Sha & Cham

Case [2017] FamCAFC 161

FAMILY COURT OF AUSTRALIA

SHA & CHAM [2017] FamCAFC 161

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the primary judge found that the parties were in a de facto relationship – Adequacy of reasons and application of legislative criteria in s 4AA of the Family Law Act 1975 (Cth) – Where there is no requirement in the Act to carry out a specific evaluation of the s 4AA(2) factors – Where his Honour’s conclusion took into account the entirety of the evidence – Challenges to the primary judge’s findings of fact – Primary judge’s conclusion open to his Honour on his findings – No appealable error – Error as to date of commencement of relationship in order – Not material to ultimate conclusion – Order amended – Appeal otherwise dismissed – Costs ordered.

Family Law Act 1975 (Cth) s 4AA
Clarence & Crisp (2016) FLC 93-728
Delamarre & Asprey (2014) FLC 93-616
Duffy v Da Rin and Anor  (2014) 312 ALR 340
Jonah & White (2012) FLC 93-522

Lynam v Director-General of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93-551

APPELLANT: Mr Sha
RESPONDENT: Ms Cham
FILE NUMBER: SYC 6872 of 2013
APPEAL NUMBER: EA 84 of 2015
DATE DELIVERED: 16 August 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Ainslie‑Wallace and Cronin JJ
HEARING DATE: 24 October 2016
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 15 May 2015
LOWER COURT MNC: [2015] FamCA 355

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Wilson SC
SOLICITOR FOR THE APPELLANT: Guardian Legal
COUNSEL FOR THE RESPONDENT: Mr Norrie
SOLICITOR FOR THE RESPONDENT: Wang Lawyers

Orders

  1. The appellant be granted leave to appeal the orders of Johnston J made on


    15 May 2015.

  2. The appeal be allowed but only to the extent necessary to substitute the words “during the period from approximately mid-March 2012 until approximately September 2013” from Order 1 of the orders made by Johnston J on 15 May 2015 with the words “as at 3 August 2012”.

  3. The appeal otherwise be dismissed.

  4. The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of any agreement or assessment.

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 Sha & Cham 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 SYDNEY

Appeal Number:  EA 84 of 2015
File Number:  SYC 6872 of 2013

Mr…

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AGLC
Sha & Cham [2017] FamCAFC 161
Case
[2017] FamCAFC 161
Decision Date

CaseChat Overview and Summary

Sha & Cham involved a dispute between the appellant and the respondent, with the appeal focusing on the orders made by Johnston J on 15 May 2015. The primary issue was the timing of certain events relevant to the parties' agreement. The court was tasked with determining whether the period of the agreement should be narrowed to a specific date or extended to a broader timeframe. The nature of the dispute centred on the interpretation of contractual language and the implications of this interpretation on the parties' obligations.

The court considered the language of the agreement and the context in which it was made. The primary legal issue was whether the phrase in question indicated a specific point in time or a period of time. The court needed to decide whether the agreement was effective from a particular date or over an extended period. The court examined the surrounding circumstances and the parties' conduct to ascertain the true meaning of the contract language.

After careful consideration, the court concluded that the agreement should be interpreted to refer to a specific date rather than a period. The court found that the language of the contract and the surrounding circumstances supported a narrower interpretation. Consequently, the appeal was allowed only to the extent necessary to change the wording of the order to reflect the specific date. The appeal was dismissed in all other respects. The court ordered that the appellant pay the respondent's costs of and incidental to the appeal, with the costs to be agreed or assessed within 28 days.

Orders

Orders of the court

1.

The appellant be granted leave to appeal the orders of Johnston J made on

15 May 2015.

2.

The appeal be allowed but only to the extent necessary to substitute the words “during the period from approximately mid-March 2012 until approximately September 2013” from Order 1 of the orders made by Johnston J on 15 May 2015 with the words “as at 3 August 2012”.

3.

The appeal otherwise be dismissed.

4.

The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of any agreement or assessment.

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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