Pang & Qing - [2022] FedCFamC2F 768

Federal Circuit and Family Court of Australia
(DIVISION 2)
Pang & Qing [2022] FedCFamC2F 768

File number(s): SYC 7278 of 2020

Judgment of: JUDGE ELDERSHAW

Date of judgment: 16 June 2022

Catchwords: FAMILY LAW –PROPERTY – Section 79 proceedings – Section 106B proceedings – Final orders by consent – Application for joinder – Where the proceedings have been finalised by consent – Costs – Costs awarded in favour of the wife

Legislation:
Family Law Act 1975 (Cth) Pt VIII, XIII & XV, ss 78, 79, 79A, 81, 85, 106A, 106B, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13, 12.1, sch 3

Cases cited:
Calderbank v Calderbank [1976] Fam 93 (CA)

Gable & Yardley (2008) 40 Fam LR 66; [2008] FamCAFC 162

Gould & Gould; Swire Investments Pty Ltd (1993) FLC 92-434; [1993] FamCA 126

InThe Marriage of Cullen (1980) 6 Fam LR 480

Inthe Marriage of Whittaker (1979) 5 Fam LR 769; (1980) FLC 90-81

Marriage of Florie (1988) 12 Fam LR 7; [1988] FamCA 26

Milligan & Milligan and Anor (2017) FLC 93-811; [2017] FamCAFC 218

Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777

Rahman & Rahman (2020) 62 FamLR 73

Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1996) 186 CLR 622

Division: Division 2 Family Law

Number of paragraphs: 112

Date of hearing: 27 April 2022

Place: Sydney

Counsel for the Applicant: Mr O’Connor

Solicitor for the Applicant: Juris Cor Legal

Solicitor for the First Respondent: Santo Family Lawyers

Counsel for the Second Respondent: Mr Longworth

Solicitor for the Second Respondent: Gordon & Barry Lawyers Pty Ltd
ORDERS

SYC 7278 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PANG

Applicant

AND:
MS QING

First Respondent

MS ZIE
Second Respondent

order made by:

JUDGE ELDERSHAW

DATE OF ORDER:

16 June 2022

THE COURT ORDERS THAT:
1.Orders 1 to 4 of the interlocutory relief contained in Mr Pang’s (“the husband”) Amended Initiating Application filed on 16 August 2021 be dismissed.
2.Within 28 days of these Orders, the husband shall pay the wife $4,829.50 by way of costs of and incidental to the s 79 proceedings with such payment to be made to such bank account as nominated by Ms Qing (“the wife”).
3.The wife’s Application in a Proceeding filed on 15 December 2021 be otherwise dismissed.
4.The wife’s Application in a Proceeding filed on 15 February 2022 be dismissed.
5.Any party who wishes to obtain a Costs Order in their favour for costs of and incidental to the proceedings on 27 April 2022 may do so by filing and serving written submissions not exceeding two (2) pages (12-point font, normal margins) by no later than 14 days from the date of these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review…

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 Pang & Qing

Details

AGLC: Pang & Qing [2022] FedCFamC2F 768
Case: [2022] FedCFamC2F 768
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was required to determine two applications made by Mr Pang (the husband) and two applications made by Ms Qing (the wife). The husband sought an order that Ms Zie (the wife's mother) be joined as a party to the proceedings and that the wife be prevented from being removed as a party to the proceedings. The wife sought an order that the husband pay her costs and an order that she be removed as a party to the proceedings. The central issue for the Court to determine was whether section 106B of the Family Law Act 1975 (Cth) could operate as a stand-alone power to enjoin a third party, in this case the wife's mother, to the proceedings after the substantive proceedings between the husband and wife had concluded. The Court found that section 106B could not operate as a stand-alone power and dismissed the husband's application to join the wife's mother to the proceedings. The Court also found that the husband had to pay the wife $4,829.50 in costs and dismissed the wife's application to be removed as a party to the proceedings.

Orders