FAMILY LAW – LEAVE TO APPEAL – INTERLOCUTORY ORDERS – Applicant seeks leave to appeal interlocutory orders of primary judge – Where conjunctive test for leave to appeal in Medlow & Medlow (2016) FLC 93-692 not satisfied – Appeal dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL –FURTHER EVIDENCE – Applicant seeks leave to adduce further evidence – Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) considered – Where proposed material does not demonstrate error or provide material for re-exercise of discretion – Application in an Appeal dismissed.
FAMILY LAW – APPEAL – DISCRETIONARY JUDGMENT – Where applicant asserts bias and denial of procedural fairness, failure to give reasons, failure to consider evidence, and failure to give proper weight to evidence – All grounds of appeal found to be without merit.
FAMILY LAW – JURISDICTION – Where the primary judge found there was no jurisdiction in the Federal Circuit and Family Court of Australia (Division 1) to entertain applicant’s application for spousal maintenance (including leave to apply out of time) – No grounds of appeal directed at this issue – Consideration by majority of whether ss 25 and 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) preclude jurisdiction where proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) is subsequently amended to include another cause of action – Consideration by majority of jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) to entertain a fresh cause of action in proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) – Consideration by majority of whether applications constituted a single justiciable controversy within the Court’s associated jurisdiction under s 29 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
FAMILY LAW – COSTS – Appeal wholly unsuccessful – Applicant ordered to pay costs of first and second respondents.
Legislation:
Australian Constitution Ch III
Family Law Act 1975 (Cth) Pts VII, VIII, ss 4, 31(1)(a), 33 (repealed), 39, 44, 74, 79, 80, 90SE, 117
[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.
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AGLC
Vang & Chung (No 3) [2024] FedCFamC1A 199
Case
[2024] FedCFamC1A 199
Decision Date
CaseChat Overview and Summary
In the case of Vang & Chung (No 3), Ms Vang, the applicant, sought leave to appeal the interlocutory orders made by the primary judge and to adduce further evidence in the appeal. The primary judge had dismissed Ms Vang’s application for spousal maintenance and other interim orders, finding that there was no jurisdiction in the Federal Circuit and Family Court of Australia (Division 1) to entertain the application. Ms Vang further sought to challenge the primary judge’s rulings on issues such as bias, procedural fairness, and the weight given to evidence. The court was required to determine whether Ms Vang had satisfied the conjunctive test for leave to appeal, whether the proposed further evidence met the criteria under s 35(b) of the Federal Circuit and Family Court of Australia Act 2021, and the merits of the grounds of appeal.
The court found that the conjunctive test for leave to appeal, as outlined in Medlow & Medlow, was not satisfied because Ms Vang had not demonstrated that the appeal had prospects of success or that there was some other compelling reason for allowing the appeal. The proposed further evidence did not demonstrate an error or provide new material for re-exercising the discretion of the court. The court also found all grounds of appeal to be without merit, including the claims of bias, procedural unfairness, and improper consideration of evidence. Additionally, the court considered the jurisdictional issue and concluded that the primary judge’s finding on jurisdiction was correct. The appeals were dismissed, and Ms Vang was ordered to pay the costs of the first and second respondents.
The dismissal of the appeals and the denial of leave to appeal resulted in a final order that Ms Vang pay the costs of the first respondent in the sum of $15,000 and the costs of the second respondent in the sum of $7,500. The court's reasons for judgment were detailed, reflecting the complexity of the issues and the extensive submissions made by the parties.
