Tam and Nong

[2018] FCCA 3496

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAM & NONG [2018] FCCA 3496

Catchwords:
FAMILY LAW – Property proceedings – proceedings transferred to the Family Court of Australia – order made.

Legislation:

Federal Circuit Court of Australia Act 1999, s.39
Federal Circuit Court Rules 2001, r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MR TAM

Respondent: MS NONG

File Number: PAC 2903 of 2018

Judgment of: Judge Newbrun

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Parramatta

Delivered on: 30 November 2018

REPRESENTATION

Solicitors for the Applicant:	Mr Nguyen of Tnap Legal
Counsel for the Respondent:	Ms Manfre

Solicitors for the Respondent: Armstrong Legal

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia in Parramatta, and are listed for mention on 22 January 2019 at 9:30 am.

NOTATION

The Court will issue brief Reasons for Judgment in relation to the above transfer Order. The Court notes that these are proceedings relating to the setting aside of a financial agreement, with likely six witnesses including two witnesses being legal practitioners, and both parties requiring Vietnamese interpreters.

IT IS NOTED that publication of this judgment under the pseudonym Tam & Nong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2903 of 2018

MR TAM

Applicant

And

MS NONG

Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 28 November 2018 that these property proceedings be transferred to the Family Court of Australia.

2. The proceedings instituted by the husband relate to his proposed Orders that a section 90C Financial Agreement be set aside, and that property adjustment Orders be made.

3. Both parties, the husband and wife, hail from Vietnam and will require interpreters at the final hearing.

4. The husband is aged 56, and he asserts their relationship spanned some thirteen years.

5. The wife’s material has not yet been filed but her solicitor informs the Court that the husband’s proposed Orders are opposed and the wife will seek to uphold the Financial Agreement.

Issues in dispute

1. The issues in dispute, as submitted by the parties’ solicitors today, are as follows:

   a)Whether the Financial Agreement should be set aside under section 90K(1)(a), the fraud ground;

   b)Whether the Financial Agreement should be set aside under section 90K(1)(e), the unconscionable ground;

   c)Whether the Financial Agreement should be set aside under common law principles, namely relating to misrepresentation and mistake (this contended issue appears to be contrary to section 90K(1) at first glance);

   d)If the Financial Agreement is set aside, what, if any, property adjustment Orders should be made.

Relevant statutory provisions and principles

1. The Court refers to the decision of Tree J in Morris & Rosetti [2017] FamCA 249. His Honour sets out in that decision, in relation to transfers of proceedings between this Court and the Family Court of Australia, the relevant statutory provisions and principles, and refers to a Protocol, agreed to between the heads of…