Xu and Phak - [2018] FamCA 898

FAMILY COURT OF AUSTRALIA

XU & PHAK

[2018] FamCA 898

FAMILY LAW – PROPERTY – Order setting aside of financial agreement made after a contested hearing – where the husband was unsuccessful in endeavouring to maintain the financial agreement as the trial judge, on the wife’s application, finds that the parties had executed the agreement on the basis of a mistake and that the agreement was therefore void ab initio – where the husband subsequently finds that the wife had not been honest with the Court and had received money that she had not disclosed in circumstances where the trial judge understood that she was to get none from the asset that she was to receive under the financial agreement – where the husband seeks an order under rule 17.02 of the Family Law Rules 2004 (Cth) to set aside the order on the grounds of fraud – where the Court considers that the rule is not a stand-alone power but simply reflects the inherent power of the court to ensure that justice is done – whether fraud does not taint the judgement and in any event, justice can be done by an adjustment in proceedings under section 79 of the Family Law Act 1975 (Cth) which the trial judge had anticipated as a result of setting aside the financial agreement – where the wife’s conduct in not disclosing the amount she had received showed a lack of candour and her actions were to be decried – where the wife refuses to say what happened to the money she had received which was the subject of the fraud.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Breise & Breise (1986) FLC 91–713
Cameron v Cole [1944] HCA 5; 68 CLR 571
Hip Foong Hong v H Neotia & Co [1918] A.C 888
Magill v Magill [2006] HCA 51; (2006) 231 ALR 277
McCann v Parsons [1954] HCA 70; 93 CLR 418
McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529
Oriolo & Oriolo (1985) FLC 91–653
Phak & Xu [2015] FamCA 939

APPLICANT:

Mr Xu

RESPONDENT:

Ms Phak

FILE NUMBER:

MLC

9662

2012

DATE DELIVERED:

7 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr MacFarlane

SOLICITOR FOR THE APPLICANT:

Oakfair Lawyers

THE RESPONDENT:

In Person

Orders

That paragraph 1 the orders sought by the husband in the response filed 5 July 2018 is dismissed.
That paragraph 2 of the proposed orders of the husband in the said response is dismissed.
That paragraphs 3 – 10 of the said response and paragraphs 1 – 10 of the wife’s initiating application filed 3 October 2017 are adjourned to be heard before the Docket Registrar on 12 December 2018 at 9:30 am for the purposes of:
(a) Determining issues of discovery sought against the husband by the wife;
(b) Determining, if at all, whether the husband intends to pursue the…

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 Xu and Phak

Details

AGLC: Xu and Phak [2018] FamCA 898
Case: [2018] FamCA 898
Decision Date: 7 November 2018

CaseChat Overview and Summary

In the Family Court of Australia, Justice Cronin considered a dispute between a husband and wife concerning property settlement and compliance with prior court orders. The husband had filed a response seeking certain orders, while the wife had initiated an application for property settlement.

The court was required to determine whether to grant the specific orders sought by the husband in his response, and to manage the progression of the wife's substantive application under section 79 of the *Family Law Act 1975* (Cth). Additionally, the court needed to address issues relating to discovery, the husband's potential pursuit of the wife's alleged non-compliance with previous orders, and the readiness of the wife's application to proceed.

Justice Cronin dismissed the first two paragraphs of the husband's requested orders. The remaining paragraphs of the husband's response and the entirety of the wife's initiating application were adjourned for determination by the Docket Registrar. This adjournment was specifically for the purposes of resolving discovery issues, clarifying the husband's intention regarding the wife's alleged non-compliance with orders made by Registrar George, and assessing the readiness of the wife's section 79 application. The court also made provision for general liberty to apply and outlined a specific procedure for any party seeking costs.

Orders

Orders of the court

That paragraph 1 the orders sought by the husband in the response filed 5 July 2018 is dismissed.

That paragraph 2 of the proposed orders of the husband in the said response is dismissed.

That paragraphs 3 – 10 of the said response and paragraphs 1 – 10 of the wife’s initiating application filed 3 October 2017 are adjourned to be heard before the Docket Registrar on 12 December 2018 at 9:30 am for the purposes of:

(a) Determining issues of discovery sought against the husband by the wife;

(b) Determining, if at all, whether the husband intends to pursue the non-compliance by the wife with the orders of Registrar George made on 21 September 2018;

(c) Whether the wife’s substantive application under s 79 of the Family Law Act 1975 (Cth) is otherwise ready to proceed.

That there be general liberty to apply.

That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 16 November 2018 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 23 November 2018 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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