Orders
Orders of the court
NAA 69 of 2024
NAA 70 of 2024
SYC 1433 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS VANG
Applicant
AND:
MR CHUNG
First Respondent
MR D
Second Respondent
ORDER MADE BY:
MCCLELLAND DCJ, CAREW & STRUM JJ
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS THAT:
1. The Applications in an Appeal filed 12 June 2024 in Appeal NAA 69 of 2024 and in Appeal NAA 70 of 2024 be dismissed.
2. The Applications for leave to appeal in Appeal NAA 69 of 2024 and NAA 70 of 2024 be dismissed.
3. Appeal NAA 69 of 2024 and Appeal NAA 70 of 2024 be dismissed.
4. The applicant pay the costs of the first respondent of and incidental to the appeals fixed in the sum of $15,000.
5. The applicant pay the costs of the second respondent of and incidental to the appeals fixed in the sum of $7,500.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
By reason of the (Amended) Notice of Appeal and the Summary of Argument, which were both drawn by the applicant in person, and her oral submissions in person before us, all of which have been of little assistance in the determination of her application for leave to appeal (and any consequent appeal), as well as the primary judge’s jurisdictional ruling, which we consider to have been arguably wrong (albeit not the subject of a ground of appeal), our reasons for judgment are necessarily long.BACKGROUND The applicant and the first respondent commenced cohabitation in the first half of 2015, and they were married in mid-2017. The applicant claims that they separated in August 2018, whereas the first respondent claims that separation occurred on or about 29 September 2017, only a few months after their marriage. On any view, the period of their cohabitation was relatively short. On 3 March 2020, proceedings for alteration of interests in property under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) were instituted in the Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia (Division 2)) by the applicant against the first respondent. On 15 December 2022, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1). Following the transfer, the applicant filed numerous Applications in a Proceeding on 15 May 2023, 12 June 2023 and 6 September 2023 seeking a range of orders, including litigation funding, spousal maintenance, partial property settlement and the joinder of the (now) second respondent. On 23 October 2023, those applications were listed for interim hearing on 22 January 2024. On 22 January 2024, the applicant filed her (Amended) Application in a Proceeding, consolidating the relief sought by her and, accordingly, the three earlier Applications in a Proceeding were dismissed. In summary, paragraphs 1–9 (the dismissal of which is the subject of this appeal), sought a raft of interim orders. Primarily, she sought an order for the payment to her of the rental income from the property at E Street, Suburb F (“E Street”), registered in the name of the first respondent and subject to a mortgage registered in favour of the second respondent, until settlement of the sale thereof, less any management costs, together with a lump sum payment to her of $856,000 from the proceeds of sale. In the event that the Court made those proposed orders, she sought that the categorisation of part or all of the moneys paid to her, whether as partial property settlement, spousal maintenance, “litigation funding and or cost [sic]”, be reserved to trial. In the alternative, she sought a spousal maintenance payment of $1,000 per week until the settlement of the sale of E Street, and thereafter as litigation funding. Upon settlement of the sale, she sought a payment of $856,000, with $111,000 to be characterised as lump sum spousal maintenance and the balance as partial property settlement for litigation funding. Lastly, but necessarily, she sought leave to commence proceedings for spousal maintenance out of time.
