Peng and Cao - [2016] FamCA 259

FAMILY COURT OF AUSTRALIA

PENG & CAO

[2016] FamCA 259

FAMILY LAW – CHILDREN – undefended proceedings – husband makes no contribution to the proceeding – children have long been in the mother’s care without physical assistance from the husband – no basis to make an order for equal shared parental responsibility as the husband has not exercised it and has indicated no desire to do so – order made for the children to live with the wife.
FAMILY LAW – PROPERTY – wife seeks transfer of husband’s interest in home to her – modest interest of equal contribution to property to separation but no financial details provided by the husband – subsequent to separation, wife has had a major role.
FAMILY LAW – PROPERTY – husband’s parents make joint payment used by the parties to acquire matrimonial home – evidence indicates intention to make joint gift – no adjustment in favour of the husband for contribution.

Family Law Act 1975 (Cth)

Elgin & Elgin [2014] FamCA 10)
Gosper & Gosper (1987) FLC 91-818)
Kessey & Kessey (1984) FLC 92-495
Mistle & Mistle [2010] FamCA 29

APPLICANT:

Ms Peng

RESPONDENT:

Mr Cao

FILE NUMBER:

DGC

2268

2014

DATE DELIVERED:

22 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6, 20 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sala

SOLICITOR FOR THE APPLICANT:

Solomons Lawyers

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

That the wife have leave to proceed in the absence of the husband on an undefended basis.
That the wife have sole parental responsibility for the major long-term decisions concerning the children B born … 2002 and C born … 2004.
That the children live with the mother.
That the husband forthwith do all things necessary to transfer to the wife his interest in the property at D Street, Suburb E.
That the wife forthwith indemnify the husband and pay all payments due to the Westpac Bank in respect of the mortgage encumbering the property at Suburb E and as soon as practicable hereafter, obtain a discharge for the obligations of the husband pursuant to the mortgage.
That each party otherwise retain the interests in any property in their respective names to the exclusion of the other.
If the husband fails to sign any document required for the purposes of thee orders, then pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar may sign such document in the name of the husband and the registrar shall be satisfied of the necessity of such signing upon receipt of an affidavit by the solicitor for the wife, pointing to the default of the husband.
That the application of the wife filed 1 October 2015 is otherwise dismissed.
That if the husband is so advised, he has 30 days from the day of the service upon him of these orders, to seek to set them aside; such application shall be supported by evidence as…

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 Peng and Cao

Details

AGLC: Peng and Cao [2016] FamCA 259
Case: [2016] FamCA 259
Decision Date: 22 April 2016

CaseChat Overview and Summary

In the matter of Peng and Cao, heard before Cronin J, the dispute concerned parenting arrangements and property settlement. The wife sought orders regarding the children and the division of assets, while the husband's participation in the proceedings was limited.

The court was required to determine the appropriate parenting orders, specifically concerning the children's residence and the allocation of parental responsibility for major long-term decisions. Additionally, the court had to adjudicate on the division of the parties' property, including a property located at D Street, Suburb E, and address the husband's obligations concerning the mortgage on that property.

Cronin J made orders granting the wife leave to proceed in the husband's absence on an undefended basis. The court ordered that the wife have sole parental responsibility for major long-term decisions concerning the children and that the children live with the mother. Regarding property, the husband was ordered to transfer his interest in the D Street property to the wife, who was to indemnify him and meet all mortgage payments, obtaining a discharge of his obligations. Other property was to be retained by each party as it stood. The court also made provision for a registrar to sign documents on the husband's behalf if he failed to do so, pursuant to s 106A of the *Family Law Act 1975* (Cth). The wife's application filed on 1 October 2015 was otherwise dismissed. The husband was granted 30 days to seek to set aside the orders, provided he could demonstrate his non-participation to date. Service of the orders and reasons was to be effected electronically.

Orders

Orders of the court

That the wife have leave to proceed in the absence of the husband on an undefended basis.

That the wife have sole parental responsibility for the major long-term decisions concerning the children B born … 2002 and C born … 2004.

That the children live with the mother.

That the husband forthwith do all things necessary to transfer to the wife his interest in the property at D Street, Suburb E.

That the wife forthwith indemnify the husband and pay all payments due to the Westpac Bank in respect of the mortgage encumbering the property at Suburb E and as soon as practicable hereafter, obtain a discharge for the obligations of the husband pursuant to the mortgage.

That each party otherwise retain the interests in any property in their respective names to the exclusion of the other.

If the husband fails to sign any document required for the purposes of thee orders, then pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar may sign such document in the name of the husband and the registrar shall be satisfied of the necessity of such signing upon receipt of an affidavit by the solicitor for the wife, pointing to the default of the husband.

That the application of the wife filed 1 October 2015 is otherwise dismissed.

That if the husband is so advised, he has 30 days from the day of the service upon him of these orders, to seek to set them aside; such application shall be supported by evidence as to his non-participation to date.

10.

That as soon as practicable, a copy of these orders and the reasons for judgment this day be served by the wife upon the husband by electronic means as set out in previous orders.

11.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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