Xu and Phak - [2015] FamCA 10

FAMILY COURT OF AUSTRALIA

XU & PHAK

[2015] FamCA 10

FAMILY LAW – PRACTICE AND PROCEDURE – Wife sought dismissal of the husband’s application in a case on the basis of concurrent proceedings pursuant to Part 4 of the Family Violence Protection Act 2008 (Vic).

APPLICANT:

Mr Xu

RESPONDENT:

Ms Phak

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

9662

2012

DATE DELIVERED:

13 January 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

13 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Trim

SOLICITOR FOR THE APPLICANT:

Oakfair Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld

SOLICITOR FOR THE RESPONDENT:

Orders

The application to set aside the financial agreement pursuant to s 90K of the Family Law Act1975 (Cth), be listed for hearing for three days before me commencing 10.00am Monday 24, Tuesday 25 and Wednesday 26 August 2015 at Melbourne.
IT IS DIRECTED
The applicant wife file and serve all affidavit material upon which she seeks to rely on or before Monday 1 June 2015.
The respondent husband file and serve all material upon which he seeks to rely on or before Monday 29 June 2015.
The wife file and serve any material in reply to the husband’s material on or before Monday 20 July 2015.
The wife pay the hearing fee or seek remission of such hearing fee on or before
1 June 2015.
Each of the parties file in electronic and paper form a case outline two (2) business days prior to the commencement of the hearing setting out:-
(a)the orders each of the parties are seeking;
(b)the material upon which the parties rely;
(c)a chronology; and
(d)an outline of case.
Each party have available on the first day of the hearing a bundle of all material the parties intend to seek to tender, an original and three copies, paginated and indexed.
IT IS NOTED
Any application for issue of subpoena should be listed to the docket Registrar unless counsel for the parties agree to the issue of such subpoena, and if so a consent order can be forwarded to my chambers for consideration of the making of such order.
IT IS FURTHER ORDERED
Leave be given to have the matter relisted in the event there needs to be further directions on the giving of seven (7) days notice to the court and to the other party.
The application in a case filed by the husband on 1 December 2014 is dimissed.
The orders sought by the wife in her primary application and in her response to the husband’s application in a case are withdrawn and dismissed.
The husband pay the wife’s costs of the application in a case filed 1 December 2014 on a party/party basis.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel and Counsel to attend.

.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xu & Phak has been…

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 [2015] FamCA 10
Case: [2015] FamCA 10
Decision Date: 13 January 2015

CaseChat Overview and Summary

In the matter of *Xu and Phak*, Benjamin J of the Federal Circuit Court of Australia considered an application by the wife to set aside a financial agreement. The husband was the respondent in these proceedings.

The central legal issue before the court was whether the financial agreement should be set aside pursuant to section 90K of the *Family Law Act 1975* (Cth).

The court did not provide reasons for its decision in the provided text, but rather made directions for the future conduct of the proceedings. These directions included setting a hearing date for the application to set aside the financial agreement, and establishing strict timelines for the filing and service of affidavit material by both the applicant wife and the respondent husband. Further directions were given regarding the payment of hearing fees, the filing of case outlines, and the preparation of a bundle of all intended evidence.

Orders

Orders of the court

The application to set aside the financial agreement pursuant to s 90K of the Family Law Act 1975 (Cth), be listed for hearing for three days before me commencing 10.00am Monday 24, Tuesday 25 and Wednesday 26 August 2015 at Melbourne.

IT IS DIRECTED

The applicant wife file and serve all affidavit material upon which she seeks to rely on or before Monday 1 June 2015.

The respondent husband file and serve all material upon which he seeks to rely on or before Monday 29 June 2015.

The wife file and serve any material in reply to the husband’s material on or before Monday 20 July 2015.

The wife pay the hearing fee or seek remission of such hearing fee on or before

1 June 2015.

Each of the parties file in electronic and paper form a case outline two (2) business days prior to the commencement of the hearing setting out:-

(a) the orders each of the parties are seeking;

(b) the material upon which the parties rely;

(d) an outline of case.

Each party have available on the first day of the hearing a bundle of all material the parties intend to seek to tender, an original and three copies, paginated and indexed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.