Evidence
Evidence Before The Court
We shall otherwise consider the applicant’s application for leave to appeal in our consideration of her grounds of appeal.APPLICATION TO ADDUCE FURTHER EVIDENCE Rule 13.39(1)–(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:(1)A party to an appeal (other than an appeal that is a hearing de novo) who seeks to apply for an order that the court receive further evidence on the hearing of the appeal must file the application at least 14 days before the date of commencement of the sittings in which the appeal is listed for hearing.(2) The affidavit filed with the application must state:(a) briefly but specifically, the facts on which the application relies; and(b) the grounds of appeal to which the application relates; and(c)the evidence that the applicant wants the appeal court to receive, or at least the nature of the further evidence; and(d) the reason why the evidence was not adduced at the hearing. The applicant’s Applications in an Appeal (for both appeals) were filed on 12 June 2024. The sittings in which the appeals were listed for hearing commenced on 25 June 2024. Accordingly, by reason of the operation of r 15.05 of the Rules, those Applications should have been filed by 11 June 2024. No explanation was proffered by the applicant for her delay; however, no prejudice by reason thereof was asserted by the respondents. Their opposition to the Applications goes to matters of substance, rather than form. Insofar as the applicant seeks leave to adduce further evidence, s 35(b) of the FCFCOA Act provides inter alia that, in an appeal, the Full Court has the power, in its discretion, to admit further evidence in an appeal. The discretion conferred by that provision is unfettered; no factors are specified which constrain the Court’s discretion to admit further evidence. Nevertheless, in applying the principles adumbrated by the High Court in CDJ v VAJ (1998) 197 CLR 172 at [114], [116] and [148] (“CDJ v VAJ”) it can be said that the following two considerations will normally be relevant to the exercise of the discretion:(i)the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and(ii)the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence (Veale v Coleman (2024) 304 FCR 182 at [7]). The further evidence that the applicant seeks leave to adduce is extensive, comprising 29 documents, totalling 539 pages in length. Those documents are annexed to an affidavit filed in support of her Applications in an Appeal, itself comprising over 13 pages of text, much of which is in the nature of submissions, rather than evidence in and of itself, and is difficult to follow. Much of that proposed evidence was not referred to by the applicant in either her Summary of Argument or her oral submissions before us. Indeed, contrary to r 13.39(2)(a)–(b) and (d) of the Rules, the applicant’s affidavits filed with her applications fail to state:·briefly but specifically or, indeed, at all, the facts on which the applications rely;·the grounds of appeal to which the applications relate; and·the reason why the evidence was not adduced at the hearings before the primary judge.
Decision
Reasons for decision
The primary Judge recorded at [31] that counsel for the applicant articulated her likely claim to be that Y Pty Ltd was the alter ego of the first respondent; that the second respondent’s mortgage over E Street was not genuine and was liable to be set aside; and, consequently, that the Court should conclude that the proceeds of sale of E Street are beneficially owned by the first respondent.THE PRIMARY JUDGE’S DECISION The primary judge said at [35] that “[d]elaying until the final hearing the characterisation of an interlocutory payment to a party, although often done, is problematic because there are distinct bases under the Act to make such orders and each basis necessarily carries with it a characterisation”. We would observe that, notwithstanding that it may be “often done”, not only is such delay problematic, it should not – and, in our view, cannot – be done: see Zschokke and Zschokke (1990) FLC 92-693 at 83,216–83,217, where the Full Court referred to the different matters to which the Court should have regard, or take into account, in considering whether to make an order of the type in question either under s 80(1)(h) or under s 117(2) of the Act. If the order is to be made under s 80(1)(h), regard should be had to the requirements of s 79(2) and (4). If the order is to be made under s 117(2), the matters contained in s 117(2A) must be addressed. This was made even clearer in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”), where the Full Court said:84.In Paris King Investments Brereton J, with whom on this point we agree, at [30] said that Zschokke “establishes that it is important, when contemplating an order for interim provision for litigation expenses, to identify the relevant source of power because it is the source of power that determines the necessary preconditions and relevant considerations for making the order”.…86.Once the relevant source of jurisdiction for making an order is resolved then it could be assumed that what Brereton J in Paris King Investments described as “the necessary preconditions and relevant considerations” or as the Full Court in Zschokke described as the “matters” to be taken into account should be easy to identify. If the source of jurisdiction is s 117(2) of the Act then the court may make such order as it considers just provided there are justifying circumstances. If the order is sought under s 79 of the Act then the court may make such an order as it considers appropriate provided it is satisfied that it is just and equitable to make the order. If the order is sought under s 74 of the Act then the court may make such order as is proper. At [38] of his reasons for judgment, the primary judge then said:Before turning to the facts and arguments of the parties concerning the substance of the [applicant’s] application for maintenance, it is necessary to discuss a range of difficult questions posed by s 39 and s 44 of the Act and s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”). After the hearing concluded on 22 January 2024, the Court sought submissions from the parties on the operation and interaction of these sections. None were received.INSTITUTING PROCEEDINGS FOR SPOUSAL MAINTENANCE