 be dismissed, the appeal be dismissed, and the wife pay the husband’s costs of and incidental to the appeal fixed in the amount of $22,027.12 within one month. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The husband have leave to rely on his late filed Schedule of Costs.

The Application in an Appeal filed 16 December 2019 be dismissed.

The appeal be dismissed.

The wife pay the husband’s costs of and incidental to the appeal fixed in the amount of $22,027.12 within one (1) month.

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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