Tsiang & Wu - [2022] FedCFamC1F 772

Federal Circuit and Family Court of Australia
(DIVISION 1)
Tsiang & Wu [2022] FedCFamC1F 772

File number(s): SYC 1529 of 2016

Judgment of: ALTOBELLI J

Date of judgment: 13 October 2022

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Where applicant seeks a signed authority to access documents held by the Australian Taxation Office and Services Australia – Applicability of s 207 of the Social Security (Administration) Act 1999 (Cth) – Order made for authorities to be executed.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where Notice of Objection filed in respect of subpoena issued to the Department of Home Affairs – Relevance – Notice of Objection dismissed.

Legislation:
Family Law Act 1975 (Cth) s 106A

Social Security (Administration) Act 1999 (Cth) s 207, s 208

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 6.1

Cases cited:
Attard v Hore [2002] QSC 437

El-Helou v Smith [2009] NSWSC 741

Garnier & Garnier [2021] FedCFamC1F 186

Haseeb & Haseeb [2022] FedCFamC1F 520

Kehoe & Seden (No 2) [2022] FedCFamC1F 346

Merkuloff v Yalisheff [2003] NSWSC 1183

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Theobald v Delancy (No 3) (2012) 263 FLR 1; [2012] FMCAfam 96

Wray v Wray [2007] NSWSC 164

Division: Division 1 First Instance

Number of paragraphs: 39

Date of last submission/s: 15 September 2022

Date of hearing: Heard by way of written submissions

Place: In chambers

Solicitor for the Applicant: Mills Oakley Lawyers

Solicitor for the First Respondent: Broaden Legal

Solicitor for the Second and Third Respondents: Juris Cor Legal
ORDERS

SYC 1529 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR TSIANG

Applicant

AND:
MS WU

First Respondent

MR CAO

Second Respondent

MR WU

Third Respondent

order made by:

ALTOBELLI J

DATE OF ORDER:

13 October 2022

THE COURT ORDERS THAT:
1.Within seven days of the date of these orders, the Second Respondent execute and forward to the Applicant’s solicitors the following:
(a)Authority to the Australian Taxation Office; and
(b)Authority to Services Australia.

2.In the event the Second Respondent fails to comply with Order 1 hereof, a Deputy Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Family Law Act 1975 (Cth), to execute the said Authorities on behalf of the Second Respondent.
3.The Notice of Objection filed on 25 July 2022 is dismissed.

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 to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to…

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 Tsiang & Wu

Details

AGLC: Tsiang & Wu [2022] FedCFamC1F 772
Case: [2022] FedCFamC1F 772
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with a case involving Mr Tsiang and Ms Wu, with Mr Wu (the wife's father) and Mr Cao (the wife's uncle) also being parties to the dispute. The primary issue was whether Mr Wu should be directed to sign authorities permitting the access of documents held by the Australian Taxation Office and Services Australia. Additionally, the court addressed a Notice of Objection filed by Mr Wu against a subpoena issued to the Department of Home Affairs.

The court had to determine if the documents sought by Mr Tsiang through his application and subpoena were relevant to the ongoing dispute, which centred on the nature of Mr Wu's involvement in a consulting business in China. The husband argued that the documents could reveal whether Mr Wu was operating the business for his own benefit or merely holding shares on trust for both parties. The second and third respondents contended that the subpoena was an abuse of process and oppressive, claiming it had no relevance to the proceedings and was overly broad. They also argued that the application for authorities contravened the Social Security (Administration) Act 1999.

The court ruled that the documents sought were "apparently relevant" to the issues in dispute and that there was no conflict between the orders sought and the Social Security Act. The court held that Mr Wu was required to sign the authorities, and if he failed to do so, a Deputy Registrar would be appointed to execute the authorities on his behalf. The Notice of Objection was dismissed.

In conclusion, the court granted the orders sought by Mr Tsiang and dismissed the Notice of Objection. The matter was set to continue, with a future hearing scheduled to address an application for security for costs by Ms Wu. The court requested estimates of costs to facilitate the consideration of a lump sum order if the parties agreed.

Orders