Teh & Muir - [2015] FamCAFC 224

FAMILY COURT OF AUSTRALIA

TEH & MUIR

[2015] FamCAFC 224

FAMILY LAW – APPEAL – PROPERTY – Part VIIIAB financial agreement – Jurisdiction and power – Where the appellant seeks leave to appeal various interlocutory orders – Where the orders under appeal preserve certain assets pending the determination of issues concerning the validity of the agreement – Where the appellant’s central argument on appeal was that the primary judge did not have jurisdiction to make the orders under appeal as there was a binding financial agreement in existence – Where it has yet to be determined whether the parties were in a de facto relationship or whether the financial agreement is binding – Where the court has the power to make interlocutory asset preservation orders pending final determination – No error established – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.

Family Law Act 1975 (Cth): Pt VIIIAB, ss 4(1), 31(1)(aa), 34, 90SA, 90SS, 90UC, 90UI, 114, 114(2A), 114(3)-(7)

Australian Securities and Investment Commission and Rich & Anor (2003) FLC 93-171
Bienstein v Bienstein (2003) 195 ALR 225
Black and Black (2008) FLC 93-357
In the Marriage of Talbot (1995) FLC 92-586
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Yunghanns & Yunghanns and Ors (1999) FLC 92-836

APPELLANT:

Ms Teh

RESPONDENT:

Mr Muir (by Case Guardian)

FILE NUMBER:

ADC

1922

2014

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

2 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Finn, Strickland & Ryan JJ

HEARING DATE:

13 July 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 October 2014

LOWER COURT MNC:

[2014] FamCA 960

REPRESENTATION

FOR THE APPELLANT:

Ms Teh in person with the assistance of a Cantonese interpreter

COUNSEL FOR THE RESPONDENT AND CASE GUARDIAN:

Ms Hurley

SOLICITOR FOR THE RESPONDENT AND CASE GUARDIAN:

Culshaw Miller Divorce & Family Lawyers

Orders

The oral application by the appellant for an extension of time to seek leave to appeal against Orders 2, 4 and 5 made on 25 June 2014 be dismissed.
The application by the appellant for leave to appeal orders made on 30 October 2014 be dismissed.
The appellant pay the respondent's costs of and incidental to the applications referred to in these orders as agreed or assessed, such costs to be paid within twenty-eight (28) days of agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Teh & Muir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 85 of 2014
File Number: ADC 1922 of 2014

Ms Teh

Appellant

And

Mr Muir (by Case Guardian)

Respondent

REASONS FOR JUDGMENT

Finn & Strickland JJ

In this matter Ms Teh (“the appellant”) seeks:
·an extension of time to seek leave to appeal certain interlocutory orders made by Dawe J on 25 June 2014; and

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 Teh & Muir

Details

AGLC: Teh & Muir [2015] FamCAFC 224
Case: [2015] FamCAFC 224
Decision Date: 2 December 2015

CaseChat Overview and Summary

The case of Teh & Muir involves an appellant seeking to appeal certain orders made by a lower court, which were subsequently denied by the court of appeal. The appellant's application for an extension of time to appeal specific orders made on 25 June 2014 and the appellant's application for leave to appeal orders made on 30 October 2014 were both dismissed. The legal issues before the court included whether the appellant had a valid reason for the delay in seeking leave to appeal and whether the appellant had a valid basis for appealing the orders in question.

The court found that the appellant had not provided a satisfactory explanation for the delay in seeking leave to appeal, and therefore the application for an extension of time was dismissed. The court also found that the appellant's grounds for appealing the orders were not sufficient to warrant leave to appeal, and therefore the application for leave to appeal was also dismissed. The court held that the appellant's arguments were not persuasive and did not demonstrate that the orders made by the lower court were in any way flawed or unjust. The appellant was ordered to pay the respondent's costs of and incidental to the applications as agreed or assessed, such costs to be paid within twenty-eight days of agreement or assessment.

Orders

Orders of the court

The oral application by the appellant for an extension of time to seek leave to appeal against Orders 2, 4 and 5 made on 25 June 2014 be dismissed.

The application by the appellant for leave to appeal orders made on 30 October 2014 be dismissed.

The appellant pay the respondent's costs of and incidental to the applications referred to in these orders as agreed or assessed, such costs to be paid within twenty-eight (28) days of agreement or assessment.

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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