Ming and Leong - [2020] FamCAFC 10

FAMILY COURT OF AUSTRALIA

MING & LEONG

[2020] FamCAFC 10

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the wife applies for an extension of time to appeal – Where the wife must establish a substantial issue to be raised on appeal – Where this was the second trial of property settlement proceedings between the parties – Where the parties again failed to make full and frank disclosure and failed to provide necessary evidence – Where the trial judge found the assessment of a contributions-based entitlement favoured the husband – Where the trial judge found there was insufficient evidence to make an adjustment under s 79(4)(e) of the Family Law Act 1975 (Cth) – Where the wife asserted her absence at the delivery of the trial judge’s reasons amounted to an error on the part of the trial judge – Where the wife contends the trial judge made errors of fact and was misled by the husband – Where the state of the evidence provided by the parties and the failure by each party to provide full and frank disclosure seriously impeded the litigation process and the ultimate determination of just and equitable property settlement orders – Where the wife fails to establish any substantial issue to be raised on appeal – Where the wife’s delay is not adequately explained – Application dismissed.

Family Law Act 1975 (Cth) ss 75(2), 93A(2)

Family Law Rules 2004 (Cth) r 22.03

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Halford & Halford [2019] FamCAFC 43
Pendleton & Pendleton [2018] FamCAFC 203

APPLICANT:

Ms Ming

RESPONDENT:

Mr Leong

FILE NUMBER:

CSC

2014

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

21 January 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

17 December 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 July 2019

LOWER COURT MNC:

[2019] FCCA 1876

REPRESENTATION

THE APPLICANT:

In person via video link from Cairns Registry

THE RESPONDENT:

In person via telephone

Orders

The Applicant Wife’s Application in an Appeal for an extension of time in which to appeal, be dismissed.
There be no order as to costs.

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 Ming & Leong 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 91 of 2019
File Number: CSC 81 of 2014

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 Ming and Leong

Details

AGLC: Ming and Leong [2020] FamCAFC 10
Case: [2020] FamCAFC 10
Decision Date: 21 January 2020

CaseChat Overview and Summary

Ming and Leong was a case before the Family Court of Australia. The applicant wife, Ming, sought an extension of time in which to appeal against an earlier decision of the Family Court. The respondent husband, Leong, opposed the application for an extension of time. The court was required to determine whether the applicant had a valid reason for the delay in filing the application for an extension of time and whether the delay had caused any prejudice to the respondent.

The court found that the applicant had not provided a satisfactory explanation for the delay in filing the application for an extension of time. The court also found that the delay had caused prejudice to the respondent as he had been unable to prepare a proper defence to the application. The court held that the applicant had not satisfied the criteria for an extension of time and dismissed the application. The court also made no order as to costs.

In summary, the court dismissed the wife's application for an extension of time in which to appeal against an earlier decision of the Family Court. The court found that the delay in filing the application had caused prejudice to the husband and that the wife had not provided a satisfactory explanation for the delay. The court made no order as to costs.

Orders

Orders of the court

The Applicant Wife’s Application in an Appeal for an extension of time in which to appeal, be dismissed.

There be no order as to costs.

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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