FAMILY LAW – INTERIM PROPERTY ADJUSTMENT – Where wife seeks interim property settlement of $856,000 – Where wife is yet to formulate her claim for final relief under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) – Where the assets of the parties are presently uncertain – Where Court cannot find that husband has vast undisclosed assets in Country YY on an interim basis – Where husband may have some undisclosed shareholdings in Country YY – Where primary asset in Australia was sold at auction for over $14,000,000 – Where the husband’s father has a registered first mortgage against the property securing $14,864,805 – Where wife seeks to impugn validity and set aside the registered mortgage – Where wife’s case that the mortgage was a sham is not presently supported by the probabilities of the evidence – Where property pool is otherwise modest and relationship was short – Where risk that interim property adjustment could not be recouped if necessary at final hearing – Application dismissed.
FAMILY LAW – LITIGATION FUNDING – Where wife seeks a lump sum payment for the purpose of litigation funding – Where husband does not have position of relative strength but has capacity to fund his own legal costs – Where wife claims to be unable to meet her legal costs – Where she gave no clear evidence as to her predicted legal costs – Where wife asserts need for extensive legal costs to fund investigations in Country YY – Where Court not satisfied the foreshadowed investigations are necessary or consistent with the overarching purpose – Where litigation funding sought is disproportionate to the possible outcomes of the proceedings – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Leave to institute spousal maintenance proceedings pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) – Operation of ss 25, 50 and 132 in the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) – Discussion of definition of “institute” “proceedings” and “family law and child support proceedings” – Where s 50 of the FCFCOA prescribes that family law and children support proceedings must be instituted in Federal Circuit and Family Court of Australia (Division 2) – Where proceedings relating to maintenance are a separate matrimonial cause to property proceedings – Where matrimonial cause seeking property adjustment were commenced within time and transferred to Federal Circuit and Family Court of Australia (Division 1) pursuant to the FCFCOA Act – Where wife sought to leave to institute application for spousal maintenance well outside of prescribed time and subsequent to the transfer of the property proceedings to Division 1 by way of an Application in a Proceeding – Where s 44(3) requires the applicant to seek leave of “the court in which…
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.
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AGLC
Vang & Chung (No 3) [2024] FedCFamC1F 101
Case
[2024] FedCFamC1F 101
Decision Date
CaseChat Overview and Summary
In the matter of Vang & Chung (No 3), Ms Vang sought an interim property adjustment, litigation funding, and leave to institute spousal maintenance proceedings against Mr Chung. The proceedings were before the Federal Circuit and Family Court of Australia, Division 1. The wife's application for an interim property settlement of $856,000 was dismissed because the Court could not find that the husband had vast undisclosed assets in Country YY on an interim basis, the assets of the parties were uncertain, and the primary asset in Australia had been sold for over $14,000,000 with a registered mortgage securing $14,864,805. The Court also dismissed the wife's application for litigation funding as the wife could not provide clear evidence of her predicted legal costs and the investigations she sought were not necessary or consistent with the overarching purpose of the court.
Further, the Court considered whether it had jurisdiction to hear an application for spousal maintenance leave under s 44(3) of the Family Law Act 1975 (Cth) in Division 1, given that maintenance proceedings must be instituted in Division 2. The Court concluded that even if it had jurisdiction, it would not grant leave to the wife to commence proceedings for spousal maintenance. The Court considered the application for leave to institute maintenance proceedings to be a family law and child support proceeding that must be instituted in Division 2. Therefore, the Court dismissed paragraphs 1 to 9 of the wife's application.
The Court made an order dismissing paragraphs 1 to 9 of the wife's Amended Application in a Proceeding filed on 22 January 2024. The Court also noted that paragraphs 10 and 11 of the application remained listed for interim hearing before the Court on 4 March 2024. The form of the order is subject to entry in the Court's records, and the Court's Reasons for judgment may be subject to review or variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Orders
Orders of the court
SYC 1433 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS VANG
Applicant
AND:
MR CHUNG
First Respondent
MR D
Proposed Second Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1. Paragraphs 1 to 9 of the applicant’s Amended Application in a Proceeding filed on 22 January 2024 (“the application”) be dismissed.
2. The costs of the application stand reserved.
THE COURT NOTES THAT:
A. Paragraphs 10 and 11 of the application remain listed for interim hearing before me at 10.00 am on 4 March 2024.
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 publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Sections 67 and 68 of the FCFCOA Act and r 1.04 of the Rules mandate an overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. Parties are obliged to conduct the proceedings consistently with the overarching purpose. In my view, in light of the evidence about the property pool in Australia, the short relationship and the limitations on the jurisdiction of the Court over assets in Country YY, an order for lump sum costs for litigation as sought by the wife, to be used to undertake further extensive investigation of assets in Country YY, is disproportionate to the possible outcomes in these proceedings. CONCLUSION I accept that on the basis of the wife’s Points of Claim the father is a necessary party. If the wife seeks to press for his joinder, his incarceration in Country YY may however pose a problem for service, but such difficulties can be addressed if they arise. Otherwise, I will dismiss paragraphs 1 to 9 of the wife’s application.