Xuen and Chao - [2016] FamCA 100

FAMILY COURT OF AUSTRALIA

XUEN & CHAO

[2016] FamCA 100

FAMILY LAW – PROCESS AND PROCEDURE – Orders amended

APPLICANT:

Mr Xuen

RESPONDENT:

Ms Chao

FILE NUMBER:

BRC

3743

2010

DATE DELIVERED:

17 February 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

17 February 2016

REPRESENTATION

APPLICANT:

No appearance

RESPONDENT:

Ms S.J. Chao in person

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

Clause 2 of the Order made by Tree J on 12 June 2014 is discharged.
Clause 2 of the Order made by Hogan J on 17 November 2015 is discharged.
Clauses 3-9 (inclusive) of the Order made by Hogan J on 17 November 2015 are made by way of final Order.
Save as is otherwise provided for in this Order, the Application for Contravention filed 4 June 2014 and the Application in a Case filed 27 October 2015 are otherwise dismissed.
The Respondent Wife's Australian passport is to be returned to her forthwith.
There be no Order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuen & Chao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3743 of 2010

Mr Xuen

Applicant

And

Ms Chao

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This matter first came before me on 17 November of last year. At that time, the parties reached agreement in relation to the terms of an interim order.
The Court has received correspondence from the Applicant by way of email, it seems, dated 16 February 2016. I intend to make that piece of correspondence an Exhibit in the proceedings.[1] For the Respondent’s information, it informs me that he has received the necessary documents to transfer the property referred to in clause 4 of the Order made 17 November 2015.
[1] Exhibit 1.
It tells me that he requests that the Court discharge all of the Respondent’s indebtedness to him, arising out of Orders made by the Court at any time on or before 17 November 2015, and further advises that he would like to withdraw the Application for Contravention, filed 4 June 2014, and the Application in a Case, filed 27 October 2015. It also advises the Court that he has instructed his lawyer in China to withdraw his interest in the property outlined at Clause 5 of the Order made 17 November 2015.
It is clear the terms of the November 2015 Order provided, in broad summary, that the Respondent transfer her interest in the property outlined at Clause 4 to the Applicant (and do all things necessary to have him registered in China as the sole owner of that property) and that he do everything necessary to ensure that she is registered as the sole owner of property outlined and described in Clause 5. Clause 6 also required both parties to do matters necessary to affect 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 Xuen and Chao

Details

AGLC: Xuen and Chao [2016] FamCA 100
Case: [2016] FamCA 100
Decision Date: 17 February 2016

CaseChat Overview and Summary

In the matter of Xuen and Chao, Hogan J considered applications concerning contravention and final orders in family law proceedings. The dispute involved applications filed on 4 June 2014 and 27 October 2015, with prior orders made by Tree J on 12 June 2014 and by Hogan J on 17 November 2015.

The court was required to determine the final disposition of the applications, including whether certain prior orders should be discharged or made final, and to address the return of the Respondent Wife's Australian passport. The court also had to consider whether to make any orders as to costs.

Hogan J discharged specific clauses from the earlier orders made by both Tree J and himself, while simultaneously making other clauses from the 17 November 2015 order as final. The court dismissed the applications filed in June 2014 and October 2015, except as otherwise provided in the new order. The Respondent Wife's Australian passport was ordered to be returned to her immediately, and no order was made regarding costs.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT

Clause 2 of the Order made by Tree J on 12 June 2014 is discharged.

Clause 2 of the Order made by Hogan J on 17 November 2015 is discharged.

Clauses 3-9 (inclusive) of the Order made by Hogan J on 17 November 2015 are made by way of final Order.

Save as is otherwise provided for in this Order, the Application for Contravention filed 4 June 2014 and the Application in a Case filed 27 October 2015 are otherwise dismissed.

The Respondent Wife's Australian passport is to be returned to her forthwith.

There be no Order as to costs.

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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