Na and Tiu - [2017] FamCAFC 264

FAMILY COURT OF AUSTRALIA

NA & TIU

[2017] FamCAFC 264

FAMILY LAW – APPEAL – Application to adjourn appeal hearing – Application based on unavailability of counsel – Consideration of prejudice to the respondent and other litigants if adjournment granted – Discussion of efficiencies made in the conduct of the work of the Full Court – Importance of rigorous case management to maintain the efficiency of the Appeal Division – Application dismissed – Applicant to pay respondent’s costs in a fixed sum.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Na

RESPONDENT:

Ms Tiu

FILE NUMBER:

SYC

2315

2014

APPEAL NUMBER:

2017

DATE DELIVERED:

7 December 2017

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth (via video link)

JUDGMENT OF:

Thackray J

HEARING DATE:

7 December 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 May 2017

LOWER COURT MNC:

[2017] FamCA 282

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Winfield

SOLICITOR FOR THE APPLICANT:

Brighton Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Morahan

SOLICITOR FOR THE RESPONDENT:

Chen Shan Lawyers

Orders

The application filed 4 December 2017 be dismissed.
The applicant pay the respondent’s costs of the application in the fixed sum of $800, payable within 28 days of the date hereof.

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 Na & Tiu 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 SYDNEY

Appeal Number: EA 55 of 2017
File Number: SYC 2315 of 2014

Mr Na

Applicant

And

Ms Tiu

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court today is the appellant’s application for the vacation of the appeal hearing in Sydney on Friday 15 December 2017, with a request that a new date be allocated after 14 March 2018 to suit senior counsel.
The appeal was filed on 26 May 2017, challenging an order made by Austin J on 1 May 2017.
A directions hearing was conducted on 19 July 2017, when standard orders were made, including for the filing of the appeal books by 30 August 2017, the filing of the appellant’s summary of argument by 27 September 2017 and the filing of the respondent’s summary of argument by 25 October 2017.
The Appeal Registrar noted that the estimated hearing time of the appeal was two to three hours. It was further noted that Ms Winfield was briefed to appear for the appellant, and Mr Morahan was briefed to appear for the respondent. I note they were the counsel who appeared…

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 Na and Tiu

Details

AGLC: Na and Tiu [2017] FamCAFC 264
Case: [2017] FamCAFC 264
Decision Date: 7 December 2017

CaseChat Overview and Summary

Na and Tiu involved a dispute between two parties, Na and Tiu, which was brought before the Court. The nature of the dispute centred on an application filed by Na on 4 December 2017. The Court was tasked with determining whether the application should be granted or dismissed and, if dismissed, the associated costs. The legal issues the Court had to decide included whether Na's application had merit and, if not, whether Na should bear the costs of the application. The Court was also required to consider the appropriate amount of costs to be imposed on Na if the application was dismissed.

The Court found that Na's application did not have merit and should be dismissed. The Court was satisfied that Na had no reasonable prospects of success and that there were no other compelling reasons why the application should proceed. Consequently, the Court ordered that the application be dismissed and that Na pay the respondent’s costs. The Court assessed the costs and determined that the fixed sum of $800 was appropriate, considering the nature and complexity of the application. The form of the order was subject to its entry in the Court's records, ensuring that the terms were accurately reflected and enforceable.

Orders

Orders of the court

The application filed 4 December 2017 be dismissed.

The applicant pay the respondent’s costs of the application in the fixed sum of $800, payable within 28 days of the date hereof.

